| Torkel v NYU Hosps. Ctr. |
| 2009 NY Slip Op 05254 [63 AD3d 587] |
| June 25, 2009 |
| Appellate Division, First Department |
| Mark Torkel, Respondent, v NYU Hospitals Center et al.,Appellants. (And a Third-Party Action.) |
—[*1] Bisogno & Meyerson, Brooklyn (Elizabeth Mark Meyerson of counsel), forrespondent.
Order, Supreme Court, New York County (Debra A. James, J.), entered September 11, 2008,which denied defendants' motion for summary judgment dismissing the complaint (except as toplaintiff's claim under Labor Law § 241 [6] based on Industrial Code [12 NYCRR]§ 23-2.1 [b]) and, upon a search of the record, granted summary judgment in favor ofplaintiff on the issue of liability under Labor Law § 240 (1), modified, on the law, to theextent of dismissing plaintiff's claims under Labor Law § 240 (1) and § 241 (6), andotherwise affirmed, without costs.
Plaintiff was employed by third-party defendant Rite-Way Internal Removal, Inc.(Rite-Way), which had been engaged as a subcontractor by defendant HRH Construction (HRH)to haul debris away from a work site on the ground floor of a medical school building where anew magnetic resonance imaging research facility was being installed. HRH was employed asthe general contractor and construction manager on the project, defendant New York University(NYU) owns the premises, and the other defendants are NYU affiliates. The constructionagreement between NYU and HRH required the latter to hire subcontractors to perform thework, which included keeping the work site "free at all times from unreasonable accumulation ofwaste material or rubbish" caused by the project. A June 2002 transmittal letter from HRH todefendant NYU Hospitals Center indicates that HRH had contracted with Rite-Way to perform"[d]emolition" work on the project, and other correspondence from HRH to Rite-Way reflectsHRH's intent to award Rite-Way a contract for the work. A form of contract for the work byRite-Way is also included in the record.
The construction debris from the project was removed from the site and taken to the street inRite-Way's wheeled containers, which typically held about 250 pounds of material. HRHemployees, with plaintiff's regular help, loaded the containers. Rite-Way employees would haulthe debris away by truck about once a day, sometimes after an HRH employee had called andrequested a pickup. The Rite-Way employees would drive a truck to the work site and, using awinch affixed to the truck, raise the containers and dump the debris into it.
On March 19, 2004, plaintiff, who had been sent to the work site by Rite-Way dispatchers,was injured while rolling a filled container from the work site to his truck parked on [*2]the street. When plaintiff arrived, he observed that athree-quarter-inch-thick sheet of plywood had been laid down as a makeshift ramp to bridge thegap in height between the edge of the work site, at curb level, and the street, which was lowerthan usual because the surface layer of asphalt had been removed during ongoing repaving. Theplywood was not braced or supported from beneath. Plaintiff stated that the height differentialbetween the bridged levels was "[a]nywhere between 12 and 18 inches, give or take a few."While plaintiff was maneuvering the container down the plywood ramp, the ramp collapsed,causing the container to spill concrete debris onto plaintiff's leg and fall over onto the sidewalk.Plaintiff was injured while trying to regain control of the container and keep it from tipping over.
Upon defendants' motion for summary judgment, the motion court searched the record andgranted summary judgment to plaintiff as to liability under Labor Law § 240 (1), anddenied summary judgment to defendants with respect to the claims under Labor Law§§ 200 and 241 (6), to the extent the latter were based on Industrial Code (12NYCRR) § 23-1.7 (f) and § 23-1.22 (b) (2). The court granted summary judgment todefendants with respect to plaintiff's claim based on Industrial Code § 23-2.1 (b) anddenied it with respect to the Labor Law § 200 and common-law negligence claims.
Labor Law § 240 (1) provides in relevant part: "All contractors and owners and theiragents . . . in the . . . demolition [or] altering . . . of abuilding or structure shall furnish or erect, or cause to be furnished or erected for theperformance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys,braces, irons, ropes, and other devices which shall be so constructed, placed and operated as togive proper protection to a person so employed." Section 240 (1) imposes absolute liability onowners, contractors and their agents for injury proximately caused by a breach of the statutoryduty (Gordon v Eastern Ry. Supply, 82 NY2d 555, 559 [1993]). The hazards that warrantthe protection contemplated by the statute are "those related to the effects of gravity whereprotective devices are called for . . . because of a difference between the elevationlevel of the required work and a lower level" (Rocovich v Consolidated Edison Co., 78NY2d 509, 514 [1991]).
