Thomson v Longwood Cent. School Dist.

[*1] Thomson v Longwood Cent. School Dist. 2008 NY Slip Op 50655(U) [19 Misc 3d 1112(A)] Decided on April 2, 2008 Supreme Court, Suffolk County Rebolini, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 2, 2008
Supreme Court, Suffolk County

Thomas Thomson and Susan Thomson, Plaintiffs,

against

Longwood Central School District, Middle Country Central School District and Turner Construction Company, Defendants. Longwood Central School District, Third-Party Plaintiff, Frendolph Construction Corp., Third-Party Defendant. Turner Construction Company, Second Third-Party Plaintiff, Frendolph Construction Corp., Second Third-Party Defendant.



18923/2001



Attorney for Plaintiffs

Thomas Thomson and Susan Thomson:

Siben & Siben, LLP

90 East Main Street

Bay Shore, NY 11706

Attorney for Defendant/Third-Party Plaintiff

Longwood Central School District:

Congdon, Flaherty, O'Callaghan,

Reid, Donlon, Travis & Fishlinger

The Omni

333 Earle Ovington Boulevard

Suite 502

Uniondale, NY 11553-3625

Attorney for Third-Party Defendant/

Second Third-Party Defendant Frendolph Construction Corp.:

Glynn & Mercep, LLP

North Country Road

P.O. Box 712

Stony Brook, NY 11790

William B. Rebolini, J.

In an action for damages in which the plaintiffs alleged claims predicated on Labor Law §§200, 241(6) and common law negligence, the third party and second third-party defendant Frendolph Construction Corp. (hereinafter "Frendolph") moves by notice of motion dated October 25, 2007, inter alia, pursuant to CPLR §4404(a) to set aside the verdict and alternatively, for a new trial. The defendants Longwood Central School District (hereinafter "Longwood") and Turner Construction Company (hereinafter "Turner") move by notice of motion dated October 24, 2007 for an order (a) pursuant to CPLR §4404(a) setting aside the verdict with respect to plaintiffs' Labor Law §241(6) cause of action, (b) granting them judgment dismissing the complaint, (c) granting them judgment as against Frendolph on their contractual indemnification claims and (d) setting the matter down for further proceedings for the purpose of determining the amount of the award due to the third-party plaintiffs on the indemnification claim. The plaintiffs cross-move for an order denying the motions by Frendolph and Longwood, granting plaintiffs judgment pursuant to CPLR Article 50 against Longwood and for other relief including an inquest for assessment of damages. These motions were submitted for determination on January 30, 2008.

The plaintiff Thomas Thomson (hereinafter "plaintiff") was employed by Frendolph as a painter/laborer in 2000. Frendolph was the general contractor on an expansion project undertaken by Longwood at its junior high school property. Turner was the construction manager for the project [FN1]. One of the tasks Frendolph performed at the project was removal of chain link fence which included extracting the posts from their concrete anchors and back filling the post holes. Plaintiff claims that he injured his knee when he stepped into a post hole on September 18, 2000 at the Longwood project.

A jury trial was held on the issue of liability on September 20, 2007 through September 27, 2007. It its September 27, 2008 verdict, the jury found, with respect to plaintiffs' claim under Labor Law §241(6), that Frendolph had violated two provisions of the Industrial Code, specifically, 12 NYCRR §23-1.7(e)(1) and 12 NYCRR §23-1.7(e)(2), and that each of such violations by Frendolph (separately) constituted a failure to use reasonable care and was a substantial factor in causing plaintiff's accident. The jury further determined, in effect, that Turner was not liable under Labor Law §241(6) and that neither Longwood or Turner were liable under Labor Law §200. The jury also found that plaintiff was negligent but such negligence was not a substantial factor in causing his accident.

Statutes/Industrial Code:

CPLR Rule 4404(a) provides, in relevant part, that the Court ". . . may set aside a verdict or any judgment entered thereon and direct that judgment be entered in favor of a party entitled to [*2]judgment as a matter of law, or it may order a new trial of a cause of action or separable issue where the verdict is contrary to the weight of the evidence, in the interest of justice or where the jury cannot agree after being kept together for as long as is deemed reasonable by the Court" (emphasis added). Thus, two alternate bases are set forth in 4404(a) for challenging a verdict after its rendition, (1) the motion to set aside the verdict and for judgment in favor of the party challenging it (frequently called the motion for judgment notwithstanding the verdict), and (2) the motion for a new trial. Frendolph's motion requests judgment as a matter of law.

