DeFeo v City of New York

[*1] DeFeo v City of New York 2009 NY Slip Op 52227(U) [25 Misc 3d 1221(A)] Decided on October 2, 2009 Supreme Court, Richmond County Aliotta, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 2, 2009
Supreme Court, Richmond County

Neil DeFeo, Plaintiff,

against

The City of New York, New York City Economic Development Corp. and Skanska USA Building, Inc., Defendants.



101685/05

Thomas P. Aliotta, J.

Defendant Skanska USA Building, Inc. (hereinafter "Skanska") moves for summary judgment pursuant to CPLR 3212 (Motion No. 1063) dismissing plaintiff's Labor Law causes of action and those sounding in common-law negligence, as well as any cross claims against it. Co-defendants the City of New York and the New York City Economic Development Corporation (hereafter, collectively, the "City") cross-move for like relief (Motion No. 2253) and an order pursuant to CPLR 3025 granting them leave to serve an amended answer containing a cross claim for contractual indemnification against Skanska. Plaintiff Neil DeFeo opposes both motions and cross-moves for partial summary judgment (Motion No. 1471) on the issue of liability on his causes of action predicated upon alleged violations of Labor Law §§240(1) and 241(6), and setting the matter down for an immediate assessment of damages [FN1]. Skanska opposes both cross motions.

Plaintiff commenced this action by the filing and service of a summons with complaint upon each of the defendants on or about June 6, 2005. Issue was joined by the service of answers by Skanska on or about July 29, 2005, and by the City on or about August 1, 2005. A note of issue was filed on January 20, 2009.

This action arises from personal injuries allegedly sustained by plaintiff while working as an employee of Transcontinental Steel on a construction site at the Staten Island Ferry Terminal on October 23, 2004. Pursuant to its contract with the New York City Economic Development Corp., Skanska was hired as a general "consultant" on the site, which is indisputedly owned by the City. Insofar as it appears, plaintiff was standing on the ground, working, when a co-worker's "spud" wrench fell from the floor of a scissor lift supplied by his employer and struck plaintiff on the right leg, close to his ankle, causing a shallow cut. After the wound was cleaned and bandaged, plaintiff returned to work. Some two weeks later he sought medical attention from his regular family physician.

In support of its motion for summary judgment, Skanska has attached a copy of the pleadings and plaintiff's bill of particulars; a copy of plaintiff's testimony at his deposition and 50-h hearing; a copy of the deposition testimony of Melvin A. Glickman (Executive Vice President of the co-defendant New York City Economic Development Corporation); an affidavit by Howard I. Edelson (an expert in the field of construction site safety); and an attorney's affirmation. Based upon these [*2]submissions, Skanska contends that the complaint and all cross claims against it should be dismissed.

With regard to plaintiff's claim under Labor Law §240(1), Skanska alleges that since plaintiff was not struck by material which fell while being hoisted or secured, section 240(1) of the Labor Law is per se inapplicable to impose liability upon it for plaintiff's injury. Skanska further alleges that this was not a situation where a hoisting or securing device of the kind enumerated in Labor Law §240(1) would have been necessary or even expected to prevent the injury. With regard to the claim under Labor Law §241(6), Skanska alleges that the cited section of the Industrial Code, entitled "Aerial Baskets," has no application to the facts of this case and may not serve as a predicate for liability [FN2].

In support of its cross motion, the City has attached a copy of the pleadings, and plaintiff's bill of particulars; a copy of his testimony at the 50-h hearing and his deposition; a copy of the contract between the New York City Economic Development Corporation and Skanska, dated March 10, 2000, as well as a copy of its proposed amended answer. In support of summary judgment dismissal of the complaint as against them, the City relies upon the same arguments advanced by Skanska. In support of its application for leave to serve an amended answer, the City alleges that its prior counsel neglected to include same in its original answer, and it will cause no prejudice to either the plaintiff or Skanska. Finally, should the amendment be granted, the City seeks summary judgment on its cross claim against Skanska for contractual indemnification pursuant to section 9.02 of the contract between the parties.

