Simione v City of New York

[*1] Simione v City of New York 2007 NY Slip Op 51386(U) [16 Misc 3d 1111(A)] Decided on July 16, 2007 Supreme Court, Kings County Knipel, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 16, 2007
Supreme Court, Kings County

Robert Simione, Plaintiff,

against

The City of New York, Defendant.



22574/99



Anna Marie Fortunato, Esq.

Fortunato & Fortunato, PLLC

26 Court Street - Suite 1301

Brooklyn, NY 11242

(718) 858-4366

Attorneys for the plaintiff

Wilson, Elser, Moskowitz, Edelman & Dicker, LLP

150 East 42nd Street

New York, NY 10017

(212) 490-3000

Attorneys for the defendant

Lawrence Knipel, J.

In this action to recover damages for personal injuries pursuant to the Labor Law, defendant City of New York moves for summary judgment dismissing the complaint. Plaintiff cross-moves for partial summary judgment on his claim pursuant to Labor Law § 240(1).

Plaintiff, a maintenance mechanic employed by Schiavone-Shea, Joint Venture ("Schiavone") was working on a construction project building a water tunnel between Brooklyn and Queens. On April 23, 1998, plaintiff was injured when an 18,000 pound steel form that was being secured became loose, swung over his head, and landed on his foot crushing it.

According to the examination before trial testimony of the Assistant Resident Engineer for the Department of Environmental Protection ("DEP"), there were four shafts about one mile apart. At the time of the accident, the tunnel was excavated and workers were putting a concrete lining in the tunnel, which was about 19 to 20 feet in diameter. The accident occurred in shaft 23B, about 550 feet below ground level.

To create the lining, concrete is poured into a form, consisting of a top (arch) and bottom (invert) half, and then left to dry. Once it dries in the forms, the forms are pulled away. The forms are carried through the tunnel by a form carrier, which is about 20 feet long and 10 feet high, and moves in the tunnel on rails and wheels.

Setting the form was done by workers and engineers from Schiavone. Neither the Assistant Civil Engineer nor the Assistant Resident Engineer of DEP directed or controlled their work, and DEP did not provide the Schiavone employees with any safety equipment or materials. In fact, it is alleged, none of the City employees were allowed to operate or touch the equipment and machinery due to union restrictions. [*2]

Plaintiff testified that on the day of the accident he was instructed by his foreman to move the concrete forms. Plaintiff operated the form carrier. The forms were picked up by the form carrier, and transported to where the concrete had to be poured. Plaintiff was standing on a platform operating the form carrier when the accident occurred. The form carrier had a gantry, a beam that rides back and forth, with two sets of chains, one pulling the form up and down, and the other back and forth lengthwise through the tunnel. Thus, the hydraulic chains would lift the form or move them the length of the gantry. Workers, called sandhogs, would hook the chain to the form manually. When plaintiff arrived, the form had already been hooked on the machine. He moved the form into position and remained on the platform. The workers moved the form on the gantry over the work area by pulling the control chains, and then hoisted it into place, and put in the leveling bolts which had to be screwed in. The sandhogs inserted two bolts into the form and hoisted the form to level it, when it would be secured to the adjacent form. However, one of the bolts fell out and the back of the form came down. When it went down, the other end flew up over plaintiff and came down over him and pinned his leg. Usually, two men set the form, two would lift or lower it, two would secure it, several would put the bolts in, and another man on the end would hold the form with a rope so it wouldn't swing if it hit the concrete bed. That night, there were only two.

In this motion, the City argues that this case does not fall within the ambit of Labor Law § 240(1) because plaintiff was injured as a result of the horizontal movement of the form carrier pressing against his foot. He was not struck by a falling object and was not working at a height differential. Further, the Industrial Code regulations cited were too general or were inapplicable to support an alleged Labor Law § 241(6) claim. Lastly, it is argued, since there is no evidence that defendant supervised, controlled or directed plaintiff's work , there is no basis for a Labor Law § 200 or common law negligence claim.

Plaintiff opposes the motion and cross-moves for partial summary judgment on his claim pursuant to Labor Law § 240(1). Plaintiff argues that a hoist failed to keep the steel form stabilized as it was being hoisted and secured, one end sprang loose, swung over the plaintiff's head and fell on his foot. Each section of the form is about 30 feet in length and has a diameter of 30 feet. The form that fell on plaintiff was eight feet in the air above the tunnel floor. The form was being hoisted into position by the chains which were lifting it by its front and back ends. One end of the 18,000 pound form fell and the other swung over plaintiff's head and onto his foot. No safety devices were used, such as tag lines, slings, or ropes to afford proper stability to the form, and no protecting type of bar or barrier was provided on the platform used by plaintiff which was about eight feet off the ground. The hoist mechanism was above plaintiff by 10 feet. These factors, it is argued, "classically establish plaintiff's entitlement to judgment as a matter of law. The form was improperly secured as it was hoisted, swung out of control as it was being hoisted to an elevated height, and fell on his foot. No safety equipment was provided to secure the load or to plaintiff as he stood on an unprotected platform, the functional equivalent of a scaffold.

