Faldetta v State of New York

[*1] Faldetta v State of New York 2005 NY Slip Op 50657(U) Decided on March 10, 2005 Court Of Claims Fitzpatrick, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 10, 2005
Court of Claims

Giorgio Faldetta, a/k/a George Faldetta, Claimant,

against

State of New York, Defendant.



106919



For Claimant:

Michael D. Flynn, Esquire

For Defendant:

Eliot Spitzer

Attorney General of the State of New York

By: Pinsky & Skandalis

Lauren M. Miller, Esquire, of Counsel

Diane L. Fitzpatrick, J.

Claimant brings a motion for summary judgment on his Labor Law § 240(1) cause of

action and Defendant cross-moves for summary judgment dismissing Claimant's Labor Law § 240(1) and § 241(6) causes of action. Oral argument was held on December 8, 2004.

The claim was timely filed on November 13, 2002, and asserted causes of action based upon Labor Law § 240(1), Labor Law § 200, Labor Law § 241, Labor Law § 870-a, and Common Law Negligence. Issue was joined and discovery completed. A note of issue was filed and a trial has been scheduled for April 27 - 29, 2005. The Court gave the parties permission to bring dispositive motions beyond the 120 day time frame set forth in the CPLR.

In Claimant's motion papers, he withdraws his Labor Law § 200 and Common Law Negligence causes of action. These causes of action are hereby DISMISSED.

Based upon the documents in admissible form, the Court finds that these are the undisputed facts:

On September 4, 2002, Claimant was a trainee-laborer employed by United Rentals (hereinafter referred to as "United"). United had contracted with the New York State Fair (hereinafter referred to as "Fair") as of August 8, 2001, to provide removable tents for the 2001 [*2]and 2002 annual New York State Fairs.[FN1] The work United agreed to perform included delivery, installation, required maintenance, take down, and removal of the tents. On the day Claimant was injured, United employees were in the process of taking down and removing the tents at the New York State Fairgrounds.

The tent that was being disassembled was located at Diamond Productions The Mall (hereinafter referred to as "the mall") and was placed near the Pepsi International Pavilion (hereinafter referred to as the "Pepsi Building"). The components of the tent included six arches and their supports, center purlins, eave or edge purlins, cross braces, and a vinyl cover. For clarity, the arch closest to the Pepsi Building has been referred to as the first arch. The first and the sixth arch, at the other end of the tent, were also referred to as gable, edge, or end arches.

Each arch had a "leg" on each end which stood at least 10 feet high that connected to a base plate by a hinge which allowed the legs and arch to pivot 180º. The base plate which held the hinge mechanism was secured to the ground with metal stakes. The arch consisted of two connecting diagonal pieces, known as a beam or rafter, and a crown piece at the top. The diagonal pieces connected to the top of the legs. The crowns were 20 to 28 feet high. The first and sixth end arches also had three gable uprights, which were horizontal beams. One gable upright attached at the crown, and the other two attached at points along the beam/rafters, these gable uprights were also attached to the ground by base plates. These two end arches also each had two cables that ran from the crown to the ground. Each arch was attached to the next arch by purlins. On each side of the tent frame, an edge or eave purlin attached each arch to the next successive one at the top of its "legs" followed by the three purlins attached at regular distances on the diagonal beam/rafter pieces. Finally, a center purlin attached the crown of one arch to the crown of the next arch. Between the first and second and fifth and sixth arch "legs" there was also an X-brace which connected at the top of the "legs" and at the base plate of the first and second and fifth and sixth arch on each side of the tent. Completed and in tact, the tent was 82 feet long and 66 feet wide. The legs of each arch were approximately 16 feet 5 inches apart.

United had two crew chiefs at the fairgrounds job site the day of Claimant's accident, Enrique "Pauly" Sanchez, and Christopher Kallsen. Sanchez according to Claimant, supervised the Spanish speaking employees and Kallsen, the English speaking employees. Kallsen was Claimant's supervisor. The crew had dismantled another tent that day, before beginning to disassemble the mall tent. The plan for dismantling the mall tent required that the vinyl covering be removed. Next, the first arch was to be disconnected and lowered slowly to the ground. Sanchez testified in his deposition and his supporting affidavit that he intended to lower the first arch toward the Pepsi Building by taking one of the steel cables connected to the crown of the first arch, and wrapping the free end around a bar at the base of the fork/cage on the end of the forklift boom. The forklift would then be used to slowly lower the first arch to the ground. The cable was to prevent the first arch from falling toward the Pepsi Building. Kallsen and Sanchez had a brief discussion about using the cable to bring down the arch. There were other methods to dismantle the elevated beams, but using the cable to lower the beams was acceptable, although Kallsen felt this method was used less frequently. Sanchez connected the cable to the forklift and raised the boom to the height of the crown resulting in slack in the cable, in the shape of a "u." [*3]The forklift was located between the second and third arches of the tent. Kallsen had two laborers, Jeff and another, "stake off" the first arch by taking the free end of the second steel cable also connected to the crown of the first arch, and tie it to a stake pounded into the ground near the Pepsi Building. The stake was placed to prevent the arch from falling toward the second arch. Kallsen inspected the stake and cable prior to Claimant's accident.