In support of his motion for partial summary judgment on the issue of liability, plaintiff has attached an attorney's affirmation; blank contract forms used by the New York City Economic Development Corporation; a copy of the Federal Aid Requirements Supplement and related documents pertinent to the construction project at the Ferry Terminal; an affidavit by Anthony Ciaramella (plaintiff's supervisor at the construction site, the person who was working from the scissor's lift at the time of the occurrence, and a fellow employee at Transcontinental Steel); and a copy of the deposition testimony of Guido Garbarino (a former Skanska employee and safety manager at the time in question)[FN3]. Plaintiff also relies upon the deposition testimony of Melvin Glickman (attached to Skanska's moving papers as Exhibit "F"). Based upon these submissions, plaintiff contends that he has demonstrated prima facie that both Skanska and the City violated Labor Law §§240(1) and 241(6) as a matter of law.

With respect to Labor Law §240(1), plaintiff contends that liability was established as a matter of law by defendants' failure to furnish necessary safety devices to secure an object (the spud wrench) that was required to be secured for the purposes of the undertaking. Contrary to an earlier line of cases, plaintiff contends that "falling object" liability is not limited to objects that are in the process of being hoisted or secured.

With respect to Labor Law §241(6), plaintiff relies upon Industrial Code section 23-9.6 11 (12 NYCRR §29-9.6[11]) which refers specifically to Aerial Baskets, and provides that "all tools not in use shall be adequately secured in trays in the baskets, or adequately secured in suitable belt holsters". In this regard, plaintiff cites the affidavit of his supervisor, Mr. Ciaramella, who states that there was nowhere on the scissors lift a pan or tray in which to place the spud wrench when it was [*3]not in use, and that the wrench was too large to place in his tool belt [FN4]. Thus, plaintiff argues that he is entitled to summary judgment on the issue of liability as against defendants under sections 240(1) and 241(6) of the Labor Law.

Labor Law 240(1)

Commonly known as the "scaffold law", this section provides that "[a]ll contractors or owners and their agents...shall furnish or erect, or cause to be furnished or erected...scaffolding, hoists, stays...and other devices which shall be so constructed, placed and operated as to give proper protection to [construction workers employed on the premises]." The aim of this statute is to protect workers by imposing liability for the failure to supply required safety devices at construction sites upon those best situated to mandate and implement their use (see Zimmer v. Chemung County Performing Arts, 65 NY2d 513, 520). This duty has been held to be non-delegable, and may subject contractors, owners or their agents (e.g. consultants) to liability for its breach whether or not any of them actually controlled or supervised the work in which the employee was engaged at the time of the accident (see Ross v. Curtis-Palmer Hydro-Elec Co., 81 NY2d 494, 500). While the statute itself is to be liberally construed so as to accomplish the purpose for which it was enacted, (i.e., provide special protection from elevation related hazards), injuries from other hazards not falling within the intent of the statute are not compensable thereunder, even if proximately caused by the lack of required safety devices (see Rocovich v. Consolidated Edison Co., 78 NY2d 509; Koenig v. Patrick Constr. Corp., 298 NY 313, 319; Quigley v. Thatcher, 207 NY 66, 68). Thus, it is not every object which falls at a construction site and injures a worker that will invoke the extraordinary protections set forth in Labor Law §240(1) (see Narducci v. Manhasset Bay Assoc., 96 NY2d 259, 267). In fact, relying upon Narducci, the Second Department had consistently held that "In the context of a falling object that injures a worker involved in an activity covered by Labor Law §240(1), the plaintiff must establish that the object fell while being hoisted or secured because of the inadequacy of a safety device enumerated in the statute" (Gambino v. Massachusetts Mut Life Ins. Co., 8 AD3d 337, 338; see also Coque v. Wildflower Estates Devs, Inc., 31 AD3d 484, 487-488; Galvin v. Triborough Bridge and Tunnel Auth., 29 AD3d 517; Rosado v. Briarwood Farm, Inc., 19 AD3d 396, 399). However, in 2008, the Court of Appeals held that "falling object liability under Labor Law §240(1) is not limited to cases in which the falling object is in the process of being hoisted or secured" (Quattrocchi v. F.J. Sciame Const. Corp., 11 NY3d 757, 758-759 [internal quotation marks omitted]). Accordingly, as a matter of first impression this Court is inclined to hold that triable issues of fact exist, e.g., as to whether the wrench in question was required to be secured for purposes of the undertaking by Labor Law §240(1) (cf. Lucas v. Fulton Realty Partners, LLC, 60 AD3d 1004, 1006), whether the tool belt possessed by plaintiff's co-employee was adequate to secure the wrench (see Novak v. Raymond L. DelSavio, ___AD3d___, 2009 NY Slip Op 5849), and, if the statute was violated in this case, whether any of the violations was a substantial factor in causing plaintiff's injury.

