Caravello v City of New York

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Caravello v City of New York 2011 NY Slip Op 32610(U) September 12, 2011 Supreme Court, New York County Docket Number: 109449/09 Judge: Manuel J. Mendez Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PRESENT: HQN. MANUEL J. MENDEZ PART 13 Justlce INDEX NO. 109449109 MOTION DATE MATTHEW CARAVELLO and ROSEANN CARAVELLO, 08-03-2011 PIalntlff(s), -V002 MOTION SEQ. NO. THE CITY OF NEW YORK, HUDSON RIVER PARK TRUST, SKANSKA USA, INC. and SPEARIN, PRESTON & BURROWS, INC., DsfendanUs) The followlng papers, numbered 1 to MOTION CAL. NO. . 12 were read on this motlon to/ for Summary Judgment : I Notlce of Motion1 Order to Show Cause - Affldavih - Exhlblts Answering Affidavlts - Exhlblts cross motlon Cross-Motion: F I L E(D= I OCT 04 2Ufl Replying Affldavlts Yes PAPERS NUMBERED $,& 11, 12 X No NEW YORK Upon the foregolng papers, it is Ordered fi@+##66&6f?~M W N RIVER H PARK TRUST and SKANSKA USA, INC. s , motion for summary judgment is granted, to the extent that plalntlffs Federal Longshore and Harbor Worker s Compensation Act (LHWCA) causes of action; Labor Law $241 [6], those causes of action pertaining to violatlons of lndustrlal Code Sections (12 N.Y.C.R.R.), 23-1.5[b], 23-1.5[~][1] and [3], 23-1.7[dI, 23-1.7[eJ[l] and [2], 23-1.22[b][l] and [2], 23-1.22[b][4], 23-2.1 [a] [2], 23-2.2, 232.4 and 23-3; and the causes of action agalnst Skanska USA, Inc. pursuant to Labor Law 5200 are severed and dlsmlssed. The remainder of the motlon is denied. Matthew Caravello was employed as a dock builder on a project known as Segment 5, expanding a section of pier located between 22 d and 27thStreet and Twelfth Avenue along the Hudson River, which was to become part of a public park. He was Involved In driving concrete plies, and setting and removing false work. He claims that cut metal H-beams had been placed so that they blocked direct access to the gangway leadlng to an exit. The H-beams were approximately 26 off the ground. On October 23, 2008, after he flnlshed the day s work and was heading to his car, He walked approximately thirty feet along the length of the H-beams and as he approached the last part of the beam It twisted downwards causlng his right leg to fall onto a concrete precast slab. He claims that his knee twisted and was Injured as a result of the fall. Plalntlffs seek to recover for injuries pursuant to the Federal Longshore and Harbor Worker s Compensation Act (LHWCA), 33 U.S.C. 5905 and 9933, pursuant to Labor Law $200, $240 [ and $241 [6]. I ] Hudson River Park Trust and Skanska USA Inc., hereinafter referred to as the defendants, seek summary Judgmentclalmlng that LHWCA pre-empts New York s Labor Law against all defendants, and they are not llable under LHWCA. Defendants [* 2] clalm that Labor Law $200, §240[1]1 and $241 [6] , do not apply to them. The plaintiffs discontinued their actlon against Spearin, Preston & Burrows, Inc., by stlpulation dated August 6,201 0 [Mot. Exh. I].The actlon was discontinued against the Clty of New York by stipulatlon dated December 20,2010 [Mot. Exh. J]. Plaintiffs oppose the motion claiming that LHWCA applies and does not preand empt New York Labor Law 5200,§240 [I] $241 [6] ,which also apply. In order to prevail on a motlon for summary judgment pursuant to CPLR $3212, the proponent must make a prima facie showlng of entitlement to judgment as a matter of law, through admlsslble evidence, eliminating all materlal Issues of fact (Klein v. Clty of New York, 89 N.Y. 2d 833, 675 N.E. 2d 548,652 N.Y.S. 2d 723 [I9961 and Alvarez v. Prospect Hospital, 68 N.Y. 2d 320,501 N.E. 2d 572,508 N.Y.S. 2d 923 [1986]). Once the moving party has satisfled these standards, the burden shifts to the opponent to rebut that prlma facie showlng, by produclng contrary evidence in admissible form, sufflclent to require a trial of materlal factual issues (Amatulll