Motyka v Memorial Sloan-Kettering Cancer Ctr.

[*1] Motyka v Memorial Sloan-Kettering Cancer Ctr. 2009 NY Slip Op 50118(U) [22 Misc 3d 1114(A)] Decided on January 20, 2009 Supreme Court, New York County Kapnick, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 20, 2009
Supreme Court, New York County

Matthew Motyka and SANDRA MOTYKA, Plaintiffs,

against

Memorial Sloan-Kettering Cancer Center, SLOAN-KETTERING INSTITUTE FOR CANCER RESEARCH, TURNER CONSTRUCTION COMPANY, and MEMORIAL HOSPITAL FOR CANCER AND ALLIED DISEASES, Defendants.



102589/06



Plaintiffs were represented by Anna Marie Fortunato, Esq., Fortunato & Fortunato, 26 Court Street, Suite 1301, Brooklyn, New York 11242, Tel. 718-858-4366 and Brian J. Isaac, Esq, Pollack, Pollack, Isaac and De Cicco , 225 Broadway - Suite 307, New York , New York 10007, Tel. 212-233-8100.

Defendants were represented by Ralph A. Foertsch, Esq., Kopff, Nardelli & Dopf, 440 Ninth Avenue, New York, New York 10001,

Tel. 212-244-2999

Barbara R. Kapnick, J.

In this action, plaintiffs seek to recover damages, pursuant to Labor Law §§ 240(1), 241(6) and 200 and for common law negligence for personal injuries sustained on February 11, 2004 by plaintiff Matthew Motyka, an ironworker.

Defendant Memorial Hospital for Cancer and Allied Diseases a/s/h/a Memorial Sloan-Kettering Cancer Center and Sloan Kettering Institute for Cancer Research ("Memorial Hospital") was the owner of the property on 68th Street, between First and York Avenues in Manhattan. Defendant Turner Construction Company ("Turner") was the construction manager. Plaintiff was employed by Cornell & Co. ("Cornell"), a subcontractor responsible for the installation/erection of the steel skeleton of the structure.

At the time of his accident, plaintiff was attempting to retrieve a bolt pin which had fallen [*2]from the ground floor where he had been working to the basement floor below through an 18-inch opening in an adjacent vertical wall.

Turner's project superintendent, Fillippo Restivo, testified that there were two means of egress to the area, but did not recall if there were stair towers and/or ladders. Turner's Site Safety Manager, Michael Sommers, testified that there were two stairways leading to the basement, and that ladders were also intermittently placed in the area to provide access for the iron workers.

Plaintiff, however, testified that he saw neither a stair tower nor a ladder in his immediate work area, and thus opted to slide his body through the 18-inch opening in the wall and to shimmy down a steel column/beam.

Plaintiff located the pin and was in the process of climbing back up the column, when he slipped and fell to the steel decking on the basement floor. Plaintiff was wearing a safety lanyard, but the lanyard was unfastened and thus could not prevent his fall.

Defendants now move for summary judgment:

(i) dismissing plaintiffs' Labor Law § 200 and common law negligence causes of action;

(ii) dismissing plaintiffs' claims of violations of sections 23-1.2(a), 23-1.5(a), 23-1.7(b)(1) and (d), 23-1.15, 23-1.16(a-f) and 23-1.17(a-e) of the Industrial Code and 29 CFR §§ 1910 and 1926 (OSHA Regulations), and dismissing the Labor Law § 241(6) cause of action;

(iii) dismissing plaintiffs' Labor Law § 240(1) cause of action; and

(iv) dismissing plaintiffs' Complaint in its entirety.

Plaintiffs oppose the motion and cross-move for partial summary judgment on the issue of liability on their claim pursuant to Labor Law § 240(1).

Labor Law § 200/common law negligence

Defendants argue that plaintiffs' claims pursuant to Labor Law § 200 and for common law negligence must be dismissed on the ground that they did not exercise any supervision or control over plaintiff's work.

Plaintiffs argue that there are triable questions of fact as to whether Turner exercised the requisite supervision and contol over Motyka's work, since Turner maintained 10-15 superintendents and 6-10 engineers at the site, including an assistant superintendent from Turner who was specifically responsible for the ironworkers. In addition, Turner had a site-specific safety manager on the site full time, as well as safety roamers, and Restivo met daily with the Cornell foreman.