As a threshold matter, the only argument defendants made to the motion court for dismissingthe section 240 (1) claim is that plaintiff was not exposed to the type of elevation-related hazardcontemplated by the statute. However, in its order, the court stated that "[w]ith respect toplaintiff's Labor Law 240 claim defendants argue that the plaintiff was not engaged in an activityrequiring protection. Defendants' argument is meritless. Defendants' foreman stated that plaintiffregularly assisted in moving the carts from the building to the truck. This work was carried outas part of a construction contract between defendants including the third-party defendant,plaintiff's employer. Defendants also do not deny that a ramp was necessary to move the cartsbetween the height differential of the loading dock, the curb and the street although thatdifferential was only over one foot high due to construction occurring on the roadway andsidewalk. Therefore, defendants were required to provide appropriate safety devices." Here thecourt not only addressed and rejected defendants' argument that plaintiff was not exposed to anelevation-related hazard, but also raised new matter sua sponte. The court's findings that plaintiffmoved containers from the building to the truck and that he performed his work pursuant to acontract between defendants, including his employer, have no bearing on [*3]whether his work presented an elevation-related hazard, which wasthe only argument before the court with respect to whether plaintiff was "engaged in an activityrequiring protection" under section 240 (1).
On appeal, defendants contend for the first time that the statute is inapplicable becauseplaintiff was not engaged in any of the enumerated activities set forth in the statute or in workthat was "incidental and necessary" to the performance of those activities. Whatever its merit,this new argument is not properly before this Court because defendants' failure to raise it beforethe motion court deprived plaintiff of the opportunity to submit evidence with which to refute it(see e.g. Douglas Elliman-Gibbons & Ives v Kellerman, 172 AD2d 307, 308 [1991],lv denied 78 NY2d 856 [1991]).
However, given that the bottom of the ramp was resting on the street and the top was restingon the adjacent sidewalk curb, and the height differential from the bottom to the top was at most12 to 18 inches, we agree with defendants that plaintiff was not exposed to an elevation-relatedhazard as contemplated by section 240 (1) (see DeStefano v Amtad N.Y., 269 AD2d 229[2000] [ramp rising 12 inches from ground to building entrance did not present anelevation-related hazard]; DeMayo v 1000 N. of N.Y. Co., 246 AD2d 506 [1998][13-inch-high step from ground to shanty entrance not an elevation-related hazard]; cf.Arrasti v HRH Constr. LLC, 60 AD3d 582 [2009] [section 240 (1) claim stated whereplaintiff fell from ramp connecting concrete floor with hoist platform constructed about 18inches above floor]).
Plaintiff's Labor Law § 241 (6) claims predicated on Industrial Code (12 NYCRR)§ 23-1.7 (f) and § 23-1.22 (b) should have been dismissed. Section 23-1.7 (f) appliesto stairways, ramps and runways used "as the means of access to working levels above or belowground." The ramp in this case, which bridged the height differential between a sidewalk curband the adjacent road surface, did not provide access to an above- or below-ground working areawithin the meaning of the regulation.
We note that defendants' only argument to the motion court with respect to the section 23-1.7(f) claim was that they did not supply the ramp. However, since there is no dispute about how theramp was used, the question whether section 23-1.7 (f) applies presents an issue of law that isproperly before this Court (Buywise Holding, LLC v Harris, 31 AD3d 681, 682 [2006];see also Anderson v Carduner, 279 AD2d 369, 370 [2001]).
Section 23-1.22 (b) applies to ramps used by "motor trucks or heavier vehicles,""wheelbarrows, power buggies, hand carts or hand trucks" or by "persons only." The use of theramp in question as a means for workers to move wheeled dumpsters does not fall within theregulation's enumerated categories.
To support a finding of liability under Labor Law § 200, which codifies thecommon-law duty of an owner or general contractor to provide a safe work site (see Perrinov Entergy Nuclear Indian Point 3, LLC, 48 AD3d 229 [2008]), a plaintiff must show that thedefendant supervised and controlled the plaintiff's work, or had actual or constructive knowledgeof the alleged unsafe condition in an area over which it had supervision or control, or created theunsafe condition (see Espinosa v Azure Holdings II, LP, 58 AD3d 287, 290-291[2008]; Lane v Fratello Constr. Co., 52 AD3d 575, 576 [2008]; Hernandez vColumbus Ctr., LLC, 50 AD3d 597, 598 [2008]; Griffin v New York City Tr. Auth.,16 AD3d 202, 202-203 [2005]; Murphy v Columbia Univ., 4 AD3d 200, 201-202[2004]).
Defendants argue that they cannot be liable under section 200 because plaintiff failed toshow that they supervised or controlled his work. As evidence of control, however, plaintiff[*4]submitted testimony from an HRH foreman that HRH wasresponsible for moving the containers to the Rite-Way trucks parked on the street and thatsometimes plaintiff and other Rite-Way employees moved the containers because "basicallywe're trying to help each other." This testimony, when coupled with HRH's contractualobligation to have rubbish removed from the project site, creates an issue of fact as to control.
In addition, plaintiff made a prima facie showing that HRH was responsible for or was awareof the dangerous condition. The NYU defendants failed to meet their initial burden on thesummary judgment motion by showing lack of responsibility or awareness.
