| Cardenas v One State St., LLC |
| 2009 NY Slip Op 08961 [68 AD3d 436] |
| December 3, 2009 |
| Appellate Division, First Department |
| Jose Cardenas, Respondent-Appellant, v One State Street,LLC, Appellant-Respondent. |
—[*1] O'Dwyer & Bernstien, LLP, New York (Steven Aripotch of counsel), forrespondent-appellant.
Order, Supreme Court, New York County (Milton A. Tingling, J.), entered December 22,2008, which denied defendant's motion for summary judgment dismissing the complaint anddenied plaintiff's cross motion for summary judgment on the issue of liability on his Labor Law§ 240 (1) and § 241 (6) causes of action, unanimously modified, on the law, themotion granted to the extent of dismissing the Labor Law § 200 and common-lawnegligence causes of action, the cross motion granted with respect to section 240 (1), andotherwise affirmed, without costs.
Contrary to defendant's contention, plaintiff was exposed to an elevation-related hazardwhen he was instructed to pry from the wall an 80-pound,three-foot-high-by-five-foot-wide-by-one-foot-deep electrical panel that was positioned six orseven feet above the ground, and lower it to the floor. He was thereby engaging in an activitycovered by section 240 (1) (see Francisv Foremost Contr. Corp., 47 AD3d 672 [2008]). Plaintiff testified that the panel was tooheavy and bulky to hold in his hands as he was removing and lowering it, and that the only wayto get it down without a hoist or other safety device was to pry it from the wall with a crowbarand let it fall to the ground through the force of gravity. Such an activity clearly posed asignificant risk to plaintiff's safety due to the position of the heavy electrical panel above theground, even if such elevation differential was slight, and was thus a task where a hoisting orsecuring device of the kind enumerated in the statute was indeed necessary and expectedprecisely because the object was too heavy to be hoisted or secured by hand (see Brown v VJB Constr. Corp., 50AD3d 373 [2008]; Mendoza vBayridge Parkway Assoc., LLC, 38 AD3d 505 [2007]; Salinas v Barney Skanska Constr. Co.,2 AD3d 619 [2003]). Moreover, plaintiff offered uncontroverted evidence that he was notprovided with any safety equipment to aid in accomplishing the task he was instructed toperform, and that the failure to provide any such device was the proximate cause of his injuries(see Mendoza and Salinas, supra). Plaintiff testified that, when the electricalpanel separated from the wall, the electrical conduit stubs connected to the top of the panelcollided with the pipes that ran horizontally beneath the ceiling, redirecting the panel so thatinstead of falling away from plaintiff, it fell onto his left arm and shoulder, causing severe injury.Defendant's argument—that plaintiff's admitted failure to test the electrical panel prior toapplying force with the crowbar [*2]was the sole proximate causeof his accident—is unavailing because no evidence was presented remotely suggestingthat plaintiff had adequate safety devices available, that he knew they were available and he wasexpected to use them, that he chose for no good reason not to do so, or that had he not made thatchoice he would not have been injured (see Kosavick v Tishman Constr. Corp. of N.Y., 50 AD3d 287, 288[2008]).
Plaintiff has conceded that he has no viable claims under section 200 and for common-lawnegligence. The undisputed evidence demonstrates that defendant did not supervise, direct orcontrol plaintiff's work (see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 505[1993]).
On the other hand, the section 241 (6) cause of action raises triable issues of fact. Plaintiffabandoned any reliance on the various provisions of the Industrial Code cited in his bill ofparticulars by failing to address them either in the motion court or on appeal, except forIndustrial Code (12 NYCRR) § 23-3.3 (c), which mandates regular inspections "to detectany hazards to any person resulting from weakened or deteriorated floors or walls or fromloosened material" during "hand demolition operations," and further requires that protectionagainst any such discovered hazards be provided by "shoring, bracing or other effective means."We have held that section 23-3.3 (c) creates a specific standard of care, violation of which canestablish liability under Labor Law § 241 (6) (see Gawel v Consolidated Edison Co. ofN.Y., 237 AD2d 138 [1997]). Plaintiff established that defendant violated the rule by failingto designate an individual to conduct the required inspections, and that the "loosened material"language of the rule could cover the electrical panel allegedly improperly secured to the wall. Itis not possible to discern on this record whether the work being performed at the buildingamounted to "demolition" within the general meaning of Industrial Code § 23-3.3, orwhether any specific violation of section 23-3.3 (c) was the proximate cause of plaintiff'sinjuries. "Demolition" is defined in the Code as "work incidental to or associated with the totalor partial dismantling or razing of a building or other structure including the removing ordismantling of machinery or other equipment" (12 NYCRR 23-1.4 [b] [16]). Our decisions haverequired that in order to constitute demolition within the meaning of section 23-3.3, the workmust involve "changes to the structural integrity of the building" as opposed to mere renovationof the interior (Solis v 32 Sixth Ave.Co. LLC, 38 AD3d 389, 390 [2007]; see also Baranello v Rudin Mgt. Co., 13 AD3d 245, 246 [2004],lv denied 5 NY3d 706 [2005]). The evidence presented on the motion did not establishconclusively that the asbestos removal project being carried out at One State Street amounted todemolition within the meaning of the Code. Concur—Saxe, J.P., Friedman, Acosta,Renwick and Abdus-Salaam, JJ.