Chuqui v Church of St. Margaret Mary

[*1] Chuqui v Church of St. Margaret Mary 2005 NY Slip Op 52382(U) [21 Misc 3d 1125(A)] [21 Misc 3d 1125(A)] Decided on December 13, 2005 Supreme Court, Bronx County Stinson, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 13, 2005
Supreme Court, Bronx County

Luis Chuqui, Plaintiff,

against

Church of Saint Margaret Mary, Defendant. CHURCH OF SAINT MARGARET MARY, Third-Party Plaintiff, PROMO PRO LTD., Third-Party Defendant.



8606/1997



For defendant:Eustace & Marquez by Kenneth L. Gresham, Esq.

For plaintiff:The Pagan Law Firm, P.C., by M. David Fonseca, Esq.

Betty Owen Stinson, J.

This motion by defendant/third-party plaintiff Church of Saint Margaret Mary ("Church") for dismissal of the action and all cross-claims against it and for summary judgment in the third-party action against third-party defendant Promo Pro Ltd. ("Promo") is granted to the extent the action and third-party action are dismissed.

Plaintiff was a laborer employed by Promo in a renovation project at the Church's property when his finger was caught between a heating/cooling unit and the platform on which it was resting as he and a number of other workers attempted to properly align it on the platform. The unit had been lifted to the roof of the Church building by a crane the previous day, but its position needed adjustment and the workers were supposed to "straighten" it (Deposition of Luis Chuqui, December 15, 1999 at14). He and more than five other workers "only moved it a little bit to locate it on the right spot" (Id. at16). Plaintiff testified through a translator that he was standing on the flat roof and there was no debris on the ground at his feet (Id. at15, 48). He had been given "wool" gloves by the construction supervisor, "Emerson" (Id. at 20). "[The unit] was flat or flushed [sic] on the table and the only thing we are supposed to do was just align it" (Id. at 39). Plaintiff put both hands beneath the unit (Id. at18). He testified that, "I was just lifting it up a little bit, just a little bit when that occurred" (Id. at16). He continued: [*2]

I tried to pull. When I tried to pull, the glove was stuck under the

heating unit. When I pulled, I pulled and everything pulled off my

finger, my flesh, my nail and the glove and I left it underneath the

heating unit with the glove. (Id. at 20).

Later in his testimony, plaintiff was asked the following:

Q. What did your hand get stuck on when you had your accident?

A. I do not know. That is one question I do not know. Maybe

because the unit was constructed of metal, maybe they had welded

or something inside, welding something inside. I do not know if

there was a piece or something over there that cut my hands and I

do not know.

. . . .

Q. Did you feel your hand being stuck before you pulled the glove

away?

A. Yes, that's why I pulled and that's why everything got stuck in

there and the glove left in there.

. . . .

Q. When you first felt your glove get stuck, did you feel pain and

felt that you were bleeding or was it only after you pulled your

hand away that you felt the flesh pull off and that you had hurt

yourself?

A. I felt it. I felt it puncture.

(Id. at 39-40).

According to plaintiff's bill of particulars, he suffered a fracture on the left hand middle finger, loss of the nail and tip amputation of that finger requiring a skin graft. Plaintiff maintains he is totally disabled from employment now because he cannot bend that finger and another finger and moving it hurts "a lot" (Id. at 46). Plaintiff did not receive physical therapy for his finger because he left for his native Ecuador soon after surgery and returned when notified of the deposition date.

The vice-president of Promo at the time, George Miltiadous, testified that the on-site supervisor, Emerson Fidal, gave all the workers leather palm work gloves which he obtained at a lumbar yard (Deposition of George Miltiadous, February 15, 2000 at 20, 55). The contract between the Church and Promo provided that "the Contractor shall be responsible for and shall supervise and direct all work" (Owner-Contractor Agreement, paragraph 9 [a]).

