Murphy v D&H Excavating, Inc.

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Murphy v D&H Excavating, Inc. 2018 NY Slip Op 34403(U) January 4, 2018 Supreme Court, Erie County Docket Number: Index No. 806282/2015 Judge: E. Jeannette Ogden Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 806282/2015 FILED: ERIE COUNTY CLERK 01/04/2018 03:52 PM NYSCEF DOC. NO. 77 RECEIVED NYSCEF: 01/04/2018 At a Special Term of the Supreme Court. Part 35 thereof, held in the County of Erie and City of Buffalo, N.Y. on the 24th day of October, 2017. STATE OF NEW YORK SUPREME COUNTY : COUNTY OF ERIE PATRICK G. MURPHY PLAINTIFF vs. DECISION AND ORDER D&H EXCAVATING, INC. and MALLARE ENTERPRISES, INC. Index No. 806282/2015 DEFENDANTS Anne M. Wheeler, Esq. & Edward T. Mazzu, Esq. for Plaintiff, Patrick G. Murphy APPEARANCES: Elizabeth M. Bergen, Esq. for Defendant, D&H Excavating, Inc. Elise L. Cassar, Esq. for Defendant, Mallare Enterprises, Inc. PLEADINGS REVIEWED: The following pleadings, NYCEF document numbers 13 to 74 were read on these motions. Document Number 13 Notice of Motion (Seq. No. 001), Affirmation and Exhibits A-M [* 1] Notice of Cross-Motion (Seq. No. 002), Affidavit or Affirmation with Exhibits A-U and Memorandum of Law 28 Notice of Motion (Seq. No. 003), Affirmation in support of Motion, Exhibits A-K, Affidavit in Support with Exhibits AD and Memorandum of Law in Support 54 1 of 12 INDEX NO. 806282/2015 FILED: ERIE COUNTY CLERK 01/04/2018 03:52 PM NYSCEF DOC. NO. 77 RECEIVED NYSCEF: 01/04/2018 Affidavit or Affirmation in Opposition to Cross Motion and in Further Support of Motion (Motion #002) 73 Affirmation or Affidavit in Reply 74 Upon the foregoing pleadings, it is ordered that the motions are decided as follows: FACTS AND PROCEDURAL HISTORY Plaintiff commenc ed this action against Defendants D & H Excavating, Inc. (D & H) and Mallare Enterprises, Inc. (Mallare) to recover for personal injuries to his left knee and low back sustained while working as a truck driver for non-party Dirt Fill Trucking, Inc. (Dirt Fill) at a job site on August 7, 2012. Plaintiff slipped and fell while attempting to tarp a load of millings to talce to the quarry while standing in the bed of his dump truck as he used a hand crank to tarp the load because the mechanical tarp system on the truck was broken. Defendant, D & H was the general contractor on a job arising from a contract with the NYS Department of Transportation to perform asphalt concrete resurfacing on Clinton Street in the Town of West Seneca, New York (the job site). The project entailed removing milling on existing roadway and repaving the road. Defendant, D & H subcontracted with Defendant, Mallare, to provide dump trucks and drivers to haul millings away from the job site to a nearby dump site and to deliver asphalt from Buffalo Crushed Stone to the job site. Defendant, Mallare, entered into an agreement with Dirt Fill, Plaintiff s employer, to provide a portion of the trucking services to transport blacktop, millings and asphalt. There was no written contract between Defendant, Mallare, and Dirt Fill. Joseph Mallare was the owner of Dirt Fill and brother of the owner of Defendant, Mallare. Plaintiff's complaint asserts causes of action for common-law negligence and violations 2 [* 2] 2 of 12 INDEX NO. 806282/2015 FILED: ERIE COUNTY CLERK 01/04/2018 03:52 PM NYSCEF DOC. NO. 77 RECEIVED NYSCEF: 01/04/2018 of Labor Law §§200, 240(1) and 241(6) predicated on violations oflndu strial Code 12 NYCR R concedes that he does not §§23- l.7(d) and (e), 23-2.l (b), 23-9.2(a), 23-9.?