| Pilato v Nigel Enters., Inc. |
| 2008 NY Slip Op 00877 [48 AD3d 1133] |
| February 1, 2008 |
| Appellate Division, Fourth Department |
| David Pilato, Appellant-Respondent, v Nigel Enterprises, Inc.,Doing Business as Nigel Builders, Respondent-Appellant and Third-PartyPlaintiff-Appellant-Respondent. James Malczewski, Jr., Doing Business as JMJ ConstructionCo., Third-Party Defendant-Respondent-Appellant. |
—[*1] Damon & Morey LLP, Buffalo (Patric R. O'Brien of counsel), fordefendant-respondent-appellant and third-party plaintiff-appellant-respondent. Gregory Allen, New York City, Baxter, Smith, Tassan & Shapiro, P.C., West Seneca (Sim R.Shapiro of counsel), for third-party defendant-respondent-appellant.
Appeal and cross appeals from an order of the Supreme Court, Erie County (John A.Michalek, J.), entered April 3, 2007 in a personal injury action. The order, inter alia, denied themotion of defendant and third-party plaintiff for, inter alia, summary judgment, denied the crossmotion of plaintiff for partial summary judgment and denied the cross motion of third-partydefendant for summary judgment dismissing the third-party complaint.
It is hereby ordered that the order so appealed from is unanimously modified on the law bygranting that part of the motion seeking summary judgment dismissing the Labor Law §241 (6) claim insofar as it is based on the alleged violations of 12 NYCRR 23-1.8 (a), 23-1.22 (c)and 23-5.1 and dismissing that claim to that extent and by granting the cross motion ofthird-party defendant and dismissing the third-party complaint and as modified the order isaffirmed without costs.
Memorandum: Plaintiff commenced this Labor Law and common-law negligence action[*2]seeking damages for injuries he sustained when he hit his faceagainst a ceiling joist while framing a house that was under construction. As a result of theaccident, plaintiff injured his right eye and sustained multiple fractures around it. Plaintiff's righteye was eventually removed and replaced with a prosthetic eye. Defendant was the owner anddeveloper of the site where plaintiff was working, and defendant commenced a third-party actionagainst plaintiff's employer. Defendant moved for, inter alia, summary judgment dismissing theamended complaint and common-law indemnification from third-party defendant, plaintiffcross-moved for partial summary judgment on liability under Labor Law § 240 (1) and§ 241 (6), and third-party defendant cross-moved for summary judgment dismissing thethird-party complaint. We conclude that Supreme Court properly denied plaintiff's cross motionbut erred in denying that part of defendant's motion seeking summary judgment dismissing theLabor Law § 241 (6) claim insofar as it is based on the alleged violations of 12 NYCRR23-1.8 (a), 23-1.22 (c) and 23-5.1 and in denying third-party defendant's cross motion. Wetherefore modify the order accordingly.
We conclude with respect to Labor Law § 240 (1) that there is an issue of fact whetherplaintiff's injuries were the result of an elevation-related risk (see Robinson v East Med. Ctr., LP, 17 AD3d 1027 [2005], affdon other grounds 6 NY3d 550 [2006]; Keefe v E & D Specialty Stands, 259 AD2d994 [1999], lv dismissed 93 NY2d 999 [1999], lv denied 95 NY2d 761 [2000]).Here, plaintiff was straddled across exposed ceiling joists that were approximately eight feetabove the floor below and approximately 14 to 16 inches apart. Although a large area on top ofthe ceiling joists was covered with temporary plywood decking, the area in which plaintiff wasworking was not covered with plywood. Plaintiff stepped from one joist to another in order toretrieve a circular saw that was hanging from a joist, and he lost his balance and fell forward intoone of the ceiling joists when the cord of the saw became "snagged on something," causing thedirect impact with plaintiff's face.
Plaintiff is unable to recall what occurred from the time that he lost his balance until heregained consciousness while on the floor below, and it does not appear from the record thatanyone saw plaintiff either falling or hitting his face on the ceiling joist. The only person whosaw plaintiff before he hit the floor testified at his deposition that he observed plaintiff hangingfrom the ceiling joist and then lowering himself to the floor. We thus conclude on the recordbefore us that there is an issue of fact whether plaintiff fell between the ceiling joists and hit hisface while falling, or whether plaintiff fell forward onto a ceiling joist, hit his face and thenlowered himself to the floor.
We also reject the contention of defendant that the court erred in denying that part of itsmotion for summary judgment dismissing the Labor Law § 241 (6) claim insofar as it isbased on the alleged violation of 12 NYCRR 23-1.7 (b) (1). Pursuant to that regulation, "[e]veryhazardous opening into which a person may step or fall shall be guarded by a substantial coverfastened in place or by a safety railing constructed and installed in compliance with this Part(rule)" (12 NYCRR 23-1.7 [b] [1] [i]). We conclude on the record before us that there are triableissues of fact concerning the circumstances of plaintiff's accident and the adequacy of theprotection afforded to plaintiff with respect to the 14- to 16-inch spaces between the ceilingjoists. There is a further issue of fact whether the failure to cover those spaces in plaintiff's workarea with the same temporary plywood decking used to cover a large portion of the working areawould have prevented plaintiff's accident (see generally Luckern v Lyonsdale Energy Ltd.Partnership, 281 AD2d 884, 886-887 [2001]). We agree with defendant, however, that thethree remaining Industrial Code provisions upon which plaintiff relies, i.e., 12 NYCRR 23-1.8(a), 23-1.22 (c) and 23-5.1, are inapplicable to this case.
We further reject the contention of defendant that it established as a matter of law thatplaintiff sustained a grave injury within the meaning of Workers' Compensation Law § 11and [*3]that the court therefore erred in denying that part of itsmotion for summary judgment seeking common-law indemnification from third-party defendant.Indeed, as previously noted, we conclude that the court properly granted the cross motion ofthird-party defendant, plaintiff's employer, for summary judgment dismissing the third-partycomplaint on the ground that plaintiff did not sustain a grave injury as a matter of law and thereis no written contract authorizing indemnification claims against third-party defendant (seeRodrigues v N & S Bldg. Contrs., Inc., 5 NY3d 427 [2005]). We conclude, as did theThird Department in Giblin v PineRidge Log Homes, Inc. (42 AD3d 705 [2007]), that the loss of a single eye does notconstitute a "permanent and severe facial disfigurement" within the meaning of Workers'Compensation Law § 11 as a matter of law. The Court of Appeals has made clear that thelist of grave injuries defined in Workers' Compensation Law § 11 is both exhaustive and tobe narrowly construed (see Castro v United Container Mach. Group, 96 NY2d 398,401-402 [2001]).
Upon our review of the photographs of plaintiff included in the record, we note that thereappears to be some scarring around his right eye that is barely visible, his right eye appearsslightly more open than his left eye and the color of his prosthetic eye is slightly darker than hisright eye. The prosthetic must be removed twice a year for cleaning but otherwise must stay inplace in plaintiff's eye socket. As the Third Department wrote in Giblin, "[t]he word'disfigurement' is defined as that which impairs or injures the beauty, symmetry or appearance ofa person or thing; that which renders unsightly, misshapen or imperfect or deforms in somemanner (see Black's Law Dictionary 480 [7th ed 1999])" (id. at 707). Here, as inGiblin, "the record contains no evidence that plaintiff suffered a severe facialdisfigurement as a result of the injury sustained" (id.). Present—Martoche, J.P.,Smith, Centra, Peradotto and Green, JJ.