Delormier v 731 Ltd. Partnership

[*1] Delormier v 731 Ltd. Partnership 2005 NY Slip Op 51908(U) [10 Misc 3d 1052(A)] Decided on October 7, 2005 Supreme Court, New York County DeGrasse, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 7, 2005
Supreme Court, New York County

John Delormier and BEVERLY DELORMIER, Plaintiffs,

against

731 Limited Partnership and BOVIS LEND LEASE, LMB, INC., Defendants.



108540/03

Leland DeGrasse, J.

In this personal injury action arising from a workplace accident, defendants 731 Limited Partnership ("731 Limited") and Bovis Lend Lease, LMB, Inc. ("Bovis") move, pursuant to CPLR 3212, for summary judgment dismissing plaintiffs' claims for common-law negligence and violations of Labor Law §§ 200, 240 (1) and § 241 (6).

FACTS

Plaintiff, John Delormier ("plaintiff"), an ironworker, was injured on March 29, 2003, while working at a construction site located at 58th Street and Lexington Avenue in Manhattan. The property was owned by 731 Limited. Bovis was the general contractor on the construction project. Plaintiff was employed by non-party DCM Erectors ("DCM") who, according to the complaint, had been hired by 731 Limited and Bovis to perform ironwork in connection with the development of a commercial building at the site. The complaint further alleges, inter alia, that plaintiff sustained serious injuries due to defendants' negligence in the ownership, operation, management and control of the subject premises.

Plaintiff testified as follows. On the date of the accident, he and his co-worker, Jerome Moley, were assigned to remove splice plates (pieces of iron) from the 27th floor. The splice plates were approximately four inches thick, three feet long, and weighed 300 pounds. At the time of accident, the co-worker was standing on a scaffold approximately ten feet from ground level. Plaintiff was below his co-worker, standing on a four-by-eight-foot long bolt crib (a steel box used to transport bolts) which he used as a "homemade scaffold." As the co-worker attempted to move a plate without the aid of any safety device, the plate swung out of the diagonal brace that it was resting on and struck the co-worker in his back causing him to fall off the scaffold and land on top of plaintiff. As a result, the right side of plaintiff's body hit the bolt crib causing him serious injuries. At the time of the injury, plaintiff was wearing a hard hat, [*2]work boots, gloves, safety harnesses and protective eye gear. Following the accident, plaintiff and his wife, derivatively, commenced the instant action to recover damages for injuries sustained by plaintiff, alleging claims for common-law negligence and violations of Labor Law §§ 200, 240 (1) and § 241(6).

DISCUSSION

Summary Judgment Standard

The purpose of a summary judgment motion is "[i]ssue-finding, not issue determination" (Assaf v Ropog Cab Corp., 153 AD2d 520, 521 [1989]). Thus, summary judgment is to be granted only when there are no genuine issues of material fact (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). In determining whether summary judgment is appropriate, the "Court should draw all reasonable inferences in favor of the nonmoving party" (Assaf v Ropog Cab Corp., 153 AD2d at 521).

Plaintiffs' Labor Law §240 (1) Claim

Defendants seek dismissal of plaintiffs' Labor Law § 240 (1) claim on the ground that plaintiff's accident did not arise out of their failure to provide a safe work place as "defendants had provided proper and adequate safety measures and devices" to plaintiff. Defendants further contend that plaintiff did not sustain a gravity-related injury since he did not fall off the bolt crib that he was standing on. In opposition, plaintiffs maintain entitlement to relief pursuant to Labor Law § 240 (1) on the basis of Thompson v St. Charles Condominiums (303 AD2d 152 [2003], lv dismissed 100 NY2d 556 [2003]). In that case, a prima facie case of liability under Labor Law § 240 (1) was established where cinder blocks were positioned on a scaffold and a defect in the scaffold caused the blocks and a co-worker to fall on plaintiff. The court, in Thompson, held that owners and contractors are strictly liable under Labor Law § 240 (1) for accidents arising from the absence of, or failure to provide adequate protective devices to workers in the performance of their elevation-related work (303 AD2d at 153). In reply, defendants argue that the holding in Thompson is inapplicable to the instant matter inasmuch as plaintiff's accident did not arise from a defective device or the absence of a scaffold. Defendants further argue that there can be no claim under Labor Law §240 (1) because plaintiff's injuries were not caused by the fall of an object that was being hoisted or secured.

