Cardo v National Grid Corp. Servs., LLC

[*1] Cardo v National Grid Corp. Servs., LLC 2012 NY Slip Op 50923(U) Decided on May 24, 2012 Supreme Court, Kings County Schmidt, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 24, 2012
Supreme Court, Kings County

Peter Cardo, Plaintiff,

against

National Grid Corporation Services, LLC f/k/a Keyspan Corporate Services, LLC, Keyspan Gas East Corporation d/b/a National Grid, Keyspan Corporate Services, LLC; and Keyspan Corporate Services d/b/a Keyspan Energy, Defendants.



11661/10



Plaintiff Attorney: Sacks & Sacks, LLP, 150 Broadway, 4th Floor, New York, NY 10038

Defendant Attorney: Cullen & Dykman, LLP, 177 Montague Street, Brooklyn, NY 11201

David Schmidt, J.

Upon the foregoing papers, plaintiff Peter Cardo moves for an order pursuant to CPLR 3212, seeking summary judgment in his favor on the issue of liability pursuant to Labor Law §240 (1). Defendants cross-move for an order, pursuant to the same statute, granting summary judgment dismissing all of plaintiff's claims.

Background

On April 14, 2010, plaintiff was employed by Posillico Civil Inc., as a union laborer. He was working at the Rockaway Park remediation project in Queens. On this date, plaintiff was directed to assist his co-worker Maurice Blackman, an operating engineer, with moving steel beams. The steel beams weighed approximately 3,000 pounds each. Maurice was responsible for operating a pay loader to move the beams. The pay loader had an arm in front of it which could be used to attach multiple devices and, at the time of the incident herein, forks were placed on the attachments to move the beams. Plaintiff was responsible for acting as a signal man to [*2]help direct Maurice as he was moving the steel beams. Plaintiff testified that as Maurice attempted to move the first steel beam, the forks did not go underneath the beam but, rather, got caught in between the flanges of the beam. Plaintiff testified that as the pay loader began to hoist the beam, he noticed it was not sitting right so he went over to see if he could help guide it, to kind of pull it back towards the machine, but the beam then fell off the forks and hit plaintiff on his right leg causing him to sustain various injuries.

Plaintiff's Motion

Plaintiff moves for summary judgment in his favor on the issue of liability based upon his Labor Law §240 (1) claim. Plaintiff argues that defendants, as owners of the property upon which plaintiff was injured when he was struck by an inadequately secured 3,000 pound steel beam, are absolutely liable under Labor Law §240 (1).

Labor Law § 240(1) affords protection to construction site workers who are exposed to elevation-related hazards (see generally Blake v Neighborhood Housing Services of New York City, Inc., 1 NY3d 280, 287—290 [2003]). Specifically, § 240(1) provides, in pertinent part, that:

"All contractors and owners and their agents. . . in the erection, demolition, repairing, altering, painting, cleaning, or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed."

Labor Law § 240(1) requires property owners and contractors to furnish or cause to be furnished safety devices, such as ladders and scaffolds, which are "so constructed, placed and operated as to give proper protection" to workers. Moreover, "the duty imposed by Labor Law § 240(1) is nondelegable and . . . an owner or contractor who breaches that duty may be held liable in damages regardless of whether it has actually exercised supervision or control over the work" (Ross v Curtis—Palmer Hydro—Electric Co., 81 NY2d 494, 500 [1993]; see also Haimes v New York Tel. Co., 46 NY2d 132, 136—137 [1978]). Finally, the statute is to be construed as liberally as possible in order to accomplish its protective goals (see Martinez v City of New York, 93 NY2d 322, 326 [1999]). In order for a plaintiff to demonstrate entitlement to summary judgment on an alleged violation of Labor Law § 240(1), he must establish that there was a violation of the statute, which was the proximate cause of the worker's injuries (see Blake, 1 NY3d at 289).