v. Delhi Constr. Corp., 77 N.Y. 2d 525,571 N.E. 2d 645; 569 N.Y.S. 2d 337 [1999]). Federal maritime law and admlralty jurisdlctlon does not necessarily supersede and preempt New York State Labor Law. In determlnlng whether the New York State Labor Law should be preempted, the court should take into consideratlon, whether the State rule conflicts with Federal Law, hinders uniformity, makes substantive changes, or Inteiferes wlth the characteristic features of maritime law or commerce (Cammon v. City of New York, 95 N.Y. 2d 583,744 N.E. 2d 114 [2000]). Local laws that control liability issues concerning contractors and landowners within the state as opposed to the negllgence of vessel do not have to be preempted (Lee v. Astorla Generating Company, L.P., 13 N.Y. 3d 382,920 N.E. 2d 350,892 N.Y.S. 2d 294 [2009]). An employee can receive benefits under LWHCA and also bring Labor Law claims against a landowner or contractor as long as there are no far-reaching implications to maritime commerce or threat to the unlformlty of federal maritime law. Important state interests In protectlng the health and safety of workers should not be displaced where there Is no potential impact on federal maritime commerce or regulatlon (Cammon v. City of New York, 95 N.Y. 2d 583, supra and Lee v. Astoria Generating Company, L.P., 13 N.Y. 3d 382, supra). LHWCA provides longshoremen and others engaged In maritime employment wlth no-fault workers compensatlon benefits for InJurlessustained in the course of employment. LHWCA §905[a] prevents employees from seeking any other remedy against their employers. LHWCA 5933 permits employees to recover for Injuries from third parties, other than employers, for negligence and prevents the need to make an election between compensatlon and damages (Bloomer v. Liberty Mutual Ins. Co., 445 U.S. 74,100 S. Ct. 925,63 L.Ed. 2d 215 [1980]). LHWCA §905[b] Incorporates LHWCA 5933 [a], but prohibits employees from seeklng recovery agalnst the owner of the vessel except as to negligence actions (Emmanuel v. Sheridan Transportation Corp., 10 A.D. 3d 46,779 N.Y.S. 2d 168 [N.Y.A.D. lot 20041 and Lee v. Astoria Generating Dept. Company, L.P., 13 N.Y. 3d 382,920 N.E. 2d 350,892 N.Y.S. 2d 294 [2009]). [* 3] Defendants have not made a prima facie showlng entitllng them to summary Judgment based on preemptlon under LWHCA. Although the plaintiff was injured on a gangway located on navlgable waters, he was not Involved In an activity that would affect maritime commerce. Defendants have failed to sufflclently establish that the construction s proximlty to Chelsea Plers or that It is located along the Hudson Rlver, would directly affect marltlme commerce. The defendants mlsconstrue the meaning of local In nature by thelr claim that the proJectis not local because the owner of the land Is the State of New York. Laws that control llabllity Issues concerning contractors and landowners wlthln the state are local in nature as opposed to the negligence of a vessel which has federal maritime lmpllcatlons. The plaintiffs labor law claims whlch reflect the state s Interests in protecting health and safety of workers do not conflict wlth or threaten the unlformlty of marltlme law. The defendants have established a prima facie case for summary judgment concernlng the plalntlffs LHWCA 5933 [a] and $905[a],[b] claims. LHWCA 9933,permits clalms against third partles but the plaintlff has not sufficiently met thelr burden of proof establlshlng that the causes of actlon under federal maritime law would apply to the defendants. LHWCA §905[a] only applies to employers and LHWCA §905[b] only applles to the owner of the vessel. Neither Skanska USA Inc. or the Hudson River Park Trust are the employers of Matthew Caravello or the owners of the vessels Involved in this actlon. The plaintiffs have not sufficiently met thelr burden of proof to sustaln the LHWCA causes of action against the