Spitzer v Atlantic-Heydt Corp.

[*1] Spitzer v Atlantic-Heydt Corp. 2006 NY Slip Op 51396(U) [12 Misc 3d 1183(A)] Decided on July 19, 2006 Supreme Court, Kings County Saitta, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 19, 2006
Supreme Court, Kings County

Vincent Spitzer and Angela Spitzer, Plaintiffs,

against

Atlantic-Heydt Corp., et al., Defendants.



39088/04

Wayne P. Saitta, J.

Upon the foregoing papers, plaintiffs Vincent and Angela Spitzer cross-move for an order, pursuant to CPLR 3212, granting summary judgment for plaintiffs on the issue of liability under Labor Law § 240 (1).

Background

On August 14, 2004, plaintiff Vincent Spitzer,[FN1] an employee of Sorbara Construction, was working on a construction project at 2 Gold Street in Manhattan, New York. Plaintiff alleges that defendants 95 Maiden Lane, LLC, Rockrose Development Corp., 2 Gold GC, LLC, and 2 Gold, LLC, were the owners of 2 Gold Street and/or general contractors for the construction project, and that defendant Atlantic-Heydt is in the trade of making and erecting sidewalk bridges for [*2]construction work.[FN2]

Plaintiff, a licensed crane operator, was hired for a two-day assignment, apparently to help dismantle the "boom" (an extender arm) of a Kodiak tower crane. Plaintiff's job was to give instructions and directions to the crane operator, using hand signals In order to do so, plaintiff worked on an elevated platform, also called a sidewalk bridge, along with approximately four co-workers. Various workers testified that it was normal and necessary to work on an elevated platform to perform this kind of work.

The platform was approximately 20 to 30 feet above ground, and had, on the sides, vertical plywood panels approximately four feet high. Neither plaintiff nor his co-workers was tied off or provided with any other safety device. In the course of this work, as plaintiff was signaling to the crane operator, he leaned or placed a hand on one of the bridge's side panels. The panel gave way, causing plaintiff to lose balance and consequently fall through the side panels to the ground below, sustaining serious injuries.

On December 1, 2004, plaintiff filed a summons and complaint against the named defendants. In his bill of particulars, plaintiff identified the causes of action in this suit as arising from, among other things, Labor Law § 240 (1).

Discussion

Labor Law § 240 (1), known as the "scaffold" law, was enacted to provide absolute liability for construction activities involving a significant risk due to elevation. It provides in relevant part: "All contractors and owners and their agents . . . in the erection, demolition, repairing, altering, painting, cleaning or pointing 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."

"To establish liability under Labor Law § 240 (1), a plaintiff must demonstrate a violation of the statute and that such violation was a proximate cause of his or her injuries" (Reinoso v Ornstein Layton Mgt., Inc., 19 AD3d 678, 678 [2005]). To establish a violation of Section 240 (1), a plaintiff must show that he was subject to particular risk because of "the relative elevation at which the task [had to] be performed or at which materials or loads [had to] be positioned or secured" (Rocovich v Consolidated Edison Co., 78 NY2d 509, 514 [1991]).

Plaintiff argues that he has established a prima facie case of liability here by showing that, because the scaffold side panels collapsed, the scaffold was not "constructed, placed [or] operated as to give proper protection." Moreover, plaintiff argues that he established a prima facie case under Section 240 (1) by showing that "he was exposed to elevation-related risks for which no safety devices were provided" (Reinoso, 19 AD3d at 678). In support of the latter point, plaintiff cites the deposition testimony of various witnesses, including plaintiff, demonstrating that workers on the sidewalk bridge were not provided with safety belts or other safety devices. In opposition, defendants raise a number of arguments, which will be addressed in turn.

[*3]Protected Activity

Defendants' first argument is that plaintiff was not engaged in an activity protected by the statute at the time of the accident. Defendants do not dispute that plaintiff's work was being done as part of a construction job that would qualify as protected activity under Section 240 (1). Indeed, according to the construction superintendent for defendant 2 Gold GC LLC, the project at issue was the construction of a 52-story apartment building, which is clearly a protected activity under the statute. Instead, defendants argue, among other things, that giving hand signals is not in itself "erection, demolition, repairing, altering, painting, cleaning or pointing," that the project was almost completed, and that a crane is not a "structure" under Section 240 (1). Defendants' arguments are unavailing.

