Novack v New York City Dept. of Education

[*1] Novack v New York City Dept. of Education 2008 NY Slip Op 50478(U) [19 Misc 3d 1103(A)] Decided on March 14, 2008 Supreme Court, Kings County Miller, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 14, 2008
Supreme Court, Kings County

Anthony C. Novack, et ano., Plaintiffs,

against

The New York City Department of Education, et al., Defendants.



13196/06

Robert J. Miller, J.

Upon the foregoing papers, defendant Biltmore General Contractors, Inc. moves for an order, pursuant to CPLR 3212, granting summary judgment dismissing plaintiffs' complaint and all cross-claims asserted against it.[FN1] Plaintiffs Anthony C. Novack and Geraldine Novack oppose the motion and cross-move for an order granting partial summary judgment in their favor against defendants on the issue of liability under the Labor Law § 240 (1) cause of action. Defendants New York City Department of Education and the City of New York (collectively, the City) cross-move for an order granting summary judgment dismissing plaintiffs' complaint and all cross-claims against it, and for an order granting summary judgment on a contractual indemnity claim against defendant Biltmore General Contractors, Inc. In a separate cross motion, the City also moves, pursuant to CPLR 3025, seeking leave to amend its answer to assert a cross-claim against Biltmore General Contractors, Inc. for contribution and/or contractual indemnity.

[*2]Factual Background

The instant action arises out of an accident which occurred on July 16, 2005, when the plaintiff Anthony C. Novack (plaintiff) allegedly sustained injuries while working at I. S. 291, a New York City Public School located on Palmetto Street in Brooklyn, New York. The City is the owner of the premises. The City hired defendant Biltmore General Contractors, Inc., (Biltmore) as its general contractor for the renovation of the premises, which involved replacing the ceilings located in the hallways of the third floor. Biltmore subcontracted with Mac Electric (not a party herein) to perform some of the renovation work, which involved, inter alia, the removal and replacement of fluorescent lighting fixtures. At the time of the accident, the plaintiff was employed by Mac Electric as an electrician.

During his 50-h hearing, plaintiff testified that, on the day of the accident, Timmy McDowell, his boss at Mac Electric, assigned him the task of tying up electrical cables located in the ceiling grid to pre-existing fluorescent light fixtures. According to plaintiff, Biltmore's workers took down the drop ceiling and discovered that none of the existing light fixtures had been chained and/or secured to the ceiling. Plaintiff claimed that Mac Electric was hired to tie up the cables and chain/secure the light fixtures in the ceiling. In order to reach the ceiling, the plaintiff and two other Mac Electric workers used a scaffold supplied by Biltmore. The scaffold platform was approximately three feet off the floor, and the ceiling was approximately 10 to 11 feet above the floor. Plaintiff explained that he was the foreman on the job site and that he guided his fellow Mac Electric workers on what needed to be done to complete the task. Just before the accident occurred, the plaintiff, who is 5 feet, 11 inches in height, stood on top of the three-foot scaffold and proceeded to tie up an electrical cable that went to a particular light fixture. As he did so, another light fixture, which the plaintiff claims he did not see, fell down. When the plaintiff put his arm up to protect himself, he hit his hand on a metal stud thereby causing injuries to his wrist. The plaintiff did not fall off of the scaffold.

Plaintiff, and his wife suing derivatively, subsequently commenced this action for personal injuries against Biltmore and the City, alleging, inter alia, causes of actionin common-law negligence and violations of §§ 200, 240 (1) and 241 (6) of the Labor Law. After joinder of issue and the completion of discovery, Biltmore and the City separately move for summary judgment dismissing the complaint. In response, the plaintiffs cross-move for partial summary judgment on liability under Labor Law § 240(1). The City also seeks contractual indemnity from Biltmore.