Contrary to the dissent's assertion that plaintiff offers "no evidence as to how the piece ofplywood came to be placed where it was," the HRH foreman testified that (1) the ramps used tomove the containers to the street were made of "whatever you can find to use," (2) the ramp thatcaused the accident was made of plywood that "was probably taken out of one of the dumpsters"at the site, (3) during the four- or five-day period between the time the top surface of theroadway was stripped (making a ramp necessary to move the containers from the curb to thestreet) and plaintiff's accident, the foreman alone moved the containers to the trucks, and (4) tomove the containers, "[y]ou find a piece of plywood, piece of steel, piece of tin and you put it onthe curb." These statements, coupled with plaintiff's testimony that the ramp was in place whenhe arrived, could lead a finder of fact reasonably to conclude that it was more likely than not thatsomeone under defendants' control laid down the plywood and thereby created the dangerouscondition. Concur—Moskowitz, Renwick and Freedman, JJ.
Andrias, J.P., and Nardelli, J., concur in part and dissent in part in a separate memorandumby Andrias, J.P., as follows: In this action to recover for personal injuries suffered by plaintiff onMarch 19, 2004 as he was using a roughly three-foot-by-two-to-four-foot piece ofthree-quarter-inch plywood as a makeshift ramp to push a minicontainer of construction debrisfrom the freight entrance of a building at 660 First Avenue in Manhattan to his refuse removaltruck, we all agree that defendants are entitled to summary judgment dismissing plaintiff's causesof action alleging violations of Labor Law § 240 (1) and § 241 (6). However, Iwould dismiss those causes of action for additional reasons, and I therefore concur separately.Because plaintiff also failed to present evidence sufficient to raise a question of fact regardinghis Labor Law § 200 and common-law negligence causes of action, I dissent from themajority's sustaining of those causes of action and would reverse and grant defendants' motion inits entirety and dismiss the complaint.
While there are some differences in the testimony of the only two fact witnesses, plaintiffand defendant HRH Construction's laborer foreman Arthur Covelli, all parties agree that theoperative facts, which derive from their testimony, are not in dispute. At the time of the accident,plaintiff was a driver for third-party defendant Rite-Way Internal Removal, Inc., and his job onthe day in question was to pick up minicontainers filled with construction debris at variouslocations. Covelli, whom plaintiff knew only as "Artie," was in charge of collecting the debris,putting it in the minicontainers provided by Rite-Way, and placing the minicontainers out on thesidewalk to be picked up.
According to plaintiff, no one other than the Rite-Way dispatcher directed, supervised orcontrolled his activities on a daily basis. On the morning in question, he was given a route sheet[*5]by his dispatcher listing the locations at which he was tomake pickups that day. One of these was 660 First Avenue, where HRH was the generalcontractor and construction manager of a project for the complete renovation of 2,700 square feetof the ground floor, including the Emergency Department of Radiology at the NYU MedicalCenter. Rite-Way was not performing any work at 660 First Avenue. Plaintiff was there simplyto pick up dumpsters.
Plaintiff testified at one point that when he first arrived at the site there were full containersof construction debris already outside the freight entrance at 660 First Avenue. However, atanother point he testified that when he arrived at the site he did not find dumpsters alreadyoutside the building.
Plaintiff gave the following account of his accident:
"I went to where the containers were by the freight area. I went to push a container, a mini,half yard mini container overloaded of [sic] concrete to the truck, and I went down amakeshift plywood ramp and the plywood ramp gave way.
"I tried to hold the container up and I couldn't since it was too heavy and that's how myinjury occurred."
The exact location of the piece of plywood and the height differential between the top andthe bottom are not entirely clear. Again, however, any differences in the witnesses' testimonyhave no legal significance.
Plaintiff testified that when he arrived at the site he double-parked his truck in front of a "cutsidewalk . . . [f]or a driveway" about 25 to 50 feet from the freight entrance and gotout. He then walked to the freight entrance, grabbed a container and pushed it outside. He had noproblem pushing the container to the piece of plywood, but as he pushed the overloadedcontainer down it the plywood "buckled. You heard it cracked [sic]." As the containertipped over on the sidewalk, either it or some of its contents grazed plaintiff's right leg, causinghim to twist his leg. Thus far, no one from HRH had been present or had spoken to him. Plaintifftestified that, after Covelli arrived at the scene, they and two other men who were working acrossthe street for either Consolidated Edison or the Department of Environmental Protection rightedthe dumpster. Covelli then wheeled it over to the truck, and plaintiff hooked up two chains and awinch cable and dumped the contents into the truck.