(c) and (f). Plaint iff have a viable cause of action under Labor Law §§200 and 240(1) and subsequently withdrew the causes of action based thereon. Following discovery and after depositions were conducted, Defendant, Mallare, in summary judgm ent as to motion seque nce# 001 moves, pursuant to CPLR §3212, for partial liability on Plaint iffs Labor Law §241(6) cause of action. In motion seque nce# 002, Plaint iff opposes Defendant, Malla re's motion and cross ary judgm ent as to moves, pursuant to CPLR 3212, for an order granting him partial summ liability on his Labor Law §241(6) claim. n and moves, In motio n seque nce# 003, Defendant, D & H, opposes Plaint iffs motio pursuant to CPLR §3212, for an order granting it partial summary judgm ent dismissing Plaint ifrs Labor Law §241(6 ) claim. Defendant, Mallare Enterprises, Inc.'s motion, pursuant to CPLR §3212 granting partial summ ary judgm ent on the issue ofliab ility is DENI ED; pursuant to CPLR §3212 , for an order granting him summary judgm , for an order Plaint iff's cross motion, ent on his cause of action based upon Labor Law §241(6) is DENIED and Defendant, D& H Excav ating's cross motion, ent on the issue of pursuant to CPLR §3212, for an order granting it partial summary judgm liability is DENI ED, for the reasons hereinafter set forth. DEFENDANT, MALLARE'S, MOTION FOR SUMMARY JUDGMENT ctor on the job Defendant, Mallare, avers that Defendant, D & H, was the general contra for the supervision and with a superintendent and foreman at the job site who were responsible drivers to pick up and control of the work. It was only a subcontractor that provided truck 3 [* 3] 3 of 12 deliver FILED: ERIE COUNTY CLERK 01/04/2018 03:52 PM NYSCEF DOC. NO. 77 INDEX NO. 806282/2015 RECEIVED NYSCEF: 01/04/2018 notice that the mechanical tarp system did not materials to and from the job site. It did not have supervisory capacity; is not an owner or general work; did not have employees at the job site in a ry authority over the job site to invoke the contractor and did not have the requisite superviso provisions of Labor Law §241(6). uant to far as the cause of action purs In addition, Defendant, Mallare, avers that inso of regulations promulgated under Industrial Labor Law §241(6) is premised upon violations .?(c) and (f), said provisions are inapplicable 23-9 , .2(a) 23-9 , .l(b) 23-2 (e), and d) -1.?( §§23 e Cod n tarp system does not fall within the definitio to the facts of this case because the hand cranked a violation of Industrial Code Regulation 12 of power operated equipment required to establish rred was located several blocks away from NYCRR §23-9.2(a); the lot where the accident occu rials, thus Plaintiff was not working in a the construction area and was used to store mate §241(6) and Plaintiff was not performing construction area within the meaning of Labor Law n based on Labor Law §241 (6) must be covered work. Therefore, Plaintiff's cause of actio denied. Plaintiff opposes, asserting that Defendant, Mallare did possess the requisite supervisory that it was authorized to contact the authority over the job site as evidenced by the fact d be sent to the worksite, had the authority to subcontractor directly to see if another truck coul Dirt enforce safety rules and the authority to remove Fill employees from the construction project. ndant, Mallare, exercised no authority Plaintiff also argues that it does not matter if Defe the defective tarp system and the Labor Law over the job site because liability is predicated on nt applies to the scope of the work that was requirement regarding functionality of the equipme ormed herein was covered work because an contracted to be performed. The work being perf 4 [* 4] 4 of 12 FILED: ERIE COUNTY CLERK 01/04/2018 03:52 PM NYSCEF DOC. NO. 77 INDEX NO. 806282/2015 RECEIVED NYSCEF: 01/04/2018 integral part of the scope of the truck driver's work was to have an operating tarp system to tarp the loads before the loads could be driven to their destination, pursuant to Departme nt of Transportation Rules and Regulations. Plaintiff was injured as a result of the defective tarp system which required him to climb up into the truck bed and stand on unstable and uneven debris and/or materials in