As the Court of Appeals stated in Rocovich v Consolidated Edison Co., 78 NY2d 509, 514 [1991], the purpose of section 240(1) is to provide protection to hazards "related to the effect of gravity where protective devices are called for either because of a difference between the elevation level of the required work and the lower level or a difference between the elevation level where the worker is positioned and the higher level of the materials or load being hoisted or secured." However, "[t]he extraordinary protections of [the statute] extend only to a narrow class of special hazards, and do not encompass any and all perils that may be connected in some tangential way with the effects of gravity'" (Nieves v Five Boro Air Conditioning & Refrig. Corp., 93 NY2d 914, 915- 916 [1999], quoting Ross, 81 NY2d at 501 [emphasis in original]).

In a "falling object" case, "a plaintiff must show more than simply that an object fell causing injury to a worker. A plaintiff must show that "the object fell . . . because of the absence or inadequacy of a safety device of the kind enumerated in the statute" (Narducci v Manhasset Bay Assoc., 96 NY2d 259, 268 [2001]). In addition, :"falling object' liability under Labor Law § 240(1) is not limited to cases in which the falling object is in the process of being hoisted or secured" (Quattrocchi v F.J. Sciame Constr. Corp., 11 NY3d 757, 758-759 [2008]; see Vargas v City of New York, 59 AD3d 261, 261 [2009 ]). Indeed, courts may impose liability where the object or material that fell, causing injury, was "a load that required securing for the purposes of the undertaking at the time it fell" (Sung Kyu-To v Triangle Equities, LLC, 84 AD3d 1058 [2011], quoting Narducci, 96 NY2d at 268; see Rocovich, 78 NY2d at 514; Portillo v Roby Anne Dev., LLC, 32 AD3d 421 [2006]).

[*3]It is well-settled that "not every object that falls on a worker gives rise to the extraordinary protections of Labor Law § 240 (1)" (Novak v Del Savio, 64 AD3d 636, 638 [2009];see Narducci v Manhasset Bay Associates, 96 NY2d 259, 267, [2001]). In fact, whether or not a particular object requires securing turns on "the foreseeable risks of harm presented by the nature of the work being performed" (Buckley v Columbia Grammar and Preparatory, 44 AD3d 263, 268 [2007] lv denied 10 NY3d 710 [2008]).

In Runner v New York Stock Exch., Inc., (13 NY3d 599, 604 [2009]), however, the Court of Appeals clarified that the dispositive inquiry does not depend upon whether the injury resulted from a "falling worker" or "falling object." According to Runner, "the governing rule is . . . that 'Labor Law § 240(1) was designed to prevent those types of accidents in which the scaffold, hoist, stay, ladder or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person'" (id. [quoting Ross, 81 NY2d at 501]).

In support of his motion, plaintiff points to his deposition testimony regarding how the accident occurred, as well as an affidavit submitted by Maurice Blackman, who was operating the pay loader at the time of the accident. Mr. Blackman affirms that

To hoist the I-beams to its location, there was a fork attachment on the pay loader in which I was planning on lifting and hoisting the beams that day. There were no other attachments on the pay loader. Peter gave me the hand signal to lift the beams as we did not have a hard line and I began to lift the first steel beam. The beam was approximately 4 feet in the air when suddenly and without notice, the beam fell off the forks and fell to the ground, crushing Peter Cardo's leg . . . At the time of the accident, there was nothing being used to attach or secure the steel beams to the pay loader. We were not given any chokers, chains, slings or spreader hooks to make a secured connection while the steel beam was being hoisted. In addition, there were no taglines on the beam to prevent it from moving while it was being hoisted at the time of the accident.

