Clavijo v Universal Baptist Church

[*1] Clavijo v Universal Baptist Church 2009 NY Slip Op 51672(U) [24 Misc 3d 1230(A)] Decided on August 3, 2009 Supreme Court, Kings County Battaglia, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 3, 2009
Supreme Court, Kings County

Edison Clavijo, Plaintiff,

against

Universal Baptist Church and DELLWOOD DEVELOPMENT, LLC, Defendants.



795/07



Plaintiff was represented by Justin Katz, Esq. of Pena & Kahn, PLLC.

Defendants/ third-party plaintiffs Universal Baptist Church and Dellwood Development, LLC were represented by Rendon P. Sangalang, Esq. of Cascone & Kluepfel, LLP.

Jack M. Battaglia, J.

On December 1, 2005, plaintiff Edison Clavijo, a construction worker employed by at least one of the Third-Party Defendants (collectively referred to as "Blue Star"), allegedly sustained personal injuries to his right hand when the "power tool he was using got stuck in the wall and twisted and in turn twisted plaintiff's right arm." (See Amended Verified Bill of Particulars, ¶ 2.) Plaintiff alleges that he was "unable to use both hands while drilling due to the fact that he was on a ladder instead of a scaffold." (Id.) At the time of the accident, the owner of the work site was defendant Universal Baptist Church ("Universal") and the general contractor was Dellwood Development, LLC ("Dellwood).

On December 8, 2005, Plaintiff allegedly sustained personal injuries when he was "unable to properly grip a steel beam and it dropped on his foot while off site and in the process of moving material to the construction site." (See Amended Verified Bill of Particulars, ¶ 2.) [*2]Plaintiff alleges that he dropped the steel beam on his foot "due to the right hand injury suffered on December 1, 2005." (Id.) The December 8, 2005 accident occurred on premises owned by Blue Star.

The first two causes of action in Plaintiff's Amended Verified Complaint relate to the December 1, 2005 accident; and the second two causes of action relate to the December 8, 2005 accident. Plaintiff alleges negligence and violation of Labor Law §§ 200, 240, and 241 with respect to both accidents.

Labor Law § 240(1)

In their motion, defendants Universal and Dellwood contend that they are entitled to summary judgment dismissal of Plaintiff's Labor Law § 240 cause of action with respect to the December 1, 2005 accident on the ground that the accident was not "gravity-related."

Labor Law § 240 (1) provides:

"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 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 "applies to both falling worker' and falling object' cases." (Narducci v Manhasset Bay Associates, 96 NY2d 259, 267 [2001].) It provides "exceptional protection for workers against the special hazards' that arise when the work site itself either is elevated or is positioned below the level where materials or load are being hoisted or secured." (Rau v Bagels N Brunch, 57 AD3d 866, 867 [2d Dept 2008].) "These special hazards do not encompass any and all perils that may be connected in some tangential way with the effects of gravity." (Id.) "Rather they are limited to such specific gravity-related accidents as falling from a height or being struck by a falling object that was improperly hoisted or inadequately secured." (Id.)

"The fact that a worker is injured while working above ground does not ipso facto mean that the injury resulted from an elevation-related risk contemplated by section 240(1) of the Labor Law." (Streigel v Hillcrest Heights Development Corp., 100 NY2d 974, 977 [2003].) "Labor Law § 240(1) was designed to prevent those types of accident 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-Electric Co., 81 NY2d 494, 501 [1993].) "The right of recovery afforded by the statute does not extend to other types of harm, even if the harm in question was caused by an inadequate, malfunctioning or defectively designed scaffold, stay, or hoist." (Id.) [*3]

In support of their motion, Defendants submit, among other things, Plaintiff's deposition testimony that he was standing on a ladder attempting to drill holes into cement, but that the ladder was not high enough; that he had to support himself on the ladder by holding a rope around his waist with his left hand; that in his right hand, he held the drill; that the drill was 25 to 30 pounds; that the ladder was eight to ten feet high; that as he was drilling, the drill bit got stuck inside a steel bar located within the cement wall, which caused the drill and Plaintiff's arm to twist to the right; that after he injured his arm, Plaintiff released the drill and the drill remained stuck in the wall; and Plaintiff was able to climb down the ladder.

