Montayne v Village of Hoosick Falls

[*1] Montayne v Village of Hoosick Falls 2009 NY Slip Op 52619(U) [26 Misc 3d 1201(A)] Decided on December 16, 2009 Supreme Court, Rensselaer County Lynch, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 16, 2009
Supreme Court, Rensselaer County

Timothy Montayne, Plaintiff,

against

The Village of Hoosick Falls, NEW YORK, and RIFENBERG CONSTRUCTION, INC., Defendants.



THE VILLAGE OF HOOSICK FALLS, NEW YORK, and RIFENBERG CONSTRUCTION, INC. Third-Party Plaintiffs,

against

A & K SLIP FORMING, INC., Third-Party Defendant.



215596



Abdella Law Offices

Attorneys for Plaintiff

(Robert Abdella, Esq., of counsel)

8 West Fulton Street

P.O. Box 673

Gloversville, New York 12078-0006

Costello, Cooney & Fearon, PLLC Attorneys for Defendants

(Maureen G. Fatcheric, Esq., and Timothy N. McMahon, Esq., of counsel)

Salina Place, 205 South Salina Street

Syracuse, New York 13202-1327

Michael C. Lynch, J.

In this personal injury action alleging, in part, violations of the Labor Law, plaintiff Timothy Montanye moves pursuant to CPLR 3212 for an order granting him summary judgment on the issue of liability with regard to his claims of violations of Labor Law §§ 240 (1) and 241 (6) and his common-law negligence claim. Defendants the Village of Hoosick Falls, New York (the Village) and Rifenberg Construction, Inc. (Rifenberg) oppose the motion and cross-move pursuant to CPLR 3212 for an order granting them summary judgment dismissing the complaint in its entirety. In the alternative, defendants seek an order particularizing which sections of the Industrial Code apply for submission to a jury. Further, defendants seek an order bifurcating the trial should their cross motion for summary judgment be denied. Plaintiff opposes the cross motion.[FN1]

This action arises from an accident that occurred on June 11, 2004 during the installation of granite curbs on State Route 22 in the Village. At the time of the accident, plaintiff was a foreman for third-party defendant A & K Slip Forming, Inc. (A & K), which had sub-contracted with Rifenberg. The New York State Department of Transportation (DOT) had hired Rifenberg as the general contractor to refurbish the road and sidewalks in the Village along State Route 22. Under its subcontract, A & K was to lay the new granite curbing. Plaintiff worked with two crew members from A & K during the installation process. One crew member operated an Articulating Bobcat (bobcat), lowering a granite block to approximately shoulder height of the other two crew members standing in a previously dug ditch measuring about 15-20 inches deep along where the curb was being located. The granite block weighing approximately one-half ton was held on the bobcat by chains on a fork-lift type device. As the bobcat operator continued to lower the granite block, the crew members would then help guide the granite block into place behind a string line, which had been previously set.

Plaintiff testified at his examination before trial that, at the time of the accident, the bobcat rolled backwards as it was lowering the granite block. He explained: The machine rolled backwards, and when it did it pulled the stone away from me, because I would hold the stone. So it pulled away. And when he pushed the pedal down to come forward again, he came too far forward and the stone swung into me (Montanye EBT at 50 [dated 11-28-06], Abdella Affidavit, Exhibit I).

Plaintiff further testified that bobcat moved backward while in a neutral setting because of the brakes on that machine. Plaintiff explained the accident again in this manner: [The granite block] swung back when [the bobcat] rolled backward. When [the [*2]other crew member] pushed the throttle [on the bobcat] forward to go ahead, the stone started coming the other way. And when it did, he was closer than he had wanted to be. And I was standing there and the stone just came and hit me right across the chest (id. at 53).

Plaintiff alleges he suffered, among other things, a injury to his lower back as a result of the accident.

To recover money damages for the alleged injuries suffered in the accident, on August 24, 2005, plaintiff commenced this action against the Village and Rifenberg, in part, alleging violations of the Labor Law and common law negligence.[FN2] Following joinder of issue, discovery and a filing of a note of issue, plaintiff now moves for summary judgment on the issue of liability on his claims that defendants violated Labor Law § 240 (1) and Labor Law § 241 (6), and his common law negligence claim. Defendants oppose that motion and cross-move, in part, to dismiss the complaint, which plaintiff opposes.

