| Jock v Landmark Healthcare Facilities, LLC |
| 2009 NY Slip Op 03658 [62 AD3d 1070] |
| May 7, 2009 |
| Appellate Division, Third Department |
| Gary Jock et al., Appellants-Respondents, v LandmarkHealthcare Facilities, LLC, et al., Respondents-Appellants. |
—[*1] Lester, Schwab, Katz & Dwyer, L.L.P., New York City (Harry Steinberg of counsel), forrespondents-appellants.
Spain, J. Cross appeals from an order of the Supreme Court (Donohue, J.), entered March24, 2008 in Columbia County, which, among other things, denied plaintiffs' cross motion forpartial summary judgment.
Plaintiff Gary Jock (hereinafter plaintiff), an ironworker employed by Brownell Steel, waspositioned on a scissor lift at a construction site when a load of steel decking that was beinghoisted above him by a crane abruptly came down and struck him on his head, causing injuries.Brownwell was the subcontractor responsible for erecting steel in the construction of an officebuilding and parking garage on property owned by defendant Columbia Memorial Hospital.Defendant Landmark Healthcare Facilities, LLC, the developer for the project, had hireddefendant Pike Company, Inc. as the general contractor. Plaintiff and his wife, derivatively,thereafter commenced this action, alleging violations of Labor Law §§ 200, 240 (1)and § 241 (6). Following joinder of issue, defendants moved for summary judgmentdismissing the complaint. Plaintiffs cross-moved for partial summary judgment on liability ontheir Labor Law § 240 (1) and § 241 (6) claims, withdrew their Labor Law §200 claim, and moved for leave to [*2]amend their bill ofparticulars to add specific Industrial Code violations. Supreme Court denied defendants' motionand plaintiffs' cross motion for partial summary judgment, but granted plaintiffs' motion toamend. The parties have cross-appealed.
Liability under Labor Law § 240 (1), which applies to falling objects as well as fallingworkers, requires a showing that safety devices like those enumerated in the statute were absent,inadequate or defective, and that this was a proximate cause of the object's fall, i.e., for thegravity-related injury (see Narducci v Manhasset Bay Assoc., 96 NY2d 259, 267-268[2001]; Heidelmark v State of NewYork, 1 AD3d 748, 748-749 [2003]; see also Ross v Curtis-Palmer Hydro-Elec.Co., 81 NY2d 494, 500-501 [1993]). While not all injuries caused by falling objects comewithin the ambit of Labor Law § 240 (1), it does afford protection where the falling of anobject is related to "a significant risk inherent in . . . the relative elevation. . . at which materials or loads must be positioned or secured" (Narducci vManhasset Bay Assoc., 96 NY2d at 268 [internal quotation marks and citation omitted];see Ortlieb v Town of Malone, 307 AD2d 679, 679-680 [2003]),[FN1]i.e., to objects that "require[ ] securing for the purposes of the undertaking" (Outar v City of New York, 5 NY3d731, 732 [2005]).
