| Rought v Price Chopper Operating Co., Inc. |
| 2010 NY Slip Op 04492 [73 AD3d 1414] |
| May 27, 2010 |
| Appellate Division, Third Department |
| Walter Rought, Respondent, v Price Chopper Operating Company,Inc., Doing Business as Price Chopper Market Center, et al.,Appellants. |
—[*1] Brecher, Fishman, Pasternack, Walsh, Tilker & Ziegler, P.C., New York City (StuartDiamond of Diamond & Diamond, L.L.C., New York City, of counsel), for respondent.
Lahtinen, J. Appeal from an order of the Supreme Court (Ledina, J.), entered April 1, 2009in Sullivan County, which partially denied defendants' motion for summary judgment dismissingthe complaint.
Plaintiff was employed as an electrician by Demco New York Corporation, a subcontractorfor defendant Konover Construction Corporation, the general contractor, at a construction siteowned by defendants Price Chopper Operating Company, Inc. and Golub Corporation(hereinafter collectively referred to as the owners). Demco's supervisor jerry-rigged a system tomove heavy commercial wire into place by using a forklift as a power source to pull a rope overtwo pulleys and through a conduit mounted on the walls of the electrical room of the buildingunder construction. The conduit included turns as it ran up to the ceiling, across the ceiling andthen down on the other side of the room. The wires were initially pulled by two men from a largespool on the floor up to the electrical room more than 10 feet above. A bundle of wrapped wireswas then lifted or pushed by plaintiff into the beginning of the conduit, which initially ran fourfeet straight up to the ceiling. The rope pulled up on the wires from inside the conduit as plaintiffstood under the conduit and pushed the bundle of wires up. When the wires [*2]reached the first turn in the conduit above plaintiff's head, the ropebroke, resulting in the bundle of wires recoiling and falling back onto plaintiff, allegedly causinghim to twist, fall and sustain injuries. He commenced this action against defendants allegingnegligence and violations of Labor Law §§ 200, 240 (1) and § 241 (6). Whendefendants moved for summary judgment, Supreme Court partially granted the motion bydismissing the Labor Law § 240 (1) cause of action, but denied it as to the other causes ofaction. Only defendants appeal.
We turn first to defendants' contention that they should have been granted summaryjudgment dismissing plaintiff's Labor Law § 241 (6) cause of action. "[T]he proponent of asummary judgment motion must make a prima facie showing of entitlement to judgment as amatter of law, tendering sufficient evidence to demonstrate the absence of any material issues offact," and "[t]he evidence produced by the movant must be viewed in the light most favorable tothe nonmovant, affording the nonmovant every favorable inference" (Walton v AlbanyCommunity Dev. Agency, 279 AD2d 93, 94-95 [2001] [internal quotation marks andcitations omitted]; see Sainato v City of Albany, 285 AD2d 708, 710 [2001]; Baker vInternational Paper Co., 226 AD2d 1007, 1008 [1996]). The pertinent provisions of theLabor Law are liberally construed to ensure safety at construction sites (see Bland vManocherian, 66 NY2d 452, 459 [1985]). An allegation of a violation of a specific safetyregulation can give rise to a viable cause of action under Labor Law § 241 (6) (see Misicki v Caradonna, 12 NY3d511, 515 [2009]; Morris v PavariniConstr., 9 NY3d 47, 51 [2007]; Hotaling v Corning Inc., 12 AD3d 1064, 1065 [2004]).
The allegations regarding the condition of the rope—which had broken several timesprior to the accident and was repaired with knots—are adequate to implicate a regulationthat sets forth sufficient specificity to give rise to a viable Labor Law § 241 (6) cause ofaction (see 12 NYCRR 23-6.2 [a] [1], [2]; see generally Morris v PavariniConstr., 9 NY3d at 50).[FN*]Plaintiff asserted in his bill of particulars that the rope snapped under "the heavy weight andtension" and the bundled wires struck him with "great weight and force." While frictionundoubtedly played a role in the rope's failure, the record reveals allegations that the danger towhich plaintiff was exposed (i.e., falling wires) also had a gravity-related component.Defendants did not produce proof challenging plaintiff's characterization of the weight of thebundle of wires. Nor did they submit sufficient evidence—expert or otherwise—toestablish as a matter of law that gravity was [*3]not a substantialcontributing cause of the wires falling four feet and striking plaintiff.