Plaintiff sued the Church alleging, among other things, that the Church did not provide him with a safe place to work, permitted him to work in a dangerous manner, failed to provide him with necessary safety devices, including the proper gloves, and violated the Industrial Safety Code by allowing sharp projections on the work site which caused plaintiff's injury. Plaintiff [*3]filed a note of issue on August 23, 2001, but the action was subsequently stayed for an undetermined amount of time due to the financial rehabilitation of an insurer. According to plaintiff's attorney, the stay was lifted sometime in 2004, but he did not say when. This motion by defendant Church for dismissal of the action for failure to state a cause of action and for contractual indemnification against plaintiff's employer was made on May 24, 2005.

An action may be dismissed on motion of any party upon a showing that the pleading fails to state a cause of action (Civil Practice Law and Rules ["CPLR"] § 3211 [a][7]). Such motion may be made at any time subsequent to the responsive pleading (CPLR § 3211[e]). On a motion to dismiss a complaint, the court must take all allegations in the complaint as true and resolve all inferences which reasonably flow therefrom in favor of the pleader (Cron v. Hargro Fabrics, Inc., 91 NY2d 362 [1998]). The purpose of the court's inquiry is "to determine simply whether the facts alleged fit within any cognizable legal theory" (Morone v. Morone, 50 NY2d 481 [1980]). If evidentiary material submitted on a motion to dismiss, however, shows that a fact alleged by plaintiff as true is not a fact at all, the cause of action may be dismissed (Williams v. New York City Housing Authority, 238 AD2d 413 [2nd Dep't 1997]). A court may treat a motion to dismiss as a motion for summary judgment after adequate notice to the parties (CPLR § 3211[c]).

Labor Law § 200 codifies common law and imposes a statutory non-delegable duty on general contractors and owners of property where work is performed to maintain a safe work place for all persons employed on the premises and all others lawfully frequenting the premises (Gasperino v. Larsen Ford, Inc., 426 F2d 1151 [2d Cir. 1970], certiorari denied 400 US 941). For liability to apply, an owner or general contractor must have (1) voluntarily assumed and exercised supervision and control over the methods and tools of the worker, and (2) had notice of the defective or unsafe condition (Comes v. N.Y.S. Electric, 82 NY2d 876 [1993]).

Labor Law § 241(6) requires owners, contractors and their agents involved in construction, demolition or excavation to see that the work is performed in compliance with specific safety rules and regulations so as to keep safe all persons employed there or lawfully frequenting the premises. This is a non-delegable duty regardless of whether owners or contractors exercise direct supervision or control over the work performed. A plaintiff who claims under this statute, however, must plead a specific section of the Industrial Code that defendant is alleged to have violated (Comes, 82 NY2d 876).

Labor Law 240(1) imposes liability on owners and general contractors for failure to provide proper equipment for gravity-related hazards to covered persons. The statute provides, in relevant part that, "all contractors and owners . . . in the erection . . . of a building . . . shall furnish . . . for the performance of such labor, scaffolding, hoists, stays, ladders, . . . and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed." For liability to attach in a § 240(1) case, violation of the statute is not enough, a plaintiff must also show that the violation was a contributing cause of his gravity-related injury (Blake v. Neighborhood Housing Services of New York, 1 NY3d 280 [2003]).

Section 240(1) applies both to "falling worker" and "falling object" cases where the falling of an object is related to "a significant risk inherent in . . . the relative elevation . . . at which materials or loads must be positioned or secured" (Narducci v. Manhasset Bay Assocs., 96 NY2d 259 [2001]). For the statute to apply, a plaintiff must establish more than simply that an [*4]object fell causing injury to a worker (id.). "A plaintiff must show that the object fell, while being hoisted or secured, because of the inadequacy of a safety device of the kind enumerated in the statute" (id.). The fact that an injured plaintiff may have been working at an elevation when the object fell is of no moment in a "falling object" case (id.).

In support of the motion, defendant pointed out that, as to possible liability under Labor Law § 200, evidentiary material established that defendant had no notice of any defect or defective condition and that, in any event, plaintiff never identified any such condition; that both the contract and testimony demonstrate the Church did not exercise supervisory control over the methods or tools of the plaintiff; that as to § 240, the plaintiff did not fall, nor did any object fall on the plaintiff, and as to § 241(6), plaintiff failed to plead a violation of any specific section of the Industrial Code.