However, it is well settled that "[a] general duty to supervise the work and ensure compliance with safety regulations is insufficient to constitute the requisite supervision and control under Labor Law § 200 (see Buccini v. 1568 Broadway Assoc., 250 AD2d 466, 469... [1998])." De La Rosa v Philip Morris Management Corp., 303 AD2d 190, 192 (1st Dep't 2003). See also, Colozzo v National Center Foundation, 30 AD3d 251 (1st Dep't 2006). [*3]

Accordingly, plaintiffs' claim pursuant to Labor Law §200 and for common law negligence must be dismissed.

Labor Law § 240(1)

Defendants next argue that plaintiffs' claim pursuant to Labor Law § 240(1) must be dismissed on the grounds that plaintiff was a recalcitrant worker and that his own actions were the sole proximate cause of his accident.

Specifically, defendants claim that plaintiff was provided with a safety harness/lanyard and beam clamp by his employer, and was instructed by his foreman to use the clamp when working at the edge of the building or at any open holes. According to defendants, plaintiff did not walk around the ground floor before he started working to see if there were stairs present. Instead, he climbed down and then up the steel column and failed to secure his fall protection (i.e., the safety harness/lanyard) to the beam clamp or anything else.

Plaintiffs, however, claim that defendants failed to provide Motyka with proper safety devices and protection under the circumstances. See Miglionico v Bovis Lend Lease, Inc., 47 AD3d 561, 565 (1st Dep't 2008), in which the court held that "[i]n the absence of some proof that a harness, if provided, would have actually furnished adequate protection, defendants failed to raise an issue of fact whether plaintiff's actions were the sole proximate cause of his injuries."

Plaintiffs contend that although he was, in fact, given a beam clamp, harness and lanyard, these devices were insufficient to protect him from falling while he was ascending the column.

Specifically, Motyka states in his Affidavit dated March 11, 2008, as follows: 3.Just prior to my accident, I was working on a steel deck on the ground floor, attempting to stick bolts into holes in order to bolt the beams to the columns. I tried to pry my pin out of the bolt hole when the pin popped out and fell one floor below to the cellar. The pin fell through a vertical hole in the wall. I looked to see where the pin fell but I could not see it.4.I looked around to see if there was a ladder in the vicinity or any other way to get down to the cellar. I did not see any means of egress to the floor below. I was wearing a harness with a lanyard attached but I did not attach my lanyard to anything because I was not over an open hole or open steel (emphasis supplied). I wrapped the lanyard around my shoulder and hooked it back onto itself.

* * * 7.There was no place on the column to attach my lanyard in such a way that it would provide any appreciable fall protection. The manner in which I climbed up the column was a technique that I had previously learned as a union ironworker and used at prior job sites. I never had to attach my lanyard [*4]to anything while I climbed up a column and I am not aware of a way to attach my lanyard while climbing up a beam or column. If I had attached my lanyard before I descended the column, it would not have afforded me any protection because the lanyard would have suspended me in mid-air before I reached the cellar's floor. Essentially, tying off the lanyard could not have provided any fall protection because the lanyard had to be long enough to allow me to descend from the steel column to the cellar floor...

* * * 8.I never received safety orientation, training, or instructions from anyone associated with Turner at any time prior to my accident. I was not instructed to use any stairways or ladders in order to travel between floors and I did not see any stairways or ladders while working on the ground floor. I was never told by Turner or anyone at the job site not to climb up and/or down the columns, and I was never advised of any hazards associated with climbing the columns at this job site.

This case is thus distinguishable from an instance in which "since ladders were readily available, plaintiff's normal and logical response' should have been to go get one." Montgomery v Federal Express Corporation, 4 NY3d 805, 806 (2005).

Therefore, based on the papers submitted and the oral argument held on the record on June 4, 2008, this Court finds that defendants failed to provide plaintiff with proper protection from an elevation-related risk within the meaning of Labor Law § 240(1). Cordero v Kaiser Organization, Inc., 288 AD2d 424 (2nd Dep't 2001).

Accordingly, that portion of defendants' motion seeking to dismiss plaintiffs' claim pursuant to Labor Law § 240(1) is denied and plaintiffs' cross-motion for partial summary judgment on the issue of liability on said claim is granted.

Labor Law § 241(6)

Defendants also argue that plaintiffs' claim pursuant to Labor Law § 241(6) must be dismissed because the sections of the Industrial Code cited by plaintiffs are either inapplicable to the facts of this case and/or are general provisions which do not provide a basis for liability under the statute.

