Markgraf v Suffolk County Water Auth.

[*1] Markgraf v Suffolk County Water Auth. 2004 NY Slip Op 51501(U) Decided on September 14, 2004 Supreme Court, Suffolk County Jones, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 14, 2004
Supreme Court, Suffolk County

JOHN MARKGRAF AND SUSAN MARKGRAF, Plaintiffs, y

against

SUFFOLK COUNTY WATER AUTHORITY and GEORGE HOLMES, Defendants.



03-1727

John J. J. Jones, J.

ORDERED that the motion (#

001) by defendant Suffolk County Water Authority for an order pursuant to CPLR 3212 granting summary judgment dismissing plaintiffs' Labor Law §200, §240(1) and §241(6) causes of action is decided as follows; and it is further

ORDERED that the cross motion (#

002) by defendant/second third-party defendant George Holmes, for an order pursuant to CPLR 3212 granting summary judgment dismissing plaintiffs' Labor Law §200, §240(1) and §241(6) causes of action is decided as follows; and it if further

ORDERED that the motion (#

003) by plaintiffs for an order pursuant to CPLR 3212 granting partial summary judgment as to defendants liability pursuant to Labor Law §200, §240(1), and §241(6) is denied; and it is further

ORDERED that the motion (#

004) by third-party defendant KeySpan Corporation for an order pursuant to CPLR 3212 granting summary judgment dismissing the third-party complaint as well as any cross or counterclaims [*2]against it, is decided as follows.

The injured plaintiff and his wife commenced this action to recover damages, pursuant to Labor Law §200, §240(1), and §241(6) and common-law negligence, for injuries he allegedly sustained in an accident at property owned by defendant Suffolk County Water Authority, on December 27, 2001. The building, located at 2045 Route 112, Coram, is also occupied by the district offices for third-party defendant KeySpan (formerly Long Island Lighting Company), as lessee. Suffolk County Water Authority (SCWA) contracted with defendant George Holmes to refurbish roof trusses for the building by replacing pin plate connections with bolted connections. At the time of the accident, plaintiff was employed as a senior engineer for KeySpan, albeit not at the Coram building. His duties usually encompassed power stations and plants, not office space. Plaintiff testified at his examination before trial that he went to the building at the direction of his supervisor, who had received a request from another employee to have an engineer look at the roof trusses being refurbished. Plaintiff stated that his inspection was not necessary for the work to continue and that no one had expressed concerns to him regarding how the work was or should be performed. He testified that his function was to observe, not to inspect the work, and that he had intended to write something relating to his observation but never got to do that. He speculated that the observation was requested because the work was being performed in the roof area above the KeySpan offices.

Plaintiff testified that on the day of his accident he met his fellow employee at the building, where they obtained permission to view the restoration and were escorted through the attic by SCWA employees. Plaintiff climbed a ladder to the roof to gain access to the attic space and, following the others, he walked along plywood boards and then a plank approximately eight feet long and six to eight feet wide, resting on wood joists. As he reached the end of the plank, it "teeter-tottered, like a see-saw", he lost his balance and fell between the joists, through the insulation and sheetrock ceiling, to the concrete floor below, sustaining injuries.

Labor Law §240(1), commonly known as the "scaffold law," requires all contractors and property owners and their agents: in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure [to] 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.

The duty that is created is nondelegable and an owner or general contractor who breaches that duty may be held liable in damages regardless of whether it has actually exercised supervision or control over the work (see, Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 601 NYS2d 49 [1993]). The "exceptional protection" provided for workers by §240(1) is aimed at "special hazards" that arise when the work site either is itself elevated or is positioned below the level [*3]where "materials or load [are] hoisted or secured." "Special hazards" do not encompass any and all perils connected with gravity but are limited to such specific gravity-related accidents as falling from a height or being struck by a falling object that was improperly hoisted or inadequately secured (see, Ross v Curtis-Palmer Hydro-Elec. Co., supra ; Rocovich v Consolidated Edison Co., 78 NY2d 509, 577 NYS2d 219 [1991]; Zimmer v Chemung County Performing Arts, 65 NY2d 513, 493 NYS2d 102 [1985]). The legislative purpose behind §240(1) is to protect workers by placing ultimate responsibility for safety practices where such responsibility belongs on the owner and general contractor instead of on workers, who are "scarcely in a position to protect themselves from accident" (see, Rocovich v Consolidated Edison, supra ; Koenig v Patrick Construction Co. 298 NY 313 [1948]). The "special hazards" contemplated, however, "do not encompass any and all perils that may be connected in some tangential way with the effects of gravity" (see, Ross v Curtis-Palmer Hydro-Elec. Co., supra ; Rodriquez v Margaret Tietz Ctr. for Nursing Care, 84 NY2d 841, 616 NYS2d 900 [1994]). There must be a significant risk inherent in the particular task that the worker is performing because of the relative elevation at which the task must be performed (see, Misseritti v Mark IV Construction Co., 86 NY2d 487, 634 NYS2d 35 [1995]).