Here, plaintiffs demonstrated prima facie entitlement, on their cross motion, to partialsummary judgment on their Labor Law § 240 (1) claim. Plaintiffs submitted an affidavit ofthe only eyewitness, Frank Cree, which provided an uncontroverted account of the accident.Cree recounted that he was at ground level assigned to signal the crane operator and guide thelanding of the steel panels at ground level and plaintiff was on a scissor lift one floor belowwhen Cree observed the crane, elevated on a gravel mound one floor above Cree, hoist steelpanels and move past him, directly in plaintiff's path. Suddenly, from a height of 100 to 150 feet,"the load . . . accelerated downward in a free-fall directly towards [plaintiff],"striking plaintiff and causing him to go down on his knees; the crane operator then raised theload and set it on the ground. He estimated that the decking was about 20 to 30 feet long andasserted that while two chokers were used to attach the load to the crane's spreader hooks, no taglines or other devices were used to steady the load during the hoisting process. Plaintiffs alsorelied upon plaintiff's deposition testimony, submitted on defendants' motion, in which heexplained that while he did not see what hit him or recall the immediate aftermath of theaccident, he did recall something pushing down on his hard hat. He also remembered that a fewseconds prior to the accident, he saw the boom of the crane, located 10 to 20 feet above the levelwhere he was positioned on the lift, raising a steel load. The foregoing demonstrated, primafacie, that plaintiff, while exposed to an elevation-related hazard, was hit and injured by a fallingobject, i.e., a load that required securing, because of the absence of adequate safety devices,which hazard was a proximate cause of the accident (see Outar v City of New York, 5NY3d at 732, affg 286 AD2d 671, 672 [2001]; Heidelmark v State of New York,1 AD3d at 749; Ortlieb v Town of Malone, 307 AD2d at 680; Stang vGarbellano, 262 AD2d 853, 853-854 [1999]; Diamond v Reilly Homes Constr.Corp., 245 AD2d 763, 764-765 [1997]; see also Brown v VJB Constr. Corp., 50 AD3d 373, 376-377[2008]; Cruci v General Elec. Co.,33 AD3d 838, 839 [2006]; Cammon v City of New York, 21 AD3d 196, 200-201 [2005]; Costa v Piermont Plaza Realty, Inc.,10 AD3d 442, 444 [2004]).[*3]
Defendants failed, in opposition, to submit evidenceraising triable issues of material fact (or, on their own motion, to establish their entitlement tosummary judgment) on their liability under Labor Law § 240 (1). In support of theirmotion, defendants relied upon the deposition testimony of plaintiff, discussed above, and ofPike's project manager, William Galley, who was not working on the site at the time of thisaccident and had no personal knowledge of the circumstances attendant to it. Galley did testify,however, that swinging a hoisted load with a crane over a worker is a safety hazard. Inopposition to plaintiffs' cross motion, defendants submitted the affidavit of Peter Mienaltowski,Brownell's supervisor at the time of this incident, who had signed the incident report whichattributes the accident to the crane's master clutch being "slightly out of adjustment" and theoperator's failure to stop before hitting plaintiff with the load. However, neither Mienaltowski'saffidavit nor the incident report claims that he was present at the accident or even that he waspresent immediately before or after it occurred. Indeed, the basis of his knowledge andrepresentations is not revealed or inferable and, given the failure to demonstrate that he hadpersonal knowledge of the circumstances of this accident, the affidavit is without evidentiaryvalue and insufficient to defeat plaintiffs' showing (see Zuckerman v City of New York,49 NY2d 557, 562-563 [1980]; Antokol& Coffin v Myers, 30 AD3d 843, 846 [2006]; Gruppo v London, 25 AD3d 486, 487 [2006]; Wechsler v People, 13 AD3d 941,944 [2004]; Webb v Tire & BrakeDistrib., Inc., 13 AD3d 835, 837-838 [2004]; see also CPLR 3212 [b];Vermette v Kenworth Truck Co., 68 NY2d 714, 717 [1986]; cf. JMD Holding Corp. v Congress Fin.Corp., 4 NY3d 373, 384-385 [2005]). "[M]ere conclusions . . . orunsubstantiated allegations or assertions are insufficient" to defeat a prima facie showing(Zuckerman v City of New York, 49 NY2d at 562).
