Gallina v City of New York

[*1] Gallina v City of New York 2005 NY Slip Op 51814(U) Decided on September 8, 2005 Supreme Court, Kings County Solomon, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 8, 2005
Supreme Court, Kings County

Croce Gallina, et ano.,, Plaintiffs,

against

The City of New York, et al., Defendants.



17795/96

Martin M. Solomon, J.

Upon the foregoing papers, defendant New York City School Construction Authority (SCA) moves, pursuant to CPLR 3212, for summary judgment dismissing plaintiffs Croce Gallina (plaintiff) and Anna Gallina's (collectively, plaintiffs) complaint and all cross claims asserted against it. Defendants City of New York and the New York City Board of Education (collectively, City) cross-moves for summary judgment dismissing plaintiff's complaint against it. The City further cross-moves for summary judgment on its contractual indemnification cross claim against SCA.

On May 17, 1995, plaintiff sustained various injuries as a result of an accident that occurred during the construction of Public School 721 (the school or PS 721) in Brooklyn. In or about 1992, SCA hired non-parties Curren Doresta and TDX/Becom to serve as the respective general contractor and construction manager on the project. [*2]Subsequently, a dispute arose between SCA and Curren Doresta and TDX/Becom agreed to assume Curren Doresta's duties as the general contractor on the project. Thereafter, TDX/Becom hired plaintiff's employer, non-party Daurio Russo & Sons Construction Company (Daurio) to construct the foundation walls for the school.

On the day of the accident, plaintiff and two Daurio co-workers were assigned the task of pouring concrete into wall forms which were set up along the periphery of a 12-foot deep pit that had previously been excavated so as to allow for the creation of a basement in the school. When dried, the concrete that plaintiff was pouring would form part of the school's foundation wall. The concrete was pumped into the wall forms through a steel pipe that was attached to a cement truck located approximately 35 feet away from the pouring site. Plaintiff and his co-workers' job was to maneuver the pipe along the wall forms and ensure that the concrete was evenly distributed. While performing this work, plaintiff stood on a scaffold platform comprised of two eight-inch wide wooden planks attached to the foundation wall and a single wooden guardrail located approximately 18 inches above the planks. This platform was situated approximately two feet below street level and 10 feet above the bottom of the pit.

The accident occurred when an object become lodged in the pipe through which the concrete was pumped. This caused the pipe to "explode" or otherwise break apart, after which a section of the pipe struck plaintiff in the neck and back. According to plaintiff's 50-h hearing and deposition testimony, the force from the pipe knocked him to the scaffold platform and caused him to roll under the guardrail and off the scaffold platform whereupon he fell 10 feet to the bottom of the pit. However, according to the deposition testimony of Rosolino Coretto, a non-party witness to the accident and fellow Daurio employee, plaintiff never fell from the scaffold platform and plaintiff continued to work after being struck with the pipe until the end of the day.

By summons and complaint dated May 15, 1996, plaintiffs brought the instant action against SCA and the City alleging violations of Labor Law §§ 240 (1), 241 (6), 200, as well as common-law negligence. In addition, plaintiff's wife, Anna Gallina, asserted a derivative claim against the defendants. In its answer, the City asserted a cross claim against SCA seeking common-law indemnification. Between 1996 and 1998, depositions of the various parties were held and discovery was conducted. Thereafter, plaintiffs failed to prosecute their action for approximately six years. On August 17, 2004, SCA served a 90-day notice pursuant to CPLR 3216 demanding that plaintiffs serve and file a note of issue. On or about November 15, 2004, plaintiffs filed a note of issue. The instant motions are now before the court.

Plaintiffs' Labor Law § 240 (1) Claim

SCA and the City separately move to dismiss plaintiffs' Labor Law § 240 (1) cause [*3]of action.[FN1] In so moving, SCA argues that plaintiff's accident is not covered under the statute because plaintiff has failed to establish that his alleged fall was caused by or related to any defect or inadequacy of the safety device that he was using. In particular, SCA points out that there is no evidence that the scaffold that he was standing upon slipped, shifted, or collapsed. Instead, SCA maintains that the sole cause of the accident was the pipe that struck plaintiff. SCA also argues that the court should disregard plaintiff's testimony that he fell from the scaffold since it lacks credibility and is self-serving. In support of this argument, SCA points out that plaintiff's claim that he fell from the scaffold is contradicted by Rosolino Coretto's sworn testimony as well as the Workers' Compensation Board C-2 accident report prepared by plaintiff's foreman which fails to mention that plaintiff fell from the scaffold. SCA further contends that it was impossible for plaintiff to have rolled off the scaffold given the presence of a guardrail only 18 inches above the scaffold platform.