To obtain summary judgment, a movant must establish his or her position " sufficiently to warrant the court as a matter of law in directing judgment'" in his or her favor (Friends of Fur Animals, Inc. v Associated Fur Mfrs., Inc., 46 NY2d 1065, 1067 [1979], quoting CPLR 3212 [b]). The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any genuine material issues of fact from the case (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). The failure to make such a showing mandates denial of the motion, regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). If, however, a prima facie showing is made, the burden shifts to the party opposing the motion for summary judgment to come forward with evidentiary proof in admissible form to establish the existence of material issues of fact which require a trial (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

With regard to the cross motion, defendants contend that the Labor Law § 240 (1) claim should be dismissed because plaintiff was not engaged in work protected under this provision. First, defendants argue that plaintiff was not working on a building or structure as required under section 240 (1) but, instead, was doing construction work on a highway. Second, defendants maintain that plaintiff's accident was not gravity related and thus is not under the ambit of section 240 (1). Defendants note that the chains holding the granite block neither broke nor did the granite fall.

"Labor Law § 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'" (Novak v Del Savio, 64 AD3d 636, 637-638 [2d Dept 2009], quoting Ross v Curtis Palmer Hydro Elec. Co., 81 NY2d 494, 501 [1993]). "The primary purpose of Labor Law § 240 (1) is to extend special protections to employees' or workers.' Inclusion in this special class for whose benefit absolute liability is imposed' requires a plaintiff to demonstrate that he was both permitted or suffered to work on a building or structure and that he was hired by someone, be it [*3]the owner, contractor or their agent'" (Stringle v Musucchia, 11 NY3d 212, 215 [2008] [quoted cases omitted]). Further, "Labor Law § 240 (1) is to be construed liberally as may be for the accomplishment of the purpose for which it was framed; however, this principle operates to impose absolute liability only after a violation of the statute has been established. Even a violation of Labor Law § 240 (1) cannot establish liability if the statute is intended to protect against a particular hazard, and a hazard of a different kind is the occasion of the injury'" (Narducci v Manhasset Bay Assocs., 96 NY2d 259, 267 [2001] [emphasis in original], quoting Koenig v Patrick Constr. Co., 298 NY 313, 319 [1948] and Rocavich v Consolidated Edison Co., 78 NY2d 509, 513 [1991]).

As to defendants' first argument, "[u]nder Labor Law § 240 (1), a structure' is any production or piece of work artificially built up or composed of parts joined together in some definite manner'" (Lewis-Moors v Contel of New York, Inc., 78 NY2d 942, 942 [1991]; see Hodges v Boland's Excavating and Topsoil, Inc., 24 AD3d 1089, 1091 [3d Dept 2005], lv denied 6 NY3d 710 [2006]). Here, at the time of the accident, A & K was installing curbing along side State Route 22, which involved joining blocks of granite. Given the broad definition of a structure recited above, plaintiff was working on a structure at the time of the accident (see generally Hodges, 24 AD3d at 1091). Furthermore, the cases relied on by defendant are distinguishable from the situation here where plaintiff was joining granite blocks to create a curbing (see Spears v State, 266 AD2d 898, 898-899 [4th Dept 1999] [worker was preparing to unload asphalt and fell from truck]; Sciora v New York State Dept. of Transp., 226 AD2d 621, 621 [2d Dept 1996], lv dismissed 88 NY2d 1017 [1996] [worker was "working on a highway"]; Matter of Dillon v State, 201 AD2d 793, 793 [3d Dept 1994] [worker splashed in face with thermoplastic as he was preparing to paint edge line of newly refurbished highway]; Manente v Ropost, Inc., 136 AD2d 681, 681 [2d Dept 1988] [worker fell from lamppost while replacing lightbulb]; Siagusa v State, 117 AD2d 986, 986 [4th Dept 1986] [worker drove off shoulder of highway]).

