Strangio v Sevenson Envtl. Servs., Inc.
Annotate this CaseDecided on August 10, 2009
Supreme Court, Niagara County
Francesco Strangio, Plaintiff,
against
Sevenson Environmental Services, Inc. and The Goodyear Tire & Rubber Company , Defendants
120903
Richard P. Weisbeck, Jr., Esq.
Lipsitz Green Scime Cambria, LLP
Attorneys for Plaintiff
42 Delaware Avenue, Suite 120
Buffalo, New York 14202-3924
William D. Christ, Esq.
Phillips Lytle, LLP
Attorneys for Defendants/Third-Party Plaintiffs
3400 HSBC Center
Buffalo, New York 14203
Michael T. Coutu, Esq. Sliwa & Lane
Attorneys for Third-Party Defendant
840 Main-Seneca Building
237 Main Street
Buffalo, New York 14203
Ralph A. Boniello, J.
Plaintiff, Francesco Strangio (hereinafter, "Strangio"), has moved for partial summary judgment on the issue of liability against Defendants pursuant to Labor Law § 240 (1). Defendants/Third Party Plaintiffs, Sevenson Environmental Services, Inc., and the Goodyear Tire & Rubber Company (hereinafter, "Sevenson") seek summary judgment dismissing the Plaintiff's Complaint and/or move for contractual indemnification as well as striking the Plaintiff's Supplemental Bill of Particulars. Third Party Defendant, Thomas Johnson, Inc. (hereinafter, "TJI"), has also moved for summary judgment dismissing the Plaintiff's Complaint. The Court notes that the portion of the Motions seeking summary judgment dismissing the claims asserted under Labor Law § 200 and common law negligence were granted from the Bench.
On October 6, 2003, Plaintiff Strangio, who was an employee of Third Party Defendant TJI, a subcontractor hired to install a brick and block wall on a building project, sustained injuries when he was struck in the face by the arm/handle of a crank used to raise and lower a scaffold.
The scaffold in question used a crank and pulley system to raise and lower the decks. The scaffold had two levels: the upper level serviced the laborers, held tubs of mortar and contained the crank and pulley system. The bricklayers worked from the lower level. The crank and pulley system had a lock mechanism described as a steel latch which drags and locks into cogs securing the scaffold at the desired level commonly referred to as a "dog and latch" mechanism. The mechanism must be disengaged in order to raise or lower the scaffold. At the time of the incident, the Plaintiff was working on the top level of the scaffold in the process of raising it by turning the hand crank in a counter-clockwise rotation. For some unexplained reason, the crank arm spun backwards in a clockwise movement striking the Plaintiff in the face causing him to sustain various injuries. The scaffold which had a free-fall safety mechanism prevented it from falling beyond more than one foot when the dog and latch mechanism did not engage.
Summary Judgment
Summary Judgment is a drastic remedy which should not be granted if there is a possible relevant factual issue (Siegel, NY Prac § 278, at 438-439 [3d ed]).It is well settled that a party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient evidence to demonstrate the absence of any material issues of fact (Alvarez v Prospect Hospital, 68 NY2d 320 [1986]). Once the moving party makes this prima facie showing, the burden shifts to the opposing party to produce admissible evidence sufficient to establish the existence of triable issues of material fact (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Wilson v Woodward Builders, Inc., 140 AD2d 957, 958 [4th Dept 1988]).