Here, the court finds that plaintiff has demonstrated that he was engaged in an activity subject to the protections of Labor Law §240 (1) and that the 3,000 pound steel beam constituted a load that required securing for the purposes of the undertaking at the time it fell and struck plaintiff (see Narducci, 96 NY2d at 268; Outar v City of New York, 5 NY3d 731, 732 [2005]; Portillo, 32 AD3d at 421-422; Costa v Piermont Plaza Realty, Inc., 10 AD3d 442, 444 [2004]). Moreover, the pay loader and fork attachments were safety devices under Labor Law § 240 (1) that incontrovertibly failed on the day of the accident (see Fitzsimmons v City of New York, 37 AD3d 655, 656 [2007]; Thompson v St. Charles Condominiums, 303 AD2d 152 [2003]; Jiron v China Buddhist Association, 266 AD2d 347 [1999]). Given the nature and purpose of the work that was being performed at the time of plaintiff's injury, such task presented a significant risk of injury such that the defendants were obligated under Labor Law § 240 (1) to use appropriate safety devices to secure the beam that fell (see Kyu-To, 84 AD3d at 1060; Quinteros v P. Deblasio, Inc., 82 AD3d 861 [2011]; Costa, 10 AD3d at 444; Bornschein v Shuman, 7 AD3d 476, 478 [2004]; see also Orner v Port Auth. of NY & N.J., 293 AD2d 517, 517 [2002]; Baker v Barron's Educ. Serv. Corp., 248 AD2d 655, 656 [1998]).

Here, the harm plaintiff suffered was the direct consequence of the application of the force of gravity to the beam that was being hoisted (see Runner, 13 NY3d at 604; Ray v City of New York, 62 AD3d 591 [2009]). The testimony in the record establishes that when the 3,000 pound steel beam was approximately four feet in the air, the beam fell off the pay loader's fork attachment and struck plaintiff in the leg, thus demonstrating that the pay loader and forks were inadequate to shield plaintiff from harm (see Naughton v City of New York, 94 AD3d 1,8 [2012]). A plaintiff establishes "prima facie entitlement to judgment as a matter of law on the issue of liability on the cause of action alleging a violation of Labor Law § 240 (1) with evidence that the plaintiff was not provided with any adequate or appropriate safety devices, and that such failure was the proximate cause of the plaintiff's injuries" (see Triola v City of New York, 62 [*4]AD3d 984, 985-86 [2009]; Tylutki v Tishman Techs., 7 AD3d 696 [2004]; see also Striegel v Hillcrest Hgts. Dev. Corp., 100 NY2d 974, 978 [2003]; Castillo v 62-25 30th Ave. Realty, LLC, 47 AD3d 865, 866 [2008]).

Here, plaintiff has established the absence of an adequate safety device to secure the beam to prevent it from dislodging from the pay loader. Based on the foregoing, there is evidence that the plaintiff was stuck by a "falling object" sufficient to demonstrate prima facie entitlement to judgment as a matter of law under Labor Law § 240[1].

Defendants' Cross Motion.

Defendants cross-move for summary judgment in their favor dismissing all of plaintiff's claims. At the outset, the court notes that it is undisputed that defendants' cross motion is untimely. Courts are generally precluded from considering untimely summary judgment motions irrespective of the merits of the motions (Brill v City of New York, 2 NY3d 648 [2004]). However, a well-established exception to this rule exists when the untimely cross motion is "nearly identical" to a timely summary judgment motion already before the court (McCallister v 200 Park, L.P., 92 AD3d 927 [2012] ; Homeland Ins. Co. of New York v National Grange Mut. Ins. Co., 84 AD3d 737, 738-739 [2011]; Whitehead v City of New York, 79 AD3d 858, 860 [2010]; Lennard v Khan, 69 AD3d 812, 814 [2010] ). The rationale for this exception stems from the court's statutory authority under CPLR 3212 (b) to award summary judgment to a non-moving party in the course of deciding a timely summary judgment motion.

In the instant case, that portion of defendants' cross motion for summary judgment dismissing plaintiff's Labor Law § 240 (1) claim is nearly identical to that branch of plaintiff's timely motion which seeks summary judgment on the issue of liability as against defendants under that same statute. Indeed, the two motions are "flip sides" of the same coin. Moreover, defendants have stipulated to withdraw the portion of their cross motion seeking to dismiss plaintiff's claims under Labor Law §§241 (6), 200 and common-law negligence. As such, the court will address the merits of defendants' otherwise untimely cross motion seeking summary judgment dismissing plaintiff's Labor Law §240 (1) claim.