In any event, as defendants argue, plaintiff's accident does not fall under the ambit of section 240 (1) as it was not gravity related. "Labor Law § 240 (1) is implicated where protective devices prove inadequate to shelter the injured worker from harm directly flowing from the application of the force of gravity to an object or person'" (Brown v VJB Constr. Corp., 50 AD3d 373, 376 [1st Dept 2008], quoting Ross, 81 NY2d at 501 [emphasis supplied]; see Schaff v Sachem Cent. School Dist., 53 AD3d 528, 538 [2d Dept 2008]). Here, plaintiff was hit in the chest by the granite block as it first moved horizontally away from him when the bobcat moved backwards and then into his chest when the crew member moved the bobcat too far forward (see Montanye EBT at 50-53 [dated 11-28-06], Abdella Affidavit, Exhibit I). Accordingly, since gravity was not related to the cause of the accident, section 240 (1) is not implicated (compare Smith v Hovnanian Co., Inc., 218 AD2d 68, 70-71 [3d Dept 1995], with Jock v Landmark Healthcare Facilities, 62 AD3d 1070, 1071-1072 [3d Dept 2009]; Brown, 50 AD3d at 377). Thus, the Court grants that branch of defendants' cross motion to dismiss the claim premised on Labor Law § 240 (1) as against all defendants and, for the same reasons, denies that branch of plaintiff's motion to grant summary judgment on the issue of liability on his section 240 (1) claim.

As the branch of defendants' cross motion to dismiss plaintiff's Labor Law § 241 (6) [*4]claim, that section "imposes a nondelegable duty upon owners, contractors and their agents to protect workers by holding those parties liable for breaches of particular safety regulations containing specific standards" (Musillo v Marist Col., 306 AD2d 782, 783 [3d Dept 2003]; see Misicki v Caradonna, 12 NY3d 511, 515 [2009]). However, a "breach of a duty imposed by a rule in the [Industrial] Code is merely some evidence for the fact finder to consider on the question of a defendant's negligence" (Misicki, 12 NY3d at 515).

Plaintiff alleges that defendants violated a number of the Commissioner's regulations. In support of his motion for summary judgment, plaintiff submits an affidavit by Joseph J. McHugh, a civil engineer (See Plaintiff's Exhibit 1).Mr. McHugh avers that defendants violated certain provisions set forth within 12 NYCRR §23-8.1, 12 NYCRR §23-8.2, 12 NYCRR §23- 9.2, 12 NYCRR §23-9.4, and 12 NYCRR §23-9.8 (McHugh, ¶ 7). In response, defendants contend that summary judgment dismissing plaintiff's 241(6) claims is warranted because the cited regulations are either not applicable to the work, is not a specific safety standard that creates a duty under the statute, or that the alleged violation was not a proximate cause of the accident (see, generally, defendants' Memorandum of Law, Malguarenera Affidavit).

Subpart 23-8 of the Industrial Code regulates the use of mobile cranes, tower cranes and derricks. McHugh avers that on the day of the accident, the bobcat was being used as a mobile crane (McHugh Aff. ¶5). Further, he contends that defendants violated 12 NYCRR §23-8.1(b) (providing that mobile cranes must be inspected at least monthly and that records of such inspection be posted); 12 NYCRR 23-§8.1 (c) (requiring the provision of "firm footing" for every mobile crane); 12 NYCRR 23-§8.1 (d)(1) (requiring certain, "hoisting mechanism brakes and locking devices"); 12 NYCRR 23-§8.1 (f)(2)(i) (prohibiting "sudden acceleration or deceleration of the moving load" during "hoisting operation", "unless required by emergency conditions"). Plaintiff also contends that defendants violated 12 NYCRR 23-§8.2(b)(2) (regulating the use and placement of outriggers on mobile cranes); 12 NYCRR 23-8.2 (c)(1) and (3) (providing proper method for hoisting materials); 12 NYCRR 23-8.2 (d) (providing that only a "competent designated person" be permitted to travel with the mobile crane); 12 NYCRR 23-8.2(e)(requiring the use of a counterweight); and 12 NYCRR 23-8.2 (f)(2)(iii) (requiring "in addition to the hoisting mechanism brakes", brakes capable of stopping the mobile crane during travel and keeping the crane stationary).

