| La Veglia v St. Francis Hosp. |
| 2010 NY Slip Op 08902 [78 AD3d 1123] |
| November 30, 2010 |
| Appellate Division, Second Department |
| Michael La Veglia, Appellant-Respondent, v St. FrancisHospital et al., Defendants, and Orthopedic Associates of Dutchess County, P.C.,Respondent-Appellant. |
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In an action to recover damages for personal injuries, the plaintiff appeals, as limited by hisbrief, from so much of an order of the Supreme Court, Dutchess County (Dolan, J.), dated March4, 2009, as granted those branches of the motion of the defendant Orthopedic Associates ofDutchess County, P.C., which were for summary judgment dismissing the common-lawnegligence, Labor Law § 200, and Labor Law § 240 (1) causes of action, and somuch of the Labor Law § 241 (6) cause of action as was predicated on an alleged violationof 12 NYCRR 23-2.1 (b) insofar as asserted against that defendant, and denied his cross motionfor summary judgment on the issue of liability on the Labor Law § 240 (1) cause of actioninsofar as asserted against that defendant, and the defendant Orthopedic Associates of DutchessCounty, P.C., cross-appeals, as limited by its brief, from so much of the same order as denied thatbranch of its motion which was for summary judgment dismissing so much of the Labor Law§ 241 (6) cause of action as was predicated on alleged violations of 12 NYCRR 23-1.20and 23-3.3 insofar as asserted against it.
Ordered that order is modified, on the law, (1) by deleting the provision thereof granting thatbranch of the motion of the defendant Orthopedic Associates of Dutchess County, P.C., whichwas for summary judgment dismissing the Labor Law § 240 (1) cause of action insofar asasserted against it, and substituting therefor a provision denying that branch of the motion, (2) bydeleting the provision thereof denying that branch of the plaintiff's cross motion which was forsummary judgment on the issue of liability on the Labor Law § 240 (1) cause of actioninsofar as asserted against the defendant Orthopedic Associates of Dutchess County, P.C., andsubstituting therefor a provision granting that branch of the cross motion, and (3) by deleting theprovision thereof denying that branch of the motion of the defendant Orthopedic Associates ofDutchess County, P.C., which was for summary judgment dismissing so much of the Labor Law§ 241 (6) cause of action as was predicated on violations of 12 NYCRR 23-1.20 and23-3.3 insofar as asserted against it, and substituting therefor a provision granting that branch ofthe motion; as so modified, the order is affirmed insofar as appealed and cross-appealed from,with one bill of costs to the plaintiff.
In August 2004 the plaintiff was working as a carpenter on a project involving renovation[*2]of office space for the lessee of that space, the defendantOrthopedic Associates of Dutchess County, P.C. (hereinafter the defendant). The plaintiff allegedthat debris, including metal studs 10 to 12 feet long, were thrown down a chute from the fourthfloor of the subject building, and that he was responsible for unclogging the bottom of the chuteon the ground floor. He further alleged that he was injured when, while clearing the chute, he wasstruck on the hand and lower arm by one of those metal studs that had either been (a) depositedinto the chute on the fourth floor and fell down the interior of the chute before striking him as heworked on the ground floor, (b) deposited into the chute on the fourth floor, and became blockedby a stud lodged near the bottom of the chute, but again began to fall when the plaintiff dislodgedthe lower stud, or (c) lodged near the bottom of the chute, but had become dislodged whenanother metal stud fell several stories down the interior of the chute and struck it. He commencedthis action against, among others, the defendant, alleging common-law negligence and violationsof Labor Law §§ 200, 240 (1) and § 241 (6). The defendant moved forsummary judgment dismissing the complaint insofar as asserted against it, and the plaintiffcross-moved for summary judgment on the issue of liability against the defendant on the LaborLaw § 240 (1) cause of action. The Supreme Court granted those branches of thedefendant's motion which were for summary judgment dismissing the common-law negligence,Labor Law § 200, and Labor Law § 240 (1) causes of action insofar as assertedagainst it, and so much of the Labor Law § 241 (6) cause of action as was predicated on aviolation of 12 NYCRR 23-2.1 (b) insofar as asserted against it. The Supreme Court, however,denied that branch of the defendant's motion which was for summary judgment dismissing somuch of the Labor Law § 241 (6) cause of action as was predicated on violations of 12NYCRR 23-1.20 and 23-3.3 insofar as asserted against it. The Supreme Court also denied theplaintiff's cross motion for summary judgment on the issue of liability on the Labor Law §240 (1) cause of action insofar as asserted against the defendant. The plaintiff appeals and thedefendant cross-appeals from those portions of the order which were adverse to them. Wemodify.
Labor Law § 200 codifies the common-law duty imposed upon an owner or generalcontractor to provide construction and demolition workers with a safe place to work (seeRussin v Louis N. Picciano & Son, 54 NY2d 311, 316-317 [1981]). When a plaintiff's claimsrelate to the means and methods of the work, an owner may not he held liable under Labor Law§ 200 unless it had the authority to supervise or control the performance of the work(see Ortega v Puccia, 57 AD3d 54, 61 [2008]). General supervisory authority for thepurpose of overseeing the progress of the work is insufficient to impose liability under the statute(id. at 62). An owner has the authority to supervise or control the work for purposes ofthe statute when it is responsible for the manner in which the work is performed (id.).Here, the defendant established, prima facie, that it did not have the authority to control themeans or methods by which the plaintiff performed his work (see Enos v Werlatone, Inc.,68 AD3d 712, 713 [2009]). In opposition, the plaintiff failed to raise a triable issue of fact(see Ortega v Puccia, 57 AD3d at 63). Accordingly, the Supreme Court properly grantedthat branch of the defendant's motion which was for summary judgment dismissing the LaborLaw § 200 and common-law negligence causes of action insofar as asserted against it(id.; see Cooper v State of New York, 72 AD3d 633, 635 [2010]).
