| Smith v New York City Hous. Auth. |
| 2010 NY Slip Op 02540 [71 AD3d 985] |
| March 23, 2010 |
| Appellate Division, Second Department |
| Willie Smith et al., Respondents, v New York CityHousing Authority, Appellant, and Bovis Lend Lease, Inc., et al.,Respondents. |
—[*1]
In a consolidated action to recover damages for personal injuries, etc., the defendant NewYork City Housing Authority appeals, as limited by its brief, from so much of an order of theSupreme Court, Queens County (Satterfield, J.), dated April 27, 2009, as denied that branch ofits cross motion which was for summary judgment dismissing the cause of action allegingviolations of Labor Law § 241 (6) insofar as asserted against it and on its cross claim forcontractual indemnification against the defendants Bovis Lend Lease, Inc., and Bovis LendLease LMB, Inc.
Ordered that the order is modified, on the law, (1) by deleting the provision thereof denyingthat branch of the appellant's cross motion which was for summary judgment dismissing thecause of action alleging violations of Labor Law § 241 (6) insofar as asserted against itand substituting therefor a provision granting that branch of the cross motion, and (2) by addingthe words "as academic" following the words "The branch of NYCHA's cross motion forsummary judgment seeking contractual indemnification is denied"; as so modified, the order isaffirmed insofar as appealed from, with one bill of costs to the appellant, payable by theplaintiffs.
The injured plaintiff allegedly sustained personal injuries while performing demolition workat a New York City Housing Authority (hereinafter NYCHA) housing development in Queens.NYCHA had entered into a construction management agreement with the defendant Bovis LendLease LMB, Inc., the construction manager for the project. The injured plaintiff was anemployee of Zaffuto Construction Company, Inc., a general contractor hired by NYCHA.
The injured plaintiff alleged that, at the time of the subject accident, he was using ajackhammer to perform work demolishing a four-foot wall of a terrace as he stood on theplatform of some scaffolding. Specifically, he was using the jackhammer to chip away mortarsurrounding a cinder block in order to dislodge the block from the wall, when he observed thecinder block, which was still attached to [*2]either one or twoother cinder blocks, start to fall. The injured plaintiff tripped on some broken brick on theplatform while attempting to move out of the way. The cinder block on which he was working,along with the attached cinder blocks, fell on his foot, causing injury.
The injured plaintiff claimed that, generally, after broken brick and cinder block were piledup onto scaffolding, laborers would remove it. However, according to the injured plaintiff, thebroken brick and cinder block had not yet been removed from the scaffolding when the accidentoccurred.
The plaintiffs commenced one personal injury action against NYCHA and commenced aseparate personal injury action against the defendants Bovis Lend Lease, Inc., and Bovis LendLease LMB, Inc. (hereinafter together Bovis). Bovis Lend Lease LMB, Inc., alleges, however,that Bovis Lend Lease, Inc., is merely a company related to it, and not involved in the project.The two actions were consolidated. The plaintiffs alleged violations of Labor Law§§ 200, 240 (1) and § 241 (6), as well as common-law negligence.
Bovis moved for summary judgment dismissing the complaint and all cross claims insofar asasserted against it, and NYCHA cross-moved for summary judgment dismissing the complaintinsofar as asserted against it and on its cross claim for contractual indemnification against Bovis.
The Supreme Court granted Bovis's motion for summary judgment dismissing the complaintand all cross claims insofar as asserted against it. The Supreme Court also granted that branch ofNYCHA's cross motion which was for summary judgment dismissing the Labor Law§§ 200 and 240 (1), and common-law negligence causes of action, but denied thosebranches of NYCHA's cross motion which were for summary judgment dismissing the LaborLaw § 241 (6) cause of action, which was predicated on 12 NYCRR 23-1.7 (e) (2); 23-3.3(b) (3) and (c), and on its cross claim against Bovis for contractual indemnification, concludingthat there were triable issues of fact.
NYCHA demonstrated, prima facie, that 12 NYCRR 23-1.7 (e) (2), which requires ownersand contractors to maintain working areas free from tripping hazards such as, inter alia, debrisand scattered materials "insofar as may be consistent with the work being performed," did notapply to the facts of this case. The evidence submitted by NYCHA demonstrated that thematerials that the injured plaintiff alleges he tripped over were integral to the work beingperformed (see Solis v 32 Sixth Ave. Co. LLC, 38 AD3d 389 [2007]; Marinaccio vArlington Cent. School Dist., 40 AD3d 714 [2007]; Castillo v Starrett City, 4 AD3d320, 322 [2004]; Salinas v Barney Skanska Constr. Co., 2 AD3d 619, 620 [2003]; cf.Riley v J.A. Jones Contr., Inc., 54 AD3d 744, 745 [2008]).
NYCHA also demonstrated, prima facie, that 12 NYCRR 23-3.3 (c), governing inspections,did not apply to the facts of this case, as that regulation requires "continuing inspections againsthazards which are created by the progress of the demolition work itself," rather than inspectionsof how demolition would be performed (Campoverde v Bruckner Plaza Assoc., L.P., 50AD3d 836, 837 [2008] [internal quotation marks omitted]). The hazard which allegedly causedthe injured plaintiff's accident arose from the actual performance of the demolition work, notstructural instability caused by the progress of the demolition, the hazard sought to be avoided bythat provision of the Industrial Code. In addition, NYCHA demonstrated, prima facie, that 12NYCRR 23-3.3 (b) (3) did not apply to the facts of this case since the injured plaintiff testifiedthat he was hammering one of the particular cinder blocks that fell in order to dislodge it fromthe wall (id.; cf. Balladares v Southgate Owners Corp., 40 AD3d 667, 669[2007]; Bennett v SDS Holdings, 309 AD2d 1212 [2003]; Bald v Westfield Academy& Cent. School, 298 AD2d 881 [2002]).
In opposition to NYCHA's prima facie showing of entitlement to judgment as a matter oflaw, the plaintiffs failed to raise a triable issue of fact regarding the applicability of thoseprovisions of the Industrial Code. Accordingly, the Supreme Court should have awardedNYCHA summary judgment dismissing the cause of action alleging violations of Labor Law§ 241 (6) insofar as asserted against it (see generally Winegrad v New York Univ.Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d557, 562 [1980]).
In light of our determination that the branch of NYCHA's cross motion which was forsummary judgment dismissing the cause of action alleging violations of Labor Law § 241(6) insofar as asserted against it should have been granted, the Supreme Court should havedenied, as academic, that [*3]branch of NYCHA's cross motionwhich was for summary judgment on its cross claim against Bovis for contractualindemnification. Mastro, J.P., Leventhal, Lott and Austin, JJ., concur.