| Masullo v 1199 Hous. Corp. |
| 2009 NY Slip Op 04347 [63 AD3d 430] |
| June 4, 2009 |
| Appellate Division, First Department |
| Philip Masullo et al., Appellants, v 1199 HousingCorporation, Defendant and Third-Party Plaintiff-Respondent. Technical Construction Services,Inc., Third-Party Defendant-Respondent. |
—[*1] Baker Greenspan & Bernstein, Bellmore (Robert L. Bernstein, Jr. of counsel), for 1199Housing Corporation, respondent. Mulholland, Minion & Roe, Williston Park (Christine M. Gibbons of counsel), for TechnicalConstruction Services, Inc., respondent.
Order, Supreme Court, New York County (Marylin G. Diamond, J.), entered December 7,2007, which denied plaintiffs' motion for partial summary judgment and granted the motions bydefendant 1199 Housing and third-party defendant Technical Construction Services for summaryjudgment dismissing plaintiffs' complaint in its entirety, unanimously modified, on the law, tothe extent of denying dismissal of the Labor Law § 240 (1) cause of action, that cause ofaction reinstated, and otherwise affirmed, without costs.
On June 11, 2003, plaintiff, a foreman for Technical, was working on a project involvingrestorative concrete work and waterproofing at an apartment complex owned by 1199. To supplypower to a work trailer on the project, the plaintiff worker had to run a cable from an electricpanel inside the trailer to one of the apartment buildings located approximately 30 to 40 feetaway. Pedro Robles, an electrician employed by 1199, provided the electric cable and told theplaintiff worker to run the wire through three trees located between the trailer and the building.Both Robles and plaintiff agreed that the electric cable had to be elevated off the ground to avoidinterfering with workers and equipment traversing the work site. Plaintiff worker further testifiedthat a "Bobcat" vehicle was being used in the area, and the cable needed to be high enough thatthe Bobcat would not run into it.
Robles did not provide the plaintiff worker with any safety device such as a ladder orscaffold to perform the task, but instead suggested he throw the electric cable through the treebranches like a lasso. Plaintiff worker then constructed a makeshift scaffold with a platform 3 to[*2]3½ feet high. Standing on the scaffold, he affixed thecable to the side of the trailer at a height of 13 to 15 feet off the ground and then attempted totoss the cable over the first of the three trees. The tree branch over which plaintiff tossed thecable was approximately two to three feet higher than his outstretched arm. As he tossed thecable over the branch, plaintiff fell off the scaffold.
The motion court improperly granted defendant's and third-party defendant's motions forsummary judgment dismissing the Labor Law § 240 (1) claim. The work here, whichinvolved running electrical cable from a construction trailer to the building where thewaterproofing project was being done, was sufficiently construction-related to fall within theambit of the statute (see Prats v Port Auth. of N.Y. & N.J., 100 NY2d 878 [2003]; Robinson v City of New York, 22AD3d 293 [2005]). No fair reading of the record supports the motion court's conclusion thatthe accident was not elevation-related. Robles himself admitted that a ladder was probablyneeded to do the job because the trailer was pretty high. Moreover, two of the injured plaintiff'scoworkers submitted affidavits stating that in order to hang the cable, it was necessary toconstruct a platform on which to stand. Under all these circumstances, there is no question thatthis accident falls within the elevation risks contemplated by section 240 (1) (see Swiderska v New York Univ., 10NY3d 792 [2008]; DeKenipp vRockefeller Ctr., Inc., 60 AD3d 550 [2009]).
Guercio v Metlife Inc. (15AD3d 153 [2005], lv denied 5 NY3d 714 [2005]), upon which the motion courtrelied, did not involve the type of elevation-related accident present here. In Guercio, tocomplete his task of installing bathroom wall tile, the plaintiff had to reach, at most, 13 inchesabove his head. Here, in contrast, to elevate the electric cable above the path of workers andvehicles passing through the construction area, plaintiff affixed the wire to a 13-to-15-foot-talltrailer. Defendants are unpersuasive in arguing that plaintiffs' claim should be dismissed merelybecause Robles had in the past tossed electric wire over the trees while standing on the ground,especially in the absence of any showing that those prior circumstances involved a constructionproject with equipment and workers below.
