Cruz v Neil Hospitality LLC

[*1] Cruz v Neil Hospitality LLC 2006 NY Slip Op 52690(U) [24 Misc 3d 1216(A)] Decided on December 27, 2006 Supreme Court, Kings County Balter, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 27, 2006
Supreme Court, Kings County

Alejandro Cruz, Plaintiff,

against

Neil Hospitality LLC, et ano., Defendants.



Top 8 Construction Corp., Third Party Plaintiff,

against

Pro Weld Fabricators, Inc., Third Party Defendant.



26506



Plaintiff:

Robert F. Moraco, Esq.

Livoti, Bernstein & Moraco, Esq.

122 East 42nd Street

New York, NY 10168

Defendant-Respondent & Third-Party Plaintiff-Respondent:

Elizabeth R. Gorman, Esq.

Fabiani, Cohen & Hall, LLP

570 Lexington Avenue

New York, NY 10022

Third-Party Defendant: David Wysnewski, Esq.

Barry, McTiernan & Moore, Esqs.

2 Rector Street

New York, NY 10006

Bruce M. Balter, J.

Upon the foregoing papers: (1) plaintiff Alejandro Cruz (Cruz) moves, pursuant to CPLR 3212, for an order granting summary judgment on the question of liability pursuant to Labor Law § 240 (1); and (2) defendants/ third party plaintiff Neil Hospitality LLC (Neil Hospitality) and Top 8 Construction Corp. (Top 8) move (a) for an order granting summary judgment dismissing plaintiff's common law negligence and Labor Law § 200, 240 (1) and 241(6) claims, and (b) pursuant to CPLR 3215, for an order granting a default judgment in favor of Top 8, as a result of third party defendant Pro Weld Fabricator's (Pro Weld's) failure to timely appear in this action.

BACKGROUND

The above-captioned lawsuit arises out of a workplace accident that occurred on November 14, 2003 at a construction site located in Maspeth, Queens, New York. Neil Hospitality was the owner of the premises. It hired Top 8 to act as general contractor for the erection of new construction to be used as a Comfort Inn hotel. Top 8, in turn, engaged Pro Weld as a subcontractor to perform certain work on the site.

On the date of the accident, plaintiff was employed by Pro Weld as an ironworker. His duties included the unloading of steel that was delivered to the job site. Generally, steel beams and steel columns were unloaded and moved by means of a crane and slings.

On the date of the accident, plaintiff was directed by his supervisor to located a certain steel beam from where, along with others, it had been placed, and move it. Plaintiff obtained the slings needed for the task and proceeded to the area where the beams were located. The steel beam which he was required to locate lay on a mound of dirt which was approximately 15 to 20 feet high. The subject beam was positioned on an incline, and it rested between two other beams.

According to plaintiff's deposition testimony, the beams, which previously could be accessed and moved by the crane, were now rendered inaccessible because a ditch, containing upright steel columns set in concrete, had been dug in the immediate vicinity of the location of the beams. Consequently, plaintiff's supervisor instructed several of the workers, including plaintiff, to push the beams that were not needed out of the way and move the subject beam over the mound to the other side, at which point it could be wrapped with a sling and moved by a boom connected to the crane.

Plaintiff's supervisor directed the team as to how to move the beams. The team first moved the beam which lay atop the subject beam and put it to the side. They then began to slide the subject beam, which, according to plaintiff's testimony, weighed approximately 1000 pounds, along the beam underneath it, toward the top of the mound. It took approximately 15 minutes to move the beam 10 feet, and it remained in contact with the lower beam throughout the entire operation.

During the operation, the workers would take short breaks after moving the beam a short distance. After having moved it 10 feet, they took such a break. Plaintiff, standing on the ground below the mound, was leaning on the beam, which was now half-way up the mound, holding it with both hands, when he felt the beam begin moving in his direction. As it began sliding backwards, plaintiff's coworkers released it, and moved away from the beam. Plaintiff, who testified that because the ditch, which was four to five feet behind him, prevented him from moving backwards, [*2]he unsuccessfully attempted to "go over" the beam, whereupon the beam slid onto his left leg, causing a serious fracture.