Kallsen had laborers dismantling the structural supports of the tent such as the purlins and braces. This was required before the first arch could be slowly lowered to the ground. Sanchez recalled that Kallsen removed the center purlin which ran between the first and second crowns. Another laborer, Jeff, was also on a ladder removing the eave or edge purlin. Sanchez asked Kallsen to replace the center purlin, although Kallsen could not recall any discussion. Sanchez also asked the other laborer, Jeff, not to take down the edge or eave purlin. In his deposition, Sanchez said he did not want the purlins removed yet because they were not ready. Without the purlins, the arch was unsupported and able to rotate on its hinged legs.

Kallsen testified that after the cables were placed, Kallsen and Claimant were trying to disconnect a jammed X brace which was still attached to the base plate on the right-hand side of the arch, from the vantage point of looking at the tent with one's back toward the Pepsi Building. Claimant had the loose end of the X brace piece while Kallsen was banging and wiggling the jammed end. At this time, Kallsen felt the arch sway and then felt it hit his leg and spin him around as it fell toward the second arch. It was not stopped by either cable or the forklift itself. The beam/rafter of the arch struck Claimant. Claimant suffered serious and permanent injury.

Sanchez did not remember Kallsen as one of the workers assisting Claimant with the X brace at the time of the accident. Sanchez did not see the arch fall as he was walking back to the forklift at that time; the arch fell over his head. Kallsen testified that after the arch fell, he saw the cable that had been staked to the ground was no longer attached to the stake, and he thought that the boom of the forklift was down and retracted a bit but the cable attached to it was still in tact.

Claimant's Motion and Defendant's Cross-Motion for Summary Judgment

Labor Law § 240(1)

Claimant argues that based upon Labor Law § 240 (1) the State, as owner of the property and contractor for the removal of the subject tent, which he argues is a structure under the statute, is liable for the inadequate safety devices employed to prevent the first arch of this tent frame from falling onto him. Claimant argues that the beam that fell and injured him was elevated between 10 and 23 feet above the ground, and meets the criteria for a "falling object" under the statute.

Defendant, in opposition, argues that Labor Law § 240(1) is inapplicable to this claim as a matter of law because Claimant's injury was not caused by a "falling object." Defendant's interpretation of the facts subscribe that Claimant was injured while working at ground-level by an arch which was attached to the ground by base plates, and thus did not entail an elevation-type hazard. Defendant argues that the first arch did not "fall" but rather pivoted on its hinged base plates.

Labor Law § 240(1) provides in relevant part:

All contractors and owners and their agents...in the ... demolition, [*4]

repairing, altering...of a building or structure shall furnish or erect,

or cause to be furnished or erected for the performance of such

labor, ...hoists, stays...slings, hangers, blocks, pulleys, braces, irons,

ropes, and other devices which shall be so constructed, placed and

operated as to give proper protection to a person so employed.

This section of the Labor Law was enacted to provide workers who are engaged in one of the enumerated activities in the statute with proper protection from the unique elevation-related hazards that they face. Where a violation of this statute is established and shown to have proximately caused injury, owners, contractors, and their agents are absolutely liable (Striegel v Hillcrest Heights Development Corp., 100 NY2d 974, 977; Gordon v Eastern Ry. Supply, 82 NY2d 555, 559; Rocovich v Consolidated Edison Co., 78 NY2d 509, 512; Amato v State of New York, 241 AD2d 400, 400-401, lv denied 91 NY2d 805).

In this case the State, as owner of the fairgrounds, is not shielded from liability by its contract with United for removal of the tents for the 2001and 2002 New York State Fairs. The statutory duty imposed by this section of the Labor Law is nondelegable, even though the work was performed by independent contractors over which an owner has no supervision or control (Gordon, 82 NY2d at 559). If a violation of the statute is established the State may be held liable.

