Mollano v RC Dolner Constr. Co.

[*1] Mollano v RC Dolner Constr. Co. 2008 NY Slip Op 50607(U) [19 Misc 3d 1109(A)] Decided on February 20, 2008 Supreme Court, Kings County Ruchelsman, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 20, 2008
Supreme Court, Kings County

Salvatore Mollano, Plaintiff,

against

RC Dolner Construction Company, 29 West 38 Associates, LLC, s/h/a 29 West 38TH Street, LLC., Bernard H. Kayden, Murray Hill Property Management, Inc., Altman/Burack Partners LLC, s/h/a AB Partners, LLC and Signature Securities Group, Defendants,



11010/06

Leon Ruchelsman, J.

The defendants move and cross move pursuant to CPLR §3212 for summary judgement on the issue of liability pursuant to Labor Law §240(1), §241(6) and §200. The Plaintiff opposes the motion. Papers were submitted by all parties and after reviewing the arguments of all parties this court now makes the following determination.

Background

On September 13, 2005 the plaintiff Salvatore Mollano was working at a construction site located at 29 West 38th Street in New York City. On that date the plaintiff was employed by Knight Electrical Services Corp., and was working on the 9th floor of the building. The defendant 29 West was the lessor of the building, having entered into a lease with 2938 West of which defendant Kayden was a member. Defendant AB Partners was the managing agent and defendant Murray Hill was the apparent former managing agent, Signature Securities Group, Inc., was the tenant and defendant RC Dolner was the general contractor where the accident occurred. RC Dolner hired plaintiff's employer to handle the interior electrical renovations of the project. The plaintiff was on the ninth floor involved with placing electrical tubing within the floor of the building on the date of the accident when he was hit with a ladder leaning against a wall. The ladder fell when pushed by an employee of RD Dolner with a garbage container. A lawsuit followed and discovery material were exchanged. After the conclusion of all discovery the defendants now move for summary judgement arguing that they [*2]cannot be held liable for any labor law violations since the accident was not height related and in any event was beyond the supervision and control of the defendants. The plaintiff counters that there are questions of fact concerning the duty of the defendants concerning the nature of the accident and that the motion should be denied.

Conclusions of Law

Summary judgement may be granted where the movant establishes sufficient evidence which would compel the court to grant judgement in his or her favor as a matter of law (Zuckerman v. City of New York, 49 NY2d 557, 427 NYS2d 595 [1980]). Summary judgement would thus be appropriate where no right of action exists foreclosing the continuation of the lawsuit.

Labor Law §240(1) imposes absolute liability upon owners, contractors or their agents for injuries sustained by workers engaged in certain enumerated jobs which arise where the work site is elevated and elevation devices do not provide proper protection, or materials above the worker are not properly secured or hoisted (Ross v. Curtis Palmer Hydro Electric Co., 81 NY2d 494, 601 NYS2d 49 [1993], Haimes v. New York Telephone, 46 NY2d 132, 412 NYS2d 863 [1978]). In Narducci v. Manhasset Bay, 96 NY2d 259, 727 NYS2d 37 [2001], the Court of Appeals explained that not every plaintiff who suffers injury from a falling object is entitled to summary judgement under §240(1). Rather, the plaintiff must demonstrate that the object fell while being hoisted or secured due to the absence or inadequacy of safety devices. The court noted that this rule holds true even if the plaintiff is elevated by other means at the time of the injury since the hazard posed by a falling object is unrelated to the hazards posed by elevation devices. Therefore, in Narducci, the plaintiff could not win summary judgement under the Labor Law statute even though he was standing on a ladder and hence elevated at the time a piece of glass fell and struck him since the glass was not a material being hoisted or a load being secured. The court concluded that the absence of any such hoisting or securing devices did not cause the glass to fall and this was a "general hazard" of the site which falls outside the scope of the Labor Law statute.

Of course, where an unrelated hazard is nevertheless the result of inadequate or missing safety devices specifically connected to hoisting or securing materials contemplated by the statute then the exceptional protections of §240(1) would apply. Therefore, in Orner v. Port Authority, 293 AD2d 517, 740 NYS2d 414 [2d Dept., 2002], the plaintiff was granted summary judgement under the Labor Law when unsecured roofing materials fell from the roof causing injury. The plaintiff was working as an electrician on the ground floor at the time of the accident and [*3]was clearly injured from a "different" hazard than one connected to his work. However, the injury resulted from unsecured materials at the site that the Labor Law statute clearly intended to protect. Similarly, in Baker v. Barrons's Educational Services Corp., 248 AD2d 655, 670 NYS2d 587 [2d Dept., 1998], the plaintiff was granted summary judgement under the Labor Law when a cinder block which was being lowered by rope hit plaintiff in the head. The evidence revealed that the cinder block was inadequately secured at the time of the injury and thus plaintiff could avail himself of Labor Law §240(1).