In opposition to this branch of SCA's motion, plaintiffs argue that Labor Law § 240 (1) is clearly applicable in this case given plaintiff's testimony that he fell from a scaffold platform while performing construction work and fell 10 feet to the ground. Furthermore, while plaintiffs acknowledge that Rosolino Coretto's testimony conflicts with plaintiff's version of the accident, they maintain that this merely presents a credibility issue which the jury (rather than the court) must resolve.

Labor Law § 240 (1) provides in pertinent part that: "All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, [or] altering . . . of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, 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."

Labor Law § 240 (1) was enacted 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" (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [1993]). In order to accomplish this goal, the statute places the responsibility for safety practices and safety devices on owners, general contractors, and their agents who "are best situated to bear that responsibility" (id. at 500; see also Zimmer v Chemung County Perf. Arts, 65 [*4]NY2d 513, 520 [1985]). "The duty imposed by Labor Law § 240 (1) is nondelegable and . . . an owner or contractor who breaches that duty may be held liable in damages regardless of whether it has actually exercised supervision or control over the work" (Ross at 500). Furthermore, the statute is to be construed as liberally as possible in order to accomplish its protective goals (Martinez v City of New York, 93 NY2d 322, 326 [1999]). However, "[n]ot every worker who falls at a construction site . . . gives rise to the extraordinary protections of Labor Law § 240 (1)" (Narducci v Manhasset Bay Assocs., 96 NY2d 259, 267 [2001]). Rather, only those accidents proximately caused by a Labor Law § 240 (1) violation will result in the imposition of liability under the statute (Blake v Neighborhood Hous. Services of New York City, 1 NY3d 280, 287 [2003]).

Initially, there is no merit to SCA's argument that the court should disregard plaintiff's 50-h hearing and deposition testimony that he fell off the scaffold platform. It is well-settled that, in deciding a summary judgment motion, "issue finding rather than issue determination is the key" (Matter of Cuttitto Family Trust, 10 AD3d 656, 657 [2004]). Indeed, "'[s]ince summary judgment is the procedural equivalent of a trial, any doubt as to the existence of a triable issue, or where that material issue of fact is "arguable,"' the motion should be denied" (id., quoting Salino v IPT Trucking, 203 AD2d 352 [1994]). Put another way, "in deciding the [summary judgment] motion, the court is required to accept the opposing party's version of the facts as true" (Jablonski v Rapalje, 14 AD3d 484, 486 [2005]). Here, plaintiff's version of the accident was that he fell off the scaffold, and, in the context of the instant summary judgment motion, the court must accept this as being true. Questions regarding the respective credibility of plaintiff and Rosolino Coretto, as well as the likelihood that plaintiff rolled underneath the guardrail, are for the jury to determine.[FN2]

Turning to the applicability of Labor Law § 240 (1) in this case, it is well-settled that when a plaintiff in a ladder-fall or scaffold-fall accident moves for summary judgment, he or she must establish that the apparatus moved, collapsed or was otherwise defective (see e.g. Mendez v Union Theological Seminary in the City of New York, 8 AD3d 32 [2004]; deSousa v Dayton T. Brown, Inc., 280 AD2d 447, 448 [2001]). However, it does not follow that a lack of evidence that the ladder or scaffold moved or collapsed is grounds for awarding a defendant summary judgment dismissing a Labor Law § 240 (1) claim. Rather, applicable law holds that when a plaintiff falls from a ladder or scaffold that is not shown to be defective, there is an issue of fact as to whether the apparatus provided proper protection and as to whether additional safety devices [*5]should have been provided (Karapati v K.J. Rocchio, Inc., 12 AD3d 413, 415 [2004]; Olberding v Dixie Contr., Inc., 302 AD2d 574 [2003]; Weber v 1111 Park Ave Realty Corp., 253 AD2d 376, 378 [1998]; Gange v Tilles Investment Co., 220 AD2d 556, 558 [1995]).

Accordingly, although there is no evidence that the scaffold from which plaintiff allegedly fell collapsed or moved, issues of fact remain as to whether the scaffold provided proper protection and whether additional safety devices should have been provided. Under the circumstances, those branches of SCA and the City's motions which seek summary judgment dismissing plaintiff's Labor Law § 240 (1) claim are denied.

