D'Allesandro v Lucent Tech., Inc.

[*1] D'Allesandro v Lucent Tech., Inc. 2006 NY Slip Op 52474(U) [14 Misc 3d 1210(A)] Decided on December 29, 2006 Supreme Court, Richmond County Gigante, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 29, 2006
Supreme Court, Richmond County

Robert D'Allesandro, Plaintiff(s),

against

Lucent Technologies, Inc., AT&T, McCLINCH EQUIPMENT, INC., and UNITED RENTAL, INC., Defendant(s).



13744/03

Robert J. Gigante, J.

Upon the foregoing papers, the motion for summary judgment of defendants LUCENT [*2]TECHNOLOGIES, INC. and AT&T is granted to the extent provided herein.

Plaintiff commenced this action to recover damages for injuries allegedly sustained by him when he fell from a scissors lift after being struck in the head by a metal rod hanging down from an overhead conveyor system inside the U.S. Post Office located at 341 Ninth Street in New York City. LUCENT TECHNOLOGIES is alleged to be the successor-in-interest to a contract between defendant AT&T and the U.S. Post Office pursuant to which the former was to install a new intercom system at the subject location. It is further alleged that LUCENT had subcontracted with plaintiff's employer, third-party defendant ADCO ELECTRICAL CORP. (hereinafter ADCO), to install speakers for the new system. It was in the course of this work that plaintiff was injured. The complaint alleges causes of action under the Labor Law §§240(1), 241(6), 200 and common-law negligence.

In moving for summary judgment, LUCENT contends that plaintiff's injuries were not the result of an "elevation-related risk" of the sort that is cognizable under Labor Law §240(1). According to LUCENT, the scope of the foregoing section does not encompass any and all perils that may be connected with the effects of gravity, but rather those risks associated with the need of a covered worker to access a different elevation level for, e.g., the performance of his or her assigned task. LUCENT contends that at the time of the subject accident, plaintiff was merely driving the subject lift to a different location. Accordingly, the lift was not being used as an "elevation-assist" at the time of plaintiff's injury. In addition, LUCENT contends that plaintiff was not exposed to any significant risks inherent to elevation while relocating the lift, but rather those inherent to horizontal wheeled motion. Moreover, LUCENT contends that the sole proximate cause of the accident was plaintiff's own lack of care in operating the lift and not any problem with the lift itself.

With regard to Labor Law §241(6), LUCENT contends that plaintiff's claims under this section must be stricken since the accident did not occur in an area where construction work was being performed. Furthermore, LUCENT relies on plaintiff's EBT testimony to the effect that he was moving the lift to another work location, to demonstrate that he was not engaged in construction when the accident occurred.

As for plaintiff's claims under Labor Law §200 and common-law negligence, LUCENT contends that it is uncontroverted that no one other than ADCO, plaintiff's employer, supervised, controlled, instructed or directed the means and method of the work.

In opposition, plaintiff contends that the motion is premature since a Note of Issue has not been filed, and ADCO's discovery, including its deposition of plaintiff, remains incomplete. According to plaintiff, further discovery will undoubtedly be sought following his deposition.

With regard to Labor Law §240(1), plaintiff contends that the lift was not being used merely as a mode of transportation, but rather as a platform or scaffold from which to install electrical piping. According to plaintiff, he had just finished a coffee break and had returned to the lift to resume his work. This required moving the lift to a new location in order to install additional piping. Plaintiff contends that similar cases in New York have equated the use of a scissors lift to a scaffold in such circumstances, thereby extending the protection of Labor Law §240(1) to workers who are injured after falling from a lift while performing their jobs.

Plaintiff further contends that summary judgment is unwarranted here, as triable issues of fact exist as to whether or not the lift was broken or dangerously defective at the time of its use. [*3]In this regard, plaintiff testified during his EBT that the controls on the lift did not operate properly, thereby impairing his ability to stop. Moreover, he claimed that a protective railing that would have prevented him from falling was missing from the rear of the lift. In support of this claim, a foreman employed by third-party defendant ADCO testified at his EBT that a scissors lift would ordinarily have protective railings on all four sides. Finally, plaintiff contends that his accident was clearly "gravity-related" since he was working at a height of five feet when he fell.

As for section 241(6) of the Labor Law, plaintiff contends that he was engaged in the performance of construction work at the time of the accident. Plaintiff further contends that a scissors lift has been held to be functionally similar to a scaffold and, thus, falls within the purview of 12 NYCRR 23-1.7(d).

With regard to Labor Law §200 and common-law negligence, plaintiff merely contends that LUCENT is liable as an agent of the owner or contractor.

