Berg v Albany Ladder Co., Inc.

[*1] Berg v Albany Ladder Co., Inc. 2005 NY Slip Op 52346(U) [18 Misc 3d 1137(A)] Decided on October 6, 2005 Supreme Court, Schenectady County Catena, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 6, 2005
Supreme Court, Schenectady County

Frederick Berg, Plaintiff,

against

Albany Ladder Company, Inc., Markan Associates, LLC and Capital Framing and Construction Corp., Defendants.



2001-667



Christine D'Addio Hanlon, Esq.

For Third-Party Defendants,

Stone Bridge Iron and Steel, Inc. and

Transcontinental Insurance Company

7 Executive Centre Drive

Albany, New York 12203

Capasso & Massaroni, LLP

For Plaintiff

215 State Street, P.O. Box 1088

Schenectady, New York 12301-1088

Ahmuty, Demers & McManus

For Defendant/Third Party Plaintiff, Capital Framing and Construction Corp.

1531 Route 82

Hopewell Junction, New York 12533

Law Office of Jeanne M. Gonsalves Lloyd

For Third-Party Defendant,

Fast Trek Steel, Inc.

950 New Loudon Road, Suite 230

Latham, New York 12110

Law Offices of F. Douglas Novotny

For Defendant, Albany Ladder Company, Inc.

122 Great Oaks Boulevard

Albany, New York 12203-5953

Felix J. Catena, J.

Motion by third-party defendants, Stone Bridge Iron and Steel, Inc., and Transcontinental Insurance Co., for an order for summary judgment dismissing plaintiff's and third-party plaintiff's complaint under CPLR 3212 and for summary judgment on their cross-claims for contribution, indemnification, attorney's fees, costs, and disbursements against third-party defendants Fast Trek Steel and Phoenix Insurance. Cross-Motion by plaintiff for partial summary judgment on liability (CPLR 3212) against defendants. Cross-Motion by third-party defendant Fast Trek Steel, Inc., for summary judgment (CPLR 3212) dismissing plaintiff's and third-party plaintiff's complaint and all cross-claims asserted against it. Cross-Motion by defendants Capital Framing and Construction Corp., and Markan Associates, LLC, for summary judgment (CPLR 3212) dismissing plaintiff's complaint and for summary judgment on their third-party complaint for indemnification and attorney's fees.

Capital Framing and Construction Corp., ("Capital Framing") subcontracted with Stone Bridge Iron and Steel, Inc., ("Stone Bridge") to provide and erect steel at the Albany Ladder Building located at 5 Fritz Boulevard in the Village of Colonie, New York, which was owned by Markan Associates, LLC. Plaintiff was an employee of Fast Trek Steel, Inc., ("Fast Trek") a company which subcontracted with Stone Bridge to erect the structural steel at the work site. Plaintiff allegedly sustained personal injuries while he was unloading trusses from a flatbed truck which were delivered to the site by Nicholas J. Bouras, Inc., ("Bouras") a company which subcontracted with Stone Bridge to furnish and deliver steel joists and metal deck to the site. Fast Trek was solely responsible for the supervision, control, and direction of plaintiff's work and neither Capital, Markan, nor Stone Bridge had any involvement in the accident other than through their contractual relationships. Capital's contract with Stone Bridge contained an indemnification and hold harmless clause and Transcontinental Insurance Co. ("Transcontinental") issued a policy of insurance naming Capital as an additional insured. Stone Bridge's subcontract with Fast Trek contained an indemnification and hold harmless clause and Phoenix Insurance ("Phoenix") issued a policy of insurance naming Stone Bridge as an [*2]additional insured.

In his complaint, plaintiff alleges causes of action against defendant Capital for common law negligence and liability predicated upon sections 200, 240(1) and 241(6) of the New York Labor Law. Capital, in turn, filed and served a third-party summons and complaint against third-party defendants Stone Bridge, Transcontinental, Fast Trek, and Phoenix for contractual and common law indemnification and apportionment. Stone Bridge filed a cross-claim against Fast Trek for indemnification and attorney's fees. All defendants answered and now move for summary judgment dismissing plaintiff's complaint.

With respect to plaintiff's claim that defendants violated section 240(1) of the Labor Law, plaintiff has submitted undisputed proof that he was standing on top of a lower layer of steel trusses, which were loaded onto a flatbed tractor-trailer at a height of approximately ten feet above ground, when the operator of a rubber tire lull, which is essentially a large forklift, unexpectedly curled the forks of the lull, thereby lifting the weight off of the trusses closest to plaintiff and causing a bundle from a higher level of trusses to roll over on top him. Scrambling, plaintiff secured himself inside the bundle as it fell towards him and rode it to the ground. Plaintiff's injuries were sustained from the jarring his body received when the bundle impacted the ground.