Plaintiffs' Labor Law § 241 (6) Claim

In moving for summary judgment dismissing plaintiffs' Labor Law § 241 (6) cause of action, SCA and the City point out that plaintiffs have failed to allege any New York State Industrial Code (12 NYCRR 23 et seq.) in support of this claim as required under New York case law. In opposition to this branch of the defendants' motions, plaintiffs allege that SCA and the City violated 12 NYCRR 23-5.1 (j) and 23-1.15 and have submitted an expert affidavit alleging that these violations proximately caused plaintiff's accident. In reply, SCA argues that the claimed Industrial Code violations involve new factual allegations and new theories of liability and therefore, the court should not entertain these allegations since SCA has been unfairly prejudiced. In any event, SCA maintains that it did not violate these Industrial Code regulations and/or that these regulations are not applicable.

Labor Law § 241 (6) provides in pertinent part that: "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."

Labor Law § 241 (6), which was enacted to provide workers engaged in construction, demolition, and excavation work with reasonable and adequate safety protections, places a nondelegable duty upon owners and general contractors, and their agents to comply with the specific safety rules set forth in the Industrial Code (Ross, 81 NY2d at 501-502). Accordingly, in order to support a cause of action under Labor Law § 241(6), a plaintiff must demonstrate that his or her injuries were proximately caused by a violation of an Industrial Code provision that is applicable given the circumstances of the accident, and sets forth a concrete standard of conduct rather than a mere reiteration of common-law principals (id. at 502; Ares v State, 80 NY2d 959, 960 [1992]; see also Adams v Glass Fab, 212 AD2d 972, 973 [1995]). [*6]

There is no merit to SCA's claim that it has been unfairly prejudiced by plaintiffs' belated claim that 12 NYCRR 23-5.1 (j) and 23-1.15 were violated. As SCA itself acknowledges, it is permissible for a plaintiff to allege a new Industrial Code violation in papers opposing a summary judgment motion (Kelleir v Supreme Indus. Park, LLC, 293 AD2d 513 [2002]). Furthermore, SCA has failed to demonstrate how it will be prejudiced by plaintiffs' new allegations. The subject Industrial Code violations deal with safety railings on scaffolds. At both his 50-h hearing and deposition, plaintiff was questioned extensively regarding the adequacy and composition of the safety railing on the scaffold that he was using and these alleged violations do not constitute a new theory of liability.

Turning to the regulations, 12 NYCRR 23-5.1 (j) (1) requires that "[t]he open sides of all scaffold platforms . . . shall be provided with safety railings constructed and installed in compliance with this Part (rule)." 12 NYCRR 23-1.15 provides in pertinent part that, "[w]henever required by this Part (rule), a safety railing shall consist as a minimum of an assembly constructed as follows: [c] A one inch by four inch toeboard except when such safety railing is installed at grade or ground level or is not adjacent to any opening, pit or other area which may be occupied by any person." Read in conjunction, 23-5.1 (j) (1) and 23-1.15 are specific enough to support a Labor Law § 241 (6) claim (Shaheen v Hueber-Breuer Constr. Co., 4 AD3d 761, 762 [2004]; Crespo v Triad, Inc., 294 AD2d 145, 147 [2002]). Furthermore, it is apparent from plaintiff's description of the subject scaffold platform that it lacked the toeboard required under 23-1.15 . Finally, given plaintiff's testimony that he rolled off the side of the scaffold platform, there is an issue of fact as to whether the lack of a toeboard was a proximate cause of the accident. Accordingly, those portions of SCA and the City's motions which seek summary judgment dismissing plaintiffs' Labor Law § 241 (6) claim are denied inasmuch as plaintiffs have a viable claim under this statute to the extent that they rely upon alleged violations of 23-5.1 (j) (1) and 23-1.15 .

Plaintiffs' Labor Law § 200/Common-Law Negligence Claims

SCA and the City also move to dismiss plaintiffs' Labor Law § 200 and common-law negligence claims. In so moving, SCA points to plaintiff's own deposition testimony wherein he admitted that the scaffold that he was using was erected by Daurio and that he was supervised solely by Daurio personnel. Plaintiffs have failed to submit any opposition to these branches of SCA and the City's respective motions.