As a result, Defendants sufficiently demonstrate that Plaintiff's injury was not caused by an elevation-related hazard as contemplated by Labor Law § 240. (See Keavey v New York State Dormitory Authority, 6 NY3d 859, 860 [2006]; Ross v Curtis-Palmer Hydro-Electric Co., 81 NY2d at 501; Chuqui v Church of Saint Margaret Mary, 39 AD3d 397, 397 [1st Dept 2007]; Turner v Garten Foods, 33 AD3d 691, 691 [2d Dept 2006] Pirrotta v EklecCo., 292 AD2d 362, 363 [2d Dept 2002].) Even assuming that Plaintiff's ladder was inadequate, his injury did not result from the application of the force of gravity, but rather the drill bit getting stuck and causing his arm to twist. (See e.g. Ross v Curtis-Palmer Hydro-Electric Co., 81 NY2d at 501 [defendant was granted summary judgment dismissal of Labor Law § 240 cause of action even though plaintiff sustained back injury as a result of working in a contorted position due to inadequacy of safety device]; Turner v Garten Foods, 33 AD2d at 691 [defendant was granted summary judgment even though plaintiff who was using a sawsall while standing on a ladder sustained injury to his left forearm when a piece of duct that he was working on struck him].)

Accordingly, the branch of Defendants' motion seeking summary judgment dismissal of Plaintiff's Labor Law § 240(1) claim with respect to the December 1, 2005 accident is GRANTED.

Labor Law § 241(6)

With respect to the December 1, 2005 accident, Defendants contend that they are entitled to summary judgment dismissal of Plaintiff's cause of action alleging violation of Labor Law § 241(6), which is premised on violations of specified Industrial Code provisions: 12 NYCRR 23-1.7, 12 NYCRR 23-1.8, 12 NYCRR 23-1.10, 12 NYCRR 23-1.12, 12 NYCRR 23-1.16, 12 NYCRR 23-1.21, 12 NYCRR 23-2.3(d), 12 NYCRR 23-5, and 12 NYCRR 23-9.2. Defendants contend that each of the Industrial Code provisions that Plaintiff relies upon is either too general to support a violation of Labor Law § 241(6), or is inapplicable to the facts of the case.

Labor Law § 241(6) provides in pertinent part that:

"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 persons employed therein or lawfully frequenting such places." [*4]

Labor Law § 241(6), which was enacted to provide reasonable and adequate safety protections to workers engaged in construction, demolition and excavation work, imposes a nondelegable duty upon owners, general contractors, and their agents to comply with specific safety rules set forth in the Industrial Code. (See Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d at 501-502.) "To support a cause of action under Labor Law § 241(6), a plaintiff must demonstrate that his injuries were proximately caused by a violation of an Industrial Code provision that is applicable under the circumstances of the accident. (Rivera v Santos, 35 AD3d 700, 702 [2006][citing Ross v Curtis-Palmer Hydro-Elec. Co.,81 NY2d at 502].)

To the extent Defendants contend that Plaintiff may not rely on violations of 12 NYCRR 23-1.7, 12 NYCRR 23-1.8, 12 NYCRR 23-1.10, 12 NYCRR 23-1.12, 12 NYCRR 23-5, and 12 NYCRR 23-9.2 to support his Labor Law § 241(6) cause of action, their motion is GRANTED without opposition. (See Plaintiff's Affirmation in Opposition, ¶¶ 22-30.) As such, the only Industrial Code provisions in dispute are 12 NYCRR 23-1.16, 12 NYCRR 23-1.21, and 12 NYCRR 23-2.3(d).

In their motion, Defendants contend, in conclusory fashion, that 12 NYCRR 23-1.16, 12 NYCRR 23-1.21, and 12 NYCRR 23-2.3(d) "are inapplicable in this case since Plaintiff did not fall." Defendants' moving papers fail to make any showing or to cite to any authority for the proposition that since Plaintiff did not fall, each of the cited Industrial Code provisions do not apply. Because Defendants fail to negate the applicability of each of the cited Industrial Code provisions, they fail to demonstrate prima facie entitlement to summary judgment. (See Hunter v R.J.L. Development, LLC, 44 AD3d 822, 824 [2d Dept 2007]; Roman v Hudson Telegraph Associates, 15 AD3d 227, 228 [1st Dept 2005].)

Accordingly, the branch of Defendants' motion seeking summary judgment dismissal of Plaintiff's Labor Law § 241(6) cause of action to the extent that Plaintiff relies upon 12 NYCRR 23-1.16, 12 NYCRR 23-1.21, and 12 NYCRR 23-2.3(d) is DENIED.

Labor Law § 200 and Common Law Negligence

With respect to the December 1, 2005 accident, Defendants contend that they are entitled to summary judgment dismissal of Plaintiff's Labor Law § 200 and common law negligence causes of action on the grounds that Defendants did not exercise any supervision or control of Plaintiff's work, that Plaintiff's "injury was inherent in the very work he was performing," and that Plaintiff "appreciated the risk in view of his age and experience".