Indeed, a careful reading of Narducci reveals that the Court was fully aware of these critical distinctions. In Narducci, the court noted that the glass from the window which broke and injured plaintiff had never been worked on during the job and there was no reason why any hoisting or safety devices should have been expected (see, Roberts v. General Electric Company, 97 NY2d 737, 742 NYS2d 188 [2002]). Thus, the glass in Narducci which admittedly needed no hoisting or securing devices was not a falling object for which Labor Law §240(1) imposes absolute liability. As the court stated, "absolute liability for falling objects under labor Law §240(1) arises only when there is a failure to use necessary and adequate hoisting or securing devices."

Turning to the facts of this case, it cannot be disputed that the ladder which fell was not an item that should have been hoisted or secured and that such safety devices to protect the ladder from falling was not a situation where devices would have been necessary and expected (Narducci, supra ). In Monir v. 393 Jericho Turnpike, LLC, 293 AD2d 585, 741 NYS2d 78 [2d Dept., 2002], the court held that a section of a fire escape ladder which fell upon plaintiff was not an item that was being hoisted or secured and thus fell outside the special protections of the strict liability elements of the Labor Law. Therefore, the motions seeking to dismiss the Labor Law 240(1) claim is granted as to all defendants.

Turning to the Labor Law §200 claim, the protections afforded someone under Labor Law §200 apply to all work places not just construction sites (Paradise v. Lehrer, McGovern & Bovis, Inc., 267 AD2d 132, 700 NYS2d 25 [1st Dept., 1999]). Moreover, the duty to provide a safe place to work applies to all those permitted or suffered to work on a building or structure and hired by the owner, contractor or appropriate agent (Mordkofsky v. V.C.V. Development Corp., 76 NY2d 573, 561 NYS2d 892 [1990]). However, for a claim to succeed under this statute it must be demonstrated that the owner held some supervisory control over the employee's specific work and had actual or constructive knowledge of the condition which caused the accident (Comes v. New York State Elec. & Gas Corp., 82 NY2d 876, 609 [*4]NYS2d 168 [1993], Panek v. County of Albany, 286 AD2d 86, 731 NYS2d 803 [3rd Dept., 2001]). Moreover, mere presence at the site is insufficient to create liability on the part of the owner (Lysiak v. Murray Realty Co., 227 AD2d 746, 642 NYS2d 350 [3rd Dept., 1996]).

In this case the plaintiff has not provided any proof that the owner maintained some control over the plaintiff's activities, specifically the installation of electrical tubing. On the contrary, the plaintiff himself testified that he never received any instruction at all or had any conversation at all with any of the defendants concerning his work (see, Deposition of Salvatore Mollano, pages 125-129). Therefore, since no evidence has been presented that the defendants maintained any control or supervision over the site the Labor Law §200 cause of action is hereby dismissed (see, Bush v. williams, 279 AD2d 772, 718 NYS2d 496 [3rd Dept., 2001], Giambalvo v. Chemical Bank, 260 AD2d 432, 687 NYS2d 728 [2d Dept., 1999]). Concerning the common law negligence claim, preliminarily the plaintiff must demonstrate that the condition was inherently dangerous, thus mandating that the defendant remedy it (Cupo v. Karfunkel, 1 AD3d 48, 767 NYS2d 40 [2d Dept., 2003]). Thus, in Connor v. Taylor Rental Center Inc., 278 AD2d 270, 718 NYS2d 605 [2d Dept., 2000], the plaintiff who fell over the prongs of a forklift in plain view could not maintain a lawsuit. The court noted that since the forklift was readily visible by the reasonable use of one's senses then as a matter of law such forklift was not a dangerous condition. Similarly, in Speirs v. Dick's Clothing & Sporting Goods, Inc., 268 AD2d 581, 702 NYS2d 842 [2d Dept., 2000], the court held that a merchandise display base was not a dangerous condition and did not afford plaintiff a basis on which to maintain a lawsuit. Moreover, in Cottone v. C & C Spirits, Inc., 306 AD2d 370, 761 NYS2d 674 [2d Dept., 2003] the plaintiff tripped and fell while attempting to step over a case of wine in defendant's store room. In granting summary judgement dismissing the case the court noted that the case of wine was readily observed by plaintiff before the accident and that the condition in the store room was open and obvious. Again, in Pedersen v. Kar, Ltd., 283 AD2d 625, 724 NYS2d 776 [2d Dept., 2001], the plaintiff's cause of action was dismissed where he fell off a furniture display platform since the platform was readily observable prior to the fall. Further, in Cotto v. New York City Housing Authority, 263 AD2d 941, 693 NYS2d 338 [3rd Dept., 1999], the court held that the manner in which crates are stacked in a store's walk-in cooler is something which is readily observable obviating defendant with the requirement to try and prevent such condition. Lastly, in Jackson v. Supermarket's General Corp., 17 AD3d 621, 794 NYS2d 84 [2d Dept., 2005], the court dismissed a case where the plaintiff fell over a garbage bag holding that [*5]such garbage bag was not a dangerous condition as a matter of law.

