Abelleira v City of New York
Annotate this CaseDecided on May 18, 2012
Supreme Court, Kings County
Fernando Abelleira and MARIA ABELLEIRA, Plaintiffs,
against
The City of New York AND THE NEW YORK CITY DEPARTMENT OF ENVIRONMENTAL PROTECTION, Defendants.
28425/11
The attorneys on the matter were as follows:
Michael Gunzberg, Esq.
Attorney for Plaintiffs
275 Madison Avenue
Suite 1100
New York, NY 10016
212.725.8500
William G. Kelly, Esq.
Attorney for Defendants
11 Martine Avenue
Suite 750
White Plains, NY 100606
914.798.5400
Johnny L. Baynes, J.
The defendants move pursuant to CPLR 3211(a)(4), to dismiss the plaintiffs' Complaint on the basis that there is a prior action pending between the same parties for the same causes of action in the Supreme Court of Kings County. [*2]
The plaintiffs cross-move for an Order consolidating the two pending Supreme Court actions and for partial summary judgment on the issue of liability pursuant to CPLR 3212, and NYS Labor Law §§ 200, 240(1) and 241(6).
A Notice of Claim was filed in this matter on December 3, 2010. Defendants waived their rights to conduct a 50-H hearing. Thereafter, the Summons and Complaint were filed on February 10, 2011, under Index No. 3199/11 (hereinafter Action 1). On December 20, 2011, plaintiff filed and served a second Summons and Complaint under Index No. 28425/11 (hereinafter Action 2), the Index Number under which the instant motion is brought. The sole difference between the two complaints is the inclusion of a cause of action under NYS Labor Law 240.During oral argument, the parties concurred that the first Summons and Complaint be dismissed and the second action continue under Index No. 28425/11. Thus that part of Defendants' Action is granted to such extent.
The parties agree that on September 30, 2011, plaintiff, Ferdinand Abelleira (hereafter Abelleira), was working as an excavation foreman for John P. Picone in connection with the excavation and installation of sewer pipes for the City of New York at Bay 40th Street and Cropsey Avenue, in Brooklyn, New York. As part of his responsibilities, Abelleira tested a sewer pipe for leaks when a "plug" exploded and "shot" him out of the sewer pipe into a wall, resulting in the injuries complained of.
Plaintiffs now ask that this Court render partial summary judgment on the issue of liability pursuant to CPLR 3212 and NYS Labor Law §§ 240(1), 241(6) and 200.
"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". Runner v New York Stock Exch., Inc., 13 NY3d 599 895 NYS2d 279 [2009]. In Runner, the Court of Appeals was very clear that the appropriate inquiry to be made in such instances is "whether the harm flows directly from the application of the force of gravity to the object". Runner,13 NY3d at 604. Labor Law § 240(1) applies only to "an injury directly attributable to a risk posed by a physically significant elevation differential" Id at 605.
Plaintiffs are correct in their assertion that the height of the incline or drop which results in injury is irrelevant to whether Section 240(1) is applicable to the instant matter. However, Abelleira's injuries did not occur as the result of gravity; they occurred as a result of the precipitating force with which he was propelled from the sewer pipe as a result of the exploding plug. The plug did not fall from the sewer pipe as a result of gravity. Plaintiff was not shot into the wall by the force of gravity. It was the explosion which caused the accident, not gravity. Nor was that explosion itself caused by gravity. The Court, therefore, finds that Section 240(1) does not apply to the instant action. See, Runner, 13 NY3d 279.
Plaintiffs further claim that they are entitled to Summary Judgment as a result of Labor Law 241(6). Section 241(6) "'imposes a nondelegable duty upon owners and contractors to provide reasonable and adequate protection and safety to construction workers'.... In order to recover damages on a cause of action alleging a violation of Labor Law § 241(6) a plaintiff must establish the violation of an Industrial Code provision which sets forth specific safety standards." Fitzgerald v New York City School Constr. Auth., 18 AD3d 807, 808 [2005]" relied upon by Hricus v Aurora Constr., Inc., 63 AD3d 1004, 1005 [2d Dept 2009]. Section 501(a)(1) of the [*3]Occupational Safety and Health Act of 1970 requires that an employer keep a place of employment free from recognized hazards that were causing or likely to cause death or serious physical harm to employees. In this instance, the report of the OSHA investigation of the incident stated:
1. The employer failed to keep the workplace free of a hazard
to which employees of that employer were exposed.
2. The Hazard was recognized.
The Operating Instruction Manual for Petersen Inflatable Pipe Plugs
states the following:
-use a long enough hose to keep the inflation gauge(s) and valve(s) a
safe distance from the plug.
-Stay clear of any part of the plug when it is inflated.
-Before and after each use, clean the plug and inspect for surface tears,
cuts or any other damage.
3. The hazard was causing or was likely to cause death or serious physical
harm: and,
The inflatable plug exploded and a worker suffered 7 broken ribs,
broken pelvis, and broken legs.
4. There was a feasible and useful method to correct the hazard.
U.S. Department of Labor Occupational Safety and Health Administration
Worksheet, Exhibit N to Plaintiff's Notice of Cross Motion.
The Affidavit of plaintiffs' expert is very clear with regard to this section. Kathleen Hopkins, a Certified Site Safety Manager, states it is her "opinion, to a reasonable degree of professional safety certainty, that the Defendants, and each of them, failed to ensure compliance with, and thus were in violation of, 12 NYCRR § 23-1.9(2)(a)... [which requires]... that all power-operated equipment is required to be maintained in good repair and in proper operating condition at all times with sufficient inspections of adequate frequency to insure such maintenance". She further states "The pipe plug should have been replaced. This violation of Industrial Code Rule § 23-9.2(a) was a direct, substantial and proximate cause of the Plaintiff's accident and injuries". Affidavit of Kathleen Hopkins, p 7.