Labor Law § 240 (1) provides, in pertinent part: All contractors and owners and their agents who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing 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.

The statute imposes absolute liability upon owners and contractors for injuries to a worker that is proximately caused by the failure to provide safety devices necessary to protect the worker from [*3]elevation-related risks and hazards, such as "falling from a height or being struck by a falling object that was improperly hoisted or inadequately secured" (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [1993]; see Rocovich v Consol. Edison Co., 78 NY2d 509 [1991]). Liability is contingent upon the existence of a hazard contemplated in § 240 (1) and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein" Narducci v Manhasset Bay Assocs., 96 NY2d 259, 267 [2001], citing Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d at 501).

Labor Law § 240 (1) is to be liberally construed to achieve its objective (Rocovich v Consol. Edison Co., 78 NY2d at 513; Zimmer v Chemung County Performing Arts, Inc., 65 NY2d 513). Under the statute, a plaintiff need only show "'that his injuries were at least partially attributable to defendant[s'] failure to take statutorily mandated safety measures to protect him from risks arising from an elevation differential'" (see Crimi v Neves Assocs., 306 AD2d 152 [2003], quoting Nunez v Bertelsman Prop., Inc., 304 AD2d 487, 488 [2003]). There may be more than one proximate cause of a workplace accident (see Bjelicic v Lynned Realty Corp., 152 AD2d 151, 155, appeal dismissed 75 NY2d 947 [1990]). Here, plaintiff's job was to assist his co-worker in removing splice plates from the 27th floor. At the time of the accident, the co-worker was positioned on a scaffold approximately six feet above where plaintiff was standing. As the co-worker attempted to move a 300-pound splice plate without the aid of any safety device, the plate swung out of the brace that it was leaning on and struck the co-worker in his back, which caused him to fall off the scaffold, which in turn, caused him to land on top of plaintiff, knocking him down. Plaintiff's undisputed testimony establishes that on the day of the accident, there were other workers in the area using an impact wrench and a riveting gun to perform steel erection work, and such activity caused the building to vibrate. It is also undisputed that no overhead protection was provided to plaintiff in connection with the work being performed.

Affording plaintiff "the benefit of the most favorable inferences which can reasonably be drawn from [the] evidence" (Nicholas v Reason, 84 AD2d 915 [1981]), triable issues of fact exist as to whether plaintiff was injured as a result of the lack of or the inadequacy of a safety device enumerated in Labor Law § 240 (1) (cf. Narducci v Manhasset Bay Assoc., 96 NY2d at 268; Micoli v City of Lockport, 281 AD2d 881 [2001]). Here, there was a significant risk inherent in the task assigned due to the relative elevation between the level at which plaintiff was standing and the level at which his co-worker was attempting to secure a 300-pound splice plate which is sufficient to warrant the use of the type of protective devices enumerated in the statute ( see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d at 501; Rocovich v Consol. Edison Co., 78 NY2d at 514; Skow v Jones, Lang & Wooton Corp., 240 AD2d 194, lv denied 94 NY2d 758 [1999]; Sherman v Babylon Recycling Ctr., 218 AD2d 631 [1995], lv dismissed 87 NY2d 895 [1995]).

Moreover, the fact that plaintiff was not struck by a falling object that was being hoisted or secured is not fatal to his Labor Law § 240 (1) cause of action, since plaintiff alleges that his injuries were caused by the absence of adequate safety devices to protect him from the "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 at 501; see also Van Eken v Consol. Edison Co. of New York, 294 AD2d 352 [2002]; Skow v Jones, Lang & Wooton Corp., 240 AD2d at 194-195). Additionally, there is no merit to the contention that plaintiff's injuries were not elevation-related [*4]because he did not fall off the bolt crib that he was standing on. The fact that plaintiff did not fall is of no moment in a 'falling object' case because the hazards contemplated by the statute are "those related to the effects of gravity where protective devices are called for either because of a difference between the elevation level of the required work and a lower level or a difference between the elevation level where the worker is positioned and the higher level of the materials or load being hoisted or secured" (Rocovich v Consol. Edison Co., 78 NY2d at 514; see Orner v Port Auth. of New York and New Jersey, 293 AD2d 517 [2002] [absolute liability imposed where electrician working on ground level was struck on head by unsecured roofing materials that had fallen from roof]; Outar v City of New York, 286 AD2d 671 [2001], affd 5 NY3d 731 [2005] [absolute liability imposed where subway worker was struck while on subway tracks by an unsecured dolly stored atop a bench wall 5 ½ feet adjacent to the work site]). Accordingly, dismissal of plaintiffs' Labor Law § 240 (1) claim is not warranted inasmuch as the record discloses the existence of triable issues of fact respecting whether statutorily enumerated protective devices would have been necessary to afford plaintiff safety while performing his elevated work in securing the splice plates.