order to tarp the load. Plaintiff s employer , Dirt Fill, had notice of the defective tarp system within sufficient time prior to Plaintiff s accident to have remedied it but failed to do so and that notice is imputed to both Defendants, Mallare and D& H. In addition, a question of fact exists regarding the applicability of Industrial Code 12 NYCRR §23-2.l(b ) which requires the denial of Defendant, Mallare's motion for summary judgment. This section of the Industrial Code applies to debris and Plaintiff s accident occurred during the course of his employm ent which required him to engage in the unsafe removal of debris on a construction site as he was loading the millings off site to take them to Buffalo Crush Stone. PLAINT IFF'S CROSS MOTION FOR SUMMARY JUDGM ENT Plaintiff cross moves for partial summary judgmen t on liability pursuant to Labor Law §241(6) against both Defendan ts averring that the Defendants were contractors and/or agents of the owner for purposes of the statute; that Plaintiff was engaged in covered work and that the Court should find that the Industrial Code 12 NYCRR §§23-l.7( d) and (e), 23-2.l(b) , 23-9.2(a), 23-9.7(c) and (f) were violated as a matter oflaw. Plaintiff avers, with regard to Industrial Code 12 NYCRR §§ 23-2.7(d) and (e) (2), known as the slipping and tripping regulations, that Plaintiff is a dump truck driver not an employee involved in the milling operation or other aspects of construction. He should not have 5 [* 5] 5 of 12 FILED: ERIE COUNTY CLERK 01/04/2018 03:52 PM NYSCEF DOC. NO. 77 INDEX NO. 806282/2015 RECEIVED NYSCEF: 01/04/2018 been required to climb up into the elevated truck bed to tarp the load which resulted in his button to slipping and tripping, when he would have been able to stand on the ground and press a . utilize the power operated equipment to tarp the load if the tarp system was working properly of Thus, Industrial Code 12 NYCRR §§ 23-9.2(a), 23-2.7(d) and (e) were violated as a matter law. Defendant, D & H opposes and argues that there is no evidence that it exercised direct fs supervision or actual control over the job site or work activity that brought about Plaintif practice injury. Although it had generalized authority to stop a driver from carrying out an unsafe on the job site, it did not have authority to supervise or control the manner in which drivers loaded, tarped or transported their loads and/or the manner in which they repaired and/or maintained their trucks. Plaintif fs incident reports claim Plaintif f was injured climbing up and down his dump , in truck bed and made no mention of his slipping, twisting and falling in the truck bed. Plaintiff ng his motion, alleges that he was injured when he slipped in the bed of his truck while attempti to maintain the defective tarp system on Dirt Pill's dump truck. The evidence shows that Plaintif f was tarping asphalt not millings at the time of his injury and a tarp rack was available to assist him in tarping his load while standing on the was elevated platform. Plaintif fs decision to stand in his truck bed, rather than on the tarp rack, which the proximate cause of his alleged fall. Thus, questions of fact exist regarding causation preclude the granting of summar y judgment. Finally, it is not irrelevant that Plaintiff was not on the job site because the scope of the which work is the standard to be applied for the imposition of liability under Labor Law §241 (6) D& requires the work to be performed in a construction area. If Plaintif f is not on Defendant, 6 [* 6] 6 of 12 INDEX NO. 806282/2015 FILED: ERIE COUNTY CLERK 01/04/2018 03:52 PM NYSCEF DOC. NO. 77 RECEIVED NYSCEF: 01/04/2018 H's construction site, it cannot be liable for a Labor Law violation, and cites Bessa v Anglo Industries, Inc., et. al., 148 A.D.3d 974 [2d Dept. 2017] as authority for this premise. D & H's MOTION FOR SUMMARY JUDGMENT Defendant, D& H also moves, pursuant