| Brown v VJB Constr. Corp. |
| 2008 NY Slip Op 03109 [50 AD3d 373] |
| April 10, 2008 |
| Appellate Division, First Department |
| Reynolds Brown, Appellant-Respondent, v VJBConstruction Corp. et al., Respondents. (And a Third-Party Action.) VJB Construction Corp.,Second Third-Party Plaintiff-Respondent-Respondent, v Skylift Corporation, Second Third-PartyDefendant-Respondent-Appellant. |
—[*1] Nicoletti, Gonson, Spinner & Owen, LLP, New York (Edward S. Benson of counsel), forVJB Construction, respondent. Melito & Adolfsen P.C., New York (Steven I. Lewbel of counsel), for 400 East 66th StreetCo., L.L.C., respondent, and respondent-appellant.
Order, Supreme Court, New York County (Leland DeGrasse, J.), entered May 16, 2006,which, in an action for personal injuries sustained by a worker on a construction site, insofar asappealed from, granted motions by defendant site owner (400 East), defendant constructionmanager (VJB) and third-party defendant contractor and plaintiff's employer (Skylift) forsummary judgment dismissing the complaint, denied plaintiff's cross motion for partial summaryjudgment on the issue of defendants' liability under Labor Law § 240 (1), and grantedVJB's motion for summary judgment on its third-party cause of action against Skylift forcontractual indemnification, unanimously modified, on the law, to the extent of grantingplaintiff's motion for partial summary judgment on his Labor Law § 240 (1) claim againstVJB and 400 East, and otherwise affirmed, without costs.
Plaintiff, a stone erector and welder for Skylift, working under the supervision of anotherSkylift employee, was placing 1,000-pound granite slabs against the side of 400 East's building atground-floor level. Directions for placement of the stone slabs were given by plaintiff's foreman.[*2]The slabs were moved to the installation location by a forkliftknown as a Hi-Lo. Each stone was lifted about three feet from the ground when secured to theforklift by a steel U-shaped "stone clamp." The slabs were thus suspended from the forkliftduring transport. One Skylift employee drove the Hi-Lo and the other walked alongside,steadying the slab by hand until they reached plaintiff who guided it into place at the buildingwall.
The accident occurred when one of the 1,000-pound slabs fell from the Hi-Lo as itapproached the wall, struck the ground and tilted over, pinning plaintiff's right wrist between thestone panel and the wall.
Plaintiff commenced this action alleging violations of Labor Law §§ 200, 240(1) and § 241 (6) against VJB and 400 East. Plaintiff stated the accident was causedbecause the clamp was originally too small for the slabs being moved that day. The clamp wasthen modified by being cut and stretched in order to fit around the slab. In his affidavit, plaintiff'ssupervisor agreed that the clamp failed, but attributed the failure to difficult surface conditions atthe site, particularly construction debris, which compelled the use of a forklift. A hand truck wasordinarily the preferred method of moving slabs. Plaintiff's supervisor further stated that he hadrepeatedly complained of these conditions to VJB, but nothing was done, and that Skylift had noduty or authority to police the site. Skylift could not remove the debris of other contractors andfill in or patch holes in the ground or rearrange the wood planking on the ground.
400 East and VJB answered and cross-claimed against each other. 400 East and VJB alsocommenced third-party actions against Skylift. Skylift answered, cross-claimed and asserted acounterclaim against 400 East for indemnification.
After completion of discovery, VJB moved, inter alia, for summary judgment dismissingplaintiff's complaint and against Skylift for contractual indemnity and attorneys' fees. 400 Eastand Skylift cross-moved for summary judgment dismissing, inter alia, all Labor Law claims.Plaintiff cross-moved for partial summary judgment on his Labor Law § 240 (1) claim.
The motion court denied plaintiff's cross motion and granted defendants' motion and crossmotions for summary judgment and dismissed all plaintiff's Labor Law and common-lawnegligence claims. The court held that, to trigger Labor Law § 240 in a falling objectaccident, the work site must be elevated above or positioned below the area where the object wasbeing hoisted or secured, citing numerous First Department cases, and that Labor Law §240 did not apply here because the granite slab and work site were both at ground level.
The court also dismissed plaintiff's Labor Law § 200 and common-law negligenceclaims because VJB and 400 East did not exercise supervisory control over Skylift's operations.The Labor Law § 241 (6) claim was dismissed because the Industrial Code section invokedexcluded forklifts from its application. The court further held that VJB was entitled to contractualindemnification by Skylift pursuant to the indemnification provision in the rider to Skylift'scontract.