According to the affidavit of Anthony Ciaramella, the spud wrench which subsequently fell was one foot long and tapered to a sharp point at one end, therefore making it too big and sharp to place in his tool belt. The witness further testified that in the absence of any place to secure the sizeable wrench, he was forced to put it on the floor on the scissor jack, from where it eventually fell some 11 to12 feet, striking plaintiff close to his ankle. However, this affidavit has been effectively controverted by Skanska's expert. Howard I. Evelson, who averred that the "lug" wrench [*4]at bar was not an object that needed to be secured as contemplated by the statute.[FN5] Viewing this evidence in a light most favorable to the plaintiff as the opponent of Skanska's motion for summary judgment, this Court concludes that triable issues of fact have been raised in this case which preclude summary judgment (cf. Smith v. LeFrois Dev, LLC, 28 AD3d 1133). Thus, the motion and cross motions for summary judgment under Labor Law §240 (1) must be denied.

Labor Law 241(6)

As is relevant, Labor Law §241(6) requires owners contractors and their agents to provide reasonable and adequate protection for the safety of workers performing construction, excavation and demolition work by complying with specific rules and regulations promulgated by the Commissioner of the Department of Labor in the Industrial Code as set forth in article 12 of New York's Codes, Rules and Regulations (NYCRR). Like Labor Law §240(1), the duty imposed by section 241(6) is non-delegable (see Long v. Forest-Fehlhaber, 55 NY2d 154, 159), but while the liability imposed by Labor Law §240(1) is said to be absolute, a breach of the Industrial Code only constitutes "some evidence" of negligence (id.). Nevertheless, claims under Labor Law §241(6) are also viable against owners, contractors and their agents who neither control nor supervise the work (Ross v. Curtis-Palmer Hydro-Elec Co., 81 NY2d at 502). In order to prevail on a claim under Labor Law §241(6), a plaintiff must establish (1) the violation of a specific Industrial Code requirement not based upon common-law principles , and (2) that such violation was a proximate cause of his or her injuries (see Zimmer v. Chemung County Performing Arts, 65 NY2d at 524; Rakowicz v. Fashion Inst of Tech, 56 AD3d 747).However, under Labor Law §241(6) the worker's own negligence may be introduced into evidence on the issue of causation.

In the instant case, plaintiff relies upon a single Industrial Code provision, i.e., a violation of 12 NYCRR §23-9.6(11), as the basis for his cause of action. This code provision refers specifically to "Aerial Baskets", and provides that "All tools not in use shall be adequately secured in trays in the baskets, or adequately secured in suitable belt holsters". Here, it is undisputed that Mr. Ciaramella was working from a scissor lift rather than an aerial basket when the spud wrench fell. While similar in function to an aerial basket in that either may be used to elevate workers to a given work site, case law suggests that a scissor lift is to be considered as "scaffolding" for purposes of the Labor Law (see Primavera v. Benderson Family, 1968 Trust, 294 AD2d 923, 924)[FN6]. Thus, the alleged violation of the provision relied upon by plaintiff cannot serve as a basis for liability under Labor Law §241(6)[FN7].

Accordingly, so much of the motion and cross motion brought by Skanska and the City as seeks summary judgment dismissing plaintiff's Labor Law §241(6) cause of action must be granted.

For the reasons previously stated, plaintiff's cross motion for partial summary judgment on the issue of liability must be denied in its entirety.[FN8] [*5]

Finally, the Court will consider that part of the City's motion which seeks leave to serve an amended answer containing a prayer for contractual indemnification against Skanska. In support of its application, the City alleges law office failure on the part of prior counsel for omission of the cross claim and no prejudice to Skanska. In opposition, Skanska contends there is no merit to its co-defendant's claim for contractual indemnity because (1) the accident did not arise out of work performed under its contract with the City, (2) it did not direct or control the means or methods of plaintiff's work, (3) the accident was not caused by any negligence on the part of Skanska, and (4) Transcontinental, as plaintiff's employer and a subcontractor hired by the City, had the obligation to provide plaintiff with a safe place to work and to provide him any safety equipment mandated by the Labor Law.