The proponent of a summary judgment motion must make a prima facie showing of its entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Alvarez v. Prospect Hosp., 68 NY2d 320). Once that initial burden has been satisfied, the burden shifts to the party opposing the motion to produce sufficient evidence to raise a triable issue of fact (id.). The court's only role in passing upon such a motion is to determine whether any such issue exists; it is not to determine the merits of such issues (Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395). If there is any doubt as to the existence of a triable issue, the motion should be denied (Rotuba Extruders v. Ceppos, 46 NY2d 223).

Here, it is the opinion of this Court that plaintiff has submitted sufficient proof to raise triable issues of material fact, and to avoid summary judgment on his Labor Law §§240(1) and 241(6) causes of action. However, the causes of action pleaded under Labor Law §200 and common-law negligence must be dismissed.

With regard to Labor Law §240(1), although LUCENT contends that plaintiff's relocation of the lift to a different location is a noncovered activity, plaintiff's EBT testimony to the effect that such movement was necessary to his work is sufficient to raise a triable issue as to the applicability of Labor Law §240(1) (see Lombardi v. Stout, 80 NY2d 290; cf. Keenan v. Just Kids Learning Ctr, 297 AD2d 708 [sustained injury during lunch break not covered under Labor Law §240[1]). Additionally, the deposition testimony of, e.g., ADCO's foreman, is adequate to draw into question the safety and operability of the lift, while the necessity of providing plaintiff with head protection presents a further issue that cannot be determined as a matter of law.[FN1] Accordingly, summary judgment dismissing plaintiff's Labor Law §240(1) cause of action is denied.

With regard to plaintiff's Labor Law §241(6) claim, it is well settled that this section imposes a nondelegable duty upon owners and contractors to provide reasonable and adequate protection and safety to workers engaged, inter alia, in construction (see Comes v. New York State Elec. & Gas Corp., 82 NY2d 876), even in the absence of supervision or control(see Rizzuto v. Wenger Contr. Co., 91 NY2d 343, 348-349). Nevertheless, in order to sustain such [*4]cause of action, a plaintiff must demonstrate (1) that his injuries were proximately caused by a violation of a relevant Industrial Code provision which (2) embodies a specific rather than general safety standard (see Plass v. Solotoff, 5 AD3d 365, 367, lv denied 2 NY3d 705; Singleton v. Citnalta Constr. Corp., 291 AD2d 393, 394).

Here, regardless of the extent of LUCENT's control, if any, over the project, it remains potentially liable to plaintiff under Labor Law §241(6) based on its alleged violation of 12 NYCRR 23-1.8(c)(1), requiring personal protective equipment.[FN2] However, reliance upon the purported violation of 12 NYCRR 23-1.5 is unwarranted, as the cited provision merely establishes a general safety standard and lacks the requisite specificity to support a cause of action under Labor Law §241(6) (see Maday v. Gabe's Contr, 20 AD3d 513). 12 NYCRR 23-1.3 suffers from the same defect, while 12 NYCRR 23-1.21 and 23-1.7 are concerned, respectively, with ladders and ladderways and standards of protection from, e.g., slipping hazards, neither of which are factually inapplicable to the circumstances of this case.

Finally, with regard to plaintiff's claims under Labor Law §200 and common-law negligence, it is well settled that no recovery may be had thereunder against an owner or general contractor who does not exercise supervisory control over the activities out of which the injury arises (see Lombardi v. Stout, 80 NY2d 290, 295). Here, there is no proof that the general contractor, LUCENT, exercised any supervision or control over plaintiff's work. In fact, plaintiff's EBT testimony indicates that he received instructions solely from his ADCO foreman, while the latter testified that LUCENT employees were seldom present and neither supervised or controlled ADCO's performance. In the absence of any proof to the contrary, LUCENT, therefore, is entitled to summary judgment dismissing plaintiff's claims under Labor Law §200 and common-law negligence (id. at 294-295).

Accordingly, it is

ORDERED that the motion is granted to the extent that the complaint as against defendants LUCENT TECHNOLOGIES, INC. and AT&T under Labor Law §200 and common-law negligence are severed and dismissed; and it is further

ORDERED that the complaint as against said defendants under Labor Law §241(6) shall proceed to trial based solely on their purported violation of 12 NYCRR 23-1.8; and it is further

ORDERED that the balance of the motion is denied.

The Clerk shall enter judgment accordingly.

E N T E R,

Robert J. Gigante,J.S.C. [*5]

Dated:December 29, 2006 Footnotes

Footnote 1: The denomination herein of certain specific factual issues is in no way intended to be exhaustive.

Footnote 2:Contrary to LUCENT's position, the liability imposed by Labor Law §241(6) is not limited to accidents that occur during "construction", since the Industrial Code definition of "construction work" includes work of the type performed in the construction, erection, alteration, repair, maintenance, painting or moving of buildings or other structures (see 12 NYCRR 23-1.4[b][13]). Thus viewed, movants have failed to demonstrate as a matter of law that the work in which plaintiff was engaged at the time of his injury was not a covered activity (see Joblon v. Solow, 91 NY2d 457).