First, even if signaling the crane was not itself an enumerated activity (e.g., altering or repairing) under the statute, that is not dispositive. "The intent of the statute was to protect workers employed in the enumerated acts, even while performing duties ancillary to those acts" (Prats v Port Auth. of New York and New Jersey, 100 NY2d 878, 882 [2003]). Here, the dismantling of this tower crane was clearly a necessary and inseparable part of the larger construction project, and thus the dismantling was protected activity (see e.g. Prats, 100 NY2d at 883 [ongoing inspection was protected activity]; Crapsi v South Shore Golf Club Holding Co., Inc., 19 AD3d 1024, 1026 [2005] [retrieving tape measure was protected activity]; Cunningham v Alexander's King Plaza, LLC, 22 AD3d 703, 706 [2005] [splicing telephone wires was protected activity]; Orr v David Christa Constr., Inc., 206 AD2d 881, 881 [1994] [unloading boxes was protected activity]).

Moreover, the fact that the construction project was almost over is irrelevant. The protection of Section 240 (1) does not end the instant the final brick is in place. Section 240 (1) protection covers necessary activity performed immediately before or after a construction project unless that task is part of "a separate phase easily distinguishable from other parts of the larger construction project" (Prats, 100 NY2d at 881; see also e.g. Fitzpatrick v State of New York, 25 AD3d 755, 757 [2006]; Beehner v Eckerd Corp. , 3NY3d 751, 788 NYS2d 637 (2004); Aguilar v Henry Marine Service Inc., 12 AD3d 542, 785 NYS2d 95 [2nd Dept. 2004]). Here, dismantling the crane was clearly not a "separate phase" from the rest of the construction project; indeed, the workers were still using the same sidewalk platform that had been used throughout this construction project. Imposing liability under Section 240 (1) is appropriate for this post-construction activity (see e.g. Sheridan v Beaver Tower, Inc., 229 AD2d 302 [1996]; Struble v Arborio, Inc., 74 AD2d 55 [1980]).

Finally, as other witnesses testified, in order to give hand signals to the crane operator, plaintiff had to work on the elevated platform. Hence, plaintiff was subject to the particular elevation-related construction risk that Section 240 (1) was designed to cover, and accordingly, he was entitled to its protections (see e.g. Bland v Manocherian, 66 NY2d 452, 459 [1985]). Therefore, the argument over whether the crane itself was a "structure" being dismantled is irrelevant, and the court finds that plaintiff was engaged in protected activity at the time of his accident. Nonetheless it should be noted that the Second Department has held that a crane is a "building or structure" within the meaning of Section 240 (1). Cun-En Lin v Holy Family Monuments, 18 AD3d 800, 796 NYS2d 684 (2nd Dept. 2005).

Violation of Section 240 (1)

Defendants next argue that there was no violation of Section 240 (1). Basically, they assert that there was no defect in the elevated platform from which plaintiff fell and that the side panels [*4]only gave way because plaintiff leaned on them.[FN3]

In support of their argument, defendants submit various affidavits indicating that one should not lean on scaffolding side panels. For example, one witness states that "it is not advisable for someone, especially one who has had experience working at heights on construction projects, to lean against the side panel of a scaffold bridge, since to do so creates a risk of falling" (Affidavit of Charles Drew), while another states that "side panels are not intended to be used to support the weight of humans beings leaning against them" and it "would not be advisable for someone to lean against the side panels" (Affidavit of Tohfaz Uddin). Even if the court were to accept these affidavits as expert evidence, defendants' arguments are unpersuasive.

First, despite defendants' arguments that the side panels functioned merely to keep debris from falling and to demarcate the edges of the scaffold, common sense indicates that a person should be able to lean on what appears to be a side wall. Indeed, as the Sorbara construction superintendent testified, the reason workers were not tied off while working on the platform was "because it had a parapet wall" (Deposition of Albert DeRoss at 22). Defendants' own "experts" do not say that one should never lean on a side panel. More tellingly, they do not opine that people doing construction work know or should know that one is not supposed to lean on a side panel. And nothing in the record indicates that plaintiff was instructed not to lean on these side panels, or that defendants posted any sign or other general warning telling workers not to lean on these side panels.

Moreover, as plaintiff points out, numerous state and federal regulations require scaffolds to have side railings for the purpose of keeping workers from falling. For example, 12 NYCRR § 23-51 (j) requires all scaffolds over seven feet high, with a few exceptions, to have "safety" railings. The testimony in this case indicates that the scaffold in question was over seven feet high; in fact, the testimony would appear to indicate that the scaffold was over 20 feet high, in which case Labor Law § 240 (2) would require it to have a safety railing.

