Salvagno v J. P. Spano & Co., Inc.

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Salvagno v J. P. Spano & Co., Inc. 2008 NY Slip Op 32120(U) July 16, 2008 Supreme Court, Suffolk County Docket Number: 0011989/2003 Judge: Joseph Farneti Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1 ] INDEX NO. CAL. No. 03-1 1989 08-00546-OT SUPREME COURT - STATE OF NEW YORK I.A.S. PART 37 - SUFFOLK COUNTY P R E SE N T: t 011. f MOTION DATE 2-29-08 5-29-08 ADJ. DATE Mot. Seq. # 002 - MD # 003 - XMotD # 004 - XMotD # 005 - XMD JOSEPH FARNETI Acting Justice Supreme Court EDELMAN, -SIN & JAYE Attorneys for Plaintiff One Old Country Road, Suite 2 10 Carle Place, New York 11514 Plaintiff, - i i1 SP.4hO AND against WILLIAM F. ANDES, JR., ESQ. Attorney for DefendanVThird-Party Plaintiff J.P. Spano and Company, Inc. 224 Griffing Avenue Riverhead, New York 11901 COMPANY, INC., Defendant, PICCIANO & SCAHILL, P.C. Attorneys for Third-party Defendant Brian Fay Construction, Inc. 900 Merchants Concourse, Suite 3 10 Westbury, New York 11590 Third-party Plaintiff, - against - l:RL\\ F A Y CONSTRUCTION, INC., Third-party Defendant. X . -- clpon the following papers numbered 1 to 59 read on these motions for summary iudmnent ; Notice of Motion/ Order L,Iio\\ (-awe and supporting papers 1 - 14 ;Notice of Cross Motions and supporting papers 15 - 17: 18 - 36; 37 - 40; Answering ' ?tidavits and supporting papers 41 - 42 : 43 - 44 : 45 - 46 : 47 - 48 :49 - 51 ; Replying Affidavits and supporting papers 52 - 53 4 - >> 56 - 57 ,Othe.r memorandum of law 58 - 59 ; ( T ) I t lS, 11 I ORDERED that the motion (#002) by third-party defendant Brian Fay Construction, Inc. for an d e r pursuant to CPLR 3212 granting defendant J. P. Spano and Company, Inc. summary judgment irismissing the plaintiffs Labor Law $0 200,240(1) and 241(6), and common-law negligence causes of ,i\-rion. IS granted to the extent of dismissing the plaintiffs Labor Law 0 200 and common-law negligence i isms against J. P. Spano and Company, Inc., and is otherwise denied; and it is further 1 [* 2 ] a g o c J.P. Spano & Co., Inc. 1nJc.i h o . 0.3-1 1989 [ age to 2 ORDERED that the cross motion (#003) by defendant J. P. Spano and Company, Inc. for an order yLnuatit to CPLR 3212 granting summary judgment dismissing plaintiffs complaint and/or an order grmting summary judgment on its third-party complaint against Brian Fay Construction, Inc., is granted to 1 1, cwent of dismissing the plaintiffs Labor Law 9 200 and common-law negligence causes of action cii ;iinstiiiovant and granting summary judgment in its favor on its claim for contractual indemnification \ cr m d against Brian Fay Construction, Inc, and is otherwise denied; and it is further t ORDERED that the cross motion (#004) by the plaintiff for an order pursuant to CPLR 3212 ;rrmting summary judgment as to the liability of defendants J.P. Spano and Company, Inc., John Davis, i tlward S. Davis, 111 and David Stanton, is granted to the extent of granting the plaintiff summary i iidgnient i n his favor on his Labor Law 9 240( 1) claim against J.P. Spano and Company, Inc., and is oi ieiuise denied, aind it is further ORDERED that the cross motion (#005) by defendants David Stanton, John M. Davis, and Edward ?\I Davis 111, for an order pursuant to CPLR 3212 granting summary judgment dismissing plaintiffs ,,inplaint and any cross claims asserted against them is denied. The plaintifiFcommenced this action to recover damages pursuant to Labor Law $9 200,240(1), and and for comlmon-law negligence, for injuries he suffered when a fellow employee, working with a ii.c.~iiar saw on a ladder above him, fell, and he was cut by the saw. The plaintiffs employer, Brian Fay oristruction. Inc. (Fay), was the framing and sheathing subcontractor hired by the general contractor, J. P. !)pano and Company, Inc. (Spano), for the home under construction. 