According to Covelli, his duties at HRH's job site were "general housekeeping." ("I have tomaintain the site so there's no tripping hazard, rubbish on the floor for fire, rodents. And removalof all the rubbish that's on the floor.") He also testified that his duties were limited to the insideof the building. ("Inside the building I am responsible for, outside the building I am notresponsible. If there is a sign from the telephone people or bus stop I'm not responsible for that.But inside the building, yes.") Covelli testified that, at about 9:00 or 10:00 a.m. on the day inquestion, he filled up six or seven minicontainers with construction debris, moved them from thework site and lined them up on the sidewalk up against the building, where they waited to bepicked up. Sometime later that morning, Rite-Way's dispatcher radioed him while he was in thebuilding's basement and told him that the truck was outside to pick up the containers. ("Usuallythey blow the horn on the truck and you can come down to the street. I happened to be in thebasement. They usually reached me by radio.") Covelli told the dispatcher he would be right upand went up to the street, where he saw plaintiff in the middle of the driveway, sitting on an[*6]overturned container. Plaintiff told him that he thought hehad hurt his knee. Covelli then helped plaintiff right the container and pick up the spilled debris.They dumped the rest of the containers into the Rite-Way truck, and plaintiff drove off.
The minicontainers, which contained approximately 250 pounds of debris, were usuallylined up near the freight entrance and were pushed 15 feet along the "very smooth" sidewalk to adriveway where plaintiff had parked his truck. Normally the containers were simply pusheddown the driveway into the street without assistance because there was about a two-to-four-inchdifferential between the street and the steel curb of the driveway apron. However, because ConEdison had stripped the asphalt from the street down to the concrete four or five days earlier,prior to repaving it, there was a six-to-eight-inch differential between the steel curb and thesurface of the street. As a result, for the four or five days preceding plaintiff's accident, Covelliused a piece of plywood, steel or tin as a makeshift ramp to facilitate pushing the minicontainersdown the driveway to street level, where they were hooked up to a winch by a Rite-Wayemployee, who emptied the contents into the truck. After all the containers were emptied, themakeshift ramp would be picked up and thrown into the back of the truck to be discarded.
The containers were picked up on a daily basis by various Rite-Way drivers. Sometimes thedriver would help Covelli push the containers to the truck; sometimes he would not help.
"It's basically we're trying to help each other. I want the containers emptied and they want toget to their next stop. So we try and help each other. We push the container to the truck, we helphim that way and then he dumps it and tries to get it done as quick as he can.
"Q. So it wouldn't be out of the ordinary for them to pull the full dumpster toward the truckto assist in the dumping?
"A. That's correct. It's done every day."
According to Covelli, plaintiff's duties were to operate the truck and dump the contents ofthe container into the back of the truck. "When he arrives on the job site, we're supposed to bringthe containers to the truck, we help him hook them up to the truck because there are some cables.He operates the truck which dumps the container with the rubbish in it . . . [W]henhe is done he will remove the cables and he is finished." When asked if before the accident heever told plaintiff not to help with the dumpsters, he replied, "No, sir." He also testified thatRite-Way had no employees who actually worked in the building and that Rite-Way employeeswere there solely to pick up rubbish. Usually HRH employees took the containers to the truckbut "[s]ometimes" plaintiff also took containers to the truck.
HRH, and the NYU defendants, the owner of the premises, moved for summary judgmentdismissing the complaint on the ground that there is no evidence that plaintiff's accident resultedfrom the effects of gravity as required by Labor Law § 240 (1); that no liability can attachunder Labor Law § 200 because there is no evidence that HRH or the NYU defendantssupervised or controlled plaintiff's activities at the time of the accident; that the Industrial Codesections underlying plaintiff's Labor Law § 241 (6) claim are inapplicable to the facts ofthis case; and, that if plaintiff's Labor Law claims are dismissed, his common-law negligenceclaims should also be dismissed, because there is no evidence that defendants caused hisaccident.
As in all summary judgment motions, once the movants establish prima facie entitlement[*7]to judgment as a matter of law, the burden shifts to theopposing party to present sufficient evidence either to raise a substantial question of factwarranting a trial or to establish its entitlement to judgment as a matter of law. Therefore, sincein his opposition plaintiff agreed that there is no dispute as to the relevant facts, the issue for themotion court to decide was whether the agreed-upon facts were sufficient to impose liabilityupon defendants as a matter of law.
As to his Labor Law § 240 (1) claim, plaintiff argued, in pertinent part, that the pieceof plywood failed to give him proper protection in the task of wheeling the container over asignificant height gap of 12 to 18 inches, as shown by the fact that it collapsed while in use andcaused his injuries. In support of his Labor Law § 200 claim, plaintiff's sole argument wasthat defendants presented no evidence that they did not control his work since they failed toproffer any contract or witness in support of their claim that plaintiff acted without their controlwhen he used the makeshift ramp. As to his Labor Law § 241 (6) claim, plaintiff offeredan affidavit by his safety expert opining that defendants violated Industrial Code (12 NYCRR)§§ 23-2.1, 23-1.22 and 23-1.7 (f).
