Riccio v Skanska USA, Inc.

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[*1] Riccio v Skanska USA, Inc. 2018 NY Slip Op 50707(U) Decided on May 18, 2018 Supreme Court, New York County St. George, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 18, 2018
Supreme Court, New York County

Jeff Riccio and Tina Riccio, Plaintiff,


Skanska USA, Inc., Defendant.


S. Wade Turnbull, Esq.

Sacks and Sacks, LLP

150 Broadway, 4th Floor

New York, New York, 10038

Allison A. Snyder

Fabiani, Cohen & Hall, LLP

570 Lexington Avenue, 4th Floor

New York, New York 10022
Carmen Victoria St. George, J.

This is one of three Labor Law actions involving distinct injuries plaintiff Jeff Riccio[FN1] allegedly sustained while he worked on a project for which defendant Skanska USA, Inc. was the general contractor. Motion sequence number 005 in Riccio v Skanska USA, Inc. (St. George, J., Index No. 115587/2010), in which defendants sought partial summary judgment was resolved by a stipulation of the parties which dismissed plaintiff's Labor Law §§ 200 and 240 (1) only. Motion sequence number 006 in the second action, Riccio v Skanska USA, Inc. (St. George, J., Index No. 103459/2011), which sought dismissal of plaintiff's Labor Law § 240 (1) claim, was also granted by stipulation, leaving plaintiff's Labor Law § 241 (6) and 200 claims and his common law negligence claims in the action. The Court is issuing a separate motion resolving sequence number 005 in the second action, plaintiff's application seeking partial summary judgment on his Labor Law § 241 (6) claim.

In the case currently before the Court, plaintiff seeks partial summary judgment on his Labor Law § 240 (1) claim. The facts are as follows. On March 9, 2012, plaintiff Jeff Riccio (plaintiff), an ironworker, was employed on a project for which defendant Skanska USA, Inc. [*2](defendant) was the general contractor. He and the crew he supervised were hoisting a piece of C-channel — a 20-foot-long, 1,000-pound steel beam which was to become part of the structure of a staircase — from the fourth to the fifth floor using a chain fall hoist. A member of the crew operated a mechanical switch which controlled the hoist. Two other crew members wrapped chokers around the C-channel and hooked the chokers to the hoist. In addition, tag lines — pieces of rope or cord — were connected to the C-channel to keep it from swinging. While the plaintiff stood nearby and reviewed blue prints, the switch operator prematurely activated the chain fall and lifted the C-channel. As a result, the C-channel swung in plaintiff's direction, striking him and tearing his biceps tendon. According to the plaintiff, the two other crew members were not holding the tag lines to keep the C-channel in place.


On a motion for summary judgment, the movant has the burden of providing evidence sufficient to show the absence of any material factual issues (Schmidt v One New York Plaza Co. LLC, — NY3d — [1st Dept Aug. 8, 2017] [avail at 2017 WL 3388590, at *1]). If the movant makes this showing, the burden shifts to the opposing party to show that a triable issue of fact exists (Kramer v Greene, 142 AD3d 438, 440 [1st Dept 2016]). When no factual disputes affect the outcome of the claim, summary judgment is appropriate (see Brown v 44th St. Development, LLC, 48 Misc 3d 234, 242 [Sup Ct. NY County 2015]).

Currently, plaintiff moves for partial summary judgment under Labor Law § 240 (1), otherwise known as the scaffold law. That provision requires

contractors, owners, and their agents . . . in the erection, demolition, repairing, altering, painting, cleaning, or pointing of a building or structure [to] 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.

The statute intends to protect laborers from "significant risk[s] inherent in the particular task because of the relative elevation at which the task must be performed or at which materials or loads must be positioned or secured" and must be "related to the effects of gravity" (Toefer v Long Island Railroad, 4 NY3d 399, 407 [2005] [quoting Rocovich v Consolidated Edison Co., 78 NY2d 509, 514 (1991)]). Because Labor Law § 240 (1) aims to protect workers from such hazards, courts "liberally construe[] it to accomplish the purpose for which it was framed" (Valensisi v Greens at Half Hollow, LLC, 33 AD3d 693, 695 [2d Dept 2006] [internal citations omitted]). The test is two-fold: there must be a violation, and the violation must be a contributing cause of the accident (see Blake v Neighborhood Housing Servs. Of New York City, Inc., 1 NY3d 280, 287 [2003]). If the plaintiff satisfies this test, absolute liability exists and therefore "contributory negligence cannot defeat the plaintiff's claim" (id.). For the reasons below, the Court concludes that plaintiff has set forth a prima facie case showing his entitlement to judgment under Labor Law § 240 (1).