Labor Law § 200 is merely a codification of the common-law duty placed upon owners and contractors to provide employees with a safe place to work (Kim v Herbert Constr. Co., 275 AD2d 709, 712 [2000]). Liability for causes of action sounding in common-law negligence and for violations of Labor Law § 200 is limited to those who exercise control or supervision over the methods that plaintiff employs in his work, or who have actual or constructive notice of, or are otherwise responsible for an unsafe condition that causes an accident (Aranda v Park East Constr., 4 AD3d 315 [2004]; Akins [*7]v Baker, 247 AD2d 562, 563 [1998]).

Here, it is uncontroverted that neither SCA nor the City exercised control over the work that plaintiff was performing. Furthermore, there is no evidence that SCA or the City had notice of any defect or dangerous condition involving the flow of concrete through the pipe. Accordingly, those branches of SCA and the City's respective motions which seek summary judgment dismissing plaintiffs' Labor Law § 200 and common-law negligence claims are granted.

The City's Common-Law Indemnification Claim

The City cross-moves for summary judgment on its common-law indemnification cross claim against SCA. In support of this branch of its cross motion, the City points out that any liability that it faces in this action will be purely vicarious in nature. In addition, the City argues that SCA had the authority to control and supervise plaintiff's work. In support of this claim, the City points out that SCA provided the construction manager with a safety manual that governed procedures at the work site. In addition, the City points to the deposition testimony of Deborah Taylor, SCA's "project officer" for the PS 721 construction project. Specifically, the City notes that Ms. Taylor testified that she had the authority to terminate the general contractor on the project and that she and her staff periodically visited the construction site.

In opposition to the City's motion for common-law indemnification, and in support of its own motion for summary judgment dismissing this cross claim, SCA points to the undisputed fact that it did not exercise any control and supervision over plaintiff's work and that it was not responsible for supplying plaintiff with any equipment. In addition, SCA maintains that it had no notice of any dangerous condition associated with the pumping of the concrete. Under the circumstances, SCA argues that there is no basis for the City's common-law indemnification claim.

"To establish a claim for common-law indemnification, the one seeking indemnity must prove not only that it was not guilty of any negligence beyond the statutory liability but must also prove that the proposed indemnitor was guilty of some negligence that contributed to the causation of the accident or in the absence of any negligence that the proposed indemnitor had the authority to direct, supervise, and control the work giving rise to the injury" (Perri v Gilbert Johnson Enterprises, LTD., 14 AD3d 681, 684-685 [2005] [citations omitted]). Here, it is clear that the City was not guilty of any negligence. However, given plaintiff's testimony that SCA had no involvement with his work, it is equally clear that there was no negligence on SCA's part with respect to plaintiff's accident. Furthermore, the fact that SCA gave the construction manager a safety manual and that SCA personnel visited the work site approximately once a week in order monitor the progress of the project is insufficient to establish that it had control or supervision over the work (id. at 683; Dos Santos v STV Engineers, Inc., 8 AD3d 223, 224 [2004]). Accordingly, the City's common-law indemnification cross claim against SCA is dismissed and that branch of SCA's motion which seeks summary judgment [*8]dismissing the City's common-law indemnification cross claim against it is granted.

Summary

In summary, the court rules as follows: (1) those branches of SCA's motion and the City's cross motion which seek summary judgment dismissing plaintiffs' Labor Law §§ 240 (1) and 241 (6) causes of action are denied; (2) those branches of SCA's motion and the City's cross motion which seek summary judgment dismissing plaintiffs' Labor Law § 200 and common-law negligence causes of action are granted; (3) that branch of the City's cross motion which seeks common-law indemnification against SCA is denied; and (4) that branch of SCA's motion which seeks summary judgment dismissing the City's common-law indemnification cross claim against it is granted.

This constitutes the decision and order of the court.

E N T E R,

J. S. C. Footnotes

Footnote 1: In its cross motion for summary judgment dismissing plaintiffs' complaint against it, the City adopts SCA's arguments and does not raise any new arguments of its own.

Footnote 2: The court notes that the evidence that SCA uses to contradict plaintiff's version of the accident is itself contradictory. Specifically, Mr. Coretto testified that the accident occurred between 9:00 and 10:00 a.m. and that plaintiff continued to work after the accident until the end of the day. However, the C-2 accident report indicates that the accident occurred at 2:30 p.m. and that plaintiff was taken to the hospital by EMS workers 30 minutes later.