Boodram v Putnam County Dept. of Highways & Facilities

[*1] Boodram v Putnam County Dept. of Highways & Facilities 2012 NY Slip Op 51828(U) Decided on June 28, 2012 Supreme Court, Putnam County Lubell, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 28, 2012
Supreme Court, Putnam County

Dhanesh Boodram and SAMANTHA BOODRAM, Plaintiffs,

against

Putnam County Department of Highways And Facilities, WORTH CONSTRUCTION COMPANY, INC., CLEAN AIR QUALITY SERVICES, INC., HILL INTERNATIONAL, INC. and EXECUTECH CONSTRUCTION CORP., Defendants.



3194-2009



Michael A. Heran, Esq.

Milber Makris Plousadis & Seiden, LLP

ATTORNEYS FOR THIRD-PARTY DEFENDANT CARMODY BUILDING CORP.

3 Barker Avenue, 6th Floor

White Plains, New York 10601

Michael H. Schwartz, Esq.

Michael H. Schwartz, PC

ATTORNEYS FOR PLAINTIFFS DHANESH BOODRAM & SAMANTHABOODRAM

1 Water Street

White Plains, New York 10601-1009

Thomas J. Reilly, Esq.

Burke, Scolamiero, Mortati & Hurd, LLP

ATTORNEYS FOR DEFENDANT CLEAN AIR QUALITY SERVICES

9 Washington Square, Suite 201

PO Box 15085

Albany, New York 12212

James Cardenas, Esq.

Lewis Brisbois Bisgaard & Smith, LLP

ATTORNEYS FOR DEFENDANT/THIRD THIRD-PARTY DEFENDANT HILL INTERNATIONAL, INC.

77 Water Street, Suite 2100

New York, New York 10005

Stacy I. Malinow, Esq.

Smith Mazure Director Wilkins Young & Yagerman, PC

ATTORNEYS FOR DEFENDANT/THIRD-PARTY PLAINTIFF/SECOND THIRD-PARTY PLAINTIFF/THIRD THIRD-PARTY DEFENDANT WORTH CONSTRUCTION COMPANY, INC. AND PUTNAM COUNTY DEPARTMENT OF HIGHWAYS AND FACILITIES

111 John Street

New York, New York 10038

Lewis J. Lubell, J.

Plaintiff, Dhanesh Boodram, brings this action to recover for personal injuries sustained on November 4, 2006, while working on the construction of the new Putnam County Courthouse located at 20 County Center, Carmel, New York (the "Premises"). More particularly, plaintiff was injured when he fell five stories through a ventilation shaft/duct (the "HVAC Shaft") located on the top floor machine room or "penthouse" of the Premises after allegedly stumbling upon and breaking through a piece of Dens Fiberglass, a type of weatherproof exterior sheetrock, covering the HVAC Shaft opening of the then under construction Premises.

The Premises is owned by defendant/third party plaintiff, Putnam County Department of Highways and Facilities ("Putnam") County") which, in connection with its construction, entered into "prime contracts" with: defendant Clean Air Quality Services, Inc. ("Clean Air") to perform HVAC work; defendant/third-party plaintiff /second-third-party plaintiff/ third-party plaintiff, Worth Construction Company, Inc. ("Worth"), to perform general construction work; and defendant/third-party defendant, Hill International, Inc. ("Hill"), the construction manager. In turn, Worth entered into various subcontracts including, but not limited to, a subcontract with Carmody Building Corp. ("Carmody Building") to provide concrete and masonry work, and Executech Construction Corp. ("Executech") to perform exterior/interior metal framing and various carpentry/dry-wall services.[FN1] Carmody Building also subcontracted with Carmody Masonry Corporation ("Carmody Masonry"). At very least in his motion papers, plaintiff alleges that he was working for Carmody Building at the time of the accident. (See, Attorney Affirmation in Support dated February 22, 2012, par. 15[a].)