"The question [of] whether a particular inspection injury falls within §240(1) must be determined on a case-by-case basis, depending on the context of the work" (Prats v Port Authority of NY and N.J., 100 NY2d 878, 882, 768 NYS2d 178 [2003]). Where an inspection is "merely investigatory" and the inspector is not working for the contractor which will, or is, performing the work, §240(1) is inapplicable (Matinez v City of New York, 93 NY2d 322, 326 690 NYS2d 524 [1999]). Where the injured inspector is "a member of a team that undertook an enumerated activity under the construction contract" the statute will protect the worker "even while performing duties ancillary" to the enumerated statutory acts (Prats v Port Authority of NY and N.J., supra at 882). And an engineer's fall from a plank while making an inspection will be covered where his employer was "in charge of a [...] reconstruction project" (Reisch v Amadori Constr. Co., 273 AD2d 855, 855-856, 709 NYS2d 726 [2000]); as will a fall between floor joists by the superintendent of construction who entered a building merely to ascertain how far the work had progressed and why it was so quiet (Campisi v Epos Contr. Corp., 299 AD2d 4, 5, 747 NYS2d 218 [2002]). Here, plaintiff's employer was a lessee in the building under renovation. KeySpan did not own the building, had not contracted for the renovation and had no control over the contractor's work. Plaintiff testified that the purpose of his observation was to prepare a report to his employer. Plaintiff was not "performing an inspection at the time of the accident necessary and incidental to the repair work" (see contrary finding, Bagshaw v Network Service Management, Inc., 4 AD3d 831, 832, 722 NYS2d 161 [2004]). Therefore, the undisputed facts presented here do not support the absolute liability imposed by Labor Law §240(1) and defendants have established that plaintiff is not a member of the protected class necessary for a prima facie cause of action (see, Prats v Port Authority of NY and N.J., supra ; Martinez v City of New York, supra ). Plaintiff's assertion that further discovery is needed before this issue may be resolved is unavailing and insufficient to defeat the motions (see, Meath v Mishrick, 68 NY2d 992, 994, 510 NYS2d 560[1986]; Johnson v Sniffen, 265 AD2d 304, 696 NYS2d 211 [1999]). Accordingly, so much of plaintiff's motion which seeks to hold [*4]determination of defendants' motions in abeyance pending the completion of discovery, is denied.

Labor Law §241(6) requires all contractors and owners and their agents when constructing or demolishing buildings or doing any excavating in connection therewith, to "provide reasonable and adequate protection and safety" for workers and to comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor. As is the duty imposed by Labor Law §240(1), the duty to comply with the Commissioner's regulations imposed by §241(6) is nondelegable (see, Ross v Curtis-Palmer Hydro-Elec. Co., supra ; Long v Forest-Fehlhaber, 55 NY2d 154, 448 NYS2d 132 [1982]; Allen v Cloutier Constr. Corp., 44 NY2d 290, 405 NYS2d 630 [1978 ]). Therefore, a plaintiff who asserts a viable claim under §241(6) wherein the rule or regulation alleged to have been breached is a "specific positive command" and not merely "general safety standards" need not show that defendants exercised supervision or control over the work site or had actual or constructive notice in order to establish a right of recovery (see, Ross v Curtis-Palmer Hydro-Elec. Co., supra ; Rizzuto v L.A. Wenger Contracting Co., 91 NY2d 343, 670 NYS2d 816 [1998]). However, as with his §240(1) claim, plaintiff must also establish that the injury-causing activity was related to his work in the construction, demolition or excavation, to establish that he was a member of the protected class (see, Nagel v D & R Realty Corp., 99 NY2d 98, 752 NYS2d 581 [2002]). Therefore, since it has been established that plaintiff was not engaged in the renovation project and is, therefore, not a member of the protected class, Labor Law §241(6) is also inapplicable.

Accordingly, so much of defendants' motions which seek summary judgment dismissing plaintiffs Labor Law §240(1) and Labor Law §241(6) causes of action are granted, and so much of plaintiffs' cross motion which seeks partial summary judgment as to defendants' liability thereunder, is correspondingly denied.

The protection afforded by Labor Law §200 is not limited to workers involved in construction or renovation. It codifies the common-law duty of an owner or employer to provide employees a safe place to work (see, Jock v Fien, 80 NY2d 965, 590 NYS2d 878 [1992]), and is limited to owners or contractors who exercise control or supervision over the work, or either created the allegedly dangerous condition or had actual or constructive notice of it (see, Lombardi v Stout, 80 NY2d 290, 294-295, 590 NYS2d 55 [1992]; Yong Ju Kim v Herbert Constr. Co., 275 AD2d 709, 713 NYS2d 190 [2000]). Moreover, on a motion for summary judgment, movant has the initial burden of setting forth evidentiary facts sufficient to establish its entitlement to judgment as a matter of law (see, Zuckerman v New York, 49 NY2d 557, 427 NYS2d 595 [1980]; Fabbricatore v Lindenhurst Union Free School Dist., 259 AD2d 659, 686 NYS2d 822 [1999]). Only then does the burden shift to the opposing party to come forward with proof (see, Piccolo v DeCarlo, 90 AD2d 609, 456 NYS2d 171 [1982]).

