| Abreo v URS Greiner Woodward Clyde |
| 2009 NY Slip Op 02308 [60 AD3d 878] |
| March 24, 2009 |
| Appellate Division, Second Department |
| Omar Abreo, Respondent, v URS Greiner WoodwardClyde, Now Known as URS Corporation-New York, Defendant and Third-PartyPlaintiff-Appellant. Safeway Construction Enterprises, Inc., et al., Third-Party Defendants;Colgate Scaffolding, Third-Party Defendant-Appellant. |
—[*1] Nicoletti, Gonson, Spinner & Owen, LLP, New York, N.Y. (Jamie T. Packer of counsel), forURS Greiner Woodward Clyde, now known as URS Corporation-New York. Gorayeb & Associates, P.C., New York, N.Y. (Mark H. Edwards of counsel), forrespondent.
In an action to recover damages for personal injuries, (1) Colgate Scaffolding appeals froman order of the Supreme Court, Queens County (Kelly, J.), dated October 10, 2007, which deniedits motion for summary judgment dismissing the complaint, and (2) URS Greiner WoodwardClyde, now known as URS Corporation-New York separately appeals, as limited by its brief,from so much of an order of the same court dated October 11, 2007, as denied those branches ofits motion which were for summary judgment dismissing the causes of action alleging violationsof Labor Law § 240 (1) and § 241 (6) insofar as premised upon alleged violations of12 NYCRR 23-5.1 (b), (c) and (h), and 23-5.3 (g) and (h), and Colgate Scaffolding also appeals,as limited by its brief, from stated portions of the same order.
Ordered that the order dated October 10, 2007 is affirmed; and it is further,[*2]
Ordered that the appeal by Colgate Scaffolding from theorder dated October 11, 2007, is dismissed, as that defendant is not aggrieved by the portion ofthe order appealed from (see CPLR 5511); and it is further,
Ordered that the order dated October 11, 2007 is affirmed insofar as appealed from by URSGreiner Woodward Clyde, now known as URS Corporation-New York; and it is further,
Ordered that the plaintiff is awarded one bill of costs payable by Colgate Scaffolding andURS Greiner Woodward Clyde, now known as URS Corporation-New York.
The plaintiff allegedly was injured while working on a renovation/demolition project. Atexaminations before trial, the plaintiff testified that he was on a scaffold using an electric chiselto remove bricks from a fourth-floor corner of the exterior facade of a building. He had justfinished removing bricks from the fifth floor. According to the plaintiff, the scaffolding wasinadequate to allow him to reach the uppermost bricks of each level of work. He testified that, asa result, in order to complete his work he needed to stand on a pile of bricks one to two feet highthat had accumulated on the planking of the scaffold from his work on the fifth floor. Theplaintiff testified that he had never requested a ladder for his work because "[t]here wasn't one,"but that he had complained to his employer (nonparty Graciano Corp.) that he could not reachthe uppermost bricks, to no avail. The plaintiff testified that he was injured when the scaffoldmoved or shifted, and he lost his balance and fell from the pile of bricks to the planking of thescaffold. The plaintiff commenced this action against URS Greiner Woodward Clyde, nowknown as URS Corporation-New York (hereinafter URS), the alleged general contractor on theproject, seeking damages, inter alia, for violations of Labor Law §§ 200, 240 (1) and§ 241 (6). URS commenced a second third-party action against Colgate Scaffolding(hereinafter Colgate), the company that provided the scaffolding, seeking common-law andcontractual indemnification and contribution. Both URS and Colgate moved for summaryjudgment dismissing the complaint. The Supreme Court denied those branches of URS's motionwhich were for summary judgment dismissing the causes of action alleging violations of LaborLaw § 240 (1) and § 241 (6) insofar as premised upon alleged violations of 12NYCRR 23-5.1 (b), (c) and (h), and 23-5.3 (g) and (h), and denied Colgate's motion in itsentirety on the ground that it did not have standing to seek to dismiss the complaint. URS andColgate appeal.
Labor Law § 240 (1) requires owners and contractors to provide protective deviceswhen there is a significant risk inherent in a particular task because of the relative elevation atwhich the task must be performed, or at which materials or loads must be positioned or secured(see Toefer v Long Is. R.R., 4 NY3d 399 [2005]; Ross v Curtis-Palmer Hydro-Elec.Co., 81 NY2d 494 [1993]; Rocovich v Consolidated Edison Co., 78 NY2d 509[1991]). Here, URS failed to demonstrate, prima facie, that "falling worker" liability under LaborLaw § 240 (1) is inapplicable. Rather, the plaintiff's task of removing bricks from thefourth floor exterior of a building exposed him to the type of elevation-related risk within thecontemplation of Labor Law § 240 (1), and his deposition testimony raises triable issuesof fact as to whether the protective device provided was adequate. Contrary to URS's contention,the fact that the plaintiff did not fall completely off of the scaffolding is not controlling (seeIenco v RFD Second Ave., LLC, 41 AD3d 537 [2007]; Ortiz v Turner Constr. Co.,28 AD3d 627 [2006]; Cordero v Kaiser Org., 288 AD2d 424 [2001]; Lacey vTurner Constr. Co., 275 AD2d 734 [2000]). In sum, the Supreme Court properly denied thatbranch of URS's motion which was for summary judgment dismissing the plaintiff's Labor Law§ 240 (1) cause of action.[*3]
The Supreme Court also properly denied that branch ofURS's motion which was for summary judgment dismissing the cause of action alleging aviolation of Labor Law § 241 (6) insofar as premised upon alleged violations of 12NYCRR 23-5.1 (b), (c) and (h), and 23-5.3 (g) and (h). Contrary to URS's contention, each of theprovisions at issue sets forth specific, rather than general, safety standards, and is sufficient tosupport a Labor Law § 241 (6) cause of action (see Tomyuk v Junefield Assoc., 57AD3d 518 [2008]; Lavore v Kir Munsey Park 020, LLC, 40 AD3d 711 [2007];O'Connor v Spencer [1997] Inv. Ltd. Partnership, 2 AD3d 513 [2003]; see generallyComes v New York State Elec. & Gas Corp., 82 NY2d 876 [1993]; Ross v Curtis-PalmerHydro-Elec. Co., 81 NY2d 494 [1993]). Further, URS failed to demonstrate, prima facie,either that the Industrial Code provisions cited were inapplicable to the facts, or that the allegedviolation of the same was not a proximate cause of the damages alleged (see Ross vCurtis-Palmer Hydro-Elec. Co., 81 NY2d 494 [1993]; Payne v 100 Motor ParkwayAssoc., LLC, 45 AD3d 550 [2007]; Rivera v Santos, 35 AD3d 700 [2006]).
Contrary to the conclusion of the Supreme Court, Colgate did not lack standing to seeksummary judgment dismissing the complaint (see CPLR 1008; Stamboulis vStefatos, 256 AD2d 328 [1998]). However, like URS, it failed to make out a prima faciecase for summary judgment dismissing the causes of action alleging violations of Labor Law§ 240 (1) and § 241 (6) insofar as premised upon alleged violations of 12 NYCRR23-5.1 (b), (c) and (h), and 23-5.3 (g) and (h).
The remaining contentions of URS and Colgate are without merit. Rivera, J.P., Ritter,Covello and Angiolillo, JJ., concur.