Brogan v City of New York

[*1] Brogan v City of New York 2004 NY Slip Op 50923(U) Decided on July 20, 2004 Supreme Court, Kings County 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 20, 2004
Supreme Court, Kings County

Michael Brogan, Plaintiff,

against

City of New York, New York City Board of Education, et al.,Defendants.



12566/01



The plaintiff was represented by: Malone, Tauber & Schin, PC

147 W. Merrick Road

Freeport, NY 11520

The defendant Pioneer Windows, Inc. was represented by:

Peter C. Bobchin, Esq.

140 Broadway, 46th Floor

NY NY 10005

The defendant City of NY, NYC Board of Education and NYC School Construction Authority were represented by:

Fiedelman, Garfinkel & Lesman

110 William Street

NY, NY 10038

Mark I. Partnow, J.

Upon the foregoing papers, defendants City of New York (City), New York City School Construction Authority (SCA) WDF, Inc. (WDF) (collectively, the City defendants) and New York City Board of Education (the Board) move, pursuant to CPLR 3212, for summary judgment dismissing plaintiff Michael Brogan's (plaintiff) complaint, and all cross claims, asserted against them. Defendant Pioneer Windows, Inc. (Pioneer) cross-moves to dismiss plaintiff's Labor Law §§ 240(1), 241(6), and 200 claims against it. Plaintiff cross-moves for summary judgment against the City defendants, the Board, and Pioneer under his Labor Law §§ 240(1), 241(6), and 200 causes of action.

Background

The instant action arises out of a June 29, 2000 accident that occurred during a renovation project on the City-owned Sarah Hale Vocational High School in Brooklyn, New York (the School). Prior to the accident, SCA contracted WDF to serve as the general contractor on the project. Thereafter, WDF subcontracted Pioneer to remove the School's existing windows, and replace them [*2]with new windows. Subsequently, Pioneer sub-subcontracted plaintiff's employer, ESCO Construction, Inc. (Esco), to install the new windows.

The accident occurred as plaintiff and three of his Esco co-workers attempted to install a new, 300-pound, steel frame window in an opening on the fourth floor of the School. At the time of the accident, the three co-workers, who were positioned on a sidewalk bridge below the window opening, were responsible for hoisting the window up into position using a rope that was threaded through a pulley mounted on the School's roof. Plaintiff, who was positioned on the sill of the window opening, was responsible for guiding the new window into place. When the window had been hoisted to the level of the window opening, plaintiff, who was not wearing gloves, grabbed the window with both of his hands. While he was holding onto the window, it suddenly dropped. Plaintiff released his grip on the window when it began to fall, but not before he sustained lacerations to both his hands. It is undisputed that the pulley used to hoist the window did not have any braking mechanism that might have prevented the window from falling.

There is no admissible evidence before the court as to what caused the window to drop. At his deposition, plaintiff testified that, after the accident, he was told by his unidentified co-workers that one of them tripped on debris on the sidewalk bridge, which caused him to lose his grip on the rope, which in turn, caused the window to drop. Vincent LaGamba, WDG's Senior Project Manager, testified that he was told by Anthony Germinario, Pioneer's Project Superintendent, that one of plaintiff's co-workers slipped on debris on the sidewalk bridge. However, Mr. Germinario, who did not witness the accident, testified that one of plaintiff's co-workers simply lost his grip on the rope and that the accident was not caused by the debris on the sidewalk bridge.

By summons and complaint dated March 28, 2001, plaintiff brought the instant action against, among others, the City defendants, the Board, and Pioneer, alleging violations of Labor Law §§ 240(1), 241(6), 200 as well as common-law negligence.[FN1] Discovery is now complete and the instant motions are now before the court.

Plaintiff's Claims Against the Board

Initially, the City defendants and the Board move to dismiss plaintiff's claims against the Board. In so moving, these defendants point out that the Board is an independent corporate body that did not own the School, contract for the performance of the underlying work, or supervise or control this work. Accordingly, the movants maintain that plaintiff's claims against the Board must be dismissed.

The uncontroverted evidence before the court demonstrates that the Board did not own the school, contract for, or otherwise control the underlying work. Consequently, there is no basis for plaintiff's claims against the Board, or for any cross claims asserted against this entity (Hernandez v Board of Educ., 264 AD2d 709, 710 [1999]; Kowalska v Board of Educ., 260 AD2d 546 [1999]). [*3]Accordingly, that branch of the City defendants' and the Board's motion which seeks to dismiss plaintiff's complaint and all cross claims against the Board is granted.