The location of the wires directly above plaintiff, together with the configuration of thepulley system and the initial vertical pull of four feet, constituted adequate assertions that thewires were being hoisted when the accident occurred (see Hayden v 845 UN Ltd.Partnership, 304 AD2d 499, 500 [2003]). Since the forklift was being used as a substitutepower source for hoisting and pulling materials with a rope (and not for its intended use at a jobsite), the general exception for forklifts (see 12 NYCRR 23-6.1 [a])—which aregoverned by other regulations (see 12 NYCRR 23-9.8)—does not, as urged bydefendants, lead to the conclusion that the hoisting regulations are totally inapplicable (cf. St. Louis v Town of N. Elba, 70AD3d 1250, 1251 [2010]). Defendants failed to establish that they were entitled to summaryjudgment on the Labor Law § 241 (6) cause of action and, thus, we agree with SupremeCourt's decision not to dismiss that cause of action (see Picchione v Sweet Constr. Corp., 60 AD3d 510, 512 [2009];Giordano v Forest City RatnerCos., 43 AD3d 1106, 1108 [2007]).
Next, we consider defendants' argument that plaintiff's Labor Law § 200 andcommon-law negligence causes of action should have been dismissed. In order to prevail onthese claims, plaintiff "must establish that the owner or contractor both exercised supervisorycontrol over the operation and had actual or constructive knowledge of the unsafe manner inwhich the work was being performed" (Lyon v Kuhn, 279 AD2d 760, 761 [2001]; see Biance v Columbia WashingtonVentures, LLC, 12 AD3d 926, 927 [2004]). Here, Konover's project superintendenttestified that he had been on site on the day of plaintiff's accident and he had the authority to stopthe work if, in his opinion, it was not being performed in a safe manner. There also is evidencethat Konover provided the forklift and pulleys being used by Demco, and that Konover's projectsuperintendent directed Demco's workers to replace a barricade and reposition the pulleys duringthe operation. This evidence creates a question of fact as to whether Konover exercised therequisite supervisory control over plaintiff's work (see Rizzuto v L.A. Wenger Contr.Co., 91 NY2d 343, 352-353 [1998]; Detraglia v Blue Circle Cement Co., 7 AD3d 872, 874 [2004]). Asfor the owners, however, there is no evidence that they exercised any supervision or control overthe work activity that brought about plaintiff's injury and, accordingly, the common-lawnegligence and Labor Law § 200 claims against them must be dismissed (see Comes vNew York State Elec. & Gas Corp., 82 NY2d 876, 877-878 [1993]; Fassett v Wegmans Food Mkts., Inc.,66 AD3d 1274, 1276 [2009]).
The remaining arguments have been considered and found to be unavailing.
Mercure, J.P., and Spain, J., concur.
Rose, J. (concurring in part and dissenting in part). We respectfully dissent from the viewthat regulations meant to protect workers from the hazards of material hoisting operations shouldbe applied to the process of installing electrical wires by fishing or pulling them through conduit.There is no evidence that the forklift, rope and pulleys employed here were actually lifting orsuspending the wires that recoiled and caused plaintiff's fall.
Supreme Court correctly summarized the record regarding this issue in its discussion of theLabor Law § 240 (1) cause of action as follows: "Even though the forklift was on thelower [*4]floor, it was being used only to apply the force neededto pull the wires through a 90 degree angle of pipe located on the mezzanine, not raise the wiresfrom one level to another." This finding is plainly inconsistent with the usual definition ofmaterial hoisting as the lifting or suspension of a load (see generally Hayden v 845 UN Ltd.Partnership, 304 AD2d 499, 500 [2003]; Mattison v Wilmot, 228 AD2d 991, 993[1996], lv denied 89 NY2d 917 [1996]). In addition, plaintiff's own description of whathe and his crew were doing demonstrates that they were not hoisting a load of materials.
