Richardson v Monadnock Constr., Inc.

[*1] Richardson v Monadnock Constr., Inc. 2009 NY Slip Op 50820(U) [23 Misc 3d 1118(A)] Decided on April 22, 2009 Supreme Court, Kings County Rivera, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 22, 2009
Supreme Court, Kings County

Bruce Richardson, Plaintiff,

against

Monadnock Construction, Inc., Defendant.



49835/01

Francois A. Rivera, J.

Plaintiff Bruce Richardson moves for an order, pursuant to CPLR 3212, granting him partial summary judgment on the issue of Labor Law § 240 (1) and § 241 (6) liability against defendant Monadnock Construction, Inc. Defendant moves for an order, pursuant to CPLR 3212, granting it summary judgment dismissing the verified complaint.

BackgroundPlaintiff commenced the instant action by filing a summons and verified complaint on December 21, 2001. Extensive discovery and motion practice ensued. Plaintiff filed a note of issue and certificate of readiness on July 17, 2008, certifying that all discovery is complete. The parties now seek summary judgment.

The verified complaint alleges that on October 3, 2001, plaintiff suffered a construction accident on the premises located on 23rd Street between Ninth and Tenth Avenues in Manhattan. The owner of the subject premises hired defendant to manage the construction of a multi-story residential building on the subject premises. Defendant hired DiFama Concrete, Inc.,[FN1] plaintiff's employer, to perform the masonry work in connection with the project. Plaintiff's main assignment was to install rebar€"steel rods that reinforce concrete€"in the building under construction. [*2]

On the date of the accident, plaintiff was on the second floor of the structure. While he was wrapping wire around rebar, a bundle of additional rebar, lowered by a crane, struck plaintiff in the head. Plaintiff then fell and suffered injuries as a result of being struck by the subject bundle.

Plaintiff then commenced this action to recover damages. Plaintiff alleges, inter alia, that defendant and its agents breached their common-law duty to maintain a safe construction site and violated sections 240, 241 and 200 of the Labor Law. Plaintiff further alleges that defendant is a contractor or agent thereof, and thus subject to absolute vicarious liability under the Labor Law. Lastly, plaintiff alleges that the breaches of the common-law duty and violations of the Labor Law were the proximate cause of the accident, and defendant is thus vicariously liable for his injuries.

Arguments Advanced by Plaintiff

In support of his motion for summary judgment, plaintiff first asserts that defendant is subject to absolute vicarious liability under the Labor Law. Plaintiff characterizes defendant as an owner or contractor for the purposes of the Labor Law, and asserts that defendant is therefore liable for any Labor Law violation, irrespective of fault, supervision, industry practice, or notice of a dangerous condition.

Plaintiff then notes that the subject accident occurred when he was struck by a bundle of rebar that was being hoisted. Plaintiff asserts that this fact demonstrates a violation of Labor Law § 240 (1), rendering defendant vicariously liable for his injuries. Moreover, claims plaintiff, assumption of risk and comparative negligence are not valid defenses to Labor Law § 240 (1) liability, and, therefore, defendant is liable irrespective of any carelessness on the part of plaintiff. Plaintiff concludes that he is entitled to partial summary judgment on the issue of Labor Law § 240 (1) liability against defendant.

Lastly, plaintiff asserts that he is entitled to partial summary judgment on the issue of Labor Law § 241 (6) liability against defendant. Plaintiff argues that the failure to properly and safely hoist the subject bundle of rebar violated several provisions of the Industrial Code (12 NYCRR ch. 1, subch. A). Plaintiff further argues that these violations of the Industrial Code proximately caused his injuries, and he has thus demonstrated entitlement to judgment as a matter of law with respect to Labor Law § 241 (6) liability against defendant.

Arguments Advanced by Defendant

In opposition to plaintiff's arguments, and in support of its motion for summary judgment, defendant first argues that the Labor Law § 200 cause of action must be dismissed because no agent of defendant supervised or controlled the methods of DiFama employees such as plaintiff. Defendant notes that plaintiff testified that he worked under the direction of a foreman employed by DiFama. Defendant notes the testimony of its principal, Harry Mazza, who [*3]testified that the operation of the crane and related work were exclusively controlled by DiFama employees.