On appeal, plaintiff argues that the court erred in dismissing his Labor Law § 240 (1)claim since the accident was caused by the inadequacy of the hoisting apparatus, and that thecourt erred in dismissing the Labor Law § 200 claim because of the existence of questionsof fact as to whether the accident was due to a defective condition on the premises for which VJBhad actual or constructive notice.
400 East and Skylift argue that the court erred in granting contractual indemnification againstSkylift because material issues of fact exist as to whether VJB was negligent in carrying out itsduties which proximately contributed to the accident.[*3]
For the reasons set forth below, we modify to the extentof granting plaintiff summary judgment on his Labor Law § 240 (1) claim as against VJBand 400 East. It is well settled that Labor Law § 240 (1) is implicated where protectivedevices prove "inadequate to shield the injured worker from harm directly flowing from theapplication of the force of gravity to an object or person" (Ross v Curtis-PalmerHydro-Elec. Co., 81 NY2d 494, 501 [1993]). In the seminal case of Ross, the Courtof Appeals made clear that section 240 (1) is not implicated in all gravity-related accidents but islimited to such specific gravity-related accidents as being struck by a falling object that wasimproperly hoisted or inadequately secured (id.; see also Tavarez v Sea-Cargoes,278 AD2d 94, 95 [2000] [the purpose of section 240 (1) is to safeguard a worker from injurycaused by an inadequate scaffold, hoist, stay ladder or other protective device designed to shieldhim from the fall of an object or person]).
There is no dispute in this case that, due to the failure of the clamp, the 1,000-pound slab ofgranite fell a distance of about three feet as it was being hoisted from one location on theconstruction site to the wall of the building.
Defendants argue that Labor Law § 240 (1) requires a "substantial" elevationdifferential. They further argue that there was no such differential in this case since the forkliftthat hoisted the slab was positioned at the same level as plaintiff. Defendants are incorrect as tothe requirement of a substantial differential. While it is true that section 240 (1) liabilityrequires an elevation differential between the worker and the object being hoisted (Daley vCity of New York Metro. Transp. Auth., 277 AD2d 88, 89-90 [2000]), the extent of theelevation differential is not necessarily determinative of whether an accident falls within theambit of Labor Law § 240 (1) (see Rocovich v Consolidated Edison Co., 78 NY2d509, 514-515 [1991]; see also Outar vCity of New York, 5 NY3d 731 [2005] [5½-feet height differential was sufficient];Cammon v City of New York, 21AD3d 196 [2005]; Casabianca v Port Auth. of N.Y. & N.J., 237 AD2d 112 [1997] [arolling scaffold elevated just two feet off the ground brought injured worker within section 240(1) protection]). Indeed, a more recent determination by this Court in a case evincing similarcircumstances requires that we grant this plaintiff summary judgment on his Labor Law §240 (1) claim. In Gonzalez v GlenwoodMason Supply Co., Inc. (41 AD3d 338 [2007]), the plaintiff was hit with a load ofcinder blocks that became loose and fell on him as it was being hoisted by a fork boom from aflatbed truck and lowered onto a pallet near where he was standing. This Court found that thiselevation risk fell within the ambit of Labor Law § 240 (id. at 339).
Similarly, in this case, it is of no consequence that the ultimate destination of the slab was thesame level where the forklift was positioned, or where plaintiff was standing. The relevant factsare that a slab of granite measuring four by three feet and weighing 1,000 pounds had to behoisted three feet above grade in order to transport it, and that the accident occurred while it washoisted in the air due to the effects of gravity and the defective clamp (see Rocovich, 78NY2d at 514). Undisputed evidence demonstrates that the clamp clearly failed in its coreobjective of preventing the object from falling because the slab, in fact, fell, injuring plaintiff.
Plaintiff's Labor Law § 200 and common-law claims as against VJB and 400 East werecorrectly dismissed because Skylift provided and operated the forklift and clamp and alonecontrolled the method of transporting the slabs and installing them (see Reilly v NewireenAssoc., 303 AD2d 214, 219-221 [2003], lv denied 100 NY2d 508 [2003]). If thesurface conditions necessitated a different clamp or a different method of moving the slabs, suchfailures to alter their own operating procedures were Skylift's. Further, VJB was correctlyawarded indemnification [*4]against Skylift based on the latter'scontract with 400 East and the absence of evidence that any negligence by VJB proximatelycaused the accident. The affidavit of plaintiff's supervisor, opining that the slab fell because ofrough ground conditions over which the forklift traveled and for which VJB was responsible,fails to show the supervisor's qualifications to so opine, makes no reference to the allegedlyundersized clamp, and is otherwise speculative and lacking in evidentiary value.
We have considered the parties' remaining contentions for affirmative relief and find themunavailing. Concur—Lippman, P.J., Mazzarelli, Catterson and Kavanagh, JJ.