Discussion

Labor Law § 240 (1)

The City and Biltmore argue, in their respective motions, that Labor Law § 240 (1) is inapplicable because the object that fell (the light fixture) was not in the process of being hoisted or secured at the time that it fell. In this regard, defendants point out that the plaintiff himself admitted during his deposition that, at the time of the accident, he was in the process of securing another fixture, and that the light fixture which actually fell was not even visible to him due to an air conditioning duct which obscured his view of the fixture. Additionally, the City argues that section 240 (1) is inapplicable because the light fixture fell from a de minimis elevation in that there was no real differential between the height at which the plaintiff was positioned and the height from which the light fixture fell. [*3]

The plaintiffs not only oppose the foregoing, but have, in turn, requested that this court grant them summary judgment on their Labor Law § 240 (1) claim. The plaintiffs argue that the undisputed facts show that the injured plaintiff was struck by a falling object (the light fixture), while he was in the process of securing another fixture as part of the work he was assigned to do. Thus, plaintiffs maintain that the light fixture fell because of the absence or inadequacy of a safety device of the kind enumerated in the statute and that defendants failed to provide him with adequate safety devices to prevent his injuries.

Labor Law § 240 (1) affords protection to construction site workers who are exposed to elevation-related hazards (see generally, Blake v Neighborhood Housing Services of New York City, Inc., 1 NY3d 280, 287-290 [2003]). Specifically, § 240 (1) provides, in pertinent part, that:

"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."

Section 240(1) requires owners and contractors to provide workers with appropriate safety devices to protect against such specific gravity-related accidents as falling from a height or being struck by a falling object that was improperly hoisted or inadequately secured" (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [1993]; Public Adm'r of Kings County v 8 B.W., LLC, 40 AD3d 834 [2007]). "Not every worker who falls at a construction site, and not every object that falls on a worker, gives rise to the extraordinary protections of Labor Law § 240 (1). Rather, liability is contingent upon the existence of a hazard contemplated in section 240 (1) and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein" (Narducci v Manhasset Bay Assoc., 96 NY2d 259, 267 [2001]; see Nieves v Five Boro A.C. & Refrig. Corp., 93 NY2d 914, 916 [1999]). Furthermore, the statute envisions extraordinary elevation risks (Rodriguez v Margaret Tietz Ctr. for Nursing Care, 84 NY2d 841), and was not intended to protect against an injury caused by an object falling from a minuscule height (see Phillips v City of New York, 228 AD2d 570 [1996]; Abreu v Manhattan Plaza Assocs., 214 AD2d 526 [1995]; Schreiner v Cremosa Cheese Corp., 202 AD2d 657 [1994]).

Defendants' argument that Labor Law § 240 (1) is inapplicable because the light fixture did not fall "while being hoisted or secured" is misplaced. The issue of whether a falling object must be in the actual process of being "hoisted and/or secured," in order for the statute to apply, has been resolved by the Court of Appeals in Outar v City of New York, 5 NY3d 731 (2005). In Outar, the plaintiff was injured when an unsecured dolly that was routinely used in his work fell from its storage place on a 5 ½ foot wall, adjacent to plaintiff's work site. The Court of Appeals ruled that plaintiffs were entitled to summary judgment on the issue of liability under Labor Law § 240 (1) because the elevation differential was sufficient to trigger the statute's protection and the dolly was an object that required securing for purposes of the undertaking (id. at. 732). In so holding, the Court made it clear that the falling object liability is not limited to cases in which the falling object is being actively hoisted or secured at the time it falls (id.; see also Bush v Gregory/Madison Ave., LLC, 308 AD2d 360, 361 [2003] [issue of fact as to whether a security device would have been necessary to shield worker from falling iron angle that was inadequately [*4]secured]; Orner v Port Auth. of NY & NJ, 293 AD2d 517, 518 [2002] ["the fact that waterproofing material . . . was not being hoisted did not prove that it was adequately secured"]).

Thus, contrary to defendants' assertion, the fact that the subject light fixture was not being hoisted or secured at the time of the accident is not detrimental to plaintiffs' claim (see Outer, 5 NY3d at 732; Cammon v City of New York, 21 AD3d 196 2005] [unsecured timber was propelled into the air and struck plaintiff at ground level]; Orner, 293 AD2d at 518). Indeed, under Labor Law § 240 (1), "liability may be imposed where an object or material that fell, causing injury, was a load that required securing for the purposes of the undertaking at the time it fell'"(Portillo v Roby Anne Development, LLC, 32 AD3d 421 [2006] citing Narducci, 96 NY2d at 268).