Defendant maintains that in order for plaintiff to maintain the Labor Law § 200 cause of action, plaintiff must demonstrate that agents of defendant supervised the subject work. Here, claims defendant, plaintiff cannot demonstrate that agents of defendant supervised the operation of the crane. Therefore, argues defendant, the Labor Law § 200 cause of action must be dismissed.

Defendant next argues that the Labor Law § 240 (1) cause of action must also be dismissed. Defendant first asserts that neither plaintiff nor the subject bundle of rebar that struck plaintiff fell from a height. Defendant contends that the subject accident is thus not elevation-related.

Additionally, defendant asserts that the movement of the subject bundle of rebar was controlled by DiFama employees. Defendant contends that the subject injury was not a result of the failure or inadequacy of any safety device. Instead, argues defendant, the accident was caused by plaintiff's own culpable conduct and the failure of DiFama employees to properly operate the subject crane. For these reasons, concludes defendant, the Labor Law § 240 (1) cause of action should be dismissed.

Lastly, defendant argues that plaintiff does not have a viable Labor Law § 240 (1) or § 241 (6) cause of action because defendant is not a general contractor; instead, it is a construction manager. To support this proposition, defendant reiterates that its agents did not supervise the operation of the subject crane€"in other words, agents of defendant did not supervise the work that led to the subject injury. Defendant asserts that its role was merely passive; it only had general supervisory authority. Defendant concludes that this limited authority is insufficient to impose vicarious liability pursuant to Labor Law § 240 (1) and § 241 (6).

Labor Law § 200

This court first notes that defendant is entitled to summary judgment dismissing the Labor Law § 200 cause of action. "[S]ummary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue" (Rotuba Extruders, Inc. v Ceppos, 46 NY2d 223, 231 [1978], quoting Moskowitz v Garlock, 23 AD2d 943, 944 [1965]). However, a motion for summary judgment will be granted if, upon all the papers and proof submitted, the cause of action or defense is established sufficiently to warrant directing judgment in favor of any party as a matter of law (CPLR 3212 [b]; Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d 966, 967 [1988]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]), and the party opposing the motion for summary judgment fails to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact (Alvarez v Prospect Hosp., 68 [*4]NY2d 320, 324 [1986], citing Zuckerman, 49 NY2d at 562).

Labor Law § 200 states, in relevant part:

"All places to which this chapter applies shall be so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein or lawfully frequenting such places. All machinery, equipment and devices in such places shall be so placed, operated, guarded and lighted as to provide reasonable and adequate protections to such persons."

Labor Law § 200 merely codifies the common-law duty of an owner or general contractor to provide a safe place to work (Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 352 [1998]). "Liability for causes of action sounding in common-law negligence . . . is limited to those who exercise control or supervision over the work" (Aranda v Park East Constr., 4 AD3d 315, 316 [2004]; see also Lombardi v Stout, 80 NY2d 290, 295 [1992]).

Here, the examination before trial transcripts of plaintiff and defendant do not suggest that any agent of defendant ever exercised control or supervision over the operation of the subject crane. This lack of actual control over the work that produced the injury demonstrates prima facie entitlement to judgment as a matter of law with respect to Labor Law § 200 (see e.g. Bright v Orange & Rockland Utils., Inc., 284 AD2d 359, 360 [2001]).

Plaintiff, in opposition, nevertheless argues that defendant is not entitled to summary judgment with respect to Labor Law § 200. Plaintiff asserts that agents of defendant were present on the job site and that both the applicable construction agreement and daily logs indicate supervision of the subject work by agents of defendant.

These arguments, however, lack merit. The fact that agents of defendant were present at the worksite is insufficient to demonstrate the requisite supervision and control (see e.g. Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 877 [1993]; Alexandre v City of New York, 300 AD2d 263 [2002]; Loiacono v Lehrer, Mcgovern, Bovis, Inc., 270 AD2d 464 [2000]; Putnam v Karaco Indus. Corp., 253 AD2d 457, 459 [1998]; Richichi v Constr. Mgt. Tech., 244 AD2d 540, 542 [1997]). Also, the retention of general supervisory control or authority to enforce safety standards is insufficient to establish the control necessary to impose liability (Biance v Columbia Wash. Ventures, LLC, 12 AD3d 926, 927 [2004]; Shields v General Elec. Co., 3 AD3d 715, 716-717 [2004]; Sainato v City of Albany, 285 AD2d 708, 709 [2001]; but see Freitas v New York City Tr. Auth., 249 AD2d 184, 186 [1998] [general contractor found to have controlled plaintiff's work where it had "safety manager" present daily, held safety meetings and had contractual right to dictate when and how subcontractor performed work including right to stop subcontractor work at any time]). Indeed, since the accident was caused by DiFama employees operating the subject [*5]crane, the accident was caused by "the method and means of [the] employer" and defendant is thus not liable under Labor Law § 200 (Conforti v Bovis Lend Lease LMB, Inc., 37 AD3d 235, 236 [2007]). For these reasons, defendant is entitled to summary judgment dismissing the Labor Law § 200 cause of action.