Through his amended verified complaint, as amplified by his amended verified bill of particulars, plaintiff advances multiple causes of action sounding in common law negligence and violations of sections 200, 240 and 241 of the Labor Law against Putnam, Worth, Clean Air and Hill. In turn, Worth commenced a third-party action against Carmody and Putnam based on causes of action sounding in breach of contract, common law indemnification and contractual indemnification. Various other claims, counterclaims and cross-claims and actions are also advanced.

Pursuant to plaintiff's deposition testimony, immediately before the accident, plaintiff was laying block at the penthouse [*2]work site.[FN2] Plaintiff placed a block onto the mortar and went to get another one. Upon proceeding to lay this block at the bottom of what would become a wall, plaintiff allegedly stepped backwards and caught his heel on something which caused him to jump up and backwards over the edge or lip of the HVAC Shaft which has been variously described in these papers as extending anywhere from 6" to 18" inches above the penthouse floor. In the end, plaintiff fell approximately sixty feet down the 26 inch by 26 inch HVAC Shaft, landing upright. After having been cut out of the shaft by fellow workers, plaintiff sought medical attention for injuries allegedly sustained to his shoulders, back and neck.

These actions follow.

The principal and dispositive issue to be addressed in connection with plaintiff's motion for partial summary judgment on his Labor Law §240(1) cause of action against defendants Putnam, Worth, Clean Air and Hill is whether plaintiff is a "protected worker" within the meaning of Labor Law §240(1). The question is answered in the negative.

Labor Law § 240(1) reads, in pertinent part:

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 [emphasis added].

A "protected worker" within the meaning of section 240 is one whose "task creates an elevation-related risk of the kind that the safety devices listed in section 240(1) protect against" (Broggy v. Rockefeller Group, Inc., 8 NY3d 675 [2007]).

While the great majority of the cases addressing section 240(1) liability deal with the safety devices therein enumerated (see e.g. Pineda v. Kechek Realty Corp., 285 AD2d 496 [2d Dept 2001] [plaintiff made a prima facie showing of entitlement to summary judgment when the scaffold upon which he was working failed to provide proper protection and was the proximate cause of his injuries]), other cases address circumstances not obviously falling within its ambit(see e.g., Richardson v. Matarese, 206 AD2d 353 [2d [*3]Dept 1994] [although issue of fact existed as to whether a violation of section 240(1) was a proximate cause of plaintiffs' injuries, Labor Law §240(1) is implicated where plaintiff was injured as the result of the collapse of a permanent floor, not intended to be temporary structure]).

More pertinent to the case before this Court are those cases which deal with injuries sustained by a worker who steps into a hole in the workplace floor.

For example, in the First Department case of Carpio v. Tishman Construction Corporation (240 AD2d 234 [1st Dept 1997]), a construction worker was injured when, while painting the ceiling of the third floor of a building, he stepped into an uncovered riser or sleeve (a piping shaft) and fell three feet below the work surface. Upon reversing the lower Court and finding that plaintiff was a "protected worker" within the meaning of section §240(1), the Court reasoned that "the risk of injury existed because of the difference between the elevation level of the required work' (the third floor), and a lower level' (the bottom of the piping shaft into which he fell), and common sense alone tells us that this accident was gravity-related [parentheticals as in original]" (id. at 235). The Court also emphasized that plaintiff "fell into a hole with a 3 foot elevation differential, and such a risk would fall within the statute even if it existed at ground level" (id. at 236).

In similar circumstances, however, the Appellate Division, Third Department, reached a different conclusion. In D'Egidio v. Frontier Insurance Company (270 AD2d 763 [3d Dept 2000]), the Court found that the plaintiff, who misstepped into a hole while placing wire into a ceiling, did not qualify as a worker under §240(1).