In opposition to plaintiff's motion, and in support of its own cross motion for summary judgment, defendants argue that the accident did not occur as a result of the effects of gravity on the object at issue. Defendants further argue that the work was performed in accord with the manner generally accepted in the industry and, in support of this proposition, they point to the affidavit of Christopher Hurst, the Project Manager for plaintiff's employer, Posillico. Hurst opines that the presence or absence of the equipment cited by Mr. Blackman in his affidavit in support of plaintiff's motion, would not have prevented the accident.

At the outset, the court notes that plaintiff points out that defendants' entire defense is based upon the Hurst affidavit, which plaintiff contends, this court should not even consider inasmuch as he was never disclosed as a witness in this matter. However, the court finds that Mr. Hurst's affidavit is not being presented as that of a notice or expert witness, and, as a result, will be considered by the court in determining the present applications.

In reliance upon Mr. Hurst's affidavit, defendants argue that the court should be guided by the Court of Appeals holding in Ortiz v Varsity Holdings LLC., (18 NY3d 335, 340 [2011]) that "to prevail on summary judgment, plaintiff must establish that there is a safety device of the kind enumerated in § 240 (1) that could have prevented his fall, because "liability is contingent upon . . . the failure to use, or the inadequacy of" such a device (citing Narducci v Manhasset Bay Assoc., 96 NY2d 259, 267 [2001]). Defendants maintain that while plaintiff has failed to identify any specific devices which, if made available to him, would have prevented the happening of the subject incident, Mr. Hurst avers that the presence of any of these safety devices on the job site would not have prevented this accident. The court finds that the Hurst affidavit is insufficient to raise a triable issue of fact as to whether the presence or absence of said devices would have prevented the accident (see Ehrenberg v Starbucks Coffee Co., 82 AD3d 829, 830 [2011]; Williams v ATA Hous. Corp., 19 AD3d 406, 407 [2005]).

Where the plaintiff's prima facie showing is based upon the absence of safety devices, a [*5]defendant's "argument that failure to provide an adequate safety device was either impracticable under the circumstances or would not have prevented the accident is unavailing" (Maximin v 26-26 Jackson Ave., LLC, 26 Misc 3d 1231A [2010]; see Miranda v Norstar Bldg. Corp., 79 AD3d 42, 48 [2010]; Cody v State of New York, 52 AD3d 930, 931 [2008]; Pichardo v Urban Renaissance Collaboration LP, 51 AD3d 472, 472 [2008]; see also Zimmer v Chemung County Performing Arts, 65 NY2d at 519.) Thus, the court finds that defendants fail to raise a triable issue as to any element of plaintiff's prima facie showing of entitlement to summary judgment in his favor on his Labor Law §240 (1) claim, and, as noted above, submits no competent evidence that "the provision of any other safety measures would not have prevented" the fall of the beam (see Kok Choy Yeen v NWE Corp., 37 AD3d 547, 549 [2007]). Additionally, the court notes that plaintiff submitted the affidavit of his co-worker Blackman, the payload operator, who affirmed that they were not given any chokers, chains, slings or spreader hooks to make a secure connection while the beam was being hoisted, nor were there tag lines placed on the beam to prevent it from moving while it was being hoisted (see Costa, 10 AD3d at 444 [holding that "[iIn light of the nature and purpose of the work being performed at the time of the accident, there was a significant risk that an unsecured steel beam would fall, injuring a worker, such as the plaintiff" obligating the defendant to provide an adequate safety device to secure the beam]; see also Mora v Boston Props., Inc., 79 AD3d 1109, 1110 [2010]; Bornschein, 7 AD3d at 476; Sherman v Babylon Recycling Ctr., 218 AD2d 631[1995]).

Accordingly, defendants' cross motion seeking summary judgment dismissing plaintiff's Labor Law §240 (1) claim is denied and plaintiff's motion seeking summary judgment in his favor on the issue of liability under Labor Law §240 (1) is granted.

The foregoing constitutes the decision and order of the court.

E N T E R,

J. S. C.