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. (See Kim v Herbert Constr. Co., 275 AD2d 709, 712 [2d Dept 2000].) "Cases involving Labor Law § 200 fall into two broad categories: namely, those where workers are injured as a result of dangerous or defective premises conditions at a worksite, and those involving the manner in which the work is [*5]performed." (Ortega v Puccia, 57 AD3d 54, 61 [2d Dept 2008].) "When a premises condition is at issue, property owners may be held liable for a violation of Labor Law § 200 if the owner either created the dangerous condition that caused the accident or had actual or constructive notice of the dangerous condition that caused the accident." (Id.) "[W]hen a claim arises out of alleged defects or dangers in the methods or materials of the work, recovery against the owner or general contractor cannot be had under Labor Law § 200 unless it is shown that the party to be charged had the authority to supervise or control the performance of the work." (Id.) "These two categories should be viewed in the disjunctive." (Id.)

"Although property owners often have a general authority to oversee the progress of the work, mere 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 under Labor Law § 200." (Id. at 62.) "A defendant has the authority to supervise or control the work for purposes of Labor Law § 200 when that defendant bears the responsibility for the manner in which the work is performed." (Id.)

Since the December 1, 2005 accident arose out of alleged defects or dangers in the method and materials of Plaintiff's work, Plaintiff must establish that each Defendant had the authority to supervise or control the performance of the work. (Id.) However, to obtain summary judgment dismissal of Plaintiff's Labor Law § 200 cause of action, it is Defendants' burden to demonstrate prima facie with admissible evidence that they did not have the authority to supervise or control the performance of the work. (See generally Velasquez v Gomez, 44 AD3d 649, 650-51 [2d Dept 2007]; Restrepo v Rockland Corp., 38 AD3d 742, 743 [2d Dept 2007]; Pappalardo v Long Is. R.R. Co., 36 AD3d 878, 880 [2d Dept 2007]; England v Vacri Construction Corp., 24 AD3d 1122, 1124 [3d Dept 2005]; Calderone v Town of Cortlandt, 15 AD3d 602, 602-03 [2d Dept 2005].)

In support of its motion, Universal submits, among other things, the deposition testimony of Royal Fisher that he was its Chairman of the Trustee Board and Deacon; that Universal retained David Washington as "construction manager"; that Mr. Washington's duties were to serve as a "construction representative" and "mak[e] sure that ... things were correct"; that he was not sure how many times Mr. Washington visited the work site but it would be "maybe every other day"; that Mr. Washington maintained a log; that Mr. Washington would visit the work site "probably 30 minutes to an hour"; that his discussions with Mr. Washington involved issues relating to progress of the work, and not safety; that he was not aware of any "safety meetings" between Mr. Washington and any of the contractors; and that the purpose of Mr. Washington's visit to the work site was to report progress.

Mr. Fisher's testimony does not establish that Universal did not have authority to supervise and control Plaintiff's work. Absent any personal knowledge of David Washington's actions at the work site, Mr. Fisher's testimony is speculative or based upon hearsay. Universal fails to submit deposition testimony or an affidavit from Mr. Washington, and fails to submit any document in admissible form, including any contract or log book, otherwise establishing prima [*6]facie that Universal did not have the authority to supervise or control Plaintiff's work.

In support of its motion, Dellwood submits, among other things, the deposition testimony of Obadia Porat that he was Dellwood's sole principal; that Dellwood was the general contractor for the job at Universal; that Dellwood did not provide materials, supplies or tools to Plaintiff; that neither Universal nor Dellwood actively directed, supervised or controlled the method and manner of Plaintiff's work; and that Dellwood merely exercised general supervision to make sure the work was done according to the architect's plan. Nonetheless, Mr. Porat also testified that he was only "indirectly involved" with the project; that he hired a "general construction foreman" who was "running the job"; that he only visited the job site one time; that he also hired a project superintendent named Mohamed Abdul who would "run the job from nine to five every day"; that he did not know whether Dellwood held any safety meetings at the work site; and that he otherwise did not know how to answer questions relating to Dellwood's supervision of the work site regarding safety. Dellwood also submits Plaintiff's deposition testimony that, on occasion, Mr. Abdul instructed him how to perform his job. As a result, Dellwood fails to demonstrate prima facie that it did not have the authority to supervise or control Plaintiff's work.