Plaintiff's Labor Law § 240(1) Claim

The City defendants and Pioneer move separately to dismiss plaintiff's Labor Law § 240(1) claim. In so moving, these defendants argue that plaintiff's accident was not sufficiently related to the force of gravity so as to fall within the ambit of Labor Law § 240(1). In support of this argument, the City defendants and Pioneer point out that plaintiff was neither struck by a falling object, nor did he fall from a height. The moving defendants also point out that plaintiff and the window that he was holding were at the same level when the window began to fall.

In opposition to these branches of the City defendants and Pioneer's respective motions, and in support of his own cross motion for summary judgment under Labor Law § 240(1), plaintiff points out that he was injured during hoisting operations as a direct result of the failure of an enumerated safety device (i.e. a pulley) to support the weight of a 300 pound window. Under the circumstances, plaintiff reasons that the City defendants and Pioneer are liable for his injuries under Labor Law § 240(1) as a matter of law.

Labor Law § 240(1) provides in pertinent part that: "All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, [or] altering . . . 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) was enacted 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." (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [1993]). In order to accomplish this goal, the statute places the responsibility for safety practices and safety devices on owners, general contractors, and their agents who "are best situated to bear that responsibility" (id. at 500; see also Zimmer v Chemung County Perf. Arts, 65 NY2d 513, 520 [1985]). "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 at 500). Furthermore, 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]).

However, given the exceptional protection offered by Labor Law § 240(1), the statute does not cover accidents merely tangentially related to the effects of gravity. Rather, gravity must be a direct factor in the accident as when a worker falls from a height or is struck by a falling object (Ross, 81 NY2d at 501; Rocovich v Consolidated Edison Co., 78 NY2d 509, 513) [1991]. Moreover, even where the underlying accident involves an improperly hoisted or inadequately secured object, Labor Law § 240(1) will not apply were there is a de minimis elevation differential between the [*4]worker's position and the level of the materials or load being hoisted or secured (Narducci v Manhasset Bay Assocs., 96 NY2d 259, 269-270 [2001]).

In the instant case, plaintiff's accident involved an improperly hoisted object inasmuch as the rope and pulley system employed to lift the window into position ultimately failed to support the weight of the window. Had plaintiff been positioned below the window and struck after it fell, the accident would clearly be covered under Labor Law § 240 (1). However, it is undisputed that plaintiff was at the same level of the window when the hoisting device failed. Thus, "this is not a case that entails the hazards presented by 'a difference between the elevation level where the worker is positioned and the higher level of the materials or load being hoisted or secured'" (Narducci, 96 NY2d at 269 quoting Rocovich, 78 NY2d at 514). Under the circumstances, Labor Law § 240(1) is inapplicable in this case.

Plaintiff's Labor Law § 241 (6) Claim

The City defendants move, and Pioneer cross-moves, to dismiss plaintiff's Labor Law § 241 (6) cause of action. In so moving, these defendants argue that the New York State Industrial Code regulations which plaintiff alleges were violated are either inapplicable to the facts of the case, or too general to support a Labor Law § 241 (6) claim. Pioneer also argues that, to the extent that plaintiff's Labor Law § 241 (6) claim is based upon the debris on the sidewalk bridge, it did not owe plaintiff any duty under the statute because it was not responsible for cleaning such debris.

In opposition to these branches of the City defendants and Pioneer's respective motions, and in support of his own cross-motion for summary judgment under Labor Law § 241(6), plaintiff maintains that his allegations of violations of 12 NYCRR 23-1.7 (d), 23-1.7(e)(2), 23-2.1 (b), and 23-6.1 (j) (1) are sufficient to support his Labor Law § 241 (6) claim.[FN2] Plaintiff further argues that, because these violations caused the accident as a matter of law, he is entitled to summary judgment under Labor Law § 241 (6).

Labor Law §241 (6) provides in pertinent part that: "All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to persons employed therein or lawfully frequenting such places."

