Koom v Muslim Ctr. of N.Y., Inc.
2012 NY Slip Op 30909(U)
April 5, 2012
Supreme Court, Queens County
Docket Number: 27733/2009
Judge: David Elliot
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Short Form Order
NEW YORK SUPREME COURT - QUEENS COUNTY
- against MUSLIM CENTER OF NEW YORK, INC., et al.,
MUSLIM CENTER OF NEW YORK, INC.,
IAS Part 14
Date March 13,
Cal. Nos. 9, 10 & 11
Seq. Nos. 3, 4 & 8
-againstNORTH AMERICAN IRON WORKS, INC.,
The following papers numbered 1 to 25 read on this motion by defendant Bay Crane
Service, Inc. (Bay Crane Service) for an order granting it summary judgment dismissing the
complaint and all cross-claims; and by separate notice of motion by plaintiff for an order
granting him summary judgment against defendant Muslim Center of New York, Inc.
(Muslim Center) on the issue of liability; and by separate notice of motion by defendant
Sasco Builders, Inc. (Sasco), for an order vacating and setting aside the prior order of this
court dated December 2, 2010, granting it renewal and reargument of the prior order dated
January 23, 2012 and, upon renewal and reargument, for an order granting it summary
judgment dismissing the complaint and all cross-claims.
Notices of Motion - Affirmation - Exhibits......................................
Answering Affirmations - Exhibits...................................................
Upon the foregoing papers is it is ordered that the motions are consolidated for
purposes of disposition and determined as follows:
This is an action to recover damages alleged to have been sustained as a result of an
injury which occurred on November 4, 2006 during the course of plaintiff’s employment at
a construction site owned by Muslim Center. According to the complaint, plaintiff –
employed as an iron worker by third-party defendant North American Iron Works, Inc.
(North American) – was injured “when a bundle of decking being hoisted on a crane fell and
struck the Plaintiff or a portion of Plaintiff’s body.” Plaintiff has commenced the action
against various defendants sounding in, inter alia, Labor Law §§ 200, 240, and 241, as well
as common-law negligence.
With respect to Bay Crane Service, it has, without opposition,1 conclusively
established its entitlement to judgment as a matter of law in its favor by demonstrating that
it is not an owner, contractor, or agent for purposes of liability pursuant to the Labor Law (or
under theories of common-law negligence), as it neither supervised nor controlled plaintiff’s
work (see Herrel v West, 82 AD3d 933 ; Grochowski v Ben Rubins, LLC, 81 AD3d
589 ). Bay Crane Service was merely the company which leased the subject crane to
plaintiff’s employer, and neither the operator nor the oiler of the crane was employed by Bay
Crane in any capacity.
With respect to Sasco, by order dated December 2, 2010, motions by plaintiff and Bay
Crane Service of Long Island, Inc., (Bay Crane Long Island), for default judgment against
Sasco were granted. Accordingly, Sasco’s prior motion for summary judgment dismissing
the complaint and cross claims was denied by order dated January 23, 2012. However, on
this motion, Sasco has demonstrated that neither plaintiff nor Bay Crane Long Island
intended to pursue default judgment and instead accepted Sasco’s answer, and Sasco then
engaged in all facets of discovery. Based on same, and based on the fact that Sasco has also
1. Though plaintiff submits an “Affirmation in Partial Opposition to the Motion for
Summary Judgment by Defendant Bay Crane Service Inc.,” plaintiff specifically states therein that
“there is no opposition to their [sic] motion to dismiss the Plaintiff’s Complaint as it pertains to the
Defendant, Bay Crane Service, Inc.”
demonstrated its freedom from liability in the happening of this occurrence, Sasco is entitled
to the relief being sought in its renewed motion.
Turning now to plaintiff’s motion, he moves for summary judgment against Muslim
Center on his claims under Labor Law §§ 240 (1) and 241 (6). Labor Law § 240 (1) requires
owners, contractors, and their agents to provide workers with appropriate safety devices to
protect against “such specific gravity-related accidents as falling from a height or being
struck by a falling object that was improperly hoisted or inadequately secured” (Ross v
Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 ; see Rocovich v
Consolidated Edison Co., 78 NY2d 509, 514 ; Gasques v State of New York,
59 AD3d 666 ; Rau v Bagels N Brunch, Inc., 57 AD3d 866 ). The duty to
provide scaffolding, ladders, and similar safety devices is non-delegable, as the purpose of
the section is to protect workers by placing the ultimate responsibility on the owners and
contractors (see Gordon v Eastern Ry. Supply, Inc., 82 NY2d 555, 559 ; Ortega v
Puccia, 57 AD3d 54 ; Riccio v NHT Owners, LLC, 51 AD3d 897 ). In order
to prevail on a cause of action pursuant to Labor Law § 240 (1), the plaintiff must establish
that the statute was violated and that said violation was the proximate cause of his or her
injuries (see Chlebowski v Esber, 58 AD3d 662 ; Rakowicz v Fashion Inst. of Tech.,
56 AD3d 747 ; Rudnik v Brogor Realty Corp., 45 AD3d 828 ).
The circumstances surrounding the subject accident are described by plaintiff in his
deposition testimony. Plaintiff testified that he was involved with “choking,” or tying, a
bundle of steel decking to be used as flooring for a building which was to be constructed.
The bundle was originally resting on top of two wood skids located on either side of the
bundle, thereby elevating the bottom of the bundle approximately four inches above ground.