The above facts describe a "falling object" case and thus this court must determine whether an elevation-related risk contemplated by section 240(1) of the Labor Law existed (Toefer v. Long Island R.R., 4 NY3d 399, 407; Narducci v. Manhasset Bay Assoc., 96 NY2d 259, 267). "With respect to falling objects, Labor Law §240(1) applies where the falling of an object is related to a significant risk inherent in ... the relative elevation ... at which materials or loads must be positioned or secured" (id., at 267-268, citing Rocovich v. Consolidated Edison Co., 78 NY2d 509, 514). Under this standard, "plaintiff must show that the object fell, while being hoisted or secured, because of the absence or inadequacy of a safety device of the kind enumerated in the statute" (id.). Significantly, however, plaintiff does not allege the particular safety device which would have prevented his injury.

Instead, plaintiff advances a "falling worker" theory which is "of no moment in a falling object' case" since plaintiff's "[w]orking at an elevation does not increase the risk of being hit by an improperly hoisted load of materials from above" (id.). Plaintiff's risk in this case was not from falling off the flatbed truck but from being struck from above by an unstable bundle of tresses. A rubber tire lull was present to help plaintiff unload the tresses (cf., Curley v. Gateway Communications, Inc., 250 AD2d 888, 890). Notably, plaintiff did not fall off the truck but rather intentionally rode the bundle of tresses down to the ground. Thus, under the circumstances, plaintiff has failed to meet his burden in showing how his injuries were caused by the absence of a safety device enumerated in section 240(1) of the Labor Law (Narducci v. Manhasset Bay Assoc., supra at 269).

Turning to Labor Law §241(6), that statute "creates a cause of action against owners and contractors, making them vicariously liable for the negligence of others whom they did not supervise, where, and only where, a specific positive command [ ]' ... or a concrete specification' ... of a regulation promulgated by the Commissioner pursuant to the statute has been violated" (id.). Here, plaintiff alleges that defendants violated 12 NYCRR §23-9.2(b)(1) which sets forth that "all power operated equipment used in construction, demolition or excavation operations shall be operated only by trained, designated persons, and all such equipment shall be operated in a safe manner at all times." But compliance with this section [*3]poses an issue of fact only with regard to a general safety standard and not a " specific, positive command[]' ... or a concrete specification' ... of a regulation" (Ross v. Curtis-Palmer Hydro-Electric Co., 81 NY2d 494, 501-505; Fairchild v. Servidone Constr. Corp., 288 AD2d 665, 667-668).

Whether defendants violated the general safety standard contained in 12 NYCRR §23-9.2(b)(1) is a proper inquiry, however, under plaintiff's Labor Law §200 and common-law negligence causes of action. But defendants Capital, Markan, and Stone Bridge are not subject to liability under these theories because the undisputed proof demonstrates that they exercised no actual authority or control over the work site and the activity bringing about the injury and had no notice of unsafe work practices (Comes v. New York State Elec. and Gas Corp., 82 NY2d 876; Ross v. Curtis-Palmer Hydro Electric Co., supra; Fisher v. WNY Bus Parts, Inc., 12 AD3d 1138, 1139-1140).[FN1]

Thus, defendants' motions for summary judgment dismissing plaintiff's complaint and Capital's third-party complaint for liability and apportionment is granted. And, as a result, those claims for indemnification set forth in the third-party complaint and in Stone Bridge's cross-claims, are also dismissed since the respective indemnification clauses specifically require negligence as a condition precedent to the imposition of the duty to defend and indemnify (cf., Brown v. Two Exchange Plaza Partners, 76 NY2d 172, 178; cf., Vestal v. Yonkers Contracting Co., Inc., 268 AD2d 872, 873).

It is, therefore,

ORDERED that the plaintiff's complaint is dismissed; and it is further

ORDERED that the third-party complaint is dismissed; and it is further

ORDERED that the cross-claims made by third-party defendant Stone Bridge Iron & Steel are dismissed; and it is further

ORDERED that the counterclaims made by third-party defendants Stone Bridge Iron & Steel, Inc., are dismissed; and it is further

ORDERED that the counterclaim made by Fast Trek Steel is dismissed.

Dated:

_______________________

Hon. Felix J. Catena

Acting Supreme Court Justice Footnotes

Footnote 1:Capital has submitted undisputed proof that it did not exercise any authority or control over the work site through the presence of Mr. Jack Ernst since he was not responsible for supervision of safety issues but only came to the site twice a day to "[j]ust look around and see who was working" (cf., Squires v. Robert Marini Builders, Inc., 293 AD2d 808, 809). Moreover, a functioning rubber tire lull was present at the work site to help unload the trusses (see, Comes v. New York State Elec. and Gas Corp., supra at 878).