In response to plaintiff's motion and in support of its cross motion, defendants submit an affidavit by Salvatore C. Malguarnera, a licensed professional engineer. Mr. Malguarnera avers, generally, that the Bobcat is an "excavating machine that was being used for material hoisting" (Malguarnera ¶8). He explains that, "[m]aterial hoisting is a process for use in connection with the lifting of construction or demolition materials. A thorough and full review of the deposition testimony of the plaintiff indicates this Bobcat, as an excavating machine, was being used for material hoisting - the hoisting of and setting of granite" (¶ 9). In particular response to plaintiff's claim that the Bobcat violated the regulations set forth at 12 NYCRR 23-§8.1 and 12 NYCRR 23-§8.2, governing the use of mobile cranes, Mr. Malgaurnera avers that the regulations do not apply because the machinery was not a mobile crane (Id., ¶10). With reference to the definition of each piece of equipment, Mr. Malguarnera explains that, "[t]he Mobile Crane, Tower Crane, and Derrick are all generally part of the same family of equipment. The crane/derrick is a machine that is capable of raising and lowering [*5]heavy objects and moving them horizontally. Cranes are distinguished from hoists, which can lift objects but cannot move them sideways" (Malguarnera, ¶12).

The interpretation of a regulation is a question of law for the Court to determine (Morris v. Pavarini, 9 NY3d 47, 51). Whether a regulation applies will depend on how and for what purpose the equipment is used, not on its label or name (Copp v. City of Elmira, 31 AD3d 899 ["where ... construction equipment is used to attempt to accomplish the same task as a power shovel, it would be inconsistent with the purpose of the regulation and cause an objectionable result to find the safety precautions regarding lifting materials inapplicable"]; McCoy v. Metropolitan Transp. Auth., 53 AD3d 457, 459)). For the following reasons, the Court finds that the regulations set forth at 12 NYCRR 23-§8.1 and 12 NYCRR 23-§8.2 were applicable to the use of the articulating bobcat on the day of plaintiff's accident.

At his examination before trial, plaintiff testified that an "articulating bobcat" was used to set the granite curbing (Montanyne Transcript, Exhibit I, p. 16). Plaintiff explained that the bobcat was, "like a big Caterpillar loader, except smaller. There is a pivot point in the middle and the front and back operate separately" (Id., p. 18).On the day of the accident, the bobcat was equipped with a forklift attachment that was used to raise and lower the granite pieces (Gokey Transcript, Exhibit J, p. 12). Plaintiff's co-worker was loading the granite from the back of a truck parked approximately 150 feet away and downhill from the ditch where it was to be set (Gokey Exhibit K, p. 31; Dusharm Transcript Exhibit L, p. 18). Plaintiff testified that his co-worker wrapped one end of a chain around the forks of the bobcat, leaving an approximately three feet long length of chain hanging below and between the forks (Montanye Tr. pp. 30-31).The chain that hung from the fork of the bobcat was then hooked to a separate chain wrapped around the piece of granite (Id., 31-32). When asked to explain the "procedure" for setting the granite with the bobcat, plaintiff testified that the operator "would have to bring [the granite] in approximately shoulder height and drive into us and then lower it down" (Montayne Tr. p. 29, 34).

Based on the record, the Court agrees with plaintiff's expert that the Bobcat 2410 was subject to the regulations set forth at 12 NYCRR 23 8.1 and 12 NYCRR 23-8.2 because the equipment was configured and being operated as a makeshift mobile crane (McCoy v MTA, 2009 NY Slip Op 29405 at *3-4 [Sup Ct, New York County, Sept. 16, 2009] [discussing the application of the Industrial Code to hybrid machines]).Defendant's expert focuses on the definition of a mobile crane and label of the equipment, but does not address the way the bobcat was being used to accomplish the task of hoisting, carrying, and setting the granite slabs. As set forth above, the record demonstrates that the bobcat was used to hoist the granite from the trailer, travel to the trench while carrying the granite suspended on a chain, then lower it into place. There is no basis for this Court to conclude, as defendants argue, that the regulations do not apply because the bobcat was merely "hoisting" the granite.