DISCUSSION

Summary judgment—legal standard

The burden on a motion for summary judgment rests initially upon the moving party to come forward with sufficient proof in admissible form to enable a court to determine that it is entitled to judgment as a matter of law. If this burden cannot be met, the court must deny the relief sought (CPLR 3212; Zuckerman v City of New York, 49 NY2d 557 [1980]). However, once a moving party has made a prima facie showing of its entitlement to summary judgment, "the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Garnham & Han Real Estate Brokers v Oppenheimer, 148 AD2d 493 [1989]; see also Zuckerman, 49 NY2d at 562). Mere conclusory statements, expressions of hope, or unsubstantiated allegations are insufficient to defeat the motion (Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d 966 [1988]).

Plaintiff's Labor Law § 240 (1) cause of action

Labor Law § 240 (1) provides in pertinent part that:

"All contractors and owners and their agents . . . 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."

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 devices on owners and general contractors and their agents who "are best situated to bear that responsibility" (id. at 500; see also Blake v Neighborhood Housing Services of New York City, Inc., 1 NY3d 280 [2003]; Zimmer v Chemung County Perf. Arts, 65 NY2d 513, 520 [1985]). Moreover, "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, 81 NY2d at 500; see also Haimes v New York Tel. Co., 46 NY2d 132, 136-137 [1978]). Finally, the statute is to be construed as liberally as possible in order to accomplish its protective goals (see Blake, 1 NY3d at 284-285; Martinez v City of New York, 93 NY2d 322, 326 [1999]).However, given the exceptional protection offered by Labor Law § 240 (1), the statute does not cover accidents which are merely tangentially related to the effects of gravity; rather, gravity must be a direct factor in the accident, such as when a worker falls from a height or is struck by a falling object (Ross, 81 NY2d at 501; Rocovich v Consolidated Edison Co., 78 NY2d 509, 513 [1991]. In determining whether the statute applies, the question is whether there is "a significant risk inherent in the particular task because of the relative elevation at which the task must be performed or at which materials or loads must be positioned or secured" (id. at 514). Finally, even where the underlying accident involves an improperly hoisted or inadequately secured object, Labor Law § 240 (1) will [*3]not apply where there is a de minimis elevation differential between the worker's position and the level of the materials or load being hoisted or secured (see Narducci v Manhasset Bay Assocs., 96 NY2d 259, 269-270 [2001]; see also Spenard v Gregware Gen. Contr., 248 AD2d 868, 869 [1998] ["the mere fact that an injured worker fell from a scaffold, ladder or other similar safety device that did not slip, collapse or otherwise fail is insufficient to establish that the device did not provide proper protection * * * "]).

In support of that branch of his motion for summary judgment on his Labor Law § 240 (1) cause of action, plaintiff, characterizing the steel beam as a falling object, contends that once it became clear that the crane could not be used, the owner and general contractor had a duty to furnish at least one of the enumerated devices (stays, pulleys, braces, etc.), to hoist the steel beam and to prevent the beam from falling down the mound of dirt and striking plaintiff. Defendants, in support of that branch of their motion requesting dismissal of plaintiff's Labor Law § 240 (1) cause of action, assert that plaintiff was not, in fact, struck by an object that was improperly hoisted, but that, rather, plaintiff was injured as a result of an ordinary hazard found in the workplace, and the extraordinary protections afforded by Labor Law § 240 (1) are not implicated.