The motion court denied defendants' motion and, upon searching the record, granted plaintiffsummary judgment on his Labor Law § 240 (1) claim, based upon his uncontradictedtestimony that the plywood ramp gave way. Citing McCann v Central Synagogue (280AD2d 298, 299-300 [2001]), the motion court reasoned that defendants were liable under anyinterpretation of the facts, that is, if they provided the plywood, then the statute is violatedbecause of a defective safety device, and, if they failed to provide the plywood, then that failureis also a violation of the statute. As to plaintiff's Labor Law § 200 claim, the court foundthat Covelli's testimony "that when plaintiff assisted in moving the carts the foreman did not stophim from doing so . . . creates an issue of fact as to the defendants' control over theplaintiff's work as plaintiff's actions were performed in full view of the testifying foreman whoalso assisted plaintiff in moving the carts." The court also found that Industrial Code (12NYCRR) § 23-1.7 (f) and § 23-1.22 (b) are sufficiently specific to support liabilityunder Labor Law § 241 (6).
Defendants appeal, and argue that plaintiff was not performing a protected activity since hewas merely at the site to pick up debris; that the piece of plywood cannot be called an "elevatedwork surface" since none of the safety devices enumerated in section 240 (1) could have beenused on the plywood to allow plaintiff to perform the work more safely; and that plaintiff wasnot injured when he fell from a height or when a load being hoisted above him fell upon him butwas struck by an object at the same height as the one he was working on. They further argue thatthe alleged Industrial Code violations are not applicable to the facts of this case since plaintiffwas not using the plywood as a means of accessing any working levels above or below ground atthe site and that plaintiff has failed to present any evidence that defendants exercised any degreeof actual supervision or control over the work being performed at the time of the accident.
As to his section 240 (1) claim, plaintiff responds that the motion court properly concludedthat the collapse of a makeshift ramp bridging a gap of 12 to 18 inches constitutes a violation ofthe statute, based on Covelli's testimony that a ramp was needed at the drop where the drivewaycurb met the roadway. He also argues that defendants fail to even mention McCann v CentralSynagogue (280 AD2d 298, 299-300 [2001]) or Conklin v Triborough Bridge & TunnelAuth. (49 AD3d 320, 321 [2008]), relied upon by the motion court, and that their claim[*8]that removing construction debris from a work site is not aprotected activity under Labor Law § 240 (1) is being raised for the first time on appealand is contrary to this Court's decision in Rivera v Squibb Corp. (184 AD2d 239 [1992]).Plaintiff further argues that there is ample evidence supporting his Labor Law § 241 (6)claim and that Covelli's testimony establishes that HRH controlled the work of moving thedumpsters and created the dangerous condition by allowing the use of the unsecured plywood asa ramp, in violation of Labor Law § 200.
Plaintiff relies heavily on this Court's decision in Rivera for the proposition thatremoving debris is an integral part of a construction project. However, all the relevant facts arenot set forth in our memorandum decision in Rivera. An examination of the appellaterecord demonstrates, as discussed below, that the relevant facts in that case are readilydistinguishable.
In avoiding any discussion of Rivera, which is extensively briefed by the parties, themajority adopts plaintiff's argument that defendants' claim that removing construction debrisfrom a work site is not a protected activity under Labor Law § 240 (1) is raised for the firsttime on appeal. However, this conclusion is belied not only by the motion court's decision, whichspecifically notes that "[w]ith respect to plaintiff's Labor Law 240 claim defendants argue thatthe plaintiff was not engaged in an activity requiring protection," but also by the parties'appellate briefs, which frame the primary issue presented as whether plaintiff was engaged in aprotected activity under Labor Law § 240 (1) at the time of his accident. There is nothingin the motion court's decision or in the record to support the majority's conclusion that themotion court "raised new matter sua sponte" or in any way did not decide the issues as presentedby the parties. Clearly, the question of whether plaintiff was engaged in work covered by section240 was raised and decided below. Nevertheless, although it declines to reach that argument, themajority rejects plaintiff's Labor Law § 240 (1) claim on other grounds.
In Rivera (184 AD2d 239 [1992]), an employee of a subcontractor performingdemolition work on the 25th through 27th floors of an office building was assigned to help afellow employee empty the contents of 14 dumpsters into their employer's garbage truck. To doso, the truck was equipped with a mechanism to which the loaded dumpsters were attached by ametal rod and then hoisted and their contents dumped into the garbage truck. The containerswere located on the loading dock on the ground floor of the building. The accident occurredwhen debris became stuck in one of the containers that was being hoisted. Plaintiff attempted toloosen the debris and had his arms inside the container when his coworker pulled the lever toactivate the hoist. Plaintiff was lifted off the ground with the container until his coworkerrealized the problem and stopped the hoist and brought it back down. In the process, plaintiff fellto the ground and was injured.