to CPLR §3212, for partial summary judgment dismissing the remaining causes of action in Plaintifr s complaint averring that Plainti fr s conduct in maintaining his truck tarp did not entail the construction of a structure; the Industrial Code Regulations relied upon by Plaintiff are inapplicable to this case; Defendant, D &H did not supervise or control Plaintiff's work when he was allegedly injured; Defendant, D & H, did not have actual or constructive notice of the unsafe condition that caused the accident and reiterating that Plaintiff was not working in a construction area within the meaning of Labor Law §241(6). Defendant, D & H references Plaintiffs truck ticket (exhibit B of Eldon King's affidavit) in support of his assertion that Plaintiff was not on the construction site but was 3 1/2 miles away getting asphalt to take to the project. Defendant, D& H pleads that Plaintiff was a transporter not a construction worker and he had to be on site doing work that's integral to the project to be covered under the Labor Law. Defendant, D& H further pleads that there were no materials being readied for the project, and Plaintiff was dumping materials removed from the site and bring asphalt to the site. Plaintiff opposes and avers that it is not the proximity to the job site that's dispositive of the issue but whether the injury involved readying materials or equipment for immediate use on the job site. In this case, the scope of the work entailed ripping up the road, taking the millings, bringing them off site as part of the scope of the work, and taking asphalt that was readied for the project back to the construction site. Plaintiff further avers that the accident occurred at the designated pull-off site on the job site where drivers were to tarp the load after the conveyer 7 [* 7] 7 of 12 FILED: ERIE COUNTY CLERK 01/04/2018 03:52 PM NYSCEF DOC. NO. 77 INDEX NO. 806282/2015 RECEIVED NYSCEF: 01/04/2018 project. Plaint iff cites Duffin a loaded the dump trucks with the materi als that were readie d for the his covere d work argum ent. v County of Essex, 111 A.D.3 d 1035 [3d Dept. 2013] as author ity for Theref ore, Defen dant, D& H's motion must be denied . ANALYSIS findin g rather than The Court' s functi on on this motio n for summary judgm ent is issue 3 N.Y. 2d 395 (1957]). Since issue determ ination (Sillman v Twentieth Centu ry Fox Film Corp., there is any doubt as to summ ary judgm ent is a drastic remed y, it should not be grante d where N.Y. 2d 223(19 78]). The the existen ce of a triable issue (Rotuba Extrud ers Inc. v Ceppos, 46 in the light most favorable to burden on the movan t is a heavy one and the facts must be viewe d als Corp., 22 N.Y.3 d 824 the non-m oving party (Jacob sen v New York City Health & Hospit [2014]). make a It is well settled that "( t]he propon ent of a summ ary judgm ent motion must tender ing suffici ent eviden ce prima facie showi ng of entitle ment to judgm ent as a matter of law, v New York Univ. Med Ctr., 64 to elimin ate any materi al issues of fact from the case." (Wine gard ent to "prese nt eviden tiary N.Y.2 d 851,853 [1985]. The burden then shifts to the motio n's oppon of fact" (Mazu rek v facts in admiss ible form suffici ent to raise a genuin e, triable issue st accord, Zucke rman v City of Metropolitan Museu m ofArt, 27 A.D. 3d 227,228[1 . Dept. 2006]; ce of a triable issue New York, 49 NY2d . 