defendants. On October 23, 2008, Matthew Caravello s duties included cutting steal H-beams wlth an acetylene torch, eventually they would be hoisted by crane to be placed In a dumpster. He left the beams and went to work on a barge where he burned holes In the spud until he flnlshed working for the day [Mot. Exh. E, pp 39,471. He used upslde down J-Hooks to get to work and dld not observe the metal H-beams when he started work on October 23,2008 [Mot. Exh.E, p. 38,561. A t approximately 1:40pm, after he finished working for the day, he returned his llfe Jacketto a shanty located on a nearby barge for storage [Mot. Exh. E, pp 4840,521. After returning the life jacket, he crossed to a second barge, and went up metal H-beams to get across the gangway whlch connected to the precast slab which had upslde down metal hooks stlcklng up. He needed to walk over the precast slab after the gangway and over the seawall to get to where he parked his car [Mot. Exh. E, pp.54-571. He testifled that cut metal H-beams had been placed so that they blocked direct access to the gangway leadlng to an exit. The H-beams were approximately 26 off the ground [Mot. Exh. E, pp.57- 591. He walked approxlmately thirty feet along the length of the H-beams wlth an operatlng engineer [Mot. Exh. E , p 51,57-601. As he approached the last part of the beam he was standing on, It twisted downwards causing his right leg to fall onto a concrete precast slab between upslde down metal hooks. He claims that hls knee twisted and was injured as a result of the fall [Mot. Exh. E pp.62-651. Pursuant to an agreement dated Aprll3,1999, the Hudson River Park Trust leased the property from the State of New York and retained a possessory Interest in the premises [Mot. Exh. R]. Although a lessee, Hudson River Park Trust was listed as owners In the consultant agreement dated October 17,2005, wlth Skanska USA Inc. [Mot. Exh.S]. Pursuant to the agreement Skanska USA, Inc. was requlred to be a [* 4] liaison between the Hudson River Park Trust, the Architect and all other contractors. Skanska USA, Inc. was also required by contract to inspect the premlses daily and advise contractors of the need for corrective work [Mot. Exh.S]. Brian Joseph testified on behalf of Skanska USA, Inc., that on October 21,2008, he created a memorandum whlch was sent to Jeff Glennon of Spearin, Preston and Burrows, plaintiff s employer, which referred to the removal of metal piles. The Hudson River Park Trust was Included In Skanska USA, Inc. s safety meetings and memorandums [Mot. Exh. L, pp 14-18]. Peter Kelly, a project manager testified on behalf of the Hudson River Park Trust that the owner of the land was the State of New York. The Hudson River Park Trust leased the premlses, but was responsible for overseeing the project and observed the constructlon. Peter Kelly reported to Mark Boddewyn, the Vice-President of Design and Construction for the project. Peter Kelly testified that a representative of the Hudson River Park Trust would attend meetings between contractors and Skanska USA Inc., the constructlon manager [Mot. Exh. K pp. 14,18-26, 321. The purpose of Labor Law §240[1], also known as the scaffold law Is to protect construction workers by imposing strict llablllty on owners, contractors and their s agents, for vlolatlons whlch proximately cause Injuries. Labor Law §240[1] I a strict and absolute llabllity statute, the comparative negllgence of the worker Is not a defense. Strict liability applies regardless of whether there was actual exercise of supemision and control over the work performed (Sanatass v. Consolldated Investing Company, 10 N.Y. 3d 333,887 N.E. 2d 1125 [2008] and Cahill v. Trlborough Bridge and Tunnel Authority, 4 N.Y. 3d 35,823 N.E. 2d 439,790 N.Y.S. 2d 74 [2004] ). Lessees can be deemed owners within the meaning of the statute (FerluckaJv. Goldman Saks & Co., 12 N.Y. 3d 316,908 N.E. 2d 869,880 N.Y. 2d 879 [2009]). Labor