In short, plaintiff argues he was engaged in a protected activity, he was injured by a falling load that required securing , it was being hoisted and secured at an elevated height, and the accident occurred due to the failure to provide a safety device. As for the claim under Labor Law § 241(6), plaintiff argues the safety violations listed are sufficient to state a viable cause of action. Specifically, it is alleged that 12 NYCRR 23-6 and 23-8 are specific and detailed enough to sustain this cause of [*3]action. Plaintiff's argument is supported by the affidavit of Shawn McKeon, a licensed safety manager.

Labor Law § 240(1) applies to both falling worker and falling object cases. With respect to falling objects, the statute 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 (see Narducci v Manhasset Bay Associates, 96 NY2d 259, 267-268, Rocovich v Consolidated Edison Co., 78 NY2d 509, 514). "Thus, for section 240(1) to apply, a plaintiff must show more than simply that an object fell causing injury to a worker. A 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" (Narducci v Manhassat Bay Assocs., supra). Falling objects are associated with the failure to use a different type of safety device, such as ropes or pulleys, that are enumerated in the statute (Narducci v Manhassat Bay Assocs., supra; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501).

In Narducci, a worker was injured while removing window frames from the third floor of a fire-damaged building when he was struck by a piece of glass that fell from an adjacent frame. The Court of Appeals held that glass that fell from the pre-existing building structure was a general hazard, rather than one specifically addressed by the Labor Law, and the fact the worker was on a ladder when he was injured was irrelevant since the ladder on which he was standing functioned properly.

In contrast, in Cammon v City of New York (21 AD3d 196), the plaintiff was injured while working on a floating mobile crane during a timber removal project when he was struck from above by an airborne piece of timber he was cutting after the barge was rocked by a wave generated by a passing tugboat. The jury found that plaintiff was not provided with proper protection but that this failure was not a substantial factor in causing his injuries. Plaintiff argued he was entitled to a directed verdict; defendants argued that Labor Law § 240(1) was not applicable since the timber was not being hoisted, there is no evidence the crane malfunctioned, and the plaintiff was struck by a horizontally moving object, not by a falling object. The Appellate Division, First Department, found Labor Law § 240(1) applicable, since, as stated in Narducci, the timber was "a load that required securing for the purposes of the undertaking at the time it fell." The claim that the timber moved only horizontally is unsupported, the Court held, since plaintiff testified that the timber went up in the air at least 10 feet and struck him from above, and there was unrefuted evidence that the proper use of one of the enumerated devised in the statute could have prevented the dislodged timber from swinging and causing his injury. That the accident was precipitated by a wave does not change the result, since a defendant is not absolved from liability where plaintiff's injuries are at least partially attributable to the defendant's failure to provide protection as mandated by statute.

Similarly, in Outar v City of New York (286 AD2d 671), the plaintiff, a track worker, was injured when, while lifting pieces of track and replacing them, he was struck by an unsecured dolly stored on top of a bench wall 51/2 feet high and adjacent to the work site. The Supreme Court granted defendant summary judgment, holding that the accident did not involve an elevation risk necessary to implicate the special implications of the Labor Law. The Appellate Division, Second Department, disagreed, holding that plaintiff was entitled to summary judgment on the issue of liability under § 240(1). The Court specifically said that "contrary to the Supreme Court's [*4]determination and the defendant's contention, the height differential was sufficient to implicate the special protections afforded by Labor Law §240(1)" (286 AD2d at 672-673).

Applying these principles here, it is plain that the form being transported and secured was "a load that required securing for the purposed of the undertaking at the time it fell" (Narducci, 96 NY2d at 268; Commin, 21 AD3d at 200). Further, it is plain that plaintiff was injured when the form became loose, swung over his head and fell on his foot. In addition, the record shows that the proper use of one or more of the enumerated devices in the statute, such as ropes, slings or stays, could have prevented the form from swinging and causing the injury to plaintiff. Defendant's argument that plaintiff was injured by a horizontal fall is belied by the uncontradicted account of the accident by plaintiff and is sufficient to implicate the special protections afforded by Labor Law § 240(1) (see Cammon v City, supra, 21 AD3d 196; Outar v City, supra, 286 AD2d 671).

Accordingly, the branch of defendant's motion for summary judgment dismissing the claim pursuant to Labor Law § 240(1) is denied, and the cross motion for summary judgment on liability on that claim is granted.

The branch of defendant's motion for summary judgment dismissing the claim pursuant to Labor Law § 241(6) is likewise denied. The sections addressed in plaintiff's papers, including his expert's affidavit, adequately demonstrate the sufficiency of those regulations in supporting a claim under this section.

The branch of defendant's motion for summary judgment dismissing the claim pursuant to Labor Law § 200 and the common law negligence claim is granted. Defendant alleges without contradiction that there is no evidence that it supervised, controlled or directed plaintiff's work.

In sum, plaintiff's cross motion for partial summary judgment on the issue of liability on its claim under Labor Law § 240(1) is granted. Defendant's motion for summary judgment dismissing the complaint is granted only regarding the claims under Labor Law § 200 and common law negligence.

The foregoing constitutes the decision and order of this court.

E N T E R,

J. S. C.