Labor Law § 240 (1) and § 241 (6)

This court now notes that the contention of defendant that it is a "construction manager"€"and therefore not subject to Labor Law liability as an owner or contractor€" is without merit. First, the title of an entity that performs work in a construction context is not relevant since the subject entity may still be subject to Labor Law liability as an agent of the owner (see e.g. Chimborazo v WCL Assocs., Inc., 37 AD3d 394, 396 [2007], citing Aranda v Park E. Constr., 4 AD3d 315, 316 [2004]; Walls v Turner Constr. Co., 4 NY3d 861, 863-864 [2005]; see also Natoli v City of New York, 32 AD3d 507 [2006]; Ewing v ADF Constr. Corp., 16 AD3d 1085 [2005]; Sherbourne v Murrane Building Contractors, Inc., 28 AD3d 1151 [2006]; Falsitta v Metropolitan Life Ins. Co., Inc., 279 AD2d 879 [2001]).

In any event, this court notes that it is undisputed that defendant was hired by the owner of the subject premises, and, in turn, hired DiFama (a masonry subcontractor) to construct a multi-story residential building.[FN2] Also, the applicable agreement between defendant and DiFama contains provisions for enforcing safety standards. Based on these undisputed facts, defendant is a contractor for Labor Law purposes (Williams v Dover Home Improvement, Inc., 276 AD2d 626 [2000]). Indeed, an entity such as defendant herein, that is hired by a property owner in connection with a construction project, is subject to vicarious liability pursuant to the Labor Law if it had the right to exercise control over the work, irrespective of whether it actually exercised that right (see e.g. Mulcaire v Buffalo Structural Steel Constr. Corp., 45 AD3d 1426, 1428 [2007]; Pino v Irvington Union Free School Dist., 43 AD3d 1130, 1131 [2007]; Milanese v Kellerman, 41 AD3d 1058, 1061 [2007]). Lastly, an entity (such as defendant herein) that has the authority to hire subcontractors thus has the requisite authority to exercise control of the work (Williams, 276 AD2d at 626). For these reasons, defendant is a "contractor" as that term is defined in the Labor Law (id.).

The court now considers summary judgment with respect to Labor Law § 240 (1). Labor Law § 240 (1) states, in relevant part, as follows:

"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 [*6]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 force of gravity to an object or person" (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [1993]). The statute is implicated by situations in which a worker is exposed to the elevation-related risk of falling from an elevated worksite or being struck by an elevated object (Outar v City of New York, 286 AD2d 671, 672 [2001], affd 5 NY3d 731 [2005]; Thompson v Ludovico, 246 AD2d 642, 642-643 [1998]; see also Rocovich v Consolidated Edison Co., 167 AD2d 524, 526 [1990], affd 78 NY2d 509 [1991]). Further, the statute places the responsibility for safety practices and safety devices on owners, general contractors, and their agents€"those who "are best situated to bear that responsibility" (id. at 500; see also Zimmer v Chemung County Perf. Arts, 65 NY2d 513, 520 [1985]). Also, the duties delineated in § 240 (1) are nondelegable and owners and contractors are liable for the violations of their agents even if they have not exercised supervision and control (Rocovich, 78 NY2d at 513; see also Russin v Louis N. Picciano & Son, 54 NY2d 311, 318 [1981]). Lastly, 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]).