557,56 2 (1980]). If there is any doubt as to the existen Extrud ers Inc., 46 NY 2d. at of fact, the motion for summ ary judgm ent will be denied. (Rotuba 231.) Labor Law §241(6 ) Defen dants' and the Plaint iff seek partial summ ary judgm ent on the their agents a non-de legabl e claim. Labor Law §241 impos es on owner s, genera l contra ctors and s emplo yed in, or duty to provid e reason able and adequ ate protec tion and safety to person 8 [* 8] 8 of 12 INDEX NO. 806282/2015 FILED: ERIE COUNTY CLERK 01/04/2018 03:52 PM NYSCEF DOC. NO. 77 RECEIVED NYSCEF: 01/04/2018 or demolition work is being lawfully frequenting, all areas in which construction, excavation [2d Dept. 2015], citing Lopez v performed (Perez v 286 Scholes St. Corp., 134 AD3d 1085, 1086 Dept. 2014] New York City Dept. ofEnvtl. Protection, 123 AD3d 982 [2d the "gene ral" contractor and Subsection 6 of Labor Law §241 further defines and expan ds owne r's duty as follows, in relevant part: All areas in which construction, excavation or demolition work is being perfo rmed shall be so constructed, shored, equipped, able guarded, arranged, operated and conducted as to provide reason and adequate protection and safety to the persons employed therein or lawfully frequenting such places .... must be a violation of an In order to trigger liability under Labor Law §241(6), there compliance with a "concrete administrative regulation (Industrial Code) which mandates specification." Lopez, 123 A.D.3 d at 984. ately caused by the The Plaint iff must also demonstrate that his injuries were proxim able given the circumstances Defendants' violation of an Industrial Code provision that is applic ct rather than a mere reiteration of of the accident, and then set forth a concrete standard of condu Law§ 241 (6). common-law principals in order to establish liability under Labor 12 NYCR R §23-1.7-d Here, the Plain tiff has asserted violations of Industrial Code (protection for tripping & other (protection for slipping hazards) and 12 NYCR R 23-1.7-e hazards), 23-2.1-b (disposal of debris), 23-9.2-a (power opera ted equipment), 23-9.7-c (loading of Law§ 241(6) claim. trucks) and 23-9. 7-f (dump ing trucks) as the basis for his Labor ment shall be maintained in 12 NYC RR §23-9.2 (a) provides: "All power-operated equip Sufficient inspections of adequate good repair and in prope r operating condition at all times. maintenance. Upon discovery, any frequency shall be made of such equipment to insure such be corrected by necessary repairs or structural defect or unsafe condition in such equipment shall 9 [* 9] 9 of 12 INDEX NO. 806282/2015 FILED: ERIE COUNTY CLERK 01/04/2018 03:52 PM NYSCEF DOC. NO. 77 RECEIVED NYSCEF: 01/04/2018 replacement. The servicing and repair of such equipment shall be performed by or under the supervision of designated persons. Any servicing or repairing of such equipment shall be performed only while such equipment is at rest." The Court of Appeals in Misicki v. Caradonna, 12 N.Y.3d 511 [2009], determined that 12 N.Y.C.R.R. §23-9.2(a) was sufficiently concrete and specific to serve as a predicate to a Labor Law §241(6) cause of action (See, Misicki, 12 N.Y.3d at 520-521). The Court held that an employee who claims to have suffered injuries proximately caused by a previously identified and un-remedied structural defect or unsafe condition affecting an item of power-operated heavy equipment or machinery to be corrected by necessary repairs or replacement has stated a cause of action under the Labor Law provision requiring owners and contractors to provide reasonable and adequate protection and safety for workers. This provision is applicable given the circumstances of Plaintiff's accident. Whether the manually operated hand cranked tarp system falls within the definition of power operated equipment is a question of fact that precludes the granting of summary judgment. A question of fact also exists regarding the applicability of 12 N.Y.C.R.R. §23-2.l(b) disposal of debris based on the manner in which Plaintiff was required to dispose of debris herein as a result of the defective tarping system as well as whether Defendants knew or should have known that the tarp system did not work. Finally, a question of fact exists as to whether Plaintiff fell when he was hauling millings or asphalt as well as to the applicability of the Industrial Code provision 12 N.Y.C.R.R. §23.9.7 (c) and whether it was