It is well established that there can be no liability under Labor Law § 240 (1) wherethe plaintiff's actions are the sole proximate cause of his or her injuries (Robinson v East Med. Ctr., LP, 6NY3d 550, 554 [2006]; Montgomery v Federal Express Corp., 4 NY3d 805, 806 [2005]).The motion court found that plaintiff was the sole proximate cause of the accident because heconstructed his own scaffold and ignored the available safety devices on the site. However, therecord does not establish whether such devices, in fact, were available to him and that he chosefor no good reason not to use them (cf.Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35, 40 [2004]; Gallagher v New York Post, 55 AD3d488, 490 [2008]).
The injured plaintiff acknowledged that if he needed any type of equipment, he knew hecould call Technical's owners and it would be delivered later in the day or the next morning.Plaintiff did not recall whether he ever requested the delivery of any such equipment on this job.Moreover, even if plaintiff had called, the record is unclear as to exactly where the equipmentwas stored prior to delivery, the time frame for delivering something as simple as a ladder, andwhether any delay in obtaining a ladder or other safety device would impact the overallconstruction project. Plaintiff's sparse testimony on the general procedure for obtainingequipment is insufficient to establish as a matter of law whether a ladder or other safety devicewas "readily available" (Montgomery, 4 NY3d at 806).
This case is controlled by Miro vPlaza Constr. Corp. (9 NY3d 948 [2007]), where the plaintiff had slipped and fallen offa ladder partially covered with sprayed-on fireproofing [*3]material. Despite having knowledge of the ladder's deficiencies, theplaintiff did not request a different ladder, conceding that he could have obtained a replacementladder by calling his employer, although the record was unclear as to whether replacementladders were on the job site or at an off-site location. The majority of this Court had dismissedthe plaintiff's Labor Law § 240 (1) claim on the basis that he knowingly chose to use adefective ladder despite being aware that he could have requested his employer to provide areplacement (38 AD3d 454 [2007]). The Court of Appeals modified and reinstated the section240 (1) claim because, even assuming that the ladder was unsafe, it was not clear from the recordhow easily a replacement ladder could have been procured. Likewise here, there is an issue offact as to how easily plaintiff could have obtained a ladder or other safety device, and neitherparty should have been granted summary judgment on the section 240 (1) claim.
The motion court properly dismissed the Labor Law § 241 (6) claim. Most of the citedsections of the Industrial Code are either too general to confer liability or not applicable to thefacts of this case. Furthermore, to the extent plaintiffs allege violation of Industrial Code sectionspertaining to scaffolds, no liability exists because the gravamen of their claim is that no safetydevice was provided, not that an inadequate scaffold provided by either defendant led to thisaccident.
The motion court correctly dismissed plaintiffs' Labor Law § 200 and common-lawnegligence claims. The evidence showed only that Robles furnished the injured plaintiff with anelectrical cable, suggested that he throw it over the trees, and stated that he would return to makethe necessary connection to the power source. This advice is not tantamount to supervising themeans and methods of plaintiff's work, nor does it establish constructive or actual notice of anyallegedly dangerous condition, particularly where Robles had no reason to believe the workerwould proceed to construct a makeshift scaffold from which he would throw the cord (seeCarty v Port Auth. of N.Y. & N.J., 32 AD3d 732 [2006]).
The motion court's order was limited to dismissal of the main action, and the third-partyplaintiff did not file a notice of appeal. Thus, any arguments concerning the third-party action arenot properly before us. Concur—Gonzalez, P.J., Mazzarelli, Saxe, Moskowitz and Richter,JJ.