Labor Law § 241 (6), which was enacted to provide workers engaged in construction, demolition, and excavation work with reasonable and adequate safety protections, places a nondelegable duty upon owners and contractors to comply with the specific safety rules set forth in the Industrial Code (Ross, 81 NY2d at 501-502). Accordingly, it is well settled that, in order to support a cause of action under Labor Law § 241(6), a plaintiff must demonstrate that his or her injuries were proximately caused by a violation of an Industrial Code violation that is applicable given the circumstances of the accident, and sets for a concrete standard of conduct rather than a [*5]mere reiteration of common-law principals (Ross at 502; Ares v State, 80 NY2d 959, 960 [1992]; see also Adams v Glass Fab, 212 AD2d 972, 973 [1995]).

12 NYCRR 23-1.7(d) prohibits employers from allowing any employee to use a platform or other elevated working surface which is in a slippery condition. Similarly, 23-1.7 (e) (2), which deals with tripping hazards in working areas, requires that such areas be kept free from accumulations of dirt and debris. Both of these regulations are sufficiently specific to support a Labor Law § 241 (6) claim. However, it is unclear whether these provisions are applicable under the facts of this case. As the court previously noted, there is conflicting evidence regarding what role, if any, the debris on the sidewalk bridge played in causing plaintiff's co-worker to lose his grip on the rope. However, all of this evidence consists of inadmissable hearsay testimony which is insufficient to support a summary judgment motion (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Consequently, those branches of the City defendants' motion, and Pioneer's cross motion, which seek to dismiss plaintiff's Labor Law § 241(6) claim to the extent that it is premised upon violations of 12 NYCRR 23-1.7 (d) and 23-1.7 (e) (2) are denied.[FN3] At the same time, that branch of plaintiff's cross motion which seeks summary judgment under Labor Law § 241 (6) against City defendants and Pioneer based upon their alleged violation of these regulations is also denied.

Turning to plaintiff's allegation that the defendants violated 12 NYCRR 23-2.1 (b), the Appellate Division, Second Department has ruled that this regulation is too general to support a Labor Law § 241 (6) claim (Salinas v Barney Skanska Constr. Co., 2 AD3d 619 [2003]). Accordingly, plaintiff may not rely upon this regulation in support of his Labor Law § 241 (6) cause of action.

12 NYCRR 23-6.1 (j) (1), which deals with brakes on hoisting machines, states in pertinent part that "[e]ach manually-operated material hoist shall be equipped with an effective pawl and rachet capable of holding the rated load capacity when such a load is suspended." This regulation is sufficiently specific to support a Labor Law § 241 (6) claim (Carroll v Metropolitan Life Ins. Co., 264 AD2d 336, 337 [1999]). Furthermore, given the circumstances of the accident, this regulation is applicable in this case. The pulley and rope, which constituted a manually-operated material hoist, did not have a pawl and rachet, which arguably would have prevented the widow from dropping and cutting plaintiff's hands. Accordingly, to the extent that he relies upon 23-6.1 (j) (1), plaintiff has a viable Labor Law § 241 (6) claim.

However, plaintiff is not entitled to summary judgment against the City defendants and Pioneer under Labor Law § 241 (6) based upon a violation of 12 NYCRR 23-6.1 (j) (1). Comparative negligence constitutes a valid defense to a Labor Law § 241(6) claim (Hayden v 845 UN Limited Partnership., 304 AD2d 499, 500 [2003]). Here, plaintiff admitted that, at the time of the accident, he was not wearing his work gloves, which might have prevented the falling window from lacerating his hands. Accordingly, there is an issue of fact regarding whether plaintiff's own negligence contributed toward the accident. [*6]

Plaintiff's Labor Law § 200/Common-Law Negligence Claims

The City defendants move, and Pioneer cross-moves to dismiss plaintiff's Labor Law § 200/common-law negligence claims against them. In so moving, these defendants point out that they did not control or supervise the hoisting operation that caused plaintiff's injuries. The City defendants and Pioneer also argue that they did not create or have notice of any dangerous conditions (i.e., the debris on the sidewalk bridge) that might have contributed toward the accident.

In opposition to these branches of the defendants' respective motions, and in support of his own cross motion for summary judgment under Labor Law § 200, plaintiff argues that WDF and Pioneer both exercised control and supervision over the window installation work. Plaintiff further alleges that these defendants created the dangerous condition which caused the accident by leaving debris on the sidewalk bridge.