In this case the ladder was clearly visible and by the reasonable use of one's senses was an obvious condition. Moreover, there has been no evidence introduced that such ladder was defective in any way. Thus, the ladder was not a dangerous condition as a matter of law (Cupo, supra ).

Moreover, concerning the possible negligence resulting from someone pushing a garbage container into the ladder thereby causing it to fall, it must be noted that there is no evidence supporting the contention that is indeed what occurred. The plaintiff was questioned about this in great detail and initially the plaintiff stated that he was told a container hit the ladder. However, upon followup the plaintiff admitted he could not state with any certainty if that was true. Thus, he was asked "who told you that it was the container that hit the ladder?" and he responded "the people that was there." Further, the plaintiff stated that about ten minutes after the ladder fell, two people, Rita and Billy told the plaintiff what had occurred. According to the plaintiff Rita told him that "she saw the ladder fall and hit me". However, he was asked "did she say that she saw it was the container that actually knocked the ladder over?" and he responded "no". He was then asked "how about Billy" and again he responded "no". Another question followed: "Billy didn't see the container hit the ladder either, correct?" and the plaintiff responded "correct". He was then asked "did anybody there actually tell you that they saw the laborer when he was moving the container come into contact with the ladder and that's what caused the ladder to fall?" and the plaintiff responded "I don't remember."

He was further asked: did Rita ever tell you that she saw the laborer push the container into the ladder and that's what caused the ladder to fall?" and the plaintiff answered "I don't remember, sir, her telling me that." The next question: "Mr. Mollano, did anybody there say they actually saw the container strike the ladder and cause it to fall?" And the plaintiff responded "no".

Thus, there is no evidence at all that any employee of any of the defendant's committed any potential negligence by pushing a garbage cart into the ladder causing it to fall. Indeed, there is no evidence presented at all confirming that allegation. The plaintiff has provided nothing more than speculation that any of the defendant's were negligent in causing this accident, an insufficient basis upon which to grant summary judgement. Therefore, the motion seeking summary judgement dismissing the claim of Labor Law §200 is granted as to all defendants.

Turning to the claims alleged under Labor Law §241(6), an action to recover under Labor Law §241(6) may be maintained only [*6]where the regulations or industrial codes at issue mandate compliance with concrete specifications, thus regulations which only establish general safety standards by invoking general descriptive terms are not legally sufficient to establish an action (Ross v. Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 601 NYS2d 49 [1993]). Plaintiff has alleged violations of three industrial codes, namely, 12 NYCRR 23-2.1(a)(1), 12 NYCRR 23-1.7(e)(2) as well as various OSHA regulations.

12 NYCRR 23-2.1(a)(1) is a specific regulation which requires concrete specifications (Herman v. St. John's Episcopal Hospital, 242 AD2d 316, 678 NYS2d 635 [2d Dept., 1997]. However, the statute which requires the storage of material and equipment is only applicable to material that is being stored (Buckley v. Columbia Grammar and Preparatory, 44 AD3d 263, 841 NYS2d 249 [1st Dept., 2007]). In this case the ladder was obviously not intended to be stored, thus the statute is inapplicable and is hereby dismissed.

Industrial code 12 NYCRR 23-1.7(e)(2) concerns tripping hazzards because of accumulations of dirt or debris or material. There has been no evidence presented that any debris or dirt caused the plaintiff's accident. On the contrary, the plaintiff has testified that the injury was due to a fall of a ladder and not because of any material on the floor which created a tripping hazzard (see, Ryder v. Mount Loretto Nursing Home Inc., 290 AD2d 892, 736 NYS2d 792 [3rd Dept., 2002]). Thus, that code is dismissed as well. Lastly, it is well settled that OSHA regulations may not be used as predicates for Labor Law §241(6) claims, Rizzuto v. L.A. Wenger Contracting Co., Inc., 91 NY2d 343, 670 NYS2d 8161 [1998], and are consequently dismissed.

Moreover, the motions seeking summary judgement dismissing the case against individual defendant Bernard Kayden are all granted. There has been no evidence presented that Mr. Kayden should be personally liable. It is true that if the defendant so dominated the activities of the corporation then piercing of the corporate veil would be permitted and defendant could then be liable personally (see, Matter of Morris v. New York State, 82 NY2d 135, 603 NYS2d 807 [1993]). While dominance of a corporation, standing alone is insufficient to pierce the corporate veil (First Capital Asset Management Inc., v. N.A. Partners, L.P., 300 AD2d 112, 755 NYS2d 63 [1st Dept., 2002]), the plaintiff has not offered any basis or any evidence of such dominance.

Therefore, based on the foregoing, the motions for summary judgement dismissing the case as to all defendants on all issues is granted.

So ordered.

ENTER: [*7]

DATED: February 20, 2008_________________________________

Brooklyn NYHon. Leon Ruchelsman

JSC