The court finds that plaintiff's accident is one that the Legislature clearly intended to come within the purview of Labor Law § 240 (1). In light of the nature and purpose of the work being performed by plaintiff at the time of the incident, there was a significant risk that an unsecured light fixture would fall, causing injury to a worker such as the plaintiff. For plaintiffs to recover under the statute, however, the threshold issue to be resolved is whether there was a violation of the statute. If a violation exists, the court must determine whether that violation was the proximate cause of plaintiff's injuries. In other words, in the instant case, plaintiffs must show that the light fixture was not adequately secured, and that because of such inadequate securing, the fixture fell(see Quattrocchi v F.J. Sciame Const. Corp., 44 AD3d 377 [2007]). On the present record, however, the court finds that a question of fact exists regarding whether the light fixture which struck the plaintiff fell "because of the absence or inadequacy of a safety device of the kind enumerated in the statute," i.e., hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, or ropes (Narducci, 96 NY2d at 268; see Daquaro v Modern Continental Const. Co., Inc., 8 AD3d 324 [2004]; cf. Quintavalle v Mitchell Backhoe Serv., 306 AD2d 454 [2003]; Orner, 293 AD2d at 518), thereby precluding summary judgment on this claim.

Additionally, the court rejects the City's argument that Labor Law § 240 (1) is inapplicable because the height differential between the plaintiff and the falling light fixture was de minimis. Contrary to the City's contention, the instant matter is distinguishable from Capparelli v Zausmer Frisch Assoc., 96 NY2d 259, 267 (2001), a companion case to Narducci. In Capparelli, the plaintiff's task at the time of his injuries involved installing fluorescent light fixtures in a dropped ceiling grid as part of a building renovation (id.). In order to accomplish this task Mr. Capparelli climbed halfway up an eight-foot stepladder to reach the ceiling, which was (10) ten feet above the ground. He lifted the light fixture and placed its edges into the ceiling grid. Moments later the fixture fell from the grid and injured him before he had the opportunity to secure it in place. Although the height of Mr. Capparelli is not mentioned, it is clear that the ceiling was 10 feet from the floor and that he stood on a ladder approximately four feet off the ground at which point he was able to raise his arms and reach the ceiling. It was under these circumstances that the Court of Appeals held that Labor Law §240 (1) was inapplicable because there was no height differential between the plaintiff and the falling object (id. at 269-270 [emphasis supplied]).

In the present case, a review of the record reveals that the plaintiff, who is five feet, eleven inches tall, was standing on a three-foot scaffold at the time of the incident in order to reach the ceiling, which was, at the most, 11 feet above the floor. Thus, the distance between the plaintiff and the light fixture which caused the injury was at least two feet. The court finds [*5]Capparelli distinguishable in that the ceiling in the present case is one foot higher than in Capparelli, and the plaintiff here was positioned on top of a scaffold one foot lower (3 feet) than where Mr. Capparelli was positioned on the ladder (4 feet). Under these circumstances, it cannot be said that there was no height differential between the plaintiff and the falling object as in Capparelli. In this court's view, a height differential of at least two feet is sufficient to implicate the special protections afforded by Labor Law § 240(1) (see Salinas v Barney Skanska Const. Co., 2 AD3d 619 [2003]). Accordingly, for the reasons set forth above, those branches of Biltmore's motion and the City's cross motion seeking summary judgment dismissing plaintiffs' Labor Law § 240 (1) claim are denied. That branch of the plaintiffs' cross motion seeking partial summary judgment on their Labor Law § 240(1) claim is also denied.