violated. The Defendants, however, have made a prima facie showing that Industrial Code 12 N.Y.C.R.R. §§ 23-1.7-(d) and (e), 23-9.7 (f) does not apply to the facts of this case and the Plaintiff 10 [* 10] 10 of 12 INDEX NO. 806282/2015 FILED: ERIE COUNTY CLERK 01/04/2018 03:52 PM NYSCEF DOC. NO. 77 RECEIVED NYSCEF: 01/04/2018 has failed to put forth sufficient evidence to raise a triable issue of fact with respect to these questions. Industrial Code §23-l.7(d) requires employers to remove, sand, or cover "foreign substance[s}" which may cause slippery footing and §23-1.7(e) requires areas where persons work or pass to 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 the work being performed. Where, as here, the substance naturally results from the work being performed, it is not generally considered a "foreign substance" under this provision and the truck bed is not a passageway or an area where persons work or pass (Salinas v. Barney Skanska Constr. Co., 2 A.D.3d 619 [2d Dept. 2003], see also, Cabrera v. Sea Cliff Water Co., 6 A.D.3d 315 [1st Dept. 2004]. Plaintiffs motion for summary judgment is denied as issues of fact exist regarding the location where Plaintiffs accident occurred, the scope of the work and Plaintiff's comparative or contributory negligence. Plaintiff has failed to make the requisite prima facie showing that he was otherwise free from any contributory or comparative negligence. Contributory and comparative negligence are valid defenses to a claim under Labor Law provision requiring owners and contractors to provide reasonable and adequate protection and safety for workers and to comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor in the Industrial Code. Moreover, a breach of a duty imposed by a rule in the Code is merely evidence for the fact finder to consider on the question of negligence. In any event, even if a violation occurred, it would constitute only "some evidence of negligence." (Rizzuto v. L.A. Wenger Contracting Co., Inc., 91 N.Y.2d 343, 351 [1998); accord, Belcastro v. Hewlett- Woodmere Union Free School Dist. No. 14,286 A.D.2d 744 [2d Dept. 2001]) and "once it has been alleged that a concrete specification of the Code has been violated, it is for the jury to determine whether the negligence of some party to, or 11 [* 11] 11 of 12 INDEX NO. 806282/2015 FILED: ERIE COUNTY CLERK 01/04/2018 03:52 PM NYSCEF DOC. NO. 77 RECEIVED NYSCEF: 01/04/2018 participant in the construction project caused plaintiffs injury ' (Rizzuto, 91 also, Amer on v. Melito on t. .Y.3d at 350· see Corp. , 45 A.D.3d 708 [2d Dept. 2007.]) The Defendants have failed to eliminate all triable issues of fact as to whether the Plaintiff a performing construction work" as defined by 12 N.Y.C.R.R. 23- 1.4(b)(13) and therefore the did not satisfy their prima facie burden as to this i sue (see Simon v. Granite Bldg. 2, LL , 114 A.D.3d 749 [2d Dept. 2014]· accord, Pino v. Robert lvfartin Co. 22 A.D.3d 549, 551 [2d Dept. 2005]). The parties conflicting claims and allegations have also raised issues of fact as to the precise scope of Defendant Mallare's authority at the job site relative to Plaintiff's work. It bears noting in this respect that Defendant Mallare and the Plaintiffs employer Dirt Fill never executed a written agreement defining or memorializing their respecti e roles and duties in connection with the project. Defendants and Plaintiff have failed to make a prima facie showing entitling them to di missal of the Labor Law 241 (6) cause of action. OW having reviewed the aforementioned pleadings and having considered oral argument of Counsel for the parties and due deliberation having been had thereon it is hereby ORDERED that the Defendant ' and Plaintiff's motion for summary judgment is DENIED. This con titutes the Decision and Order o his Court. ',Id 11,ittlelfd- 12 [* 12] 12 of 12

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