Plaintiffs concede that sections 23-1.2(a) and 23-1.5(a) of the Industrial Code are too general to support a claim under Labor Law § 241(6), and that the OSHA regulations cited in their Complaint and Bill of Particulars do not serve as a predicate to a Labor Law § 241(6) cause of action. Accordingly, the motion is granted to the extent of dismissing those portions of plaintiffs' Labor Law § 241(6) claim based on sections 23-1.2(a) and 23-1.5(a) of the Industrial Code and on [*5]OSHA regulations.

Plaintiffs, however, argue that sections 23-1.7(b)(1) and (d), 23-1.15, 23-1.16(a-f) and 23-1.17(a-e) of the Industrial Code apply to the facts of this case.

Section 23-1.7 ("Protection from General Hazards") provides, in relevant part, as follows:

(b) Falling hazards. (1) Hazardous openings. (i) Every hazardous opening into which a person may step or fall shall be guarded by a substantial cover fastened in place or by a safety railing constructed and installed in compliance with this Part (rule).

(ii) Where free access into such an opening is required by work in progress, a barrier or safety railing constructed and installed in compliance with this Part (rule) shall guard such opening and the means of free access to the opening shall be a substantial gate. Such gate shall swing in a direction away from the opening and shall be kept latched except for entry and exit. (iii) Where employees are required to work close to the edge of such an opening, such employees shall be protected as follows: ([a]) Two-inch planking, full size, or material of equivalent strength installed not more than one floor or 15 feet, whichever is less, beneath the opening; or ([b]) An approved life net installed not more than five feet beneath the opening; or ([c]) An approved safety belt with attached lifeline which is properly secured to a substantial fixed anchorage.

Defendants argue that section 23-1.7(b)(1) is not applicable to the facts of this case because plaintiff did not fall through a hazardous opening that required a cover, barrier or safety railing. See, Delong v State Street Associates, L.P., 211 AD2d 891 (3rd Dep't 1995).

This Court finds that this section is not applicable to the facts of this case since plaintiff did not fall through the opening in the wall. Section 23-1.7 further provides, in relevant part, as follows:(d) Slipping hazards. Employers shall not suffer or permit any employee to use a floor, passageway, walkway, scaffold, platform or other elevated working surface [*6]which is in a slippery condition. Ice, snow, water, grease and any other foreign substance which may cause slippery footing shall be removed, sanded or covered to provide safe footing.

Defendants argue that section 23-1.7(d) is not applicable to the facts of this case because the column from which plaintiff fell was not a designated working surface, and there is no allegation or testimony that the slippery condition was related to ice, snow, water, grease or any other foreign substance.

This Court agrees that this section is likewise not applicable to the facts of this case.

Section 23-1.15 ("Safety Railing") provides as follows: Whenever required by this Part (rule), a safety railing shall consist as a minimum of an assembly constructed as follows: (a) A two inch by four inch horizontal wooden hand rail, not less than 36 inches nor more than 42 inches above the walking level, securely supported by two inch by four inch vertical posts at intervals of not more than eight feet. (b) A one inch by four inch horizontal midrail. (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. (d) The hand rail of every safety railing shall be smooth and free from splinters and protruding nails. (e) Other material or construction may be used for safety railings required by this Part (rule) provided such assemblies have equivalent strength and assure equivalent safety.

Defendants argue that section 23-1.15 is not applicable because plaintiff did not fall through an opening requiring a railing.

[*7]This branch of defendants' motion is also granted since there is no evidence that plaintiff's accident was caused in whole or in part by the absence of a safety railing.