A court may grant a motion to set aside the verdict (grant judgment notwithstanding the verdict) when the verdict is unsupported by sufficient evidence as a matter of law. The Court of Appeals has stated that a verdict is not supported by sufficient evidence as a matter of law when there is "no valid line of reasoning and permissible inferences which could possibly lead rational [persons] to the conclusion reached by the jury on the basis of the evidence presented at trial" (Cohen v. Hallmark Cards, 45 NY2d 493 [1978]; see, Taino v. City of Yonkers, 43 AD3d 403 [Second Dept., 2007]; see, also, Nicastro v. Park, 113 AD2d 129 [Second Dept., 1985]; Cahill v. Triborough Bridge & Tunnel Auth., 31 AD3d 347 [First Dept., 2006]; Kaplan v. Miranda, 37 AD3d 762 [Second Dept., 2007]).

The jury's imposition of liability was predicated on Labor Law Section 241(6), which states as follows:

§241.Construction, excavation and demolition work

All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, when constructing or demolishing buildings or doing any excavating in connection therewith, shall comply with the following requirements . . .

(6)All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places. The commissioner may make rules to carry into effect the provisions of this subdivision, and the owners and contractors and their agents for such work, except owners of one and two-family dwellings who contract for but do not direct or control the work, shall comply therewith.

A claim under 241(6) must be based on a violation of a provision of the Industrial Code (see, O'Sullivan v. IDI Constr. Co. Inc., 28 AD3d 225 [First Dept., 2006] affirmed, 7 NY3d 805 [2006]; Cun-EnLin v. Holy Family Monuments, 18 AD3d 800 [Second Dept., 2005]; Burkoski v. Structure Tone, Inc., 40 AD3d 378 [First Dept., 2007]; Maynard v. DeCurtis, 252 AD2d 908 [Third Dept., 1998]). As noted, in this case the jury found Frendolph to have violated two Industrial Code provisions, §23-1.7(e)(1) and §23-1.7(e)(2) which, respectively, [*3]state as follows:

(1) Passageways. All passageways shall be kept free from accumulations of dirt and debris and from any other obstructions or conditions which could cause tripping. Sharp projections which could cut or puncture any person shall be removed or covered.

(2) Working areas. The parts of floors, platforms and similar areas where persons work or pass shall be kept free from accumulations of dirt and debris and from scattered tools and materials and from sharp projections insofar as may be consistent with work being performed.

Frendolph contends in its motion (inter alia) that in essence the record is devoid of proof supporting the application or violation of either §23-1.7(e)(1) or §23-1.7(e)(2) and, therefore, that the Court should set aside the verdict and render judgment in Frendolph's favor as a matter of law. Longwood and Turner likewise contend in their motion (inter alia) that they are entitled to have the verdict with respect to §241(6) cause of action set aside ("vacat[ed]) and to judgment as a matter of law in their favor. Citing various case authorities, Longwood and Turner contend that the question of the applicability of either code provision is one of law for the Court and that neither was applicable herein because the accident did not occur in a passageway (as set forth in §23-1.7(e)(1)) and did not involve any of the enumerated defects of 23-7.1(e)(2), even if it were assumed it occurred in a "working area" within the contemplation of 23-7.1(e)(2).

Insofar as Frendolph's motion and Longwood and Turner's motion concern the §23-1.7(e)(1), basis for the jury's verdict against Frendolph (under L.L.§241(6)) they are warranted based on the record adduced at trial. The plaintiff's fall occurred by plaintiff's own account in a grassy area outside the chain link fence area enclosing the construction site and which was about 20 feet from the construction trailer plaintiff had exited and 30 feet from the building toward which he was walking. The grassy area allegedly containing the hole in which plaintiff stepped and was injured was adjacent to but separate from an adjoining path (on one side) and a parking lot. The testimony of plaintiff as well as of witnesses Rudolph (Frendolph's president) and Kidder was consistent with respect to the fact that, rather than using the path, plaintiff traversed the grassy area as a short cut to go toward the building where he was working. This Court determines that the location of the plaintiff's fall was not a "passageway" within the ambit of §23-1.7(e)(1) (see, Rose v. A. Servidone, Inc., 268 AD2d 516 [Second Dept., 2000]; Morra v. White, 276 AD2d 536 [Second Dept., 2000]; Burkoski v. Structure Tone, Inc., 40 AD3d 378 [First Dept.; 2007]; Muscarella v. Herbert Constr. Co., Inc., 265 AD2d 264 [First Dept., 1999];Merlin v. The New York Post, 30 AD3d 309 [First Dept., 2006]; Scofield v. Trustees of Union Coll., 288 AD2d 807 [Third Dept., 2001]; Dalanna v. City of New York, 308 AD2d 400 [First Dept., 2003]; Smith v. Hines GS Properties, Inc., 29 AD3d 433 [First Dept., 2006]; O'Sullivan v. IDI Constr. Co., Inc., 28 AD3d 225 [First Dept., 2006] affirmed 7 NY3d 805 [2006]; Bauer v. Niagara Mohawk Power Corp., 249 AD2d 948 [Fourth Dept., 1998]). The Court further determines that 15 NYCRR§23-1.7(e)(1) is inapplicable as a matter of law in this action and that the verdict as to violation by Frendolph of §23-1.7(e)(1) is not supported by sufficient evidence as a matter of law (see, generally, Taino v. City of Yonkers, 43 AD3d 401 [*4][Second Dept., 2007]). As a matter of law, no valid line of reasoning and permissible inferences could possibly lead rational persons to the conclusion reached by the jury based on the trial evidence before it that Frendolph had violated 15 NYCRR§23-1.7(e)(I).