2 1 ( ( 7 1. iiiJt I he plaintifftestified at his deposition that the front porch for the new home had been framed and he was directed by his boss (Brian Fay or his brother) to install four-by-four boards underneath the ~j~ji-cli He worked in a crouched position, cutting and fitting the boards to extend from the footings to the ;~orchframe. The rafters for the porch roof had already been installed and another Fay employee was \ \ orkin? directly above him, cutting the rafters, or headers, to their correct length. To reach the rafters, the l)worl\er had placed a one-half sheet of plywood (about four feet by four feet) on top of the porch frame . i i then placed an unopened A frame ladder on top of the plywood. The coworker had leaned the ~ iiwpened ladder against the porch post and was standing about half-way up the ladder, using a circular -<tit 4s he leaned to reach a rafter, the plywood kicked out and the ladder and the coworker fell. The l i ~ l ~ i n t itestified that he heard his coworker yell as the ladder begin to fall and looked up to see the ff - tiworker and the saw falling towards him. The plaintiff put his hands up to protect himself and, as the \( orker fell, the saw was still operating and amputated two of the fingers on plaintiffs left hand. Labor Law 240( 1) provides, in pertinent part, that owners, general contractors, and their agents scaffolding, hoists, stays, ladders . . . and other devices which shall be so constructed, placed ,ind operated as to give proper protection to a person employed in the erection of a building. It is well .&led that the protection afforded by 9 240(1) applies to both falling worker and falling object cases. : iListfiimish 1 I io\$ever, The plaintiff testified that he did not know his coworker s name, and the coworker was not deposed. the facts surrounding the plaintiffs accident are not in dispute. [* 3 ] wI\ agno v 1.P. Spano & Co., Inc. index h o 03-1 I989 i q!C Yo 3 1 1 v*iaIling object cases, Labor Law Q 240(1) applies where the object s fall is related to a significant risk intierent in the difference between the elevation level where the worker is positioned and the higher level , I ! the materials or load being hoisted or secured (Rocovich v Consolidated Edison Co., 78 NY2d 509, 14, i 7 7 njYS2d 219 [1991]). Further, in Outar v City oflvew York (5 NY3d 731,799 NYS2d 770 ?,Kr5 ), the Court of Appeals made it clear that falling object liability is not limited to cases in which til: falling object is being actively hoisted or secured at the time it falls. In Outar, Labor Law Q 240(1) was tr,und applicable when the plaintiff was injured by an unsecured dolly which fell from its storage place ;i 1 all five feet above plaintiff. Clearly, the dolly did not fall during the course of being hoisted or 1 I :,urec? Phe Appellate Division has also held that a plaintiff may recover as a matter of law where safety .qiiipment falls or collapses on the plaintiff. In Thompson v St. Charles Condominiums (303 AD2d 152, - i o NE S2d 530, Zv dismissed 100 NY2d 556, 763 NYS2d 814 [2003]), the plaintiff was placing cinder ?docksand pans of inortar onto a four-foot-high sawhorse scaffold, on which a bricklayer would then stand 1 1 order to work. When the bricklayer climbed onto the scaffold, it collapsed, causing the cinder blocks nd the bricklayer to fall on the plaintiff, injuring him. The Appellate Court found that where a safety Jccice has been furnished, and it falls or collapses, a prima facie case of liability under Labor Law Q 240 1s established. E;urther, liability is established whenever the employee is injured as a result of such a t,nli o r collapse, regardless of whether the employee was on or under the safety device when it collapsed a i 154 [emphasis in original]; see also, Quattrocchi v F.J. Sciame Constr. Corp., 44 AD3d 377, 380Salinas v * b 1 , 833 hrYS2d 564 [2007] [where inadequately secured planking fell onto the 12arnq Skanska Constr. Co., 2 AD3d 619, 769 NYS2d 559 [2003] [where plaintiff had to work indeineath duct work he was removing]; Heidelmark v State of New York, 1 AD3d 748,766 NYS2d 742 21)02][where the plaintiff was holding a ladder when his coworker on the ladder dropped a pipe on him]; I (in Eken v Consolidated Edison Co., 294 AD2d 352, 742 NYS2d 94 [2002] [where the plaintiff was \ i orking in a trench when a sheet of plywood being lowered from the street slipped, the coworker next to *lieplaintiff in the trench let go of his jackhammer to grab the plywood, and the jackhammer hit and I)! iired the plaintiffl). Here, the ladder used by the plaintiffs coworker was an enumerated safety device u hich failed to perform its function of safely supporting the coworker and his equipment (Whalen v