| Novak v Del Savio |
| 2009 NY Slip Op 05849 [64 AD3d 636] |
| July 14, 2009 |
| Appellate Division, Second Department |
| Michael Novak et al., Respondents, v Raymond L. DelSavio et al., Appellants, and Hudson Meridian Construction Group, LLC, Defendant andThird-Party Plaintiff-Respondent. Delco Electrical Corp., Third-PartyDefendant-Appellant. |
—[*1] Ahmuty, Demers & McManus, Albertson, N.Y. (Brendan T. Fitzpatrick of counsel), forthird-party defendant-appellant. Kagan & Gertel, Brooklyn, N.Y. (Irving Gertel of counsel), forplaintiffs-respondents.
In an action to recover damages for personal injuries, etc., the defendants Raymond L. DelSavio and 304 W. 115, LLC, appeal, as limited by their brief, from so much of an order of theSupreme Court, Kings County (Schmidt, J.), entered June 27, 2008, as denied that branch of themotion of the defendant 304 W. 115, LLC, which was for summary judgment dismissing thecause of action to recover damages for violation of Labor Law § 240 (1) insofar asasserted against it, and granted the plaintiffs' cross motion for summary judgment on the issue ofliability on the cause of action to recover damages for violation of Labor Law § 240 (1)insofar as asserted against them, and (2) the third-party defendant, Delco Electrical Corp.,separately appeals, as limited by its brief, from so much of the same order as denied that branchof its separate cross motion which was, in effect, for summary judgment dismissing the cause ofaction to recover damages for violation of Labor Law § 240 (1) insofar as asserted againstthe defendant third-party plaintiff, Hudson Meridian Construction Group, LLC, and granted theplaintiffs' cross motion for summary judgment on the issue of liability on the cause of action torecover damages for violation of Labor Law § 240 (1) insofar as asserted against thedefendant third-party plaintiff.
Ordered that the appeal by the defendant Raymond L. Del Savio from so much of the orderas denied that branch of the motion of the defendant 304 W. 115, LLC, which was for summaryjudgment dismissing the cause of action to recover damages for violation of Labor Law §240 (1) insofar as asserted against it is dismissed, as he is not aggrieved by that portion of theorder (see CPLR 5511); and it is further,
Ordered that the order is reversed, on the law, the plaintiffs' cross motion for summaryjudgment on the issue of liability on the cause of action to recover damages for violation ofLabor Law § 240 (1) is denied, that branch of the motion of the defendant 304 W. 115,LLC, which [*2]was for summary judgment dismissing the causeof action to recover damages for violation of Labor Law § 240 (1) insofar as assertedagainst it is granted, and so much of the order as denied that branch of the cross motion of thethird-party defendant which was, in effect, for summary judgment dismissing the cause of actionto recover damages for violation of Labor Law § 240 (1) insofar as asserted against thedefendant third-party plaintiff is granted; and it is further,
Ordered that one bill of costs is awarded to the appellants appearing separately and filingseparate briefs.
The injured plaintiff Michael Novak was employed as an electrician by the third-partydefendant Delco Electrical Corp. On the date of the accident, the injured plaintiff was assignedto run galvanized pipe along the ceiling of the basement floor of a building which was underconstruction. As the injured plaintiff was standing on a ladder and preparing to install a pipe,which he had wedged at a height slightly above his head, the pipe came loose and fell, strikinghim on the side of his face.
The injured plaintiff and his wife, suing derivatively, subsequently commenced this actionagainst the building owner, the defendant 304 W. 115 LLC (hereinafter the owner), and itsmanager Raymond L. Del Savio, alleging, inter alia, violation of Labor Law § 240 (1).Also named as a defendant was the defendant third-party plaintiff Hudson Meridian ConstructionGroup, LLC (hereinafter Hudson), the general contractor on the construction project. Afterdepositions had been conducted, the owner moved for summary judgment dismissing thecomplaint insofar as asserted against it, and the third-party defendant cross-moved, inter alia, ineffect, for summary judgment dismissing the complaint insofar as asserted against Hudson. Theplaintiffs cross-moved for summary judgment on the issue of liability on the cause of action torecover damages for violation of Labor Law § 240 (1). The Supreme Court denied thatbranch of the owner's motion which was for summary judgment dismissing the Labor Law§ 240 (1) cause of action insofar as asserted against it, denied that branch of the third-partydefendant's cross motion which was, inter alia, in effect, for summary judgment dismissing theLabor Law § 240 (1) cause of action insofar as asserted against Hudson, and granted theplaintiffs' cross motion on the issue of liability on the Labor Law § 240 (1) cause of action.We disagree with the Supreme Court.
Labor Law § 240 (1) requires owners and contractors to provide workers withappropriate safety devices to protect against "such specific gravity-related accidents as fallingfrom a height or being struck by a falling object that was improperly hoisted or inadequatelysecured" (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [1993]). However,not every object that falls on a worker gives rise to the extraordinary protections of Labor Law§ 240 (1) (see Narducci v Manhasset Bay Assoc., 96 NY2d 259, 267 [2001]).Thus, in order to recover damages for violation of the statute, the "plaintiff must show more thansimply that an object fell causing injury to a worker." (Id., at 268.) A plaintiff must showthat, at the time the object fell, it was "being hoisted or secured" (Narducci v Manhasset BayAssoc., 96 NY2d at 268) or "required securing for the purposes of the undertaking" (Outar v City of New York, 5 NY3d731, 732 [2005]; see Quattrocchi vF.J. Sciame Constr. Corp., 11 NY3d 757, 758 [2008]). The plaintiff must also show thatthe object fell "because of the absence or inadequacy of a safety device of the kindenumerated in the statute" (Narducci v Manhasset Bay Assoc., 96 NY2d at 268). Here,the pipe which fell was not in the process of being hoisted or secured, and did not requiresecuring for the purpose of being affixed to the ceiling. Accordingly, the injured plaintiff'saccident did not result from the special hazards associated with gravity-related accidents coveredby Labor Law § 240 (1), and does not fall within the scope of that statute (seeNarducci v Manhasset Bay Assoc., 96 NY2d at 268; Marin v AP-Amsterdam 1661 Park LLC, 60 AD3d 824, 825[2009]; Atkinson v State of NewYork, 20 AD3d 739, 740 [2005]; Sierzputowski v City of New York, 14 AD3d 606, 607 [2005]; Sparkes v Berger, 11 AD3d 601,602 [2004]; Fegundes v New York Tel. Co., 285 AD2d 526, 527 [2001]). Accordingly,the injured plaintiff's accident does not fall within the scope of Labor Law § 240 (1).
In light of our determination, we need not reach Del Savio's alternative argument that hecannot be held personally liable for the owner's alleged statutory violation. Mastro, J.P.,Dickerson, Eng and Hall, JJ., concur.