The decking rested on top of the skids to allow the workers to choke the bundle with steel
ropes that had two eyes at the ends, which would then be connected to the crane hook and
eventually lifted and moved by the crane. Plaintiff, his boss, and plaintiff’s coworkers had
already lifted two bundles and were working on their third, which first needed to be flipped
over prior to it being moved to the building. Plaintiff choked one side and connected the
rope to the crane, and his boss choked the other side. Plaintiff’s boss then signaled to the
crane operator to lift the bundle to allow the workers could choke the bundle again so that
the load could be rotated to enable it to stand on its side. However, the crane operator lifted
the bundle about eight feet in the air so that it was out of reach. As a result, plaintiff’s boss
signaled to the operator to lower the load back down. However, “suddenly,” the operator
lowered the load “quickly and abruptly,” the load tilted, the workers attempted to push it, but
the operator brought the bundle all the way down. As a result, plaintiff’s foot was squeezed
by the bundle, causing him to fall backward.
Plaintiff met his prima facie burden of establishing his entitlement to judgment as a
matter of law on this issue by demonstrating that he was injured by an elevated object which
descended onto his foot (see Cruci v General Elec. Co., 33 AD3d 838 ; Keaney v City
of New York, 24 AD3d 615 ). Stated another way, the harm caused to plaintiff
“flow[ed] directly from the application of the force of gravity to the object” (Runner v New
York Stock Exchange, Inc., 13 NY3d 559, 604 ), and it was the “absence or inadequacy
of a safety device of the kind enumerated in the statute” which caused his injury (Narducci
v Manhasset Bay Assoc., 96 NY2d 259, 268 ).
In opposition to the motion, Muslim Center has failed to raise an issue of fact. First,
to the extent that it argues that plaintiff may have been the sole proximate cause of the
accident because there is testimony that he and his coworkers pushed the bundle, same is
without merit. There is no evidence that plaintiff caused the bundle to tilt and land on his
foot. In fact, plaintiff testified that, despite his efforts, the bundle “just kept coming” down.
Even assuming plaintiff’s act of pushing a three- to four-ton load contributed to the accident,
comparative fault is no defense to a Labor Law § 240 violation (see Zimmer v Chemung
County Performing Arts, 65 NY2d 513, 521 ; Torrillo v Kiperman, 183 AD2d 821
). Second, Muslim Center does not refute the contention that the safety devices
provided to plaintiff were inadequate in that they did not prevent the descending load from
“squeezing” his foot. Finally, the record does not support the contention that the height
between the load and plaintiff was minuscule, as plaintiff testified that the crane operator
raised the load above plaintiff’s head, and then lowered it onto his foot. As Muslim Center
has failed to raise a triable issue of fact, plaintiff is entitled to summary judgment on the issue
of liability with respect to this section of the Labor Law.
With respect to Labor Law§ 241 (6), that section requires owners, contractors, and
their agents to provide reasonable and adequate protection and safety for workers, and to
comply with the specific rules and regulations promulgated by the Commissioner of the
Department of Labor as set forth in the New York Industrial Code (see Ross, 81 NY2d at
501-502; Galarraga v City of New York, 54 AD3d 308 ; Lodato v Greyhawk N. Am.,
39 AD3d 491 ). In order for plaintiff to maintain a cause of action under section 241
(6), he must plead and prove a specific, positive violation of one or more of the above
regulations (see Rizzuto v L.A. Wenger Contr. Co., Inc., 91 NY2d 343, 349 ; Ferrero
v Best Modular Homes, Inc., 33 AD3d 847 ), and that said violation was the proximate
cause of plaintiff’s injuries (see Rakowicz, 56 AD3d at 747; Parrales v Wonder Works
Constr. Corp., 55 AD3d 579 ; Rosado v Briarwoods Farm, Inc., 19 AD3d 396
In the case at bar, plaintiff pleads violations of 12 NYCRR 23-1.7 (a) and 8.1 (f) (2)
(i) and (6). Plaintiff has not demonstrated, prima facie, that the area in which he was
working was “normally exposed to falling material or objects” (see generally Marin v
AP-Amsterdam 1661 Park LLC, 60 AD3d 824 ; Portillo v Roby Anne Dev., LLC., 32
AD3d 421 ). However, with respect to subsection 8.1 (f) (2) (i), plaintiff conclusively
established, by virtue of his testimony, that the moving load suddenly accelerated, and that
there was no emergency situation presented, in violation of that section of the Code. In
opposition, Muslim Center does not explain why the fact that the load titled while suspended
creates an issue as to whether there was sudden acceleration. Finally, plaintiff has
conclusively established that the load was lifted above plaintiff’s head in violation of
subsection 8.1 (f) (6). Contrary to the position of Muslim Center, the load was in front of
him only after it was improperly lifted too high for the workers to adjust the steel wiring.
Accordingly, the motion by defendant Bay Crane Service, Inc., is granted. The motion
by defendant Sasco Builders, Inc., is granted to the extent that: (1) the prior order of this
court, dated December 2, 2010 and entered on January 5, 2011, is vacated to the extent that
Sasco’s default herein is vacated; (2) the branch of the motion to renew/reargue this court’s
prior order dated January 23, 2012 and entered on January 24, 2012 as it relates to Sasco is
granted; and (3) upon such renewal/reargument, Sasco’s motion for summary judgment
dismissing the complaint and all cross-claims is granted. The branch of plaintiff’s motion
for summary judgment in his favor against Muslim Center on the issue of liability pursuant
to Labor Law § 240 (1) is granted. That branch of the motion against Muslim Center on the
issue of liability pursuant to Labor Law § 241 (6) is granted solely to the extent that the claim
is predicated on violations of 12 NYCRR 23-8.1 (f) (2) (i) and (6).
Dated: April 5, 2012