Section 23-1.16 ("Safety Belts, Harnesses, Tail Lines and Lifelines") provides as follows: (a) Approval required. Safety belts, harnesses and all special devices for attachment to hanging lifelines shall be approved. (b) Attachment required. Every approved safety belt or harness provided or furnished to an employee for his personal safety shall be used by such employee in the performance of his work whenever required by this Part (rule) and whenever so directed by his employer. At all times during use such approved safety belt or harness shall be properly attached either to a securely anchored tail line, directly to a securely anchored hanging lifeline or to a tail line attached to a securely anchored hanging lifeline. Such attachments shall be so arranged that if the user should fall such fall shall not exceed five feet. (c) Instruction in use. Every employee who is provided with an approved safety belt or harness shall be instructed prior to use in the proper method of wearing, using and attaching such safety belt or harness to the lifeline. (d) Tail lines. The length of any tail line shall be the minimum required in order for an employee to perform his work, but in no case shall be longer than four feet. Such tail line shall be attached to a hanging lifeline or to a substantial structural member at a point no lower than two feet above the working platform or working level. Tail lines shall be first grade manila or synthetic fibre rope at least one-half inch in diameter with a breaking strength of not less than 4,000 pounds or shall be fabricated of other approved materials. (e) Lifelines. Any hanging lifeline required by this Part (rule) shall be not more than 300 feet in length from the point of suspension to grade, building setback or other surface. Every hanging lifeline shall be securely attached to a sufficient anchorage. Every hanging lifeline shall be provided with padding, wrapping, chafing gear or similar means of protection from contact with building edges or other objects which may cut or abrade such lifeline. Lifelines shall be fabricated of wire rope at least five-sixteenths inch in diameter or first grade manila or synthetic fibre rope at least one-half inch in diameter with a breaking strength of not less than 4,000 pounds. (f) Inspection and maintenance. (1) Every safety belt, harness, tail line and lifeline shall be inspected by a designated person prior to each use. Employers shall not suffer or permit any [*8]employee to use any such equipment which shows any indication of mildew, broken fibre or fabric, excessive wear or any other damage or deterioration which could materially affect the strength of such safety belts, harnesses, tail lines or lifelines. Any such equipment found to be unsafe shall be removed from the job site. (2) When not in use, safety belts, harnesses, tail lines and lifelines shall be stored in such areas and in such a manner as to prevent their deterioration and to protect them from being damaged.

Defendants argue that section 23-1.16 is not factually applicable because plaintiff was, in fact, provided with a safety harness, lanyard and beamer, but did not use them. In addition, defendants argue that there is no allegation of a faulty safety device.

This branch of defendants' motion is denied since there is no evidence that the devices provided to plaintiff were properly attached either to a securely anchored tail line, directly to a securely anchored hanging lifeline or to a tail line attached to a securely anchored hanging lifeline.

Section 23-1.17 ("Life Nets") provides as follows: (a) Approval required. Any life net used in construction or demolition operations shall be approved. (b) Materials and construction. Approved life nets shall be made of first grade fibre cordage, woven fabric or synthetic fibre and all such materials shall be treated to render them fire resistant; or such approved life nets shall be constructed of wire rope. An approved life net shall have a mesh not exceeding four inches. The perimeter of every life net shall be reinforced with cloth-covered wire rope, manila rope or synthetic fibre rope and shall be equipped with properly sized padded thimbles, sockets or equivalent approved means of attachment to supports and anchorages. (c) Size, strength, location and attachment of life nets. Every life net or combination of life nets shall be of sufficient size and strength to catch and hold any person for whose protection such net or combination of nets is being used in case of a fall. Such net or combination of nets shall be located so as to completely cover the area of possible fall. Every life net shall be attached to sufficient anchorages or supports outside of and beyond the area of possible fall and shall be supported at a height to prevent sagging which may cause the net to strike or touch any surface or object beneath when cushioning the fall of any person. (d) Maintenance. Every life net in use shall be thoroughly dried before storage and [*9]shall be stored in a dry location which is protected from the elements. Every life net shall be protected against damage from mechanical devices, acid or other corrosive substances or from any other type of deterioration. (e) Inspection. Every life net shall be thoroughly inspected by a designated qualified person before each installation. A daily visual inspection shall be made by a designated person of every life net in use. Employers shall not suffer or permit any installation or use of any life net which shows any indication of mildew, broken fibre or fabric, excessive wear or any other damage or deterioration which could materially affect the strength of any portion of such life net. Any life net found to be unsafe shall be immediately removed from the job site and not returned for reuse unless properly repaired.

Defendants argue that section 23-1.17 is not factually applicable because plaintiffs have not provided any support for the position that every steel column at a construction site would require a life net for the possible eventuality that a worker would climb on one.

This branch of defendants' motion is denied as premature as there is a factual dispute as to whether or not it was foreseeable that a worker would use the column in question as a means of egress to the basement, as plaintiff has represented in a sworn Affidavit that climbing a column was a technique he learned as a union ironworker and utilized at prior jobs.

This constitutes the decision and order of this Court.

Dated: January, 2009

BARBARA R. KAPNICK

J.S.C.