Labor Law § 200 is merely a codification of the common-law duty placed upon owners and contractors to provide employees with a safe place to work (Kim v Herbert Constr. Co., 275 AD2d 709, 712 [2000]). In order for an owner or contractor to be held liable under a Labor Law § 200/common-law negligence cause of action, there must be evidence that the owner or contractor controlled and supervised the manner in which the underlying work was performed, or that it created or had notice of the alleged dangerous condition which caused the accident (id. at 712; Kanarvogel v Tops Appliance City, Inc., 271 AD2d 409, 411 [2000]).

The uncontroverted evidence before the court demonstrates that neither City, nor SCA exercised any control or supervision over the hoisting operation that caused the accident. Furthermore, there is no evidence that City or SCA created or otherwise had notice of any dangerous condition that might have contributed toward the accident. Consequently, City and SCA are entitled to summary judgment dismissing plaintiff's Labor Law § 200/common-law negligence claims against them.

With respect to WDF, plaintiff has alleged that the accident occurred when one of his co-workers slipped/tripped on debris on the sidewalk bridge and released his grip on the rope being used to hoist the window. While it is clear that WDF did not control or supervise plaintiff's work, there is evidence in the form of Mr. Germinario's deposition testimony that WDF was responsible for maintaining the sidewalk bridge in a safe condition. Furthermore, Mr. LaGamba, WDF's own deposition witness, testified that he was responsible for overall safety on the project and that WDF responsible for making daily safety inspections at the work site. Under the circumstances, there are material issues of fact which require the denial of that branch of the City defendants' motion which seeks to dismiss plaintiff's Labor Law § 200/common-law negligence claims against WDF.

Pioneer's cross motion to dismiss plaintiff's Labor Law § 200/common-law negligence claims against it must also be denied. In this regard, the court notes that Mr. LaGamba testified that Pioneer owned the hoist used by plaintiff and his co-workers at the time of the accident. Under the circumstances, there are questions regarding Pioneer's potential liability under plaintiff's Labor Law § 200/common-law negligence claims given the fact that the hoist failed to support the weight of the window.

Finally, while there are questions of fact regarding WDF and Pioneer's liability under plaintiff's Labor Law § 200/common negligence claims, plaintiff has failed to establish that he is entitled to summary judgment under these causes of action. The court has already determined that [*7]there is a question regarding whether plaintiff's own negligence contributed toward the accident. Furthermore, as previously noted, plaintiff has failed to submit any admissible evidence demonstrating that the debris on the sidewalk bridge actually caused the accident.

Summary

In summary, the court rules as follows: (1) that branch of the City defendants' motion which seeks to dismiss plaintiff's complaint and all cross claims against the Board is granted; (2) those branches of the City defendants' motion, and Pioneer's cross motion, which seek to dismiss plaintiff's Labor Law § 240 (1) claim are granted; (3) those branches of the City defendants' motion, and Pioneer's cross motion, which seek to dismiss plaintiff's Labor Law § 241 (6) claim are denied; (4) that branch of the City defendants' motion which seeks to dismiss plaintiff's Labor Law § 200/common-law negligence claims are granted with respect to City and SCA but denied with respect to WDF; (5) that branch of Pioneer's cross motion which seeks to dismiss plaintiff's Labor Law § 200/common-law negligence claims against it is denied; and (6) plaintiff's cross motion for summary judgment under his Labor Law §§ 240 (1), 241 (6), 200 and common-law negligence claims is denied.

This constitutes the decision and order of the court.

E N T E R,

J. S. C. Footnotes

Footnote 1:The court previously awarded defendants Arnell Construction Corp. and Jack's Insulation Contracting Corp. summary judgment dismissing plaintiff's action against them. Defendants Precision Mechanical, Inc. And Northeastern Analytical Corp. have failed to appear in this action.

Footnote 2:Plaintiff's bill of particulars also alleges violations of 12 NYCRR 23-5.1 (f), 6.1 (b), and 6.3 (b) (1) (3). However, plaintiff does not discuss these regulations in his papers. In any event, it is clear that these regulations are not applicable in this case.

Footnote 3:If it is ultimately determined that the accident was caused by debris on the sidewalk bridge, Pioneer cannot escape liability under Labor Law § 241 (6) by arguing that it did not owe plaintiff a duty to clean this debris. Pioneer qualifies as an "agent" under the statute since it hired plaintiff's employer (Russin v Picciano & Son, 54 NY2d 311, 318 [1981]. As a statutory agent, Pioneer's duty to comply with this regulation was nondelegable.