[W]e cannot conclude that the floor on which plaintiff was required to stand constituted an elevated work site requiring the use of the protective devices enumerated in Labor Law §240(1). . . [A] work site is "elevated" within the meaning of the statute where the required work itself must be performed at an elevation. . . such that one of the devices enumerated in the statute will safely allow the worker to perform the task . . . Here, plaintiff's work site was the nonelevated permanent floor and there is no evidence in the record indicating that plaintiff's work in proximity to the floor openings warranted the use of the type of safety devices contemplated by Labor Law §240(1).

(D'Egidio v. Frontier Ins. Co., supra at 765-766).

There is much support for the position that "mere proximity to [*4]an elevation differential, alone, is insufficient to trigger the protection of Labor Law § 240(1) . . . " (D'Egidio v. Frontier Ins. Co., supra at 763 citing Rocovich v. Consolidated Edison Co., 78 NY2d 509, 514 [1991] and its progeny Barrett v. Ellenville Natl. Bank, 255 AD2d 473 [2d Dept 1998]; Bradshaw v. National Structures, 249 AD2d 921 [4th Dept 1998]; Duke v. Eastman Kodak Co., 248 AD2d 990, 991 [4th Dept 1998]; cf., Somerville v. Usdan, 255 AD2d 500 [2d Dept 1998]; Ozzimo v. H.E.S. Inc., 249 AD2d 912, 914 [4th Dept 1998]).

In Rocovich v. Consolidated Edison Co., supra, for example, the Court of Appeals denied a worker the protection of section 240(1) where the worker failed to establish that the use of one of the enumerated devices would have prevented his injuries. Therein, plaintiff slipped and fell backwards causing his foot and ankle to be immersed in hot oil running through a trough 18 to 36 inches wide and 12 inches deep. Plaintiff argued "that there was some elevation-related risk inherent in having to work near the 12-inch trough and that a slip and fall, be it only a matter of inches, into a highly caustic substance such as heated industrial oil should . . . be deemed within section 240(1)'s embrace.'" (Rocovich v. Consolidated Edison Co., supra, at 514).

Upon concluding that the circumstance was not 240(1) worthy, the Court stated:

While the extent of the elevation differential may not necessarily determine the existence of an elevation-related risk, it is difficult to imagine how plaintiff's proximity to the 12-inch trough could have entailed an elevation-related risk which called for the protective devices of the types listed in section 240(1).

(Id.).

Similarly, in Broggy v. Rockefeller Group, Inc. (8 NY3d 675 [2007], supra), the Court of Appeals found section 240(1) inapplicable to a worker who fell from a desk while washing the interior windows of an office building. The record demonstrated "as a matter of law plaintiff did not need protection from the effects of gravity" (id. at 681). More particularly, plaintiff therein failed to prove that he needed a ladder or other protective device to complete required tasks.

Here, plaintiff argues that defendants are statutorily liable for having failed to have provided an adequate cover to the HVAC Shaft or other safety devices which would have prevented his fall.

At the threshold, the Court rejects any assertion that plaintiff should have been provided with any of the specifically [*5]enumerated safety devices found in section 240(1).

The types of devices which [Labor Law §240(1)] prescribes "shall be so constructed, placed and operated" . . . as to avoid the contemplated hazards are: "scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices" (id.). Some of the enumerated devices (e.g., "scaffolding" and "ladders"), it is evident, are for the use or protection of persons in gaining access to or working at sites where elevation poses a risk. Other listed devices (e.g., "hoists", "blocks", "braces", "irons", and "stays") are used as well for lifting or securing loads and materials employed in the work.

(Rocovich v. Consol. Edison Co., supra at 513-14 [1991])

The only aspects of plaintiff's 240(1) cause of action worthy of close scrutiny is whether the proposed "adequate cover" to the HVAC Shaft into which plaintiff fell constitutes an "other device" within the meaning of the statue and, if so, whether a hole of the magnitude in question constitutes an elevation-related hazard within the meaning of section 240(1).