The statute applies to work performed on a building or a structure. The tent Claimant was engaged in disassembling was a structure for purposes of the Labor Law. The Court of Appeals has defined a structure for purposes of § 240(1) as "any production or piece of work artificially build up or composed of parts joined together in some definite manner," (Joblon v Solow, 91 NY2d 457, 464, quoting Lewis-Moors v Contel of NY, 78 NY2d 942, 943 [telephone pole is a structure]; Smith v Shell Oil Co., 85 NY2d 1000 [sign is a structure]; Moore v Shulman, 259 AD2d 975, lv dismissed 93 NY2d 998 [van is a structure]). This tent falls squarely within that definition.

One of the itemized activities in the statute is altering. Altering has been held to mean "making a significant physical change to the configuration or composition of the building or structure" (Joblon, 91 NY2d at 465). The process of dismantling this tent into pieces certainly made a significant physical change to the structure. Claimant's work that day involved altering the tent for purposes of the Labor Law.

Having met the preceding criteria for application of the statute, the primary issue arises: Was Claimant injured as the result of an elevation-related hazard for which a safety device was either missing or inadequate? Labor law § 240(1) applies only in those circumstances where the accident was caused by either a "falling worker" or a "falling object" (Narducci v Manhasset Bay Assoc., 96 NY2d 259, 267). The extraordinary protections of the statute apply only to a "narrow class of dangers" (Melber v 6333 Main Street, Inc., 91 NY2d 759, 762). A violation of the statute cannot "establish liability if the statute is intended to protect against a particular hazard, and a hazard of a different kind is the occasion of the injury" (Rocovich,78 NY2d at 513 quoting DeHaen v Rockwood Sprinkler Co., 258 NY 350, 353). Although the statute does not specify the hazards for which protection is required, the Court of Appeals in Rocovich noted that the various tasks in which the types of devices prescribed by the statute are used share a common [*5]characteristic, in that all entail a significant risk inherent in the "relative elevation at which the task must be performed or at which materials or loads must be positioned or secured," (Rocovich, 78 NY2d at 514). The devices listed in the statute are intended to protect against gravity related dangers arising from work at an elevated level or a difference between the position of the worker and the higher level of the material or loads being hoisted or secured (id.) The Court of Appeals stated in Ross v Curtis-Palmer Hydro-Electric Co., 81 NY2d 494 at 501, that

...Labor Law § 240(1) was designed to prevent those types

of accidents in which the scaffold, hoist, stay, ladder,

or other protective device proved inadequate to shield the

injured worker from harm directly flowing from the application

of the force of gravity to an object or person.

It is not enough, however, to show that an injury was caused by an object falling, proof must establish that "the object fell, while being hoisted or secured, because of the absence or inadequacy of a safety device of the kind enumerated in the statute" (Narducci, 96 NY2d at 268 [emphasis added]).

Here, this arch, ranging in height from 10 to 23 feet, could not stand on its own after the cables and purlins were disconnected. Left unsecured, this arch would fall to the ground due to the forces of gravity. Defendant acknowledges that cables are the functional equivalent of ropes, a safety device listed in the statute (Gailor affidavit ¶37). The first arch of this tent frame was being secured from falling toward the other arch by one cable attached to a stake in the ground, and from falling too quickly toward the Pepsi Building by another cable attached to the beam at the base of the forks of the forklift, which was lifted to the height of the crown of this arch. The forklift and cable were not being used to hoist, but rather to secure the arch against falling to the ground. Although a forklift is not one of the enumerated safety devices in the statute, the use of a forklift at the time of the accident may bring it within the purview of Labor Law § 240(1) (see Moore v Shulman, 259 AD2d at 975; Bilderback v Agway Petroleum Corp., 185 AD2d 372, lv dismissed 80 NY2d 971; but cf. Tambasco v Norton Co., 207 AD2d 618, lv dismissed 85 NY2d 857). Here, the forklift and cable were being used specifically to prevent the type of accident that occurred, to secure the arch from falling to the ground. Mr. Kallsen testified in his deposition that the length of the cable, one end attached to the crown of the first arch and the other end attached to the forklift, should have prevented the arch from falling to the ground, but it did not. Mr. Kallsen also testified in his deposition that the cable, which was staked to the ground to prevent the arch from falling toward the remaining arches, was no longer attached to the stake after the accident. This first arch fell due to the inadequacy of the safety devices employed, in violation of the statute.