It is well established that leave to amend pleadings should be freely given so long as the proposed amendment (1) is not palpably improper, (2) does not cause prejudice or surprise to the opposing party and (3) is not patently devoid of merit (Sanatass v. Town of N. Hempstead ___AD3d____, 2009 NY Slip Op 5955). Moreover, the determination of whether to grant leave lies within the sound discretion of the Court (Gitlin v. Chirinkin, 60 AD3d 901, 902).

As is relevant, to the case at bar, it is correct that Transcontinental was hired by the City rather than Skanska, and it is undisputed that Skanska neither directed or controlled the work being performed by plaintiff when he suffered his accident. In addition, a reading of the indemnification clause drafted by and relied upon by the City to support their cross claim for indemnification provides, in pertinent part, that Skanska will reimburse the City for liability "resulting from any act, omission, negligence, fault or default of the Consultant [Skanska] or its employees, agents, servants, independent contractors or sub-contractors retained by the Consultant". Interpreting this clause strictly against the drafter i.e., the City, it is the opinion of this Court that the City does not possess any right to contractual indemnification against Skanska, as the evidence before the court indicates that its and the City's liability, (if any) under Labor Law §240(1) is either equally active or vicarious in nature. Based upon this conclusion and other factors in the case, including the fact that the application was made after the note of issue had been filed, the City's cross motion for leave to amend its answer must be denied.

Accordingly, it is

ORDERED that the motion by Skanska USA Building, Inc. and the cross motion by the City of New York and the New York City Economic Development Corp. for summary judgment are granted as to plaintiff's causes of action sounding in Labor Law §241(6), and denied as to plaintiff's causes of action sounding in Labor Law §240(1); and it is further

ORDERED that the causes of action sounding in Labor Law §241(6), are severed and dismissed; and it is further

ORDERED that the causes of action sounding in Labor Law §200 and common-law negligence have been withdrawn; and it is further

ORDERED that plaintiff's cross motion for partial summary judgment on the issue of liability is denied in its entirety; and it is further

ORDERED that so much of the City's cross motion as seeks leave to serve an amended answer is denied; and it is further

ORDERED that the Clerk enter the judgment and endorse his records accordingly. [*6]

ENTER,

____/s/__________________

Hon. Thomas P. Aliotta

J.S.C.

Dated: October 2, 2009 Footnotes

Footnote 1:Plaintiff, in his cross motion, has withdrawn all of his claims based on the alleged violation of Labor Law §200 (and implicitly common-law negligence), as well as all claimed Industrial Code violations except for Industrial Code §23-9.6 (11)(7 NYCRR §23-9.6[11]).

Footnote 2:Since plaintiff has withdrawn all claims for liability predicated upon Industrial Code violations except section 23-9.6(11) (12 NYCRR §23-9.6[11]), the other sections contained in plaintiff's bill of particulars need not be discussed.

Footnote 3:Notably absent is a copy of all of the pleadings as required by CPLR 3212(b).

Footnote 4:Plaintiff testified during his deposition that he was not sure whether the lift had a pan for tools and whether Mr. Ciarmella was wearing his tool belt at the time of the accident. However, contrary to his supervisor's testimony, he did state that spud wrenches of the type that struck him could fit and be worn on the kind of tool belt that Mr. Ciarmella possessed (DeFeo EBT of April 26, 2007 pp 57 L 11-12, pp 75 L 72-75).

Footnote 5:It is unclear whether defendant's expert ever viewed the tool belt or wrench in question.

Footnote 6:Scissor lifts do not appear to be specifically addressed in either the New York State Industrial Code or any Occupational Safety and Health Administration (OSHA) rules.

Footnote 7: Whether an alleged violation of a specific safety regulation promulgated by the Commissioner of Department of Labor may be relied upon as a basis for liability is a determination that continues to challenge the Courts in this State (see e.g. Misicki v. Caradonna, 12 NY3d 511).

Footnote 8:In light of this e.g. determination, the Court will not address whether said motion was timely, as raised in Skanska's opposition papers.