I. Labor Law § 240 (1) Applies

A Labor Law § 240 (1) violation exists only where the incident is gravity-related. Here, plaintiff has shown that the hoist swung due to the force of gravity to the C-channel. He analogizes this matter to Runner v New York Stock Exchange, Inc. (13 NY3d 599 [2009]), in which the Court of Appeals considered a certified question referred to it by the Federal Court of Appeals for the Second Circuit. In that case, while the plaintiff and his coworkers rolled an 800-[*3]pound roll of wire down a short flight of stairs, the gravity from the wire pulled down the plaintiff and those of his coworkers who were acting as counterweights above, resulting in injuries to the plaintiff. The Court of Appeals, answering the certified question, agreed with the Second Circuit that "a device precisely of the sort enumerated by the statute was not placed and operated as to give proper protection to plaintiff" (id. at 604 [citations and internal quotation marks omitted]). Like the case at hand, the device that injured the plaintiff in Runner did not fall or swing upward, but the force of its weight was considered a proximate cause of the injuries.

According to plaintiff, Naughton v City of New York (94 AD3d 1, 6 [1st Dept 2012]), Cammon v City of New York, (21 AD3d 196 [1st Dept 2005]), and Ray v City of New York (62 AD3d 591 [1st Dept 2009]) further support this argument. In Naughton, a bundle of curtain wall panels swung loose while the plaintiff, pursuant to his supervisor's directive, was standing on top of another bundle. As a result, plaintiff fell off the bundle and the truck, sustaining injuries. As in the case before this Court, the plaintiff in Naughton argued that one of the tag lines holding the nearby bundle had gotten loose. The Court found that summary judgment was proper against defendants under Labor Law § 240 (1) because plaintiff had asked for but not been provided with a ladder, which would have given him the means to get off the bundles and avoid the gravity-related accident.[FN2] Cammon involved a plaintiff who sustained injuries when a timber broke loose from a cable, propelled into the air, and swung into the plaintiff's head, resulting in back injuries. In that case, the appellate court found that the defendants had not provided the plaintiff with proper protection, such as "ropes, slings, or stays," which would have held the timber in place (id. at 459). In Ray v City of New York (62 AD3d 591 [1st Dept 2009]), an 8,000-pound steel beam that was being lowered "came toward plaintiff at an angle and was moving up and down as well as side to side" (id. at 591). The First Department found that summary judgment under Labor Law § 240 (1) was appropriate because the defendants had provided a tag line to secure the beam, but the tag line was insufficient for that purpose. Together, these cases show that the incident at hand is gravity-related.

In opposition, defendant argues that because the hoist moved laterally rather than up or down, and because there was no apparent malfunction, plaintiff has not established a prima facie case that this was a gravity-related incident.[FN3] This argument has no merit. Liability under the statute does not depend on the existence of a height differential between the injured party and the object but whether "the injured worker's task creates an elevation-related risk of the kind that the safety devices listed in section 240 (1) protect against" (Salazar v Novalex Contracting Corp., 18 NY3d 134, 139 [2011]; see Runner, 13 NY3d at 604). Accordingly, in Wilinski v 334 East 92nd Housing Development Fund Corp. (18 NY3d 1 [2011]), the Court of Appeals rejected the "'same level' rule" defendant asserts here (id. at 9) and held "that [a] plaintiff is not precluded from recovery under section 240 (1) simply because he and the [object] that struck him were on the same level" (id. at 10). The First Department therefore found that where a wooden skid fell on the plaintiff, resulting in injuries, the fact that the "plaintiff and the skid were on the same level [*4]does not bar application of Labor Law § 240 (1)" (Natoli v City of New York, 148 AD3d 489, 489 [1st Dept 2017]).

II. Proximate Cause Exists

Plaintiff has set forth a prima facie case on the issue of proximate cause. It is undisputed that his injury occurred when the C-channel hit him. Thus, there is a causal connection between the incident and the injury. Defendant's argument to the contrary has no merit. Blake, Inc. (1 NY3d at 287) merely states, to the extent relied upon by defendant, that the occurrence of an accident is insufficient without proximate cause. Defendant cites Wilinski (18 NY3d at 9) for the proposition that the lack of any causal link between the asserted injury and "a lack or failure of a device prescribed by section 240 (1) mandate[s] a finding against liability." Although these cases correctly recite the principle of proximate cause, there is no reasonable view of the facts which supports the argument that the C-channel played no part in the accident and plaintiff's ensuing injuries.

