Henry v 170 E. End Ave., LLC
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Henry v 170 E. End Ave., LLC 2012 NY Slip Op 31673(U) June 21, 2012 Supreme Court, New York County Docket Number: 116504/08 Judge: Debra A. James 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] SCANNED ON 612512012 ,br SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PART 59 DEBRA A. JAMES PRESENT: Justice Index No.: ANDREW HENRY, 116504/0Q 02/1Q/12 Motion Date: Plaintiff, Motion Seq. No.: -v- 02 Motion Cal. No.: 170 EAST END AVENUE, LLC and PLAZA CONSTRUCTION CORP., FILED Defendants. JUN 22 2012 The following papers, numbered 1 were read on this motion for summary Notice of Motion/Order to Show Cause -Affidavits -Exhibits .. 2 z A Answering Affidavits - Exhibits 2 Replying Affidavits - Exhibits 3 fi U Yes Cross-Motion: No Plaintiff Andrew Henry (Henry) sues defendants 170 East End Avenue, LLG (170 East) and Plaza Construction C o r p . Labor L a w §§ (Plaza) under 200, 240 (1) and 241 ( 6 ) , for damages suffered in a workplace incident. Defendants move for summary j u d g m e n t , pursuant to CPLR 3212, dismissing t h e complaint. Henry opposes the motion and cross-moves f o r summary judgment in his favor on the Labor Law § 241 (6) claim. Henry is a union construction worker, employed as a stone derrick man by n o n p a r t y P o r t Morris Marble & T i l e (Port Morris). 170 East hired P l a z a as construction manager f o r a project at 170 Check One: 0 FINAL DISPOSITION Check if appropriate: DO NOT POST NON-FINAL DISPOSITION 17 REFERENCE .- [* 2] E a s t End Avenue, in Manhattan ( t h e Building) . subcontracted the stone work to Port Morris. Plaza The construction area included three s i d e s of the Building and portions of t h e adjacent public s t r e e t s , which were partially cordoned off. Henry was part of a three-man crew charged with transporting stone slabs by forklift at the work site. The crew included Danny Burns, the forklift operator, and Michael Adorno ( A d o r n o ) , the flagman, responsible f o r monitoring and directing public traffic around the vehicle. Henry s j o b consisted of holding the stone slabs stable while the forklift maneuvered down the public street. This required that he walk in front of t h e forklift. On June 22, 2007, the forklift proceeded down East End Avenue, carrying a slab of stone on a boom attached to the forklift s tines. Henry was walking in front of t h e forklift, holding the stone steady. Adornc was stationed to the rear of the forklift, and was equipped with a flexible fluorescent orange signal flag attached to a two-foot pole, which is u s e d to direct pedestrian and vehicular traffic. Though he could not recall whether he saw the cab before or after he heard the beep, Henry testified t h a t he saw a taxi going pretty fast and almost hit the forklift. He also heard the forklift accelerate. There is circumstantial evidence, that B u r n s , in order to avoid the taxi, accelerated the forklift and ran over Henry s feet, i n j u r i n g him. The taxi did not strike anyone. -2- [* 3] At his deposition, Henry stated that Adorno was in position behind or next to t h e forklift and was holding the signal flag in his hand, but that he did not stop traffic at the time of the accident. The part of the defendants' motion which seeks dismissal of Henry's Labor Law 5 240 (1) claim is unopposed. Such claim is therefore dismissed. Section 241 (6) places a nondelegable duty upon owners and contractors to comply with the specific safety rules set f o r t h in the Industrial Code. R o s s v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501-502 (1993). Henry argues that defendants violated section 23-1.29 of the Industrial Code, entitled "public vehicular traffic" (12 NYCRR 23-1.29) which provides, as relevant : (a) Whenever any construction . , . work is being performed over, on, or in close proximity to a street, road, highway or any other location where public vehicular traffic may be hazardous to the persons performing such work, such work area shall be so fenced or barricaded as to direct s:,.ch public vehicular traffic away from such area, or such t r a f f i c shall be controlled by d e s i g n a t e d persons. (b) Every designated person authorized to control public vehicular traffic shall be provided with a f l a g or paddle measuring not l e s s than 18 inches in length and width. Such flag or paddle shall be colored fluorescent r e d or orange and shall be mounted on a suitable hand staff. Such designated person shall be stationed at a p r o p e r and reasonable distance from the work area and shall face approaching traffic. Such person shall be instructed to stop traffic, whenever necessary, by extending the traffic flag or paddle horizontally while facing the traffic. When traffic is to resume, such designated -3- [* 4] p e r s o n shall lower the flag or paddle and signal w i t h his free h a n d . (Emphasis added). Defendants contend that the?? was full compliance with section 23-1.29. In support, they argue that Henry's own testimony establishes that there was a flagman, equipped with a fluorescent flag attached to