Law §240[1], Is to be construed liberally to accomplish Its purpose, however, It I limited to special s hazards Involving elevation dlfferentlals ( Ross v. Curtis-Palmer Hydro Electric Company, 81 N.Y. 2d 494,618 N.E. 2d 82,601 N.Y.S. 2d 49 [I9931 ). An accldent alone Is not sufflclent to establish a Labor Law §240[1] violation or causation, because not every worker that falls at a construction site is covered under the statute, Recovery does not extend to harm resulting from routine workplace rlsks (Runner v. New York Stock Exchange, 12 N.Y. 3d 599,922 N.E. 2d 865,895 N.Y.S. 2d 279 [2009], and Ross v. Curtis-Palmer Hydro Electric Company, 81 N.Y. 2d 494,supra). The statute also applies to stationary objects, liability attaches to objects that need securing. The standard Involved in securing an object, Is the presence of a foreseeable elevation risk in light of the work beino performed (Buckley v. C olumbla Grammar and Preparatory, 44 A.D. 3d Dept. 263,841 N.Y.S. 2d 249 [N.Y.A.D. lot 200q). The plaintiff has the burden of showing that protection was needed from the effects of gravity, that a risk of elevation based injury exlsts, and that the owner or contractor did not provide adequate safety devlces (Broggy v. Rockefeller Group, Inc., 8 N.Y. 3d 675,870 N.E. 2d 1144,839 N.Y.S. 2d 714 [20071). In determining whether an elevation hazard exists there Is, no bright line height differential. Defendants have been found liable over a fall that was only two and a half feet (Aurlemma v. Blltmore Theater, LLC, 82 A.D. 3d 1,917 N.Y.S. 2d 130 [N.Y.A.D. 1 Dept. 20111 cltlng to Lelek v. [* 5] Veriron, N.Y., Inc., 54 A.D. 3d 583,863 N.Y.S. 2d 429 [N.Y.A.D. let 20081 and Megna Dept. v. Tishman Constr. Corp., 306 A.D. 2d 163,762 N.Y.S. 2d 63 [N.Y.A.D. let 20031). Dept. The statute has been applied when the plaintiff was injured while on a break, where the devlce Involved was used as a stagirlg area or an entryway to the work being pedormed and the rlsk of injury was foreseeable (Moraies v. Spring Scaffolding, inc., 24 A.D. 3d 42,802 N.Y.S. 2d 41 [N.Y.A.D. la 20051). Dept., The defendants have not sufficiently established that they are entitled to summary judgment pursuant to Labor Law §240[1]. The plaintiffs have met their burden of proof, establishing that there remain /@sues fact concerning the need for of protection from the effects of gravlty and the existence of an elevated rlsk. Skanska USA, inc. and Hudson Rlver Park Trust were aware of a potential rlsk from piles of metal beams as of October 21,2008, two days before the accident. Matthew Caraveiio had to walk up over the gangway and pre-cast slab to exit the work site, the unsecured H-beams were approximately two feet off the ground and thirty feet long, potentially blocking passage, and were a possible gravity-related risk due to elevation. The fact that he was finished working at the time of the accident, does not necessarily eliminate liability since the injurles occurred in an area where he had performed work earller in the day, and the exit and entrance to the job slte was potentially blocked. There remaln issues of fact concerning whether the defendants had sufficient notice of the hazard and that the risk of injury from using the beams was foreseeable. There also remaln issues of fact concerning whether the area could have been secured or an alternate safe means of entrance or egress provided to and from the job site. Labor Law $241[6] establishes a nondelegable duty of owners and contractors to provlde reasonable and adequate protection and safety for constructlon workers (Padlila v. Frances Schervier Housing Development Fund Corporation, 303 A.D. 2d 194, 758 N.Y.S. 2d 3 [N.Y.A.D. lrt 20031 citing to Ross v. CurtisPalmer Hydro Electric Dept., Company, 81 N.Y. 2d 494, supra). To establlsh liability the plaintiff is required to specifically plead and prove vloiations of the industrial Code regulations, which