Plaintiffs' Labor Law §241 (6) Claim

Defendants seek dismissal of plaintiffs' Labor law § 241 (6) cause of action on the ground that plaintiffs have failed to allege any Industrial Code violations in support of their claim. In opposition, plaintiffs contend that defendants' failure to provide plaintiff and his co-worker with adequate protection was the proximate cause of plaintiff's accident. Labor Law § 241 (6) places a nondelegable duty on owners and contractors, without regard to direction and control, to keep worksites safe for those employed at such places (see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d at 503; DeSilva v Jantron Indus., 155 AD2d 510 [1989]). To state a claim under the statute a plaintiff must identify a specific Industrial Code provision mandating compliance with "concrete specifications" as opposed to "general safety standards" (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d at 505; Biszick v Ninnie Constr. Corp., 209 AD2d 661 [1994]). Allegations of a violation of Industrial Code regulations that are inapplicable to the facts of the case will not suffice (see McCole v City of New York, 221 AD2d 605 [1995]).

In their bill of particulars, plaintiffs allege numerous violations of the regulations and safety standards promulgated by the Industrial Code of the State of New York (12 NYCRR) and the Occupational Safety and Health Administration (OSHA). Industrial Code § 23-1.5 sets forth only a general safety standard and therefore does not afford a basis for relief under Labor Law § 241 (6) (see Maldonado v Townsend Ave. Enters., Ltd. Partnership, 294 AD2d 207, 208 [2002]). With respect to Industrial Code § 23-1.7, only § 23-1.7 (a) (1), which requires that "[e]very place where persons are required to work or pass that is normally exposed to falling material or objects shall be provided with suitable overhead protection" is sufficiently specific and applicable to the facts of this case, since it is alleged that plaintiff's injuries were due to the result of overhead activity. As to Industrial Code § 23-5, only § 23-5.1 (j) (2), which requires that "[a]ll scaffolds under which any person is likely to work or pass shall be provided with a wire mesh screen with openings that will reject a one-inch diameter ball" is sufficiently specific and applicable to the facts of this case, since it is alleged that plaintiff was working under a scaffold at the time of his accident. [*5]

However, Industrial Code § 23-1.8, which requires owners and general contractors to provide appropriate protective equipment while performing certain work activities, is inapplicable to the facts of this case inasmuch as plaintiff's deposition testimony establishes that at the time of the accident he was wearing a hard hat, work boots, gloves, safety harnesses and protective eye gear. Lastly, plaintiffs have failed to demonstrate that the following Industrial Codes have any application to the facts of this case: § 23-1.15, which sets the standards for the construction of safety railings; § 23-1.16, which applies when safety belts, harnesses, tail lines and lifelines are used; § 23-1.17, which applies when life nets are used; § 23-1.21, which applies when work is being performed from a ladder; § 23-2.3, which applies when hoisting ropes are used to place structural steel members; § 23-2.4, which requires that flooring be provided in tiered buildings under skeleton steel construction; § 23-6, which applies when material hoisting equipment is used; § 23-7, which applies when personnel hoists are used to transport workers to and from their work site; and § 23-8, which applies when hoisting devices such as mobile cranes, tower cranes and derricks are used.

As to the alleged violations of OSHA, said regulations do not impose a non-delegable duty on an owner or contractor, and therefore, may not be used to provide a basis for liability under Labor Law § 241 (6) (see Pellescki v City of Rochester, 198 AD2d 762 [1993], lv denied 83 NY2d 752 [1994]; McGrath v Lake Tree Vil. Assocs., 216 AD2d 877 [1995]; McSweeney v Rochester Gas & Elec. Corp., 216 AD2d 878 [1995], lv denied 86 NY2d 710 [1995]). Accordingly, plaintiff may only rely upon alleged violations of Industrial Codes § 23-1.7 (a) (1) and § 23-5.1 (j) (2).