Even were we to consider Mienaltowski's affidavit, we would find that it fails tomeaningfully rebut plaintiffs' prima facie showing that plaintiff was hit by sufficiently elevated,hoisted materials which fell because they were inadequately secured, and that any safety devicesin fact used "failed in [their] core objective of preventing the object[s] from falling" (Brownv VJB Constr. Corp., 50 AD3d at 377; see Outar v City of New York, 5 NY3d at732; Ross v Curtis-Palmer Hyrdo-Elec. Co., 81 NY2d at 501; Cammon v City ofNew York, 21 AD3d at 200; cf. Corey v Gorick Constr. Co., 271 AD2d 911,913-914 [2000]). The supervisor's affidavit does not controvert that the elevated load abruptlydescended, striking plaintiff's head, or claim that any devices of the type enumerated in thestatute, other than tag lines, were used. Defendants' proof that the crane may have malfunctionedor have been improperly operated does not defeat plaintiffs' motion, because that proof couldnot, even if fully credited, establish that adequate safety devices were furnished, that the conductof the plaintiff was "the sole proximate cause" of this accident (Petticrew v St. Lawrence Cement, Inc.,57 AD3d 1266, 1268 [2008]) or that the alleged operator error was an interveningsuperseding cause (see Gordon v Eastern Ry. Supply, 82 NY2d 555, 562 [1993];Girty v Niagara Mohawk Power Corp., 262 AD2d 1012, 1014 [1999]; see also Robinson v East Med. Ctr.,LP, 6 NY3d 550, 554 [2006]; Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280,290-291 [2003]; Dalaba v City of Schenectady, 61 AD3d 1151, 1152-1153 [2009];Cammon v City of New York, 21 AD3d at 201 [a defendant is not absolved of liabilitywhere the "plaintiff's injuries are at least partially attributable to the defendant's failure toprovide protection as mandated by (Labor Law § 240 [1])"]; Morin v Machnick Bldrs., 4 AD3d668, 670 [2004]; Raczka v Nichter Util. Constr. Co., 272 AD2d 874, 874 [2000][the plaintiff not required to prove reason for malfunction]; cf. Jaeger v Costanzi Crane,280 AD2d 743, 744 [2001] [Labor Law § 240 claim dismissed when a beam lowered incontrolled manner crushed the plaintiff's hand and crane did not malfunction or fail]; Corey vGorick Constr. Co., 271 AD2d at 913 [Labor Law § 240 claim dismissed whenhoisted beam intentionally released and did not fall as a result of defective or malfunctioning[*4]mechanism or operator error]). Thus, plaintiffs were entitledto partial summary judgment on their Labor Law § 240 (1) claim.
Next, plaintiffs claim entitlement to summary judgment on their Labor Law § 241 (6)claim.[FN2]Supreme Court correctly denied plaintiffs' cross motion to this extent because their complaintand original bill of particulars had relied on only general subparts in the Industrial Code (seeRizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 349 [1998]; Ross v Curtis-PalmerHydro-Elec. Co., 81 NY2d at 503-504). The court then granted plaintiffs' post-note of issuemotion to amend their bill of particulars (see CPLR 3025 [b]) to add and limit their claimto specific sections which defendants are alleged to have violated (see 12 NYCRR23-8.1 [f] [2] [i]; [6]; 23-8.2 [c] [3]),[FN3]but declined to award plaintiffs summary judgment based upon those newly added explicitregulations due to the unfairness to defendants. Given that plaintiffs engaged in a dilatorypractice which the court found to be unjustified (see Mills v Niagara Mohawk PowerCorp., 262 AD2d 901, 902 [1999]) and were nevertheless permitted to amend their bill ofparticulars (cf. Desharnais v JeffersonConcrete Co., Inc., 35 AD3d 1059, 1061 [2006]), we cannot conclude that the courtabused its discretion in declining at that juncture to also award plaintiffs summary judgmentbased upon the belatedly added specific alleged violations (cf. Zuluaga v P.P.C. Constr., LLC, 45 AD3d 479, 480 [2007]). Inany event, on this record, plaintiffs did not establish as a matter of law that defendants violatedthose specific code provisions or that the violations were a proximate cause of plaintiff's injuries.
Cardona, P.J., Mercure, Lahtinen and Malone Jr., JJ., concur. Ordered that the order ismodified, on the law, without costs, by reversing so much thereof as denied plaintiffs' crossmotion for partial summary on the Labor Law § 240 (1) cause of action; cross motiongranted to said extent; and, as so modified, affirmed.
Footnote 1: Liability for falling objects is nolonger "limited to cases in which the falling object is in the process of being hoisted or secured"(Quattrocchi v F.J. Sciame Constr.Corp., 11 NY3d 757, 758-759 [2008]).
Footnote 2: Defendants have abandonedtheir claim to entitlement to summary judgment dismissing plaintiffs' Labor Law § 241 (6)claim by failing to address it in their brief on appeal.
Footnote 3: Plaintiffs had cited 12 NYCRRsubpart 23-8, among many, in their original bill of particulars without citing any specific sectionsso as to identify the specific rules violated.