In the instant matter, and contrary to defendant's arguments, plaintiff has established prima facie entitlement to judgment as a matter of law with respect to Labor Law § 240 (1) by noting the undisputed fact that he was struck and injured by an inadequately-secured object that was being lowered by a crane (Baker v Barron's Educ. Serv. Corp., 248 AD2d 655 [1998]). The burden now shifts to defendant to demonstrate an issue of fact (see generally Zuckerman, 49 NY2d at 562 [1980]). Specifically, to defeat partial summary judgment on the issue of Labor Law § 240 (1) liability, defendant must establish that the plaintiff "had adequate safety devices available; that he knew both that they were available and that he was expected to use them; that he chose for no good reason not to do so; and that had he not made that choice he would not have been injured" (Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35, 40 [2004]; see also Gallagher v New York Post, 55 AD3d 488 [2008]; Kosavick v Tishman Const. Corp. of New York, 50 AD3d 287, 288 [2008]; cf. Tweedy v Roman Catholic Church of Our Lady of Victory, 232 AD2d 630 [1996] [sole proximate cause issue [*7]of fact exists when scaffold failed after plaintiff untied the lines that secured it]).

Here, defendant fails to establish an issue of fact. Indeed, defendant's arguments in opposition to plaintiff's application for partial summary judgment on the issue of Labor Law § 240 (1) liability lack merit. Defendant first notes that plaintiff's testimony concerning the accident is uncorroborated. Defendant also notes that plaintiff, during his examination before trial, was unable to identify his co-workers, including those operating the subject crane, that were near the accident site when plaintiff was injured. Defendant asserts that this testimony by plaintiff is implausible, an issue of fact exists as to plaintiff's credibility, and therefore, plaintiff has failed to meet his summary judgment burden.

These arguments lack merit. Initially, this court notes that defendant cannot avoid summary judgment simply by arguing that the account of the accident given by the injured plaintiff is not corroborated by other witnesses (see e.g. Rauschenbach v Pegasystems, Inc., 273 AD2d 90, 91 [2000]; see also Acosta v 888 7th Ave. Assocs., 248 AD2d 284 [1998]). Also, it is defendant's, not plaintiff's, burden to demonstrate that the factual account averred to by plaintiff is contested by submitting sworn testimony of someone with personal knowledge of the circumstances (see e.g. Baly v Chrysler Credit Corp., 94 AD2d 781 [1983]). Defendant has not done so, and as such, plaintiff's testimony remains uncontroverted. Thus, this court may not accept any arguments attacking the credibility of plaintiff' s unrebutted testimony (see e.g. Creighton v Milbauer, 191 AD2d 162 [1993]), and as such, the undisputed fact is that plaintiff was not provided with any safety devices and was struck, and injured, by a hoisted object that was not properly secured.

Defendant also asserts that there is no Labor Law § 240 (1) liability arising from the instant facts because the accident did not involve the effects of gravity. Specifically, defendant argues that the subject rebar was lowered, and did not fall, when it struck plaintiff. This assertion also lacks merit. Labor Law § 240 (1) liability arises when a worker is struck and injured by an unsecured load that is being lowered (Baker, 248 AD2d at 655, 656). Indeed, Labor Law § 240 (1) required proper securing of the subject rebar as it was being lowered (Cammon v City of New York, 21 AD3d 196, 200 [2005]; see also Narducci v Manhasset Bay Assocs., 96 NY2d 259, 268 [2001]; Orner v Port Auth., 293 AD2d 517 [2002]; Outar v City of New York, 286 AD2d 671, 672 [2001]). Thus, the accident is at least partially attributable to the failure to provide proper protection as mandated by the statute (Laquidara v HRH Constr. Corp., 283 AD2d 169 [2001]). Lastly, this court notes that the sole proximate cause defense does not apply where no adequate safety device was available in connection with the elevation-related hazard (see e.g. Blake v Neighborhood Hous. Servs. of NY City, 1 NY3d 280, 290 [2003]). For these reasons, plaintiff is entitled to partial summary judgment on the issue of Labor Law § 240 (1) liability against defendant. Defendant's [*8]application for summary judgment is denied insofar as it seeks dismissal of plaintiff's Labor Law § 240 (1) claim.

Lastly, the court denies both motions with respect to Labor Law § 241 (6). Labor Law § 241 states, in applicable part, as follows:

"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."

A Labor Law § 241 (6) claim is established if the defendant violated a provision of the Industrial Code which contains concrete specifications with which the defendant must comply (Donovan v S & L Concrete Constr. Corp., Inc., 234 AD2d 336, 337 [1996]; see also Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494 [1993]). A violation of a provision of the Industrial Code that "mandates a distinct standard of conduct" serves to establish vicarious liability of an owner under Labor Law § 241 (6) (Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 351 [1998]). The Industrial Code provision cited by plaintiff must contain a specific positive command and not general regulatory criteria such as "adequate," "effective" and "proper" (Ross, 81 NY2d at 501-504).