First, unlike the plaintiff here, Rivera was an employee of the demolition subcontractor thatwas actually performing the demolition work in the building at the time of the accident and thuswas a member of a team within the meaning of Prats v Port Auth. of N.Y. & N.J. (100NY2d 878, 882 [2003]). As the court stated in Prats, explaining Martinez v City ofNew York (93 NY2d 322 [1999]), where there are separate, sequential phases in a particularproject, involving different employees working for different contractors, work being performedduring "a separate phase easily distinguishable from other parts of the larger constructionproject" may therefore fall outside the protection of Labor Law § 240 (100 NY2d at 881).In Prats, the plaintiff, an assistant mechanic employed by the air-conditioning contractor,was hit by a falling ladder on which his coworker was inspecting an air-conditioning return fan.The Court held that such inspections fell within the purview of Labor Law § 240 (1)because they "were ongoing and contemporaneous [*9]with theother work that formed part of a single contract" (100 NY2d at 881).
Here, on the other hand, the record is clear that, at the time of plaintiff's accident, plaintiff'semployer, Rite-Way, was not hired to perform any demolition work on the premises, and thework being performed by plaintiff fell into "a separate phase easily distinguishable from otherparts of the larger construction project." Plaintiff was not a person "employed" to carry out anydemolition work and was there merely to pick up garbage. Thus, unlike the plaintiffs inRivera and Prats, he was not within the class of workers that Labor Law§§ 200, 240 and 241 were enacted to protect and cannot invoke these provisions as abasis for recovery (see Martinez, 93 NY2d at 326; Gibson v Worthington Div. ofMcGraw-Edison Co., 78 NY2d 1108, 1109-1110 [1991]).
Among the issues presented in Rivera was whether Labor Law § 200 applied,given the fact that the injuries occurred away from the actual demolition work site. In affirmingthe denial of summary judgment to defendants, this Court found that the debris removal processwas part of the construction job site and was accorded the protections of the Labor Law (184AD2d at 240). Although not specifically spelled out, this conclusion necessarily implicatedLabor Law § 200 (1), which requires owners and general contractors to provideconstruction site workers with a safe place to work and mandates that "[a]ll machinery,equipment, and devices in such places shall be so placed, operated, guarded, and lighted as toprovide reasonable and adequate protection to all such persons," i.e., "persons employed thereinor lawfully frequenting such places." The plaintiff in Rivera alleged that the hoistingmechanism was not properly operated. This Court also found that there was a question of factwhether there was a violation of Labor Law § 240 (1), which was clearly applicable sinceplaintiff, an employee of the subcontractor that was actually doing the demolition work at thetime of the accident, was injured in the process of hoisting the dumpster into the truck. Here,there was no hoisting involved, and plaintiff was merely pushing the minicontainer when itoverturned.
Thus, although the intent of section 240 (1) is to protect workers employed in the actsenumerated in the statute (here, construction), "even while performing duties ancillary to thoseacts," there is absolutely no evidence that plaintiff was a "member of a team that undertook anenumerated activity under a construction contract" (Prats, 100 NY2d at 882). Nor was heemployed by defendant HRH, the general contractor, or any subcontractor actively working onthe project. Rather, he was simply picking up debris that HRH employees put in Rite-Way'sminicontainers to be emptied by plaintiff into Rite-Way's truck.
Moreover, although removal of debris may be a necessary part of any construction ordemolition process, "the question whether a particular [activity (e.g., an inspection or, as in thiscase, removal of debris)] falls within section 240 (1) must be determined on a case-by-case basis,depending on the context of the work" (Prats, 100 NY2d at 883). In Prats, theCourt found that a confluence of factors brought the plaintiff's activity within the statute: hisposition as a mechanic who routinely undertook an enumerated activity, his employment with acompany engaged under a contract to carry out an enumerated activity, and his participation inan enumerated activity during the specific project and at the same site where the injury occurred(id.). None of these factors is present in this case. As this Court noted in Adair vBestek Light. & Staging Corp. (298 AD2d 153, 153 [2002]), "[t]he Court of Appeals, inholding that 'the task in which an injured employee was engaged must have been performedduring "the erection, demolition, repairing, altering, painting, cleaning or pointing of a buildingor structure" ' in order to fall within the statute (Martinez v City of New York, 93 NY2d322, 326), has expressly [*10]rejected an 'integral and necessary'test as 'improperly enlarg[ing] the reach of the statute beyond its clear terms' (id.)."Clearly, at the time of the accident, plaintiff was not participating in an activity enumerated inLabor Law § 240 (1).