In any case, regardless of whether this scaffold was required to have a safety railing, Section 240 (1) required that this scaffold, like all scaffolds, be "constructed, placed and operated as to give proper protection" to those working on it. Despite defendants' many arguments, they have not raised any genuine doubt as to whether Section 240 (1) was violated here. One the one hand, if the scaffold's side panels were meant to function as a safety device to keep workers from falling, then "the collapse of [this] safety device upon which [plaintiff] was working established a prima facie case of liability under Labor Law § 240 (1)" (De Jara v 44-14 Newtown Rd. Apt. Corp., 307 AD2d 948, 949-950 [2003]; see also e.g. Hulse v Summerlin, LLC, 17 AD3d 317, 318 [2005]; Saeed v NY/Enterprise City Home Hous. Dev. Fund Corp., 303 AD2d 484, 485 [2003]). On the other hand, if the court accepts the defendants' argument that the scaffold's side panels were not meant to function as a safety device, then, since the scaffold had no side railings and workers were not tied off while working on it, that would mean that no "protective device was provided" to keep workers from falling off the sides of the scaffold, which also violates Section 240 (1) (Vergar v SS 133 West 21, LLC, 21 AD3d 279, 280 [2005]; see also e.g. Nunez v Bertelsman Prop., Inc., 304 AD2d 487, 488 [2003]; Kalofonos v State of New York, 104 AD2d 75, 78-79 [1984]. In either case, plaintiff has established that there was a violation of Section 240 (1) in this case and defendants have failed to [*5]raise any issue of material fact in response.[FN4]

Accordingly, the court finds that plaintiff has established that there was a violation of Labor Law § 240 (1) in this case which proximately caused plaintiff's fall and injuries.

Proper Defendants

Finally, defendants argue that plaintiff has not demonstrated that Section 240 (1), "which applies to contractors, owners and their agents, applies to every named defendant in this case."

Labor Law § 240 (1) imposes "absolute liability upon an owner or [general] contractor for failing to provide or erect safety devices" (Bland, 66 NY2d at 459). Therefore, any defendant in this case who is an owner or general contractor is liable for the violation of Section 240 (1). Defendant 2 Gold LLC did not deny ownership in its answer; therefore, it is deemed to have admitted ownership (CPLR § 3018 [a]; Santiago v County of Suffolk, 280 AD2d 594, 594-595 [ 2001]). Peter DePalma appeared as an employee of defendant 2 Gold GC LLC, and testified that 2 Gold GC LLC was the general contractor for this project. Defendants have not submitted any evidence to contradict his assertion. Therefore, the court finds that plaintiff has established that 2 Gold LLC and 2 Gold GC LLC are the owner and general contractor respectively, and hence, they are both liable under Section 240 (1).

Plaintiff has not made any showing beyond the allegations in the complaint as to the role of defendants 95 Maiden Lane Corp. and Rockrose Development Corporation. In fact the only evidence as to Rockrose was the deposition of DePalma, and employee of Rockrose, who stated that Rockrose had no role in the project. DePalma also testified that defendant Atlantic-Heydt was a subcontractor that constructed the sidewalk bridge, but there has been no evidence produced as to Atlantic-Heydt's supervisory role at the site.

As plaintiff has not established that these other named defendants were owners or general contractors pursuant Labor Law § 240 (1), his motion for summary judgment against those defendants must be denied as premature.

Conclusion

Plaintiff's motion for summary judgment is granted as to defendants 2 Gold LLC and 2 Gold GC LLC, but is denied as to all other named defendants, with leave to renew when all discovery is complete.

This constitutes the decision and order of this court.

E N T E R,

J. S. C. [*6] Footnotes

Footnote 1: Plaintiff's wife, Angela Spitzer, is also named as a plaintiff in this action. Her claims all derive from Mr. Spitzer's claims and will not be separately considered.

Footnote 2: The issue of ownership of the subject premises is disputed.

Footnote 3: There is conflicting testimony as to whether plaintiff actually leaned on the side panels; however, whether he did or did not lean is not relevant to finding liability here.

Footnote 4: For the same reasons, defendants' attempts to claim that plaintiff himself, because he allegedly leaned on the side panel, was the "sole proximate cause" of this accident must also fail (see Blake v Neighborhood Hous. Servs. of New York City, Inc., 1 NY3d 280 [2003]). The cause of this accident was either the failure of the safety device provided or the lack of any safety device. It was not due solely to any the actions of the plaintiff..