Mapp v NYC Hous. Dev. Corp.
Annotate this CaseDecided on December 31, 2012
Supreme Court, Kings County
David Mapp, Plaintiff,
against
NYC Housing Development Corp., NORTH SHORE PLAZA ASSOCIATES, L.P., NORTH SHORE ASSOCIATES and GRENADIER REALTY CORP., Defendants.
29549/2008
Plaintiff Attorney: Asher & Associates, P.C., 111 John Street, Suite 1200, New York, New York 10038
Defendant Attorney: Brody, Benard & Branch, LLP, 205 Lexington Avenue, 4th Floor, New York, New York 10016
David I. Schmidt, J.
The following papers numbered 1 to 10 read on this motion:
Papers Numbered
Notice of Motion/Order to Show Cause/
Petition/Cross Motion and
Affidavits (Affirmations) Annexed1 - 2
Opposing Affidavits (Affirmations)3-4
Reply Affidavits (Affirmations)5
Affidavit (Affirmation)
Other Papers
In this action, Plaintiff alleges that he was injured while working on a building construction project at 55 Holland Avenue in Staten Island. The defendants had moved for summary judgment dismissing the plaintiff's claims under Labor Law Sections 200, 241(b) and 240(1). Pursuant to an order dated July 2, 2012, this court dismissed the plaintiff's claims under Labor Law Sections 200 and 241(b) and directed the parties to appear for additional oral argument regarding the plaintiff's Labor Law §240(1) claim. [*2]
The plaintiff alleges that in the process of installing braces to terraces on the Holland Avenue building, he, along with other workers were on the building's roof, "putting the weights on a horizontal bar which had been constructed approximately six feet above the floor of the roof to counterbalance the weight of the suspended scaffold when the workers and their equipment were on it. As I was putting weights on the horizontal bar of the scaffold support, suddenly the entire scaffold support started swaying left and right. The entire scaffold support then collapsed completely, and fell back onto me before I could get out of the way. As the six foot high bar... was falling down, it struck my knee..." (Plaintiff's Affidavit in Affirmation in Opposition, exhibit B, paragraphs No. 5 -7)
Finding liability pursuant to Labor Law §240(1) is fact specific. The plaintiff must show more than simply that an object fell causing the injury sustained on the job (Narducci v. Manhasset Bay Assoc., 96 NY2d 259, 268 [2001]). The plaintiff must show that the harm flowed directly from the application of the force of gravity to the object; that the injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential (DeRosa v Bovis Lend Lease LMB, Inc., 96 AD3d 652 [1st Dept., 2012]) . Here, the plaintiff did not present any facts to establish that the work that he was asked to perform was dangerous, out of the ordinary or that safety equipment was needed. There is no indication that plaintiff's work placed him where he could fall from a height, where an unsecured item could fall on him or that the scaffold fell while being hoisted or secured or fell because of the absence or inadequacy of a safety device. See, e.g. Mendez v Jackson Development Group, 99 AD3d 677, (2d Dept., 2012) citing, among other cases, Narducci (supra), Ross v Curtis Palmer Hydro-Elec. Co., 81 NY2d 494; Outar v. City of New York, 286 AD2d 671, aff'd 5 NY3d 731; Quattrocci v F.J. Sciame Constr. Corp., 11 NY3d 757. Plaintiff only claims that the scaffold support started to sway and hit him in the knee as it collapsed. According to the accident report submitted by the plaintiff as exhibit A in his affirmation in opposition, the scaffold fell on one side, while plaintiff was holding that side of the scaffold. None of the deposition transcripts or affidavits submitted by either party provide any further information as to how or why the accident occurred.
Plaintiff urges that his case is analogous to Runner v New York Stock Exchange, 13 NY3d 599 (2009). In Runner, the plaintiff and his co-workers were directed to move an 800 pound reel of wire down a flight of stairs using a rope wound around the reel. Runner, with two other workers, were, as directed, holding the loose end of the rope and acting as a counterweight to control the descent of the reel. This makeshift device proved inadequate and Runner was pulled horizontally and jammed into the metal bar that the other end of the rope had been tied to, sustaining crush injuries to his hands. The Court of Appeals found that it is not necessary that the worker fall from a height or that an object fall upon the worker from a height to invoke the protections of Labor Law §240(1), rather, the statute was "designed to prevent those types of accidents in which the scaffold, hoist, stay ladder or other protective device proved inadequate to shield the injured worker from harm directly flowing the application of gravity to an object or person", citing Ross v Curtis Palmer Hydro-Elec. Co., 81 NY2d 494 at 501 (1993). Inasmuch as a device such as hoist or pulley should have been used to control the descent of the reel and counterbalance the pull of gravity upon this heavy, rolling object, Runner was entitled to summary judgment on Labor Law 240 (1) grounds. [*3]
Plaintiff here however, has not demonstrated that the accident occurred as the result of anything more than "the usual and ordinary dangers of a construction site and not the extraordinary elevation risks envisioned by Labor Law §240(1)." Rodriguez v Margaret Tietz Center for Nursing Care, Inc. 84 NY2d 841, 843 (1994) ( Labor Law § 240[1] cause of action dismissed in case of worker injured while placing 120 pound beam onto ground from seven inches above his head). See also, Oakes v Wal-mart Real Estate Business Trust, 99Ad3d 31 (3d Dept.,2012) ( Labor Law §240 [1] claim dismissed in case of worker whose legs were crushed when unsecured bar joist that a forklift was carrying, shifted sideways and struck a vertically positioned truss that fell onto the plaintiff. Despite the fact that the injury resulted from the effect of gravity upon the heavy metal truss, this was not the type of elevation differential contemplated by the statute, but rather an ordinary danger of a construction site.)
Accordingly, defendants' motion to dismiss plaintiff's action is granted and the plaintiff's complaint is dismissed.
This constitutes the decision and order of this court.
E N T E R,
Hon. David I. Schmidt
J. S. C.
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