are the proximate cause of the injuries. The Industrial Code sectlon cited must be a positive command, and not a relteratlon of common law negligence (Buckley v. Columbia Grammar and Preparatory, 44 A.D. 3d 263, supra cltlng to Ross v. Curtis-PalmerHydro Electric Company, 81 N.Y. 2d 494, supra). Causes of action pursuant to Labor Law §241(6), are subject to vaild defenses of contributory negligence and comparative negligence (Ross v. Curtis-Palmer Hydro Electric Company, 81 N.Y. 2d 494, supra). The plaintiffs in item 23 of their Verifled Blll of Particulars dated September 8, 2009 [Opp. Exh. K], claim that the following lndustrlai Code Sections ( I 2 N.Y.C.R.R.) were vloiated, 23-1.5[b], 23-1.5[~][1]and [3], 23-1.7[d], 23-1.7[e][I] and [2], 23-1.22[b][I] and [2], 23-1.22[b][4], 23-2.1 [a][l] and [2], 23-2.2, 23-2.4 and 23-3.3. Section 23-1.5 of the industrial Code has been determined to be a generic dlrectlve that is insufficient to support causes of actlon made pursuant to Labor Law 5241[6] (Sihly v. New York City Translt Authority, 282 A.D. 2d 337,723 N.Y.S. 2d 189 [N.Y.A.D. lrt 20011). Sections 23-1.5[b], 23-1.S[c][l] and [3] are insufficient to Dept., support plaintiffs Labor Law §241[6] causes of action. An open area that is used between the Jobsite and the street Is not a passageway, walkway andlor working area as contemplated by Section 23-1.7 [d], [e][l] ( Mesiin v. New York Post, 30 A.D. 3d , [* 6] 309,817 N.Y.S. 2d 279 [N.Y.A.D. 1lt Dept., 20061 and Daianna v. City of New York, 308 A.D. 2d 400,764 N.Y.S. 2d 429 [N.Y.A.D. Imt20031). Matthew Caravello was injured Dept., in an open area therefore Section 23-1.7 [d], [e][l] does not apply. Industrial Code Section 23-1.7[e] [Z], involves tripping over debrls, toois or sharp projections in a work area. The plaintiff did not trip therefore Industrial Code Section 23-1 [e] [2] does not apply. Industrial Code Section 23-1.22 [b][l] pertains to runways and ramps used for motor vehicles and does not apply to the facts of this case. Section 23-1.22 [b][2], [4] applies to runways or ramps used by people. There Is no Indication based on the facts that Section 23-1.22 [b][2] applies because the H-beams were intended to be used as a runway or ramp and no proof the gangway was unstable. Sectlon 23-1.22 [b] [4] applies to a ramp and runway ...which is located at, or extends to, a height of more than four feet above the ground, grade, floor, or equivalent surFace.., the plaintiffs have not submitted proof that the gangway or the beams in this action extends more than four feet. Section 23-2.1 [a][2] applies to excessive weight and a danger to, any person beneath such edge, it does not apply to the facts of this case. Section 23-2.2 applies to concrete work, braces and supports involved In the pouring of concrete. In this case the H-beams were stacked for purposes of being removed and were not Involved in the pouring of concrete, therefore Section 23-2.2 does not apply. Industrial Code Sectlon 23-2.4, refers to flooring requirements In tiered building construction being erected by tower crane or derrick. There were no tiered buildings being constructed at the site therefore industrial Code Section 23-2.4 does not apply. Section 23-3.3 applies to demolition by hand, in this case, a crane which is a mechanical device was involved, therefore, this section does not apply. Industrial Code Section 23-2.1 [aJ[l] applies to the storage of material or equipment and states, material piles shall be stable under all conditions and that they be located so that they do not obstruct, any passageway, walkway, stalrway or other thoroughfare. A claim made pursuant to Section 23-2.1 [a][l], Is speclflc enough to sustain Labor Law $241 [6] causes of action (Tucker v. Tlshrnan Const. Corp. of New York, 36 A.D, 3d 417,828 N.Y.S. 2d 311 [N.Y.A.D. Vt Dept. 20071). The defendants have not sufflcientiy establlshed that Section 23-2.1 [a][l] does