Having found that the Bobcat 2410 was a "mobile crane" subject to the regulations set forth at 12 NYCRR 23-§8.1 and 12 NYCRR 23-§8.2, it necessarily follows that neither the regulations set forth at 12 NYCRR 23 Subpart 9 (12 NYCRR 23-§9.1 ["...These provisions shall not apply to material or personnel hoists (see Subpart 23-6) nor to cranes and derricks (see Subpart 23-8)"]), nor at 12 NYCRR 23 Subpart 6 (12 NYCRR 23-§6.1 (a) ["...The general [*6]requirements of this Subpart shall apply to all material hoisting equipment except cranes..."]). Finally, the Court agrees with defendants that plaintiff may not support a claim based on a violation of 12 NYCRR 23-1.5 (see Mahoney v. Madiera Associates, 32 AD3d 1303).

Notwithstanding the applicability of the mobile crane regulations, as defendants contend, "Labor Law § 241 (6) does not impose absolute liability and [a defendant is] free to raise any valid defense, including comparative fault" (Ramputi v Ryder Constr. Co., 12 AD3d 260, 261 [1st Dept 2004]). Also, as noted above, a "breach of a duty imposed by rule in the Code is merely some evidence for the fact finder to consider on the question of a defendant's negligence" (Misicki, 12 NY3d at 515). Defendants argue that a question of fact exists whether plaintiff had the authority to direct a change in equipment as he was the foreman of the project for A & K. While plaintiff contends such argument is speculative and he had to use the equipment provided him by A & K, there is some deposition testimony supporting defendants' argument. For instance, Mark Bartholomew, superintendent for A & K testified the foreman of a project — in this instance plaintiff — had the responsibility of ensuring the safety of A & K employees and the authority to stop a job for safety concerns. When asked if plaintiff had refused to use a piece of equipment — such as the bobcat — he thought was unsafe what the result would have been, Bartholomew testified: If he had refused to use it then we would have done something, we would have taken the procedure or the steps to do what we needed to do, you know, to do the job, whatever. I don't understand the question I guess, it is hard for me to answer because if somebody refused to use a piece of equipment, if they felt it was unsafe, then we didn't use the piece of equipment (Bartholomew EBT at 46 [dated 8-29-07], Abdella Affidavit, Exhibit O).

Given this testimony and noting that any credibility assessments are left to the finder of fact and not the Court to determine on a motion for summary judgment, the Court denies this branch of plaintiff's motion (see Milanese v Kellerman, 41 AD3d 1058, 1062 [3d Dept 2007]).

Defendants also seek summary judgment dismissing plaintiff's Labor Law §200 claim on the ground that they lacked the necessary supervision and control over the performance of A & K's work. "It is axiomatic that in order for plaintiffs to prevail on their common-law negligence . . . causes of action, they must establish that [defendant] both exercised supervisory control over the operation and had actual or constructive knowledge of the unsafe manner in which the work was being performed'" (Shields v General Elec. Co., 3 AD3d 715, 716 [3d Dept 2004], quoting Lyon v Kuhn, 279 Ad2d 760,761 [3d Dept 2001]; see Wicks v Trigen-Syracuse Energy Corp., 64 AD3d 75, 80 [4th Dept 2009]).

The heart of plaintiff's common-law negligence claim is that the wrong equipment was being used for this job — namely, that the bobcat used was not the appropriate equipment. Certainly, the record establishes that Rifenberg was aware to some extent that the bobcat was not the appropriate equipment. For instance, plaintiff testified that Rifenberg's site superintendent noted that a boom truck was not present on the site and inquired as to why it was not. However, the record shows that, apart from directing where the work was to take place, Rifenberg did not supervise or control how the work of performing the curb installation was done. Accordingly, defendants have made a prima facie showing to warrant dismissal of the negligence claim (see [*7]Shields, 3 AD3d at 716; cf Wicks, 64 AD3d at 80). For the same reason, the branch of plaintiff's motion for summary judgment on the issue of liability on the common-law negligence claim is denied.