In opposition to the motion, plaintiff argued that this motion is really a summary judgment motion and, as such, untimely. He argued that the heating unit fell on plaintiff's finger because of the lack of a crane, hoist or pulley, that plaintiff's finger was injured because the unit fell and plaintiff lacked proper work gloves, or, if the heating unit did not fall, there was a sharp projection under the unit that cut plaintiff's finger. He urged the court to allow him to supplement his bill of particulars to plead a violation of § 23-1.7(e)(2). That section reads as follows:

Working Areas. The parts of floors, platforms and similar areas

where persons work or pass shall be kept free from accumulations

of dirt and debris and from scattered tools and materals [sic] and

from sharp projections insofar as may be consistent with the work

being performed (23 NYCRR § 23-1.7[e][2]).

Given the evidentiary material offered by the defendant establishing how the accident occurred, and that certain facts plead in the complaint were not true or did not occur at all, it is clear plaintiff has not stated a cause of action under either Labor Law § 200, 241(6) or 240(1).

As for § 200, plaintiff did not identify any defective condition at the work site of which the owner could have been aware and charged with correcting. Plaintiff's only mention of a possibly sharp object or projection was to say that he simply did not know if there was any (see Deposition of Luis Chuqui, December 15, 1999 at 39-40). His isolated use of the word "puncture" was not developed further in his testimony and was, in fact, contradicted by his other testimony. (The use of that particular word may have been due to the fact he was testifying through an interpreter.) Finally, even assuming there was a sharp projection on the bottom of the heating/cooling unit, the unit had been delivered only the day before, was not a part of the work site over which the Church had prior control, and the Church could not have had advance notice of the condition when plaintiff himself cannot say it existed.

If plaintiff meant to include the use of improper gloves as a defective condition, the only testimony by plaintiff is that he believed the gloves given to him by Emerson were made of wool. The only other testimony in this regard is that of Promo's former vice president, who stated that all the workers were given gloves with leather palms by Emerson and that Emerson obtained them at a lumbar yard and kept extras on hand. But whether plaintiff had work gloves or common wool gloves is irrelevant; it is difficult to imagine the sort of work gloves that could have protected the tip of plaintiff's finger from being caught and crushed under the weight of a [*5]heating unit requiring more than five men to move even slightly. In any event, the second condition for liability under § 200, that the owner or contractor direct the methods and tools of the worker was never met (see Comes, 82 NY2d 876). The contract between the Church and Promo provided that Promo would supervise and direct the work being done and uncontradicted testimony confirmed that Promo did, in fact, supervise and direct the contracted work (see Deposition of Peter McNamara, February 10, 2000 at 57 [neither McNamara, who was an employee of Central Services for the Archdiocese of New York, nor the pastor of the Church directed workers]).

Plaintiff did not plead a section of the Industrial Code as he was required to do in order to impose liability under § 241(6) (see Comes, 82 NY2d 876). Even if plaintiff were given leave to supplement his bill of particulars to specify that section of the Industrial Code allegedly violated by the defendant, the only possibly relevant portion of § 23-1.7(e)(2) speaks of "sharp projections" about which plaintiff admittedly knows nothing. Plaintiff has alleged no other possible Code violation.

As for § 240, plaintiff made clear in his testimony that he did not fall, nor did the heating unit fall in the process of being hoisted or secured. Rather it was, in his words, merely "straightened" or "aligned". Plaintiff only lifted it "just a little bit" catching his finger underneath. Section 240(1), implicating a significant gravity-related risk, is clearly inapplicable to this situation (see Narducci, 96 NY2d 259). The fact that plaintiff was on the roof or that the heating unit was on a platform at the time are irrelevant (see id.). Plaintiff did not fall from the roof and the unit did not fall from the platform. The doctrine of res ipsa loguitor, that the very incident is indicative of negligence, is similarly inapplicable.

The action and third-party action are, therefore, dismissed. That branch of the motion for summary judgment against third-party defendant Promo for contractual indemnification is denied as moot in light of this disposition.

Movant is directed to serve a copy of this order on the Clerk of Court who shall enter judgment dismissing the action in its entirety.

This constitutes the decision and order of the court.

Dated: December 13, 2005

Bronx, New York

_______________________________

BETTY OWEN STINSON, J.S.C..