This case is distinguishable from the cases defendant relies upon. In Misseritti v Mark IV Constr. Co., 86 NY2d 487, the Court of Appeals held that Labor Law § 240(1) did not apply where a concrete block fire wall collapsed and fell upon a worker working at the same level. The Court held that the collapse of a completed fire wall was the type of peril usually encountered on a construction job site and not the type of elevation related accident the statute was intended to prevent (id. at 491). The Court drew the distinction that although this wall fell before the wooden planks intended to brace the wall were in place, the braces referred to in the [*6]statute mean "those used to support elevated work sites not braces designed to shore up or lend support to a completed structure"(id.). None of the safety devices described in the statute were used or intended to be used to secure this wall, because it did not pose an elevation-related risk. Similarly, the forms for the reinforced concrete columns in Corsaro v Mt. Calvary Cemetery, Inc., 214 AD2d 950, did not fall "while being hoisted or secured, because of the absence or inadequacy of a safety device of the kind enumerated in the statute"(see Narducci at 268 [underlined emphasis added]).

Here, the cables and forklift which failed were being used to secure the elevated beams of this first arch from falling to the ground, the level at which Claimant was working, the exact usage envisioned by the statute. It is this distinction that sets the factual scenario of this case apart from the other cases, like Misseritti, cited by Defendant (see Diamond v Reilly Homes Constr. Corp., 245 AD2d 763)

Under these circumstances, and given the Court of Appeals direction that the statute is to be "construed as liberally as may be for the accomplishment of the purposes for which it was thus framed," (Quigley v Thatcher, 207 NY 66, 68; Narducci, at 267), the Court finds that Claimant was injured as a direct result of the failure of the safety devices employed by United workers to prevent the first arch of this tent frame from falling.

Claimant's motion for summary judgment on his Labor Law § 240(1) cause of action is GRANTED.

Defendant's Motion for Summary Judgment

Labor Law § 241(6)

Defendant seeks summary judgment on Claimant's Labor Law § 241(6) cause of action on the ground that Claimant was not engaged in the work of demolition as that term is intended in the statute.

Labor Law § 241(6) provides in relevant part:

All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to persons employed therein or lawfully frequenting such places..."

Demolition work is defined by the Industrial Code § 23-1.4(b)(16) as,

"The work incidental to or associated with the total or partial dismantling or razing of a building or other structure including the removing or dismantling of machinery or other equipment."

(12 NYCRR § 23-1.4[b][16] ).

Defendant argues that demolition entails destruction of the identity of a structure to the extent that the structure will never be returned to its original state. [*7]

Nowhere in any of the case law reviewed by this Court, is there the requirement that the structure, once dismantled, must never be returned to its original state in order to meet the definition of demolition for purposes of the statute. The cases Defendant relies upon do not stand for that proposition. In, Panek v County of Albany, 99 NY2d 452, the plaintiff was injured when he was removing an air handler from the ceiling of a building that was going to be demolished. Plaintiff did not work for the demolition company and work dismantling the building had not yet begun. Removal of this equipment at this time, as the court found, was not dismantling of the building and thus, did not comprise the protected activity of demolition. In Strunk v Buckley, 251 AD2d 491, the plaintiff was injured when the "dump body" (the long, wide shallow vessel of a damaged truck trailer) he had purchased from defendant, fell on him when the "dump body" slid from the frame after plaintiff and his brothers used blow torches to cut the pin bolts which had attached the "dump body" to the frame. The Court found that plaintiff was not a protected worker under the statute in that he had not been hired by an owner, contractor, or their agent to perform protected work on a building or structure. Despite plaintiff's attestations to the contrary, the court found that he had not been hired to demolish or alter the trailer, he had purchased the "dump body" and had to remove it from the frame which he did not own.

Here, Claimant was a protected worker in the process of totally dismantling this tent. All of the pieces of the tent would be taken down and apart, leaving no portion of the structure remaining. The fact that the tent would be reassembled at some other location does not change the work that was to be accomplished at this site: demolition of the tent.

Defendant's motion for summary judgment on Claimant's Labor Law § 241(6) cause of action on the ground that Claimant was not engaged in one of the protected activities is DENIED.

Syracuse, New York

March 10, 2005DIANE L. FITZPATRICK

Judge of the Court of Claims Footnotes

Footnote 1:Claimant's Exhibit 7.