Exxoiimobil Ol Corp., 50 AD3d 1553, 856 NYS2d 789 [2008]; Morin v Machnick Bldrs., 4 AD3d 668, i 16Q-070, 772 NYS2d 388 [2004]). Therefore, the Court finds that the plaintiff established that the statute s violated and that the violation was a proximate cause of his injuries, and that the defendants did not ute this with admissible evidence to the contrary. Accordingly, the plaintiff is granted summary udgment as to his Labor Law Q 240(1) claim against Spano, and so much of defendants motions which \cek IO dismiss this claim is correspondingly denied. t 3 I 1 Labor Law 9 24 l(6) requires owners and general contractors to provide reasonable and adequate rir.3tection and safety for workers and to comply with the specific safety rules and regulations promulgated I L the Commissioner of the Department of Labor. As is the duty imposed by Labor Law 0 240( l), the duty b In Quattvocchi,there was some question about the plaintiffs own action and, while the defendant s Labor Law 4 240( 1) liability was to be resolved at trial, it could not be excluded based upon the undisputed facts. [* 4 ] J.P. Spano & Co., Inc. ilidcx No. 03-1 1989 ? d p ! uo I \a1\ agno v corliply uith the Commissioner s regulations imposed by 5 241(6) is nondelegable (Ross v CurtisP d m e r Hydro-Ebc. Co., 81 NY2d 494,601 NYS2d 49 [1993]; Long v Forest-Fehlhaber, 5 5 NY2d 154, 4-3sYJ S2d 132 [ 19821; Allen v Cloutier Constr. Corp., 44 NY2d 290,405 NYS2d 630 [1978]). hcrefore, a plaintiff who asserts a viable claim under 3 241(6) wherein the rule or regulation alleged to tti\ e bcen breached is a specific positive command and not merely general safety standards need not \iiL)\\ that the defendants exercised supervision or control over the work site or had actual or constructive $ I tice in order to establish a right of recovery (see, Ross v Curtis-Palmer Hydro-Elec. Co., supra; Rizzuto 1 L A . Wengm Corztr. Co., 91 NY2d 343,670 NYS2d 816 [1998]). g 8 Here, the plaintiff has confined his argument to defendants alleged violation of the Industrial Code i,\~.iiidat 12 NYCRR 9 23-1.21, entitled Ladders and laddenvays, at subsections (b) (4) (ii), and (e) (2) mi ( 3 \ The plaintiff has not opposed dismissal of the other violations alleged in his bill of particulars and t I I C V do not appear to be applicable, and they are dismissed. Section 23-1.21(b) (4) entitled Installation and use, provides, in relevant part: (ir) All ladder footings shall be firm. Slippery surfaces and insecure objects such as bricks and boxes shall not be used as ladder footings. Section 23-1.21(e) (4) entitled Stepladders, provides, in relevant part: (2) Bracing. Such bracing as may be necessary for rigidity shall be provided for every stepladder. When in use every stepladder shall be opened to itsfull position and the spreader shall be locked. [emphasis added] Stepladder footing. Standing stepladders shall be used only on firm, level footings. . . . ( 3) * * * rlie thrust of the plaintiffs argument is that the ladder was placed on loose pieces of plywood on 1 \ %)p 1 the porch studs, not on firm footings, and that the ladder was not fully opened and locked, in o rolation of these provisions. The Court finds that the provisions are at least arguably applicable to the ccident and that defendants have not established that they are not applicable, as a matter of law. Further, a iolation of the Lndustrial Code is only some evidence of negligence, it is for the jury to resolve the issue of Iiether the operation or conduct at the work site was reasonable and adequate under the particular i t Cumstances (see, Rizzuto v L. A. Wenger Contr. Co., supra; Herman v St. John s Episcopal Hosp., 242 \112d 3 16. 678 NYS2d 635 [ 19971). Accordingly, summary judgment on this cause of action is denied. 1 The protection provided by Labor Law 0 200 codifies the common-law duty of an owner or general t)ntractor t o provide employees a safe place to work (Jock v Fien, 80 NY2d 965,590 NYS2d 878 [1992]). i i ,ipplies to owners, contractors, or their agents (Russin v Louis N. Picciano & Son, 54 NY2d 31 1, 445 \wYS2d [ 19811) who exercise control or supervision over the work and either created an allegedly 127 .i,iiigerous condition or had actual or constructive notice of it (Lombardi v Stout, 80 NY2d 290, 590 \J S2d 5 5 [ 19921; Yong Ju Kim v Herbert Constr. Co., 275 AD2d 709,713 NYS2d 190 [2000]). Where, [* 5 ] ~ c i I v I y n cv) !.P. Spano & Co., Inc. I ~ I ~ C XNO 03-1 1989 i dgc \lo 5 I iit rc the alleged dangerous condition arises from the method or material controlled by the subcontractor the general contractor exercised no supervision or control over the subcontractor s work, no liability ,ir:aches under the common law or Labor Law 5 200 (Comes v New York State Elec. & Gas Corp., 82 ~L 2d870. 