Simoes v City of New York

[*1] Simoes v City of New York 2009 NY Slip Op 52797(U) Decided on June 25, 2009 Supreme Court, Bronx County Walker, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 25, 2009
Supreme Court, Bronx County

Simoes, Plaintiff(s),

against

City of New York, Defendant(s)



6506-2004

 

Sacks & Sacks, LLP

H.Q. Nguyen, Esq.

Attorneys for Plaintiff

150 Broadway, 4th Floor

New York, NY 10038

(212) 964-5570

White, Quinlan & Staley, LLP

Joanne Emily Bell, Esq.

Attorneys for Defendant

377 Oak Street

P.O. Box 9304

Garden City, NY 11530

(516) 222-2434

Edgar G. Walker, J.

Defendant's motion for summary judgment, pursuant to CPLR 3212, is granted as to plaintiff's Labor Law §§ 240 (1) and 200 claims and is denied as to plaintiff's claim under Labor Law § 241 (6). Plaintiff's cross-motion for partial summary judgment on his Labor Law § 240 (1) claim is denied.

On the day of the accident plaintiff was employed as a flagman at the McCombs Dam Bridge. Plaintiff was an employee of a general contractor hired to perform a complete restoration and repair of the bridge. At the time of the accident, plaintiff's assigned task was to "flag traffic" on the Harlem River Drive to allow "manlifts" to be driven into position under the bridge. As one of the lifts was driven on the roadway, the basket was in a raised position and being operated by Mr. Gaskin. Plaintiff observed the machine begin to malfunction. According to plaintiff's deposition testimony, the foreman, Mr. Matorano, directed Mr. Gaskin to drive the malfunctioning manlift to a nearby vacant lot and then the foreman "took off." The manlift made it to the curb in front of the lot and then, according to the plaintiff, it froze and although still running wouldn't move. At the direction of plaintiff, Mr. Gaskin climbed out of the basket and down the twelve-foot boom of the manlift. Plaintiff then climbed up the boom and into the basket. Moments later, the foreman returned driving a large pay loader and, in an attempt to push the manlift into the lot, struck the manlift causing it to fall over, injuring the plaintiff.

Plaintiff commenced this action against the City of New York, the owner of the bridge, claiming violations of Labor Law §§ 200, 240 (1) and 241 (6).

In support of the motion, defendant argues that plaintiff's 240 (1) claim must be dismissed based upon plaintiff's deposition testimony. Specifically, at the time of the accident plaintiff was assigned to direct traffic as a flagman and was not engaged in work which exposed him to an elevation-related hazard. To come within the protection of § 240 (1), the task that the plaintiff is performing must "entail a significant risk inherent in the particular task because of the relative elevation at which the task must be performed or at which materials or loads must be positioned or secured." Rocovich v Consolidated Edison Co., 78 NY2d 509. Here, plaintiff's assigned responsibilities as a flagman indisputably did not involve an elevation-related risk within the meaning of Labor Law § 240 (1). Jamison v. County of Onondaga, 17 AD3d 1142. Plaintiff claims, in opposition to the motion and in support of the cross motion, that he was not provided a harness in accordance with §240 (1). Based upon plaintiff's own testimony, there is no reason that he should have been provided a safety harness as it was not part of his assigned duties to climb the boom and attempt to move the manlift. Section 240 (1) is inapplicable herein as plaintiff's assigned task did not involve an elevation-related risk. Id.

In addition to his § 240 (1) claim, plaintiff asserts a claim pursuant to § 241 (6) of the Labor Law. Defendant argues that this claim must be dismissed because plaintiff was not engaged in "construction" within the meaning of § 241 (6) and that the accident did not occur at the job site. However, on facts indistinguishable from this case, the Appellate Division affirmed denial of summary judgment to the defendant where plaintiff, a flagman, was struck by a car in the street in front of the work site. Lucas v. KD Development Const. Corp., 300 AD2d 634.

Defendant also argues that plaintiff has failed to specify a violation of any applicable Industrial Code section to support his claim. In opposition to the motion, plaintiff specifically alleges violations of 12 NYCRR §§ 23-9-6 (c) (3) and (e) (8). Defendant argues in reply that the [*2]"manlift" is not a "vehicle-mounted power-operated device with an articulating or telescopic platform designed for use at elevated working positions" within the meaning of 12 NYCRR § 23-1.4(b) (2). Defendant cites no authority nor offers any expert opinion to support this bald assertion. See Murphy v. Broadway 48-49th St. Associates, 246 AD2d 392. Defendant argues that even were the court to find the manlift is an aerial basket within the meaning of the code, plaintiff's § 241(6) cause of action should nonetheless be dismissed because the code was not violated knowingly. In support of this argument, defendant relies upon the deposition testimony of Charles Moran. Assuming arguendo that a predicate to liability is that Mr. Matorano knew or should have known that plaintiff was in the basket, the record is clearly sufficient to establish the existence of a triable issue of fact. Even Mr. Moran stated that they (he and the laborers) gestured and called out to Mr. Matorano prior to impact. Plaintiff also testified that he screamed out to Mr. Matorano before impact. To the extent that defendant seeks to dismiss plaintiff's § 241 (6) claim, the motion is denied.

Without opposition, plaintiff's Labor Law § 200 claim is dismissed. Plaintiff conceded at deposition that the City had no supervision or control over the work. Based upon the foregoing, plaintiff's cross-motion is denied.

Dated :______________________________________________________

Hon. Edgar G. Walker, J.S.C.