Labor Law § 200 and Common-Law Negligence

Biltmore and the City both seek summary judgment dismissing plaintiffs' Labor Law § 200 and common-law negligence causes of action. Labor Law § 200 is a codification of the common-law duty to provide workers with a safe work environment (see Brown v Brause Plaza, LLC, 19 AD3d 626, 628 [2005]; Everitt v Nozkowski, 285 AD2d 442 [2001]). "An implicit precondition to this duty ... is that the party charged with that responsibility have the authority to control the activity bringing about the injury" (Russin v Picciano & Son, 54 NY2d 311, 317 [1981]). Where an alleged defect or dangerous condition arises from a subcontractor's methods over which the defendant exercises no supervisory control, liability will not attach under either the common law or § 200 (see Lombardi v Stout, 80 NY2d 290 [1992]). Thus, § 200 applies only to owners and contractors who actually exercise control or supervision over the work and had actual or constructive notice of the unsafe condition (see Singh v Black Diamonds LLC, 24 AD3d 138 [2005]; Jehle v Adams Hotel Assoc., 264 AD2d 354, 355 [1999]).

Here, with respect to the City, the plaintiffs concede that the City did not exercise any supervision or control over the plaintiff's work at the site, and thus cannot be held liable under Labor Law § 200 (see McParland v Travelers Ins. Co., 302 AD2d 328 [2003]). As such, plaintiffs' Labor Law § 200 and common-law negligence causes of action are hereby dismissed as against the City.

As to Biltmore, a review of the record also reveals that Biltmore neither supervised, directed or controlled the work being performed by the plaintiff on the day of the accident, and that Mac Electric was exclusively responsible for supervising the work being performed by its employees (see Scott v American Museum of Natural History, 3 AD3d 442, 443 [2004]). The fact that one of Biltmore's employees (Raul) gave a general direction that he wanted the cables tied up in the ceiling is insufficient to establish liability under Labor Law § 200 (see McLeod v Corporation of Presiding Bishop of Church of Jesus "Christ of Latter Day Sts., 41 AD3d 796 [2007]; Peay v New York City School Const. Auth., 35 AD3d 566 [2006]; Warnitz v Liro Group, 254 AD2d 411 [1998]). In fact, the plaintiff testified during his deposition that he received instructions on how to tie up the cables and remove the light fixtures from Mac Electric's president, Timmy McDowell. Under these circumstances, that branch of Biltmore's motion seeking to dismiss plaintiffs' Labor Law § 200 and common-law negligence claims as against it is granted.

Labor Law § 241 (6)

Biltmore and the City also seek summary judgment dismissing plaintiffs' Labor Law § 241 (6) cause of action on the ground that plaintiffs have failed to allege any Industrial Code [*6]violations in support of their claim. In order to state a claim under Labor Law § 241 (6), a plaintiff must identify a specific Industrial Code provision mandating compliance with concrete specifications (see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 505 [1993]; Rosado v Briarwoods Farm, 19 AD3d 396 [2005]; Plass v Solotoff, 5 AD3d 365 [2004]). Inasmuch as the plaintiffs have failed to allege any specific violation of the Industrial Code, and have not opposed this aspect of defendants' motions, this cause of action must also be dismissed (see Rojas v County of Nassau, 210 AD2d 390 [1994]).

The City's Cross Motion to Amend Pleadings

The City cross-moved for summary judgment seeking contractual indemnity from Biltmore. However, as Biltmore correctly notes, the City failed to interpose a contractual indemnity cross-claim against Biltmore. In response, the City moves for court leave to amend its answer to assert a cross-claim for contractual indemnification against Biltmore.

In opposition, Biltmore argues that it would be severely prejudiced if the City were allowed to amend its answer at this time since discovery has already been completed. In this regard, Biltmore contends that the City served a Response to Preliminary Conference Order on June 8, 2007, wherein it specifically stated that there were no contracts related to this renovation project. Based upon that representation, Biltmore maintains that it waived the deposition of the City. Further, Biltmore contends that the City should be precluded from offering the purported indemnity contract at trial since it was not disclosed until after the note of issue was filed. Alternatively, in the event that the City is granted leave to amend its answer, Biltmore requests that it be afforded time to conduct additional discovery related to the City's proposed contractual indemnity cross-claim.