[*2]Labor Law § 240 (1)
It is well established that the duty imposed by Labor Law § 240 (1) is nondelegable and that an owner or contractor who breaches that duty is absolutely liable for injuries sustained by any worker regardless of whether it has actually exercised supervision or control over the work (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494 [1993]). In order to establish a violation of Labor Law § 240, the Plaintiff must show that he was exposed to an elevation-related risk, that his injury was proximately caused by such risk, and the hazard to which he was exposed is within the contemplation of the statute Id. The fact that a plaintiff is injured while working at an elevation is not conclusive evidence of a violation of Labor Law § 240 (1) (Hasty v Solvay Mill Ltd. P'ship, 306 AD2d 892 [4th Dept 2003]). The law is clear that the protections provided under Labor Law § 240 (1) extend only to a narrow class of "special hazards", and do not encompass any and all perils that may be connected in some superficial way with the effects of gravity (Robinson v East Med. Ctr., L.P., 17 AD3d 1027 [4th Dept 2005]). However, Labor Law § 240 (1) has been found to apply where the force of gravity requires the worker to act to prevent himself or herself from falling from an elevated worksite (Peters v Kissling Interests, Inc., 63 AD3d 1519 [4th Dept 2009]).
The record reflects that the Plaintiff herein was not injured while falling from or attempting to prevent himself from falling from the scaffold (see, Dipasquale v M.J. Ogiony Bldrs, 60 AD3d 1338 [4th Dept 2009]; Robinson, supra; Moutray v Baron, 244 AD2d 618 [3rd Dept 1997]; Dupuy v Hayner Hoyt Corp., 221 AD2d 901 [4th Dept 1995]). It is undisputed that the Plaintiff's injuries were solely caused by the crank arm striking him in the face. Although a rapid and unexpected movement of the crank arm at the same level of Plaintiff caused the injury, the accident resulted from the usual and ordinary dangers of a construction site (see, Fulton v Northland Assocs., 248 AD2d 1020 [4th Dept 1998]; White v Farash Corp., 224 AD2d 978 [4th Dept 1996]). Moreover, the hazard causing the Plaintiff's injuries was only "tangentially connected with the effects of gravity" rather than involving an elevation hazard contemplated by Labor Law § 240 (1) (see, Harmon v Hotel Syracuse, Inc., 26 AD3d 750 [4th Dept 2006]). Based upon the facts and circumstances herein, we cannot find that the mandates of Labor Law § 240 (1) were violated, thus making the imposition of strict liability applicable.
Labor Law § 241 (6)
It is well settled that to establish a cause of action under Labor Law § 241 (6), a plaintiff must demonstrate that the defendants violated a rule or regulation of the Commissioner of Labor that sets forth a specific standard of conduct as opposed to a general reiteration of common-law principles (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494 [1993]; Cafarella v Harrison Radiator Div. of GM, 237 AD2d 936 [4th Dept 1997]; Dombrowski v Schwartz, 217 AD2d 914 [4th Dept 1995]). The Plaintiff alleged violations of 12 NYCRR § 23-1.5, § 23-5.1(b) and § 23-6.1(j)(7) as well as OSHA regulation and 29 USCA § 654. Based upon the failure of the Plaintiff to present any opposition, the Court dismisses claims arising from alleged violations of 12 NYCRR § 23-1.5, OSHA regulation and 29 USCA § 654 (see generally, Hasty, supra; Irwin v St. Joseph's Intercommunity Hosp., 236 AD2d 123 [4th Dept 1997]). With respect to the regulations under § 23-5.1(b) and § 23-6.1(j)(7) , such provisions deal with scaffold footing and anchorage as well as suspended loads and hoisting thereof and therefore, the Court finds they are not applicable to the facts herein.
[*3]Accordingly, the Motions for Summary Judgment by Defendants/Third Party Plaintiffs Sevenson and Third Party Defendant TJI seeking summary judgment dismissing the Plaintiff's Complaint are granted. Plaintiff Strangio's request for partial summary judgment on the issue of liability against Defendants pursuant to Labor Law § 240 (1) is denied. In light of the Decision reached herein, the remaining outstanding issues/motions are deemed moot.
The signing of this Decision and Order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of this rule with regard to filing, entry and Notice of Entry.
This constitutes the Judgment and Order of this Court and shall be filed as such.
___________________________________
RALPH A. BONIELLO, III.
Supreme Court Justice
Dated:August 10, 2009
Niagara Falls, New York
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