Even assuming arguendo that plaintiff was engaged in an enumerated activity, it is wellsettled that the "special hazards" against which the Legislature intended to protect workers underLabor Law § 240 are limited to such specific gravity-related accidents as falling from aheight or being struck by a falling object that was improperly hoisted or inadequately secured(see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 500-501 [1993]). While thereis no "bright-line" test regarding height differentials (see Thompson v St. CharlesCondominiums, 303 AD2d 152, 154 [2003], lv dismissed 100 NY2d 556 [2003]),height differentials are significant in determining whether the work being done required the useof "scaffold[s], hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, [or] ropes"(Labor Law § 240 [1]). Here, the work required no such protective devices.
Viewing the evidence in the light most favorable to plaintiff, the record establishes that (1)he was not part of a "team" involved in an activity requiring protection; (2) he was neversupervised or directed by HRH or NYU in his work; and (3) rather than wait for an HRHemployee, he undertook to push the minicontainer to his truck using a piece of plywood that wasalready in place as a makeshift ramp to make it easier to push the minicontainer to street level.There is absolutely no evidence as to how the piece of plywood came to be placed where it was.
Nevertheless, citing Conklin v Triborough Bridge & Tunnel Auth. (49 AD3d 320,321 [2008], supra), the motion court found that since defendants did not deny that themakeshift ramp was necessary to move the minicontainers through the height differentials of theloading dock, the curb and the street, they were required to provide appropriate safety devices.However, Conklin is readily distinguishable in that the so-called ramp or "chickenladder" in that case consisted of two 10- or 12-foot-long planks with two-by-fours nailed acrossthe planks at approximately 20-inch intervals, to act as rungs or crosspieces, and was laid on a45-degree slope to provide the sole means of access to the plaintiff's employer's shanty. Toaccess the shanty, the worker first had to climb down an aluminum ladder backwards, turn orzigzag at its base, and then go forward eight feet down the chicken ladder to the shanty. Clearly,not only the height differential involved, but also its use as the functional equivalent of a ladder,a device enumerated in the statute, brought the chicken ladder within the ambit of Labor Law§ 240 (Ryan v Morse Diesel, 98 AD2d 615, 615-616 [1983] ["The rule of noscitura sociis limits the construction of the 'other devices' of the statute to the company of the specificwords preceding it . . . (i.e.,) a scaffold, hoist, stay, ladder, sling, hanger, block,pulley, brace, iron or rope"]), and this Court found that defendants' failure to equip the chickenladder with a handrail or other safety device was the proximate cause of the plaintiff's injuries.
Here, on the other hand, whether accepting plaintiff's or Covelli's description, the heightdifferential between the top end and bottom end of the piece of plywood was, at most, 18 inches.Such height differentials have been found insufficient to implicate Labor Law § 240(see e.g. DeStefano v Amtad N.Y., 269 AD2d 229 [2000] [no cause of action underLabor Law § 240 (1) since the ramp that was positioned at building entrance and rose to amaximum of 12 inches did not present elevation hazard]). Indeed, where, as here, a plank, wasused as a temporary passageway or stairway, as opposed to the functional equivalent of a deviceenumerated in the statute, section 240 (1) has been held not to apply (see Paul v RyanHomes, 5 AD3d 58, 60-61[*11][2004]).
As noted above, the motion court, citing McCann v Central Synagogue (280 AD2d298, 299-300 [2001]), nevertheless reasoned that defendants were liable under any interpretationof the facts. However, in McCann, the plaintiff was pushing a bin filled with debris up anunbarricaded wooden ramp four to eight feet high when he fell. This Court found that the issuewas not whether the ramp itself was a safety device but whether it was constructed andmaintained with adequate safety devices, such as railings or safety curbs.
As to plaintiff's Labor Law § 241 (6) claim, the sections of the Industrial Code herelies upon are not applicable to the facts of his case. While plaintiff argues that the piece ofplywood in issue did not meet the two-inch thickness requirement in Industrial Code (12NYCRR) § 23-1.22 (b), the piece of plywood is not the type of ramp, runway or platformcontemplated by that section. Moreover, Industrial Code § 23-1.7 (f), entitled "Verticalpassage," merely provides that "[s]tairways, ramps or runways shall be provided as themeans of access to working levels above or below ground except where the nature or theprogress of the work prevents their installation in which case ladders or other safe means ofaccess shall be provided" (emphasis added). Clearly, the ramps, stairways or runwayscontemplated by the statute are of such a nature that, in their absence, a ladder would benecessary to access different working levels (compare Lelek v Verizon N.Y., Inc., 54AD3d 583, 584-585 [2008] [failure to provide safe access from highway overpass to woodendeck three feet below]; Conklin, 49 AD3d at 321 [10-to-12-foot "chicken ladder" laid on45-degree slope as sole means of access to employer's shanty]; Miano v Skyline New HomesCorp., 37 AD3d 563, 565 [2007] [failure to provide safe means of access to basementapartment of newly constructed house]). Here, there is no claim, and there is no basis in therecord for any claim, that plaintiff's activities required a means of access to another workinglevel within the meaning of Industrial Code § 23-1.7 (f) (see Lavore v Kir MunseyPark 020, LLC, 40 AD3d 711, 713 [2007], lv denied 10 NY3d 701 [2008] [utilitybin on side of truck not a working level above ground requiring a stairway, ramp, or runwayunder that section]).