a two-foot pole, who was monitoring traffic at the time of t h e incident, and was positioned next to t h e forklift. Henry counters that a violation occurred because there was no evidence that the flag person was stationed at a proper and reasonable distance from the work area, facing approaching traffic. At h i s deposition, Henry testified that Adorno, the flagperson, did not use h i s flag to stop traffic j u s t prior to the accident. He a r g u e s that the taxi, which was in close proximity to t h e work area, honking its h o r n j u s t prior to his injury, is circumstantial evidence that the flagperson was not properly positioned, and that such flagperson did not s t o p traffic where necessary. The court is persuaded that a question of f a c t as to whether defendants violated section 23-1.29 h a s been raised. Though Section 23-1.29 does n o t require barricades if a designated person is assigned to c o n t r o l traffic, there is an issue of fact as to whether such flag person was properly positioned and/or -4- [* 5] stopped traffic when it was necessary. Nor have defendants established as a matter of law t h a t the flag or paddle u s e d by Adorno, the flag person, measured not l e s s than 18 inches in length and width, as required u n d e r the Industrial Code. As to his cross motion for summary judgment, Henry has not to comply with Industrial Code section 23-1.29 proximately caused his injury (see Eqan v MonadnQck Congtr., Inc.,.43AD3d 692, 694 [lst Dept 2007][alleged violation of Industrial Code must be a proximate cause of the plaintiff's injury), Accordingly, the cross motion is denied Defendants move t o dismiss Henry's common-law negligence and Labor Law § 200 claims. Labor Law 5 200 codifies the common-law duty imposed upon awners and contractors to provide workers with a safe place to work. State Elec. & Cornea v New York Gas C o r p . , 82 NY2d 876, 877 (1993). The section provides that " [ a l l 1 p l a c e s to which this chapter applies shall be so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to t h e lives, health and safety of all persons employed therein or lawfully frequenting such places" (Labor Law 5 200 [I]). To establish liability against an owner or general contractor under section 200, a plaintiff must establish t h a t t h e owner or general contractor directed, controlled or supervised -5- [* 6] the manner, means or methods of plaintiff s work, or had actual or constructive notice of a dangerous condition (see Hanlev McClier C o w ., 63 A D 3 d 4 5 3 , 455 v [lst Dept 2 0 0 9 1 ) - Defendants a r g u e that there is no evidence t h a t they supervised or exercised any control over the work that caused the injury. Defendants supply the deposition transcript of Michael Marcolini (Marcolini), one of three or four P l a z a superintendents assigned to t h e work site. Marcolini stated that Plaza did not provide any equipment f o r Port Morris, did not require approval of Port Morris activities, and only provided coordination and general guidance, but did not get \\involved directly in supervising . . . any trade . Defendants also point to Henry s own deposition, wherein he stated that he was supervised directly by a P o r t Morris foreman and never took direction from any employee of Plaza. Henry counters t h a t a question of fact remains because, in his deposition, Marcolini s t a t e d that Plaza had multiple supervisors on site every day whqse duties included, i n t e r alia, coordinating the delivery of stone to the work site. argument is unpersuasive. This Marcolini s description of the supervisors duties establishes nothing more than the exertion of general supervisory authority, which is insufficient to establish supervision and control f o r the purpose of section 200. -6- [* 7] Buckley v Columbia Grammar & PreDaratorv, 44 AD3d 263, 2 7 2 , (1st Dept 2007). Next, Henry a r g u e s that a dangerous condition existed because the public s t r e e t was not fenced or barricaded to traffic. This argument is a l s o unpersuasive. Labor Law 5 200 only requires the defendants to provide "reasonable and adequate protection,'' and Henry c i t e s no d u t y t h a t requires defendants to barricade the public street when a flagperson is present. Accordingly, summary judgment is granted in favor of the defendants on t h e necjiigence and Labor Law 5 200 causes of action. In light of t h e foregoing, it is hereby ORDERED t h a t t h e defendants' motion f o r summary judgment dismissing t h e complaint is granted only t o the extent that the negligence and Labor Law §§ 200 and 240(1) claims are dismissed, and the motion is otherwise denied, it is further ORDERED that t h e plaintiff's cross motion for summary judgment is denied; and i t is further ORDERED t h a t the parties shall proceed to mediation, and if the action is not settled, t h e y shall appear for a pre-trial conference on September 25, 2012, IAS Part 59, 71 F o + & t E e o New York, New York T h i s is t h e decision and order of t h e court. Dated: June 2 1 , 2012 ENTER : -7- JUN 22 2012 NEW YORK COUNTY CLERKS OFFICE
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