It was further Kathleen Hopkins' opinion that ""the Defendants, and each of them, failed to ensure compliance with, and thus were in violation of, 12 NYCRR § 23-9.2(b)(1). [which] confers a specific positive command that all power-operated equipment is required to be operated only by trained, designated and thus competent and qualified persons and all such equipment is required to be operated in a safe manner at all times.... [and in this case] was not operated by a trained designated competent and qualified person and was not operated in a safe manner at the time of the Plaintiff's accident. This violation of Industrial Code Rule § 23-9.2(b)(1) was a direct, substantial and proximate cause of the Plaintiff's accident and injuries." Affidavit of Kathleen Hopkins, p.9.
However, there is nothing which indicates that the equipment involved in this matter is "power operated equipment" for purposes of Section 23-9. Section 23-9.1 specifically states [*4]" [t]he provisions of [subpart 23-9] shall apply to power-operated heavy equipment or machinery used in construction, demolition and excavation operations'. Following this statement of applicability are nine sections covering specific kinds of power-operated heavy equipment or machine". And while the Court of Appeals has found a front loader to meet the criteria of 23-9, See, St. Louis v Town of North Elba, 16 NY3d 411 [2011], there is nothing before this Court which would lead it to believe that the plug which exploded herein was "power operated heavy equipment" and we will not extend the definition of the statute to cover same. As the Court stated in St. Louis, "[t]he Industrial Code should be sensibly interpreted and applied to effectuate its purpose of protecting construction, laborers against hazards in the workplace. 16 NY3d 411 at HN8. The Court went on to state:
Accordingly, the preferred rule both as a matter of statutory
interpretation and as a reinforcement of the objectives of the
Industrial Code is to take into consideration the function of
a piece of equipment...when determining the applicability of
a regulation.
16 NY3d at HN 8.
The Court rejects the plaintiffs' claims in this regard and finds that 241(6) is inapplicable.
Finally, Kathleen Hopkin's Affidavit states that Defendants, and all of them, violated Labor Law § 200 as "no sheeting, shoring, bracing, struts, stays blocks pulleys, irons, ropes and other safety devices were placed or installed in front of the pipe plug as required. The Defendants had the duty, responsibility and authority to ensure that the pipe plug was in proper operating condition by being maintained in good repair and yet failed to do so. In addition, the Defendants permitted the Plaintiff to enter the pipe while the pipe plug was inflated with no backup safety system or mechanical blocking [as required by the Cherne Safety Instruction Manual Page 32, Section 11.]. in the form of sheeting shoring bracing, struts, stays , blocks pulleys, irons, ropes and another safety devices installed in front of the pipe plug which would have contained the pipe plug rupture and explosion. Had these safety devices been installed, the Plaintiff would not have been physically propelled, shot out of the pipe flying into an l-beam that was above the excavation floor causing the Plaintiff's injuries" Affidavit of Kathleen Hopkins.
In opposition to the plaintiff's cross-motion for Summary Judgment, the defendants submit the Affidavit of John M. Tomich, a principal of defendant North Star Consultants of New York, LLC. It is Mr. Tomich's contention that "
Plaintiff was a labor foreman who represented the management
of his employer, John P. Picone, Inc. As a foreman, he was
responsible for his own actions and those of other employees
he supervises and must be familiar with the daily construction
activities to be assigned. As an experienced and trained construction
worker with a labor union background, he knew or should have
known of the hazards presented by the assigned work in this instance
and should have taken the minimum precautions, as outlined by the
plug manufacturer".
[*5]
Affidavit of John M. Tomich, ¶ 7.
Interestingly, Mr. Tomich's Affidavit does not contend that adequate precautions were taken; does not contend that sufficient protective equipment was used, and does not contradict the factual assertions of the plaintiff or of plaintiff's expert Kathleen Hopkins that defendants failed to utilize the plug in accordance with the warnings issued by the Cherne Safety Instruction Manual Page 32.
It is properly noted by defendants, that "when a claim arises out of alleged defects or dangers in the methods or materials of the work, recovery against the owner or general contractor cannot be had under Labor Law § 200 unless it is shown that the party to be charged had the authority to supervise or control the performance of the work". Rizutto v LA Wenger Contr. Co., Inc., 91 NY2d 343, 352. As a result, the Court finds that Mr. Tomich's Affidavit, describing Abelleira's role as supervisory, as well as Abelleira's description of himself as a supervisor, precludes summary judgment in favor of plaintiff. And, as was the case in Rizutto, "there exists sufficient record evidence to present a triable issue on whether [Abelleira] had control over the methods of the subcontractors and other worksite employees" 92 NY2d 343. Abelleira's Affidavit and the Affidavit of his expert witness, Kathleen Hopkins, allege the presence of defendants' employees and representatives and supervision of the worksite by those employees and representatives. Therefore, as was also the case in Rizutto, "at this stage of the proceedings, plaintiff[s'] submissions are also sufficient to avoid dismissal of [the] Labor Law § 200 and common law negligence causes of action.
Wherefore, the Cross-Motion for Summary Judgment is denied and the plaintiffs' claims pursuant to Labor Law 240(1) and 241(6) are dismissed.
The foregoing Constitutes the Decision and Order of this Court.
E N T E R:
____________________________________
JOHNNY L. BAYNES, JSC
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