McLean v Tishman Constr. Corp.

McLean v Tishman Constr. Corp. 2016 NY Slip Op 07754 Decided on November 17, 2016 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 17, 2016
Acosta, J.P., Renwick, Moskowitz, Feinman, Kahn, JJ.
2223 151890/13

[*1]Loren McLean, et al., Plaintiffs-Appellants,

v

Tishman Construction Corporation, et al., Defendants-Respondents.

Kelner and Kelner, New York (Gail S. Kelner of counsel), for appellants.

Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Patrick J. Lawless of counsel), for respondents.

Order, Supreme Court, New York County (Joan M. Kenney, J.), entered December 18, 2015, which denied plaintiffs' motion for summary judgment on the issue of liability on the Labor Law § 240(1) claim and granted defendants' motion for summary judgment dismissing the complaint, unanimously modified, on the law, to grant plaintiffs' motion and deny defendants' motion as to the § 240(1) claim, and otherwise affirmed, without costs.

The injured plaintiff testified that a metal beam, while being placed on a flatbed truck, fell off the blades of a forklift, slamming plaintiff's foot and causing him to fall off the truck. This unrefuted testimony established prima facie that "plaintiff's injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential" and therefore that liability exists under Labor Law § 240(1) (Runner v New York Stock Exch., Inc., 13 NY3d 599, 603 [2009]). The cases that defendants rely on are inapposite, since they involve not objects falling on or toward workers on flatbeds but workers falling from flatbeds, implicating only the adequacy of safety devices for falling workers, which is not at issue here (see Berg v Albany Ladder Co., Inc., 10 NY3d 902, 903 [2008]; Toefer v Long Is. R.R., 4 NY3d 399, 408 [2005]; Brown v New York-Presbyt. Healthcare Sys., Inc., 123 AD3d 612 [1st Dept 2014]).

Nor was plaintiff the sole proximate cause of his injuries since the injuries "were caused at least in part by the lack of safety devices to check the beam's descent as well as the manner in which [his coworker] lowered the beam" (Bonaerge v Leighton House Condominium, 134 AD3d 648, 649-650 [1st Dept 2015]; see Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 290 [2003]).

The motion court properly deemed the Labor Law § 241(6) claims predicated on Industrial Code (12 NYCRR) §§ 23-1.16, 23-2.3, 23-6.1 and 23-8.1 abandoned, since plaintiff failed to specify any particular subsection(s) and subdivision(s) of these provisions (see Pantelis v Skanska, 2012 NY Slip Op 33000[U], *16-17 [Sup Ct, NY County 2012]). The remaining provisions on which plaintiff relies, 12 NYCRR 23-1.5(a) and (c)(1) and (2), are insufficient as predicates for Labor Law § 241(6) liability, since they set forth general rather than specific standards of conduct (Gasques v State of New York, 15 NY3d 869 [2010]; Maldonado v Townsend Ave. Enters., Ltd. Partnership, 294 AD2d 207 [1st Dept 2002]; Williams v White Haven Mem. Park, 227 AD2d 923 [4th Dept 1996]).

Defendants established prima facie that they did not have the authority and control over the injury-producing work necessary to support the Labor Law § 200 and common-law negligence claims (see Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 352 [1998]). While defendant Tishman, in its capacity as construction manager, had general supervisory and coordinating responsibilities, it did not have the requisite level of direct supervision and control over the injury-producing activity (see Geonie v OD & P NY Ltd., 50 AD3d 444 [1st Dept 2008]; [*2]Scott v American Museum of Natural History, 3 AD3d 442, 443 [1st Dept 2004]). Nor is Tishman's authority to control safety at the work site and stop work if it observed a dangerous condition sufficient to support the Labor Law § 200 and common-law negligence claims as against it (see Conforti v Bovis Lend Lease LMB, Inc., 37 AD3d 235, 236 [1st Dept 2007]).

We have considered plaintiffs' remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 17, 2016

CLERK