877, 609 NYS2d 168 [1993]). Accordingly, Spano has established its entitlement to summary iw I :idgiiciit dismissing these causes of action, and the plaintiff has not offered any evidence to the contrary. Spano also seeks summary judgment on its third-party claim for contractual indemnification over <~!?d yaiiist Fay. The contract between Spano and Fay provides, in relevant part, at paragraph number 11: Indemnity To the fullest extent permitted by law, Subcontractor shall defend, indemnify and hold harmless Contractor . . . for all claims for bodily injury and property damage that may arise from performance of Subcontract Work to the extent of the negligence attributed to such acts or omissions by Subcontractor, Subcontractor s subcontractors or anyone employed directly or indirectly by any of them or by anyone for whose acts any of them may be liable. licretoi-c, Fay IS obligated to indemnify Spano for any acts or omissions of its employees, the undisputed .i~tsc plaintiffs ,accident (Sullivan v G & L Bldg. Corp., 43 AD3d 401, 839 NYS2d 918 [2007]; of i riestli1 v MonteJioreMed. CtrJEinstein Med. Ctr., 10 AD3d 493, 495, 781 NYS2d 506 [2004]) and \rp,ino s vicarious liability pursuant to Labor Law 8 240(1) has been established (Lesisz v Salvation Army, -ii .4D3d 1050, 837 NYS2d 238 [2007]; Boshnakov v Higgins-Kieffer, Inc., 255 AD2d 983,680 NYS2d [ 1998]). Accordingly, Spano is granted summary judgment on its claim for contractual !ii~feiniii fication over and against Fay. -I he remaining motion by David Stanton, John M. Davis, and Edward M. Davis 111, incorrectly i,iheled as cross motion, is not properly before this court. Plaintiff commenced two separate actions : ,iti\ c to his accident, the instant action against Spano (Index No. 11989/03) and an action against David >tinton, John M Davis, and Edward M. Davis 1 1 the purported owners of the property (Index No. 1, 1 ~ _ 71 03). By order of this Court (Werner, J.), dated January 3,2005, the two actions were joined for trial, S I ~ L each action was to have a separate note of issue and certificate of readiness, and separate court fees. I here was no consolidation and each action maintained its separate identity. Therefore, David Stanton, )tin h l . Davis, and Edward M. Davis 1 1 are not defendants in this action and the Court is unable to 1, .t m s i d ~their motion; and the plaintiffs request for relief as against these defendants is correspondingly r ,irnicci Further, even if the Court were to deny the motion with leave to renew in the proper action, the i!i;ltioii is untimely and could not be considered. While the note of issue in the instant action was filed on 71;trcii 7, 2008, the note of issue in the separate action against David Stanton, John M. Davis, and Edward 1 [>a\i s 111. was filed on September 13,2007. Accordingly, even if the motion had been brought in the . rzct action, it would be procedurally defective because it was not interposed within the time limitation : 1 i t :scribed by CPLR 3212(a) (Miceli vState Farm Mut. Auto. Ins. Co., 3 NY3d 725, 786 NYS2d 379 ~041): Brill v C i g ~f New York, 2 NY3d 648, 781 NYS2d 261 [2004]). Accordingly, the motion is o 1 - 8 7 L iii r~i [* 6 ] j j I n summary, the plaintiffs Labor Law 0 200 and common-law negligence causes of action are Ismissed and the plaintiffs Labor Law 8 240(1) claim and his Labor Law 5 241(6) claim based upon the ~legeti violations of the Industrial Code found at 12 NYCRR 0 23-1.21 (b) (4) (ii), and (e) (2) and (3), are . ereti and shall continue (CPLR 3212 [e]). Upon service of a copy of this order with notice of entry the ..icnda Clerk of this Court is directed to place this action on the Calendar Control Part for the next .iilahle trial date. + _ . FINAL DISPOSITION X NON-FINAL DISPOSITION

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