In general, leave to amend is to be freely granted absent prejudice or surprise resulting from the delay (see CPLR 3025[b]; Edenwald Contracting Co., Inc. v City of New York, 60 NY2d 957 [1983]). However, it is essential that a party seeking leave to amend a pleading demonstrate the merit of the proposed pleading (see East Asiatic Co. v Corash, 34 AD2d 432, 434 [1970]). "Prejudice ... is not found in the mere exposure of the defendant to greater liability. Instead, there must be some indication that the defendant has been hindered in the preparation of his case or has been prevented from taking some measure in support of his position" (Loomis v Civetta Corinno Constr. Corp., 54 NY2d 18, 23 [1981]). Furthermore, "[m]ere lateness is not a barrier to the amendment. It must be lateness coupled with significant prejudice to the other side, the very elements of the laches doctrine"( Edenwald Contracting Co., 60 NY2d at 959). "The decision to allow or disallow the amendment is committed to the court'sdiscretion" (id.; see also McKenzie v Ostreich, 300 AD2d 371 [2002]).

Here, the court finds that the City's proposed amendment has merit and that there is a sufficient basis in the record to grant the City leave to amend its answer to assert a cross-claim for contribution/contractual indemnification against Biltmore (see CPLR 3025[b]). As a result of the amendment of the pleadings at this late stage, however, the court finds Biltmore will be prejudiced if it is not provided with an opportunity to conduct additional discovery related to the City's proposed cross-claim. In light of the foregoing, the court will strike the note of issue and grant Biltmore sixty (60) additional days to complete discovery solely on the new cross-claim asserted by the City. Accordingly, the City's cross motion seeking to amend its answer is granted, and that branch of the City's cross motion seeking contractual indemnity against Biltmore is denied with leave to renew upon the completion of discovery.

[*7]Conclusion

In sum, Biltmore's motion is granted to the extent that plaintiffs' Labor Law §§ 200, 241(6) and common-law negligence claims are dismissed as against it. That branch of Biltmore's cross motion insofar as it seeks summary judgment dismissing plaintiffs' Labor Law § 240(1) claim is denied. The City's cross motion seeking summary judgment is granted to the extent that plaintiffs Labor Law §§ 200, 241(6) and common-law negligence claims are dismissed as against the City. That branch of the City's cross motion insofar as it seeks summary judgment dismissing plaintiffs' Labor Law § 240(1) claim is denied. Plaintiffs' cross motion seeking partial summary judgment on the issue of liability under their Labor Law § 240(1) claim is denied. The City's cross motion seeking leave to amend its answer to assert a contribution/contractual indemnity cross-claim against Biltmore is granted.

The Court in a decision on defendant Biltmore's motion to vacate the Note of Issue granted the motion and ordered further discovery. Counsel for Biltmore is given one- hundred and twenty (120) days from the date of this order to complete any necessary discovery. Plaintiffs are to file a new Note of Issue on or before August 31, 2008. That branch of the City's cross motion seeking summary judgment on a contractual indemnity claim against Biltmore is denied with leave to renew upon the completion of discovery.

The foregoing constitutes the decision and order of the court.

E N T E R,

___________________________

ROBERT J. MILLER

Justice Footnotes

Footnote 1: As the plaintiffs correctly point out, Biltmore failed to attach a complete set of the pleadings to its motion for summary judgment as required by CPLR 3212(b). Although this can be a fatal defect in summary judgment motions (see Deer Park Assoc. v Robbins Store, 243 AD2d 443 [1997]; Lawlor v County of Nassau, 166 AD2d 692 [1990]; Somers Realty Corp. v Big "V" Prps., 149 AD2d 581 [1989];CPLR 3212[b]), since copies of the pleadings are both filed with this court and submitted in support of the parties' respective cross motions, they are available for the court's consideration. As such, the court does not choose to exercise its right to reject Biltmore's motion on a technical defect.