Here, plaintiff fails to demonstrate that the accident was related to a difference in elevation, and accordingly, no reasonable interpretation of the events that gave rise to plaintiff's injuries brings this case within the ambit of the extraordinary protections afforded by Labor Law § 240 (1) (see DePuy v Sibley, Lindsay & Curr Co., Inc., 225 AD2d 1069 [1996]). "[A] work site is 'elevated' within the meaning of the statute where the required work itself must be performed at an elevation, i.e., at the upper elevation differential, such that one of the devices enumerated in the statute will safely allow the worker to perform the task" (D'Egidio v Frontier Ins. Co., 270 AD2d 763, 765 [2000], lv. denied 95 NY2d 765 [2000]). In this context, the Court of Appeals, in Rodriguez v Tietz Center for Nursing Care (84 NY2d 841, 843-844 [1994]), held Labor Law § 240(1) to be inapplicable where the plaintiff-worker was struck in the knee by 120-pound steel beam he and co-workers were hoisting into place by hand. Subsequently, in Toefer v Long Island R.R. (4 NY3d 399 [2005]), the Court examined the interplay between non-elevation related risks and the use of (or failure to use) hoists as safety devices. In Toefer, the plaintiff was working on a large and stable surface four feet above the ground, using wooden poles to pry steel lattice-type beams from the flatbed and lower them, when a wooden lever, for unexplained reasons, flew back and struck him in the head, propelling him off the truck and causing serious injury. He argued that a hoist, which is one of the devices listed in the statute, should have been used instead of wooden poles to lower the beams from the truck. With particular relevance to the facts in the case at bar, the Court rejected the plaintiff's arguments that § 240 (1) was applicable. While stating that Labor Law § 240 (1) was arguably implicated in the case because plaintiff fell from the truck's trailer to the ground, the Court rejected its applicability, observing both the de minimus height differential that was present and that the purpose of a hoist would not have been to prevent plaintiff from falling, but to prevent the beams themselves from doing damage. Therefore, since plaintiff was injured as a result of being struck by a flying object, his injury was not attributable to the type of elevation-related risk that § 240 (1) was meant to address (see Ames v Norstar Bldg. Corp., 19 AD3d 1016 [2005]).

In the instant case, plaintiff appears to contend that he was working at an elevated level, and that he was struck by a falling object. However, he undermines his own argument that gravity was implicated in causing the accident through his own testimony stating that he was (a) standing on [*4]ground level and (b) struck by a sliding, as opposed to a falling, object. Thus, contrary to plaintiff's contention on this motion, the facts, as adduced, only demonstrate that plaintiff was subject to a general hazard of the workplace, and fail to support a finding that there was any significant elevation differential between plaintiff and the object that struck him which "entails the hazards presented by a difference between the elevation level where the worker is positioned and the higher level of the materials or load being hoisted or secured'" (Narducci, 96 NY2d at 269-270, quoting Rocovich, 78 NY2d at 514); see also Friot v Wal-Mart Stores, Inc., 240 AD2d 890, 891 [1997] [Labor Law § 240 (1) held inapplicable where plaintiff, whose injuries occurred while he was working at ground level on a project which involved relocating a large mound of earthen fill from one location on the site to another, struck and pinned against a vehicle by a large mass of which dislodged from the pile]). Moreover, even if the evidence demonstrated that plaintiff was standing at an elevated level on the mound itself, there is no indication that the mound was used as the functional equivalent of a scaffold, thus rendering Labor Law § 240 (1) inapplicable (see Ryan v Morse Diesel, Inc., 98 AD2d 615, 616 [1983]).

As to the second of plaintiff's contentions, plaintiff's own testimony amply establishes that the beam, rather than striking him from above, moved horizontally, thus defeating any attempt to implicate the provisions of Labor Law § 240 (1) (see Toefer, 4 NY3d at 308]). Indeed, the applicability of the statute has been rejected even in the factual context where a steel beam which, while being carried overhead by a team of workers, fell and caused injury to the plaintiff (see Parker v Ariel Associates, Inc., 19 AD3d 670, 672 [2005]). Consequently, plaintiff's reliance on Costa v Piermont Plaza Realty Inc. (10 AD3d 442 [2004]), where the plaintiff was injured by a roof beam which, when struck by a boom, fell and struck plaintiff, and Bornschein v Shuman (7 AD3d 476 [2004]), where the plaintiff was struck by an unsecured overhead steel beam which unexpectedly fell from the steel frame of a building that was in the process of being demolished, is unavailing.

In view of plaintiff's failure to demonstrate that an elevation-related risk was involved in his accident, the court rejects his contention that the defendants, upon determining that the crane could not be used to move the steel beam, should have employed one or more of the statutorily-enumerated safety devices. "Labor Law § 240 (1) is directed solely at elevation-related hazards, and is not applicable where the injury sustained resulted from other types of hazards even if proximately caused by the absence of an adequate scaffold or other required safety device'" (Georgopulos v Gertz Plaza, Inc., 13 AD3d 478, 479 [2004] [citations omitted]).