not apply In this case or that Michael Caravello s contributory negligence caused his injuries. There remains Issues of fact as to whether the H-beams were stored so that they obstructed the thoroughfare and prevented any other means of exiting on the precast and gangway. Labor Law 5 200 Imposes a common law duty on an owner or contractor to maintain a safe construction site. An lmpilclt precondition to the common law duty is that the party charged must have authority or exercise direct supewlsory control over the activity that resulted In the injury, mere directions as to the time and quality of the work Is not enough to Impose liability (Esposito v. New York City Industrial Development Agency, 305 A.D. 2d 108,760 N.Y.S. 18 [N.Y.A.D. lmt Dept., 20031 aff d, I N.Y. 3d 526,802 N.E. 2d 1080,770 N.Y.S. 2d 682 [2003] and Dalanna v City of New York, 308 A.D. 2d 400,764 N.Y.S. 2d 429 [N.Y.A.D. Iat 20031). A general duty to comply Dept., with safety regulations or to stop work for safety reasons does not render a construction manager liable (Burkoski v. Structure Tone, inc., 40 A.D. 3d 378,836 N.Y.S. 2d 130 [N.Y.A.D. lat 20071 and Dalanna v. City of New York, 308 A.D. 2d 400, Dept. 764 N.Y.S. 2d 429 [N.Y.A.D. lat 20031). A lessee of a pier can be liable under Labor Dept. Law 8 200 if It retained control of the work being performed at the premises. An Issue of / [* 7] fact is created if as a consequence of the constructlon manager s inspection, the lessee had notice of the alleged hazard (Olsen v. James Miller Marine Servlce, Inc., 16 A.D. 3d 169,791 N.Y.S. 92 [N.Y.A.D. l Dept., 20051). 2d Skanska USA, inc., has made a prima facie showing of entitlement to summary judgment concerning the Labor Law $200 causes of action .Skanska USA, Inc. was the constructlon manager, it did not supervise Mark Caravello s work. Pialntlffs have sufflciently raised Issues of fact concerning whether Labor Law 5 200 applies to Hudson River Park Trust. There remain Issues of fact concerning whether the Hudson Rlver Park Trust was given sufficient notice of the hazard concerning placement of the metal piles. The notice would be a consequence of Its construction manager Skanska USA Inc. s regular safety meetings whlch they were notified of and attended, and the memorandum dated October 21,2008, two days before the accident. There also remalns an Issue of fact concerning whether Hudson River Park Trust retained supervisory control over the actlvlty performed by Spearln , Preston and Burrows at the construction site. Accordingly, It Is ORDERED that defendants HUDSON RIVER PARK TRUST and s SKANSKA USA, INC. s motion for summary JudgmentI partially granted, plalntlffs Federal Longshore and Harbor Worker s Compensation Act (LHWCA) causes of action against said defendants, plaintiffs causes of action pursuant to Labor Law 5241 [6] pertalnlng to violations of lndustrlal Code Sectlons (12 N.Y.C.R.R.), 23-1.5[b], 23lS[c][l] and [3], 23-1.7[d], 23-Im7[e][1] [2], 23-1.22[b][l] and [2], 23-Im22[b][4], and 232.l[a] 23-2.2, 23-2.4 and 23-3.3,and the causes of action against Skanska USA, inc. pursuant to Labor Law 9200 are severed and dismissed, and it I further, s [a, ORDERED that plaintiffs causes of action against HUDSON RIVER PARK TRUST and SKANSKA USA, INC. pursuant to Labor Law $240 [I] Labor Law $241 and [SI pertalnlng to violatlon of lndustrlai Code Section Sectlon 23-2.1[a][l] , and plaintiffs causes of actlon pursuant to Labor Law $200 against HUDSON RIVER PARK TRUST, remain in effect, and it is further, ORDERED that the action shall contlnue to medlation andlor trial wlth the remaining defendants solely as to the plaintiffs remaining causes of actlon . This constitutes the decision and order of this court. Dated: September 12,2011 Check one: 0 FILED FIN&MWYWN Check if appropriate: LERK S OFF 0 DO NOT PO& A X NON-FINAL DISPOSITION 0 REFERENCE

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