Here, plaintiff testified that he and his fellow employee met with representatives of SCWA, to obtain permission to view the restoration, and followed them into the attic space and [*5]across the plank, thereby creating question of fact as to notice of the alleged dangerous condition created by the contractor (Yong Ju Kim v Herbert Construction Co., supra ). The court concludes that defendants have not met their initial burden of setting forth evidentiary facts sufficient to establish their entitlement to summary judgment as a matter of law on this issue (see, Zuckerman v City of New York, supra ; Fabbricatore v Lindenhurst Union Free School Dist., supra ). Accordingly, so much of defendants' motions which seeks dismissal of plaintiffs' Labor Law §200 claim is denied, and so much of plaintiffs' cross motion which seeks partial summary judgment as to this issue is also denied. Plaintiffs' Labor Law §200 cause of action is severed and shall continue, as well as their common-law negligence cause of action.

Lastly, third-party defendant KeySpan, plaintiff's employer, seeks summary judgment dismissing the third-party complaint and the cross-claims asserted by defendant/third-party defendant George Holmes. Pursuant to the amendment to Worker's Compensation Law §11, the Omnibus Worker's Compensation Reform Act (L. 1996, c. 635, §2), plaintiff's employer is exempt from claims for contribution or indemnity in the absence of plaintiff's "grave injury" (see also, Majewski v Broadalbin-Perth Central School District, 91 NY2d 577, 673 NYS2d 966 [1998]), unless there is a specific contractual obligation for such. The thrust of KeySpan's motion for summary judgment is that it cannot be liable to defendant Holmes for contribution or indemnification because plaintiff has not suffered a "grave injury" and because there is no contract between KeySpan and Holmes. As to Holmes, the Court concurs that Worker's Compensation Law §11 bars any action for contribution or indemnification. Further, Holmes has not opposed the motion. Accordingly, that portion of KeySpan's motion for summary judgment seeking to dismiss the cross-claims of Holmes, is granted.

The third-party complaint against KeySpan alleges that KeySpan negligently supervised plaintiff and that SCWA is entitled to contractual contribution and indemnification from KeySpan based upon the lease as well as common-law negligence. The indemnification section of the lease agreement between SCWA and KeySpan (¶ 16) limits KeySpans's duty to indemnify the landlord to acts or omissions of KeySpan arising out of the its use, occupancy or operations occurring in, on or about the premises (see, Itri Brick & Concrete Corp. v Aetna Casualty & Surety Co., 89 NY2d 786, 658 NYS2d 903 [1997]; GOL § 5-322.1). The thrust of KeySpan's motion for summary judgment is that there was no access to the attic from the space it occupied and that the accident occurred in the attic area which was not directly above the space leased by KeySpan. Therefore, KeySpan argues, the area was a common area, over which it exerted no control, and hence it has no duty indemnify or to insure (¶ 16[c]). SCWA argues that it was KeySpan that directed plaintiff to observe the work in the attic, which relates to KeySpan's occupancy, and that the attic space was not a common area pursuant to the lease. It is well settled that, in the context of a motion for summary judgment, the court is obligated to draw all reasonable inferences in favor of the non-moving party (see, Negri v Stop & Shop, 65 NY2d 625, 491 NYS2d 151 [1985]). Here, the Court finds that SCWA has raised sufficient questions as to whether KeySpan may have been negligent in directing plaintiff into the open attic sufficient to withstand the motion for summary judgment (see, Winegrad v New York University Medical Center, 64 NY2d 851, 487 NYS2d 316 [1985]; Rivera v D'Alessandro, 248 AD2d 522, 669 [*6]NYS2d 877 [1998]; Werner v East Meadow Union Free School Dist., 245 AD2d 367, 667 NYS2d 386 [1997]). The Court notes, parenthetically, that for SCWA to prevail on its claims for contractual indemnification, it must establish that it was without fault, as a matter of law (¶ 16). Accordingly, that portion of KeySpan's motion for summary judgment seeking to dismiss SCWA's third-party complaint, is denied.

In summary, plaintiffs' Labor Law § 240(1) and §241(6) causes of action are dismissed, the remaining causes of action are severed and shall continue. The cross-claims of defendant Holmes as against KeySpan are dismissed. SCWA's third-party complaint against KeySpan remains unresolved.

Dated:___________________ _______________________________________

J.S.C.

FINAL DISPOSITION X NON-FINAL DISPOSITION