Plaintiff's deposition, which is the only evidence of how the accident occurred, establishesquite clearly that the forklift tightened up the rope and applied force to the wires only afterplaintiff had pushed them up to the first 90 degree turn. The force applied to the wires at the turnthen built up so much tension that, when the rope broke, the wire came flying back "because itwas like a spring." In addition, the mere allegation in a bill of particulars verified only bycounsel that the rope snapped under "the heavy weight and tension" and that the bundled wiresstruck him with "great weight and force" is insufficient to raise a question of fact as to whetherthe weight of the wire or the force of gravity caused plaintiff's injuries (see Gibbons vHantman, 58 AD2d 108, 110 [1977], affd 43 NY2d 941 [1978]). Rather, the recordshows that the rope broke due to the resistence of the first 90 degree turn.
Overcoming resistence caused by the wires rubbing against the conduit's inside surface is thevery purpose of a motorized cable tugger, which plaintiff described as the normal and only safeway to perform this kind of work. Plaintiff explained that a day or two earlier, he and his crewhad been able to pull the main feed wires to an outside transformer by pushing the wires througha conduit from upstairs in the building down to a 90 degree turn at ground level where they werepulled through the turn by a forklift at ground level. However, for the more difficult inside taskof pulling the sub-feed wires through three 90 degree turns, plaintiff testified that a tugger wasneeded because "every time that wire hits one of them 90s, it like double or triples the resistencebecause you have to take it around the 90s." To now hold, as the majority does, that pulling onthe wires at the top of a short vertical section of conduit makes this a hoisting operation wouldplace us in the tenuous position of applying the regulation only when the wire being pulledencounters resistance while moving upward as opposed to moving horizontally or downward,situations where the forces applied and dangers created are identical in all meaningful respects.Moreover, there is no allegation or evidence that a crane, hoist or other device normally used tolift or hold materials at an elevated height should have been used here.
Accordingly, we cannot agree that the equipment employed here constituted "materialhoisting equipment" covered by 12 NYCRR subpart 23-6 (see Flihan v Cornell Univ.,280 AD2d 994, 994 [2001]; Smith v Homart Dev. Co., 237 AD2d 77, 80 [1997]; Wood v State of New York, 2 Misc 3d931, 934 [2003]). For that reason, none of the regulations contained in that subpart isapplicable and the Labor Law § 241 (6) cause of action should have been dismissed.
Stein, J., concurs. Ordered that the order is modified, on the law, without costs, by reversingso much [*5]thereof as denied defendants' motion for summaryjudgment dismissing the common-law negligence and Labor Law § 200 causes of actionagainst defendants Price Chopper Operating Company, Inc. and Golub Corporation; motiongranted to that extent and said causes of action dismissed against said defendants; and, as somodified, affirmed.
Footnote *: In Narrow v Crane-HoganStructural Sys. (202 AD2d 841, 842 [1994]), the plaintiffs failed to allege any regulations intheir complaint or bill of particulars and, in response to the defendants' summary judgmentmotion, they asserted a broad allegation to all of 12 NYCRR subpart 23-6. Since that subpartcontains within its sections many provisions, some setting forth general safety standards (seee.g. Schwab v A.J. Martini, Inc., 288 AD2d 654, 656 [2001], lv denied 97 NY2d 609[2002]) and others containing concrete specifications (see e.g. Rissel v Nornew EnergySupply, 281 AD2d 880, 881 [2001]), merely citing to the entire subpart was insufficient todefeat summary judgment. However, setting forth specific provisions from thatsubpart—if concrete and relevant—can, as here, defeat summary dismissal (see e.g. Cruci v General Elec. Co., 33AD3d 838, 839 [2006]; Hayden v 845 UN Ltd. Partnership, 304 AD2d 499, 500[2003]).