Here, plaintiff relies on, among other sections, Industrial Code § 23-8.1 (f) (6), § 23-8.2 (c) and § 23-2.3. Plaintiff correctly notes that these Industrial Code sections are sufficiently specific to support a Labor Law § 241 (6) cause of action (see e.g. Locicero v Princeton Restoration, Inc., 25 AD3d 664, 666-667 [2006]; Young v Buffalo Color Corp., 255 AD2d 920, 921 [1998]). However, contrary to plaintiff's argument, a violation of a provision of the Industrial Code is merely some evidence of negligence, and it is for the trier of fact to determine the cause of plaintiff's injury (Rizzuto, 91 NY2d at 351). Indeed, "where such a violation is established, it does not conclusively establish a defendant's liability as a matter of law, but constitutes some evidence of negligence and thereby reserve[s], for resolution by a jury, the issue of whether the equipment, operation or conduct at the worksite was reasonable and adequate under the particular circumstances" (Seaman v Bellmore Fire Dist., 59 AD3d 515, 516 [2009] [internal quotes omitted], quoting Rizzuto, 91 NY2d at 351; see also Long v Forest-Fehlhaber, 55 [*9]NY2d 154, 160 [1982]; Daniels v Potsdam Cent. School Dist., 256 AD2d 897, 898 [1998]). For these reasons, plaintiff is not entitled to partial summary judgment on the issue of Labor Law § 241 (6) liability against defendant.

However, defendant is likewise not entitled to summary judgment with respect to Labor Law § 241 (6). In support of its application, and in opposition to plaintiff's argument, defendant reiterates that it is not a contractor for Labor Law § 241 (6) purposes and instead was merely a construction manager. As noted above, this argument lacks merit. A "construction manager" that assumes the duties of a general contractor€"that is, hires subcontractors€"is a contractor for the purposes of the Labor Law (Pino v Irvington Union Free School Dist., 43 AD3d 1130, 1131 [2007], citing Walls v Turner Constr. Co., 4 NY3d 861, 863-864 [2005]; Russin v Louis N. Picciano & Son, 54 NY2d 311, 318 [1981]; Lodato v Greyhawk N. Am., LLC, 39 AD3d 491, 493 [2007]; Kenny v Fuller Co., 87 AD2d 183, 190 [1982]).

Defendant also asserts that plaintiff has not shown that a violation of an applicable provision of the Industrial Code proximately caused his injury. Although this assertion may be true, it is not a sufficient basis to grant defendant summary judgment because the issue of whether a violation of the Industrial Code proximately caused injuries to plaintiff is reserved for the trier of fact (Seaman, 59 AD3d at 516; Rizzuto, 91 NY2d at 351; but see Biafora v City of New York, 27 AD3d 506, 508 [2006] [summary judgment dismissing Labor Law § 241 (6) based on Industrial Code § 23-8.1 (f) and § 23-8.2 (c) (3) warranted where defendant established that bucket that struck plaintiff was dragged and not hoisted]). Since here, plaintiff's account of the accident€"that a load of rebar, lowered by a crane, struck and injured him€"is uncontradicted, defendant is not entitled to summary judgment dismissing the Labor Law § 241 (6) claim by asserting that no violation of the Industrial Code proximately caused plaintiff's injuries (see e.g. Locicero, 25 AD3d at 667 [burden is on defendant to demonstrate injuries not caused by violation of Industrial Code]).

Summary

In sum, the motion of plaintiff Bruce Richardson is granted to the extent that he is awarded partial summary judgment on the issue of liability pursuant to Labor Law § 240 (1) against defendant Monadnock Construction, Inc., and is otherwise denied. The motion of defendant Monadnock Construction, Inc. is granted to the extent that plaintiff's Labor Law § 200 cause of action is dismissed, and is otherwise denied.

The foregoing constitutes the decision, order and judgment of the court.

E N T E R,

J. S. C. Footnotes

Footnote 1: Spelled "DeFama" in the transcript of the examination before trial testimony of plaintiff.

Footnote 2: Harry Mazza, the witness produced by defendant for examination before trial, testified that defendant was hired by the "developer" and in turn hired DiFama (Examination Before Trial of Defendant Monadnock Construction Inc., pp. 9-10).