"Labor Law § 241 (6) imposes a nondelegable duty upon owners and contractors toprovide reasonable and adequate protection and safety to construction workers . . .In order to recover damages on a cause of action alleging a violation of Labor Law § 241(6), a plaintiff must establish the violation of an Industrial Code provision which sets forthspecific safety standards" (Hricus v Aurora Contrs., Inc., 63 AD3d 1004, 1005 [2009][internal quotation marks omitted]). To establish liability under Labor Law § 241 (6), aplaintiff must demonstrate that his injuries were proximately caused by a violation of anIndustrial Code provision "mandating compliance with concrete specifications" (Ross vCurtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 505 [1993]; see Mercado v TPT BrooklynAssoc., LLC, 38 AD3d 732, 734 [2007]). Here, the plaintiff alleged violations of 12 NYCRR23-2.1 (b), 23-3.3 and 23-1.20. The Supreme Court properly held that the defendant was entitledto summary judgment dismissing so much of the Labor Law § 241 (6) cause of action aswas predicated on a violation of 12 NYCRR 23-2.1 (b) because that provision is too general, andnot a sufficiently specific directive necessary to support a cause of action under Labor Law§ 241 (6) (see Madir v 21-23 Maiden Lane Realty, LLC, 9 AD3d 450, 452 [2004];Salinas v Barney Skanska Constr. Co., 2 AD3d 619, 622 [2003]). The Supreme Court,however, erred in denying that branch of the defendant's motion which was for summaryjudgment dismissing so much of the Labor Law § 241 (6) cause of action as waspredicated on violations of 12 NYCRR 23-1.20 and 23-3.3. The defendant established its primafacie entitlement to judgment as a matter of law by submitting the affidavit of an expert, who[*3]opined that there was no violation of those provisions andthat any violation was not a proximate cause of the plaintiff's injuries. In opposition, the plaintifffailed to raise a triable issue of fact as to whether any alleged violation was a proximate cause ofhis injuries (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).
Nonetheless, that branch of the defendant's motion which was for summary judgmentdismissing the cause of action under Labor Law § 240 (1) insofar as asserted against itshould have been denied, and that branch of the plaintiff's cross motion which was for summaryjudgment on the issue of liability on that cause of action insofar as asserted against the defendantshould have been granted. Labor Law § 240 (1) was designed to provide "exceptionalprotection" for workers against the "special hazards" which stem from a work site that is eitherelevated or positioned below the level where materials are hoisted or secured (Ross vCurtis-Palmer Hydro-Elec. Co., 81 NY2d at 501-502 [internal quotation marks omitted])."[T]he purpose of the strict liability statute is to protect construction workers not from routineworkplace risks, but from the pronounced risks arising from construction work site elevationdifferentials, and, accordingly . . . there will be no liability under the statute unlessthe injury producing accident is attributable to the latter sort of risk" (Runner v New YorkStock Exch., Inc., 13 NY3d 599, 603 [2009]). Nevertheless, the statute is " 'to be construedas liberally as may be for the accomplishment of the purpose for which it was thus framed' "(Rocovich v Consolidated Edison Co., 78 NY2d 509, 513 [1991], quoting Quigley vThatcher, 207 NY 66, 68 [1912]). The Court of Appeals has recently stated that "the singledecisive question is whether plaintiff's injuries were the direct consequence of a failure toprovide adequate protection against a risk arising from a physically significant elevationdifferential" (Runner v New York Stock Exch., Inc., 13 NY3d at 603).
With respect to that branch of its motion which was for summary judgment dismissing theLabor Law § 240 (1) claim insofar as asserted against it, the defendant failed to establish,prima facie, that the disposal of the debris and studs was not encompassed within that section(see Karapati v K.J. Rocchio, Inc., 12 AD3d 413, 415 [2004]; cf. Novak v DelSavio, 64 AD3d 636, 638 [2009]). The plaintiff, however, established his prima facieentitlement to judgment as a matter of law on the issue of liability on his cause of action underLabor Law § 240 (1) insofar as asserted against the defendant. The debris that was beingremoved from the fourth floor was thrown down a chute, and the plaintiff alleged that his injurieswere caused by the descent of a 10-to-12-foot-long metal stud from the fourthfloor—either striking him directly or striking a lodged stud that became dislodged andthereafter struck him—or by a metal stud falling from above or atop another metal studthat he was in the process of removing from the chute. These scenarios implicate the protectionsof Labor Law § 240 (1), because, in any of these situations, the plaintiff's injuries werecaused either by the inadequacy of the chute in protecting him from the elevation-related riskresulting from the disposal of the debris down that chute, or the failure to employ hoists, pulleys,or scaffolds for the removal of the debris, which might have provided the necessary protection(see Baker v Barron's Educ. Serv. Corp., 248 AD2d 655 [1998]; cf. Roberts v GeneralElec. Co., 97 NY2d 737, 738 [2002]; Narducci v Manhasset Bay Assoc., 96 NY2d259, 268-269 [2001]). In opposition, the defendant failed to raise a triable issue of fact (seeErnest v Pleasantville Union Free School Dist., 28 AD3d 419 [2006]). Fisher, J.P., Covello,Hall and Sgroi, JJ., concur.