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

Defendants seek dismissal of plaintiff's Labor Law § 200 and common-law negligence claim based on the ground that they did not supervise or control plaintiff's activity at the time of his accident. In opposition, plaintiffs argue that defendants monitored safety conditions at the construction site. In support of plaintiffs contention, plaintiffs submit the deposition testimony of William Fennell. Fennell, whose status plaintiffs fail to explain, testified that during the March 2003 construction project, Bovis' senior project manager "regularly walk[ed] the job" observing the progress of the work and the safety conditions at the construction site. Fennell also testified that the senior project managers employed by Bovis had the authority to stop the work if they felt it was necessary. As further proof that Bovis had actual or constructive notice of the safety conditions at the construction site, plaintiffs submit an incident investigation report of plaintiff's accident prepared by Bovis' employee, Kent Kyle, on March 31, 2003. Plaintiffs argue that the instant motion for summary judgment dismissing their claim under Labor Law § 200 is premature, since neither Moley or Kyle have been produced.

Labor Law § 200 codifies the common-law duty imposed on an owner or general contractor to provide construction site workers with a safe place to work (Comes v New York State Elec. & Gas Corp., 82 NY2d 876 [1993]). An implicit precondition to this duty is that the party charged with that responsibility "exercised supervision and control over the work performed at the site or had actual or constructive notice of the [dangerous] condition" [*6](Giambalvo v Chem. Bank, 260 AD2d 432, 433 [1998]; Haghighi v Bailer, 240 AD2d 368, 369 [1997]). Absent control by the owner or contractor, there is no liability for injuries arising out of the negligent acts of subcontractors or of defects in their methods or tools (see Comes v New York State Electric and Gas Corp., 82 NY2d at 877; Ross v Curtis-Palmer Hydro-Electric Co., 81 NY2d at 505-506).

Here, plaintiff testified at his deposition that no representative from either of the defendants directed or supervised his work. Plaintiff also testified that when he arrived at the construction site on the date of the accident, he discussed the work that he was going to be performing that day with the foreman of the project who was employed by plaintiff's employer, DCM. While the owner and general contractor may be held liable under Labor Law § 200 by virtue of having exercised supervision and control of the work being performed at the time of injury (Giambalvo v Chem. Bank, 260 AD2d at 433 [1998]; Haghighi v Bailer, 240 AD2d at 369 [1997]), here, defendants have showed, based upon plaintiff's testimony, that defendants did not supervise plaintiff's task (see e.g. Uht v Hazan & Sawyer Envtl. Engrs. & Scientists, 243 AD2d 290 [1997]). Plaintiffs have failed to counter this showing with any evidence of defendants' supervision. Merely showing that Bovis' employees monitored the progress of the work and the safety conditions at the construction site is insufficient to establish liability under Labor Law § 200. It is well settled that observing work and reporting safety violations does not, without more, constitute authority to supervise, control or direct an activity (Decoles v Merritt Meridan Corp., 245 AD2d 864 [1997]). Under the circumstances, there is no basis for liability against defendants pursuant to Labor Law § 200 or for common-law negligence (see Giambalvo v Chemical Bank, 260 AD2d at 433; Comes v New York State Elec. & Gas Corp., 82 NY2d at 877-878; Schuler v Kings Plaza Shopping Ctr. and Marina, Inc., 294 AD2d 556 [2002]).

CONCLUSION

Defendants' motion for summary judgment dismissing plaintiffs' claims pursuant to Labor Law § 200 and common-law negligence is granted. The branch of the motion by which defendants seek summary judgment dismissing plaintiffs' claims pursuant to Labor Law 241 (6) is granted to the extent that all of plaintiffs' Labor Law 241 (6) claims are dismissed except those based on alleged violations of Industrial Codes § 23-1.7 (a) (1) and § 23-5.1 (j) (2). The branch of the motion by which defendants seek summary judgment dismissing plaintiffs' claims pursuant to Labor Law 240 (1) is denied. A note of issue shall be filed on or before November 18, 2005.

This constitutes the decision and order of the court.

DATED: October 7, 2005

J.S.C.