In light of plaintiff's failure to demonstrate, prima facie, the applicability of Labor Law § 240 (1), the court determines that plaintiff is not entitled to summary judgment on his cause of action brought thereunder, and further finds that defendants have demonstrated, as a matter of law, that they are entitled to summary judgment dismissing said cause of action. Accordingly, that branch of the defendants' motion for summary judgment is granted.

Plaintiff's Labor Law § 241 (6) cause of action

In his verified bill of particulars, plaintiff, in support of his Labor Law § 241 (6) cause of action, alleges that defendants violated Rules 23-6.1, 23-6.2 and 23-6.3 of the Industrial Code. Defendants move for summary judgment dismissing said cause of action, contending that the sections cited by plaintiff are either not sufficiently specific or concrete to form the predicate for the claim under the statute, are not applicable to the facts at hand, or were not violated. [*5]

Labor Law §241 (6) 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, when constructing or demolishing buildings or doing any excavating in connection therewith, shall comply with the following

requirements: 6. 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 the persons employed therein or lawfully frequenting such places. The commissioner may make rules to carry into effect the provisions of this subdivision, and the owners and contractors and their agents for such work, except owners of one and two-family dwellings who contract for but do not direct or control the work, shall comply therewith.

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 (Ross at 502; Ares v State, 80 NY2d 959, 960 [1992]; see also Adams v Glass Fab, 212 AD2d 972, 973 [1995]).

Defendants have demonstrated, prima facie, that none of the Industrial Code rules that were cited by plaintiff were violated or are applicable to the facts herein. 12 NYCRR 23-6.1 and 23-6.2[FN1] govern the use and maintenance of ropes and hoists but do not state when such safety devices must be used. Since plaintiff was not using a hoist, there could be no violation of either regulation (see Hawkins v City of New York, 275 AD2d 634, 635 [2000]). "Significantly, 12 NYCRR 23-6.1 is entitled General Requirements' and is made applicable to all material hoisting equipment except cranes, derricks, aerial baskets, excavating machines used for material hoisting and fork lift trucks (citations omitted)'" (Smith v Homart Development Co., 237 AD2d 77, 80 [1997]). It is not applicable where, as here, a plaintiff is not using material hoisting equipment at the time of his accident (id.).

Similarly, 12 NYCRR 23-6.3, entitled "Material platforms and bucket hoists" is inapplicable to the facts presented, since it sets forth requirements with regard to hoist towers and enclosures.

As plaintiff fails to raise an issue of fact in opposition to defendants' prima facie showing, the court grants summary judgment to defendants and dismisses plaintiff's cause of action under Labor Law § 241 (6). [*6]

Plaintiff's Labor Law § 200 and common law negligence causes of action

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]). In order for an owner or contractor to be held liable under a Labor Law § 200 cause of action, there must be evidence that the owner or contractor controlled and supervised the manner in which the underlying work was performed, or that it created or had notice of the alleged dangerous condition which caused the accident (see Kim at 712; Kanarvogel v Tops Appliance City, Inc., 271 AD2d 409, 411 [2000]; see also Perri v Gilbert Johnson Enterprises, Ltd., 14 AD3d 681, 683 [2005], quoting Singleton v Citnalta Constr. Corp., 291 AD2d 393, 394 [2002] ["general supervisory authority at a work site for the purpose of overseeing the progress of the work and inspecting the work product is insufficient to impose liability for common-law negligence and under Labor Law § 200"]). Where the defect or dangerous condition arises from the worker's own methods, and the owner or contractor exerted no supervisory control over the work, no liability attaches to these parties (see Ruccolo v City of New York, 278 AD2d 472, 474 [2000]).

Plaintiff does not address defendants' contentions that they are entitled to summary judgment dismissing his Labor Law § 200 and common law negligence causes of action because they neither supervised nor controlled his work. Accordingly, the court grants summary judgment to defendants and dismisses same.

Finally, the court grants Top 8's unopposed motion for a default judgment against Pro-Weld.

The foregoing constitutes the decision and order of the court.

ENTER,

J. S. C. Footnotes

Footnote 1:2 NYCRR 23-6.2, entitled "Rigging, ropes and chains for material hoists", sets forth concrete requirements for materials used for hoisting (see Augello v 20166 Tenants Corp., 251 AD2d 44, 45 [1998]).