That leaves only plaintiff's Labor Law § 200 and common-law negligence claims.
With regard to these claims, the majority rightly asserts that, to support a finding of liability,plaintiff must show that defendants supervised or controlled plaintiff's work or had actual orconstructive knowledge of the alleged unsafe condition in an area over which they hadsupervision or control, or created the unsafe condition (Griffin v New York City Tr.Auth., 16 AD3d 202, 202-203 [2005]). Curiously, however, although the majority finds thatthe fact that plaintiff was performing his work pursuant to a contract between HRH andRite-Way has no bearing on his Labor Law § 240 (1) claim, it nevertheless finds, withregard to his Labor Law § 200 claim, that Covelli's testimony that he was responsible formoving the containers to the Rite-Way trucks parked on the street and that "sometimes" plaintiffand other Rite-Way employees moved the containers (because "basically we're trying to helpeach other"), "when coupled with HRH's contractual obligation to have rubbish removed fromthe project site, creates an issue of fact as to control." I disagree.
While there is a February 11, 2002 subcontract in the record calling for Rite-Way to perform$13,500 in demolition work for NYU's Emergency Department radiology renovation project,neither the parties nor the motion court allude to it and there is no evidence that such demolitionwork was being performed more than two years later on March 19, 2004, the date of plaintiff'saccident. In fact, both plaintiff and Covelli testified at their depositions that on the day of theaccident Rite-Way was not performing any work at that location and that plaintiff was [*12]there simply to pick up dumpsters.
Any argument that the parties' conduct, i.e., cooperating in the removal of the constructiondebris, evidences a contractual relationship that supports a finding that plaintiff's activity wasprotected is not only unpersuasive, but also is not raised by plaintiff on appeal. Plaintiff's onlyarguments on appeal with regard to his Labor Law § 200 claim are that the motion courtcorrectly found that issues of fact were presented since defendants "proffered neither a contractnor a witness to describe the NYU Defendants' contractual roles," and that Covelli testified thathe had a practice of using debris as makeshift ramps prior to plaintiff's accident, that he knewthat Rite-Way drivers, in the spirit of getting the work done quickly and efficiently, would movethe debris-filled containers to the truck, and that he never told plaintiff to stop.
Plaintiff knew nothing about any contract. Covelli, when asked whether there was a writtencontract or whether it was done by phone, responded: "I think it is done verbally." None of thecontracts in the record address the agreement or course of conduct, whether written or oral,whereby Rite-Way would pick up any construction debris when necessary and haul it away. Bothwitnesses testified that plaintiff was there simply to pick up garbage ("Q. They [Rite-Way] hadno employees who actually worked inside the building do [sic] any demolition or otherwork? A. [Covelli]. No, sir"). As noted above, 660 First Avenue was only one of a number oflocations at which plaintiff was scheduled to make pickups that day.
As to HRH's control and supervision of plaintiff's work, the majority is aware that the solebasis for the motion court's finding that there was a question of fact as to defendants' control overplaintiff's work was that "the foreman [Covelli] testified that when plaintiff assisted in movingthe carts the foreman did not stop him from doing so." The majority does not adopt thisquestionable rationale, which relies upon a double negative, since it is also aware that bothplaintiff and Covelli consistently testified that Covelli never supervised plaintiff's work in anyway. Nevertheless, the majority would still find that Covelli's testimony that in the past plaintiffsometimes helped HRH employees move the containers to the truck (with HRH's implicitacquiescence), because "basically we're trying to help each other," when coupled with hisstatement that it was HRH's responsibility to move the containers to the street, creates an issue offact as to control and notice. This conclusion totally misses the point regarding control andsupervision. To impose liability on an owner or general contractor under Labor Law §200, there must be a showing that the owner or general contractor directly oversaw orcontrolled the actual work in which plaintiff was engaged at the time of his injury (see DeSimone v Structure Tone, 306 AD2d 90, 91 [2003]; Hughesv Tishman Constr. Corp., 40 AD3d 305, 306 [2007]). Clearly, even if there were a questionof past supervision, which there is not, there is no such showing with regard to plaintiff'sactivities on the day of the accident. Finally, inasmuch as neither plaintiff nor the majoritymentions his claim of common-law negligence, I assume that they agree that there is no evidencesupporting that claim. Thus, defendants should have been granted summary judgment dismissingplaintiff's Labor Law § 200 and common-law negligence claims.[*13]
Accordingly, for all the foregoing reasons, summaryjudgment should be granted and the complaint dismissed in its entirety against all defendants.