Defendants also move to dismiss plaintiff's claim against the Village of Hoosick Falls. Essentially, defendants contend that the Village did not own the highway that was being reconstructed and, as such, owed no duty to plaintiff either under theories of common-law negligence or violations of the Labor Law. In support of this branch of their cross motion, defendants submit the affidavit of Matthew Monahan, the Mayor of the Village. In that affidavit, Mr. Monahan avers that Route 22 is a State highway and that the State had control of the reconstruction project. Further, he avers that the Village did not hire any contractors to work on the project, nor did it have any Village employees on the work site during construction. Based on Mr. Monahan's affidavit, and absent any opposition by plaintiff, the Court grants defendants' motion to dismiss the complaint as against the Village of Hoosick Falls (see, generally, Highway Law §46, Allen v. Holley, 226 A.D. 294).

Finally, as to defendants' request to have a bifurcated trial, 22 NYCRR 202.42 (a) provides that "Judges are encouraged to order a bifurcated trial on the issues of liability and damages in any action for personal injury where it appears that bifurcation may assist in a clarification or simplification of issues and a fair and more expeditious resolution of the action." Here, defendants have not established that bifurcation would lead to a fair and more expeditious resolution of the action (see id; Johnson v Hudson River Constr. Co., 13 AD3d 864, 865 [3d Dept 2004]). Defendants contend that separating the issue of damages, especially a lost wage claim, will make "it easer for the jury to focus their attention on liability issues before delving into the convoluted nature of damages and economic harm" (Defendants Memorandum of Law [unnumbered pages]). In the Court's view, such separation will only result in two trials, which will prolong this action commenced in 2005 even further. Moreover, the Court has confidence that any given jury will be able to separate issues of liability from those of damages. Thus, the Court denies this branch of defendants' cross motion.

Accordingly, based on the foregoing it is

ORDERED that plaintiff's motion is denied; and it is further

ORDERED that defendants' cross motion is granted to the extent that the Labor Law § 240 (1) and the common-law negligence claims are dismissed as against all defendants and to the extent that the complaint is dismissed in its entirety as against the defendant Village of Hoosick Falls, New York and it is further

ORDERED that defendants' cross motion is granted to the extent that it seeks dismissal of plaintiff's claim under Labor Law §241(6) based on violations of the regulations set forth at 12 NYCRR 23-§1.5; 12 NYCRR 23-Subpart 6; and 12 NYCRR 23 - Subpart 9; and it is further

ORDERED that defendants' cross motion is denied to the extent that it seeks dismissal of plaintiff's claim under Labor Law §241(6) based on violations of the regulations set forth at 12 NYCRR 23 -§8.1 and 12 NYCRR 23 -§8.2; and it is further

ORDERED that defendants'cross motion for a bifurcated trial is denied.

This Memorandum constitutes the Decision and Order of the Court. This original Decision and Order is being returned to the attorney for defendants. The below referenced original papers are being mailed to the Albany County Clerk. The signing of this Decision and [*8]Order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the provision of that rule regarding filing, entry, or notice of entry.

DATED:, 2009

Albany, New York

________________________________________

Michael C. Lynch

Justice of the Supreme Court

Papers Considered:

Notice of Motion dated June 30, 2009;

Affidavit of Robert Abdella, Esq., sworn to June 30, 2009, with annexed Exhibits A-T ;

Affidavit of Joseph J. McHugh sworn to June 26, 2009;

Affidavit of Dale Shults sworn to June 18, 2009;

Plaintiff's Memorandum of Law [undated];

Notice of Cross Motion dated August 5, 2009;

Affidavit of Maureen G. Fatcheric, Esq., sworn to August 5, 2009, with annexed Exhibits AA-BB;

Affidavit of Salvatore C. Malguarnera sworn to July 31, 2009, with annexed Exhibits CC-FF;

Affidavit of Matthew Monahan sworn to July 30, 2009;

Defendants' Memorandum of Law dated August 5, 2009;

Reply Affidavit of Robert Abdella, Esq., sworn to August 11, 2009. Footnotes

Footnote 1: The third-party action has been discontinued.

Footnote 2: Apparently, plaintiff also commenced an action against the State in the Court of Claims.