In the recent Court of Appeals case of Salazar v. Novalex Contr. Corp. (18 NY3d 134 [2011]), the Court reversed the Appellate Division, First Department, and held section 240(1) inapplicable to an accident which occurred when, while walking backwards across the floor and pulling concrete with a rake held in front of him, plaintiff was injured when he stepped into an approximately two-foot-wide and three-to-four-foot-deep trench which had been partially filled with concrete (Salazar v. Novalex Contracting Corp., supra at 138). Plaintiff's argument that the trench should have been covered or barricaded in such a way as to have prevented his fall was rejected by the Court as "contrary to the objectives of the work plan" which included filling with concrete the very hole into which he fell (id. at 140). Upon ruling as it did, the Court expressly assumed for purposes of its decision, without so finding, that the installation of the protective device posited by plaintiff constituted an "other device" within the meaning of Labor Law §240(1).

Impracticality of the installation of the device here posited by plaintiff is not at issue. There is no viable argument that the HVAC Shaft could not have been adequately covered without compromising the objectives of the work plan, i.e., the erection of a wall. As such, now squarely before this Court is whether a cover or other barrier placed over an opening or hole large enough for a worker to fall through constitutes an "other device" within the meaning of section 240(1) of the Labor Law where the task at hand [*6]neither entails nor requires anything other than a worker's close proximity to the opening or hole. The Court answers the question in the negative.

It is well settled that "[t]he extraordinary protections of Labor Law §240(1) extend only to a narrow class of special hazards, and do 'not encompass any and all perils that may be connected in some tangential way with the effects of gravity'" (Nieves v. Five Boro Air Conditioning & Refrig. Corp., 93 NY2d 914, 915-916, quoting Ross v. Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [emphasis in original]). As earlier stated, " . . . mere proximity to an elevation differential, alone, is insufficient to trigger the protection of Labor Law §240(1) . . ." (D'Egidio v. Frontier Ins. Co., supra, at 766), and plaintiff has failed to come forward with any legal authority or factual circumstance which would warrant a different result. Plaintiff's position is not that he was caused to use or step upon the HVAC Shaft to effectuate the work plan. He assertion, as is more fully set forth above, is that he tripped backwards and fell into the HVAC Shaft as he was performing assigned tasks.

Upon construing Labor Law §240(1) with a "commonsense approach to the realities of the workplace at issue" (Salazar v. Novalex Contr. Corp., supra at 140), the Court holds that plaintiff has failed to establish that he was engaged in a task that created an elevation-related risk and that an "other device" within the meaning of section 240(1) of the Labor Law should have been "so constructed, placed and operated as to [have given him] proper protection . . . " (Labor Law §240[1], supra). As a matter of law, the Court concludes that the accident is not the result of an elevation-related hazard within the meaning of Labor Law §240(1) and plaintiff is not a "protected worker" thereunder.

Having ruled as such, the Court need not determine whether a hole of the magnitude in question constitutes an elevation-related hazard within the meaning of section 240(1). (See, Alvia v. Teman Elec. Contr., Inc., 287 AD2d 421, 422 [2d Dept 2001][a hole measuring 12" by 16" and of unspecified dept does not present an elevation-related hazard to which 240(1) protective devices apply]; Miller v. Weeden, 7 AD3d 684, 685-86 [2d Dept 2004][uncovered hole approximately two feet wide by three feet deep not within ambit of section 240).

Accordingly, plaintiff's motion for summary judgment in its favor is denied and the Court hereby grants summary judgment in favor of all defendants against which said claim has been advanced.

The foregoing constitutes the Opinion, Decision, and Order of [*7]the Court.[FN3]

Dated: Carmel, New York

June 28, 2012

S/ __________________________________

Hon. Lewis J. Lubell, J.S.C. Footnotes

Footnote 1: All claims against Executech have since been discontinued.

Footnote 2: Each block measures 8" by 16" and weighs approximately 50 pounds.

Footnote 3: This Decision & Order has been edited for publication purposes to exclude those aspects of the Court's decision addressing the multiple motions and cross-motions made by the various parties and which have no bearing on the Labor Law issue herein addressed.