Thus, plaintiff also satisfied the second prong of the test, relating to causation, and is entitled to summary judgment. Defendant argues that summary judgment must be denied because the safety devices provided to plaintiff and his crew were adequate and there is a triable issue of fact as to whether plaintiff was the sole proximate cause of the accident. Defendant did not satisfy this burden, and therefore summary judgment on the issue of liability is appropriate (see Plywacz, 159 AD3d at 544; Pena v Jane H. Goldman Residuary Trust Number 1, 158 AD3d 565 [1st Dept 2018]). This argument also fails because, where the C-channel swung toward plaintiff and struck him, "there is no plausible view of the evidence that plaintiff's own acts or omissions were the sole proximate cause of the accident" (DeRosa v Bovis Lend Lease LMB, Inc., 96 AD3d 652, 663 [1st Dept 2012]).

Toefer (4 NY3d at 408), among other cases upon which defendant relies, is distinguishable. In Toefer, the Court of Appeals found Labor Law § 240 (1) inapplicable because the object in question flew at the plaintiff "either upwards or horizontally" and thus the accident was not elevation-related. The Court of Appeal's decision, however, rested on the fact that in the two cases before it, the plaintiffs sustained injuries for reasons unrelated to any elevation-related risks. The plaintiff in Toefer was unloading beams from a truck, and the plaintiff in Marvin v Korean Air Inc. (which the court also addressed in the Toefer decision) broke his ankle when he stepped of the truck and his foot got caught in his safety harness. The accidents in these cases did not involve the type of risk envisioned by the statute. In the case at hand, however, the hoisting of the C-channel is within the purview of the statute. Vega v Metropolitan Transportation Auth. (133 AD3d 518, 519 [1st Dept 2015]) is distinguishable because there was deposition testimony that the plaintiff may have been the sole cause of the accident. Unlike the plaintiff in Vega, defendants present no evidence, in the form of deposition testimony or otherwise, that plaintiff issued the order to activate the machine. Mohamed v City of Watervliet (106 AD3d 1244 [3rd Dept 2013]), which is not controlling authority in this Department, is distinguishable because the court there held that, even considering "the facts in the light most favorable to plaintiffs," the evidence showed that the action of a worker was the sole cause of the accident (see id. at 1246).

III. Contributory Negligence

Next, the Court rejects defendant's argument that summary judgment is improper because plaintiff was contributorily negligent. As plaintiff properly notes, comparative fault is not a defense to a Labor Law § 240 (1) claim (Harris v City of New York, 83 AD3d 104, 111 [1st Dept 2011] [stating that "the question is whether there were safety devices 'placed and operated' to [*5]guard the plaintiff against the risk"]); Sharp v Scandic Wall Ltd., 306 AD2d 39, 40 [1st Dept 2003]). Thus, even if the plaintiff incorrectly used the devices involved in moving the C-channel, summary judgment would be proper (see Plywacz v 85 Broad Street LLC, 159 AD3d 543, 544 [1st Dept 2018]; Dedndreaj v ABC Carpet & Home (93 AD3d 487, 487 [1st Dept 2012]). Furthermore, defendant's citation to plaintiff's deposition testimony is not persuasive, because the testimony does not establish sole proximate cause on the part of plaintiff, and because, as previously discussed, it is not pertinent that the C-channel moved laterally.


The Court has considered the additional arguments and citations of both parties as well, and they do not alter the Court's determination that partial summary judgment is granted on this issue. Among other things, defendant's contention that plaintiff did not pinpoint the speed at which the C-channel moved, among other purported deficiencies in his testimony lacks merit because the injury, not the speed at which the C-channel moved, is the critical question. Sahota v Celaj (11 AD3d 308, 309 [1st Dept 2004]) does not mandate a contrary conclusion because defendant has not shown that "the equipment functioned perfectly and did not contribute to the accident." Defendant's argument that plaintiff did not set forth a claim based on failure to provide adequate safety devices is incorrect, as the Section 240 (1) claim, itself, rests on this theory.

Accordingly, it is

ORDERED that the motion for partial summary judgment is granted.

Dated: May 18, 2018


Footnote 1: Plaintiff's wife Tina Riccio has also asserted claims but these are not relevant to the current motion.

Footnote 2: The Court also found that the plaintiff had set forth a valid claim under Labor Law § 241 (6) with respect to the possibility that the tag lines were inadequate (Naughton, 94 AD3d at 8-9).

Footnote 3: Defendant correctly notes that certain affidavits as well as portions of witness deposition testimony do not rely on firsthand knowledge of the facts. Accordingly, those statements were not considered by this Court in evaluating plaintiff's summary judgment motion.

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