Insofar as Frendolph's motion and Longwood and Turner's motions concern the §23-1.7(e)(2) basis for the jury's verdict against Frendolph (under Labor Law §241(6)), such challenges to the jury's determination are warranted though involving a closer question than that under (e)(1). The contention of Frendolph is that the area where plaintiff fell was not a working area within the ambit of 23-1.7(e)(2). Longwood and Turner's motion, though not directly contending that the area was not a working area, asserts that none of the enumerated defects serving as predicates for violation of the subject provision ((e)(2)) were established because this provision is not applicable unless the accident is caused by one of the defects or conditions enumerated therein.

Longwood and Turner are correct in their contention that the plaintiff's accident was not caused by any of the enumerated defects set forth in 23-1.7(e)(2) (see, Dalanna v. City of New York, 308 AD2d 400 [First Dept., 2003]), to wit, "accumulations of dirt and debris", "scattered tools" and "sharp projections" (see, Giza v. New York City School Construction Authority, 22 AD3d 800 [Second Dept., 2005]; Bale v. Pyron Corp., 256 AD2d 1128 [Fourth Dept., 1998] cf Lenard v. 1251 Americas Associates, 241 AD2d 391 [First Dept., 1997]). Because the plaintiff's accident occurred (by all accounts) in a spot on the grassy area which contained a hole (whether or not from a removed chain link fence post), the Court determines as a matter of law that 23-1.7(e)(2) is inapplicable in this action and that the verdict as to violation by Frendolph of 23-1.7(e)(2) is not supported by sufficient evidence as a matter of law. As a matter of law, no valid line of reasoning and permissible inferences could possibly lead rational persons to the conclusion reached by the jury based on the trial evidence before it that Frendolph had violated 15 NYCRR §23-1.7(e)(2) (see, O'Sullivan v. IDI Constr. Co. Inc., 28 AD3d 225 [First Dept., 2005]; Gavigan v. Bunkoff General Contractors, Inc., 247 AD2d 750 [Third Dept., 1998]; Muscarella v. Herbert Constr. Co. Inc., 265 AD2d 264 [First Dept., 1999]). The issue of whether the area was a "working area" is thus technically rendered academic in view of this Court's finding that the plaintiff's accident was not caused by any of the code provision enumerated defects. The Court also concludes as a matter of law in any event that the site of plaintiff's fall was not a working area within the ambit of 23-1.7(e)(2) (see, Stairs v. State Street Assoc., L.P., 206 AD2d 817 [Third Dept., 1994]; cf, Smith v. Hines GS Properties, Inc., 29 AD3d 433 [First Dept., 2006]; Maza v. Univ. Ave. Dev. Corp., 13 AD3d 65 [First Dept., 2004]; Bopp v. A.M. Rizzo Elec. Contractors Inc., 19 AD3d 348 [Second Dept., 2005]; Laboda v. V.J.V. Dev. Corp., 296 AD2d 441 [Second Dept., 2002]).

Based upon the fact that the only theory on which liability was imposed on Frendolph was the plaintiff's claim under 241(6) and this Court has determined in effect that such theory of liability cannot be sustained, the remaining contentions propounded by the parties upon these motions are academic (see, generally, Cahill v. Triborough Bridge & Tunnel Auth., 31 AD3d 347 [First Dept., 2006]). [*5]

Settle Judgment (see, 22 NYCRR §202.48).

Dated:April 2, 2008

__________________________________

HON. WILLIAM B. REBOLINI, J.S.C.

RIDER

THE ACTION AS AGAINST DEFENDANT, MIDDLE COUNTRY

CENTRAL SCHOOL DISTRICT HAS BEEN DISCONTINUED

Footnotes

Footnote 1:The action against defendant Middle Country School District was discontinued.