Finally, with respect to the December 1, 2005 accident, the branch of Defendants' motion seeking summary judgment of Plaintiff's Labor Law § 200 and common law negligence claims on the grounds that "injury was inherent in the very work he was performing" and that Plaintiff "appreciated the risk in view of his age and experience" is DENIED. Defendants fail to point to any evidence establishing either that "injury was inherent in the very work he was performing", or that Plaintiff "appreciated the risk in view of his age and experience", and, even so, they fail to cite to any authority requiring dismissal of Labor Law § 200 and common law negligence causes of action on such grounds. To the extent that Defendants may be contending that Plaintiff was the sole proximate cause of his injuries, "there was nothing extraordinary or unanticipated" in Plaintiff's conduct (See Pichardo v Aurora Contractors, Inc., 29 AD3d 879, 881 [2d Dept 2006].)

The December 8, 2005 Accident

With respect to the December 8, 2005 accident, Defendants contend that they are entitled to summary judgment dismissal of all of Plaintiff's claims on the ground that the accident did not occur at the work site. To the extent that Plaintiff's allegations in his Amended Verified Complaint allege that the December 8, 2005 accident was due to any negligence of Defendants or the violation of any Labor Law section by them on December 8, 2005, Plaintiff has withdrawn such allegations. (See Plaintiff's Affirmation in Opposition, ¶¶ 41-45.) Now, Plaintiff only alleges that "[o]n December 8, 200[5], due to the right hand injury suffered on December 1, 200[5], plaintiff was unable to properly grip a steel beam and it dropped on his foot while off site". (See Amended Verified Bill of Particulars, ¶ 2.)

"When a person is injured by the negligence of another and, despite the exercise of ordinary and reasonable diligence in the treatment of the injuries, the individual is involved in [*7]another accident because of the injuries sustained in the first accident, the tort-feasor in the first accident is also responsible for the subsequent injuries." (Daliendo v Johnson, 147 AD2d 312, 317 [2d Dept 1989].) The principle does not appear to have been applied to a case involving Labor Law liability. It is clear, however, from the seminal authority from which it derives that the principle is one of proximate cause. "[A]dded injuries may be included in the damage provided they arose out of the first injury or would not have happened but for the first injury and not due to the neglect or carelessness of the injured party." (Wagner v Mittendorf, 232 NY 481, 486 [1922].) No reason is apparent for not applying the principle to a Labor Law § 200 case, where any liability for the first accident would be based upon common law negligence. The Court offers no opinion as to its applicability where liability is based upon Labor Law § 240(1) or § 241(6).

Here, Defendants fail to make any showing with respect to Plaintiff's allegation that the second accident was caused by the injuries Plaintiff sustained in the first accident. As such, they fail to demonstrate prima facie entitlement to summary judgment.

Accordingly, the branch of Defendants' motion seeking summary judgment dismissal of Plaintiff's Amended Verified Complaint to the extent that Plaintiff asserts that the injuries sustained in the December 1, 2005 accident caused the December 8, 2005 accident is DENIED.

Finally, Defendants/ Third-Party Plaintiffs contend that they are entitled to summary judgment against Third-Party Defendants on their Third-Party Complaint alleging, among other things, common law indemnification. Nonetheless, since they failed to demonstrate prima facie that they were not negligent, and since they also fail to make any showing that Third-Party Defendants were negligent, they fail to establish prima facie entitlement to summary judgment. (See e.g. Perri v Gilbert Johnson Enterprises, Ltd., 14 AD3d 681, 685 [2d Dept 2005].) Accordingly, that branch of their motion is DENIED.

In sum, the branch of Defendants' motion seeking summary judgment dismissal of Plaintiff's Labor Law § 240(1) cause of action is granted. The branch of their motion seeking summary judgment on Plaintiff's Labor Law § 241(6) cause of action is granted only to the extent that Plaintiff may not rely on violations of 12 NYCRR 23-1.7, 12 NYCRR 23-1.8, 12 NYCRR 23-1.10, 12 NYCRR 23-1.12, 12 NYCRR 23-5, and 12 NYCRR 23-9.2, and is denied with respect to 12 NYCRR 23-1.16, 12 NYCRR 23-1.21, and 12 NYCRR 23-2.3(d). The branch of Defendants' motion seeking summary judgment dismissal of Plaintiff's Labor Law § 200 and common law negligence claims is denied. The branch of Defendants'/Third-Party Plaintiffs' motion seeking summary judgment on their common law indemnification claim as against Third-Party Defendants is denied.

August 3, 2009

____________________

Jack M. Battaglia [*8]

Justice, Supreme Court