| Ferreira v City of New York |
| 2011 NY Slip Op 05660 [85 AD3d 1103] |
| June 28, 2011 |
| Appellate Division, Second Department |
| Maria H. Ferreira et al., Respondents-Appellants, v City ofNew York et al., Appellants-Respondents, and Ammann & Whitney, Inc., Respondent, et al.,Defendant. (And Third-Party Actions.) |
—[*1] Bournazos & Matarangas, P.C. (Pollack, Pollack, Isaac & De Cicco, New York, N.Y. [BrianJ. Isaac and Michael H. Zhu], of counsel), for respondents-appellants. Cohen, Kuhn & Associates, New York, N.Y. (Thomas C. Herbertson of counsel), fordefendant-respondent.
In an action to recover damages for personal injuries, the defendants City of New York, NewYork City Department of Transportation, New York City Department of Design andConstruction, AAH Construction, Corp., and Housing Preservation & Development appeal, aslimited by their brief, from so much of an order of the Supreme Court, Kings County (Partnow,J.), dated April 16, 2010, as, in effect, denied that branch of their motion which was for summaryjudgment dismissing the cause of action to recover damages for a violation of Labor Law §241 (6) based on an alleged violation of 12 NYCRR 23-9.5 (c) insofar as asserted against them,and the plaintiffs cross-appeal, as limited by their brief, from so much of the same order as, ineffect, granted those branches of the motion of said defendants and the separate motion of thedefendant Ammann & Whitney, Inc., also known as Ammann & Whitney Consulting, whichwere for summary judgment (1) dismissing the cause of action to recover damages for a violationof Labor Law § 241 (6) based on alleged violations of 12 NYCRR 23-4.2 (k) and 23-9.4(h) (4) insofar as asserted against them, and (2) dismissing the causes of action to recoverdamages for a violation of Labor Law § 200 and for common-law negligence insofar asasserted against them.
Ordered that the order is reversed insofar as appealed from, on the law, and that branch of themotion of the defendants City of New York, New York City Department of Transportation, NewYork City Department of Design and Construction, AAH Construction, Corp., and HousingPreservation & Development, which was for summary judgment dismissing the cause of actionto recover damages for a violation of Labor Law § 241 (6) based on an alleged violation of12 NYCRR 23-9.5 (c) insofar as asserted against them is granted; and it is further,
Ordered that the order is modified insofar as cross-appealed from, on the law, by deleting theprovision thereof, in effect, granting that branch of the motion of the defendants City [*2]of New York, New York City Department of Transportation, NewYork City Department of Design and Construction, AAH Construction, Corp., and HousingPreservation & Development, which was for summary judgment dismissing the cause of actionto recover damages for a violation of Labor Law § 241 (6) based on an alleged violation of12 NYCRR 23-4.2 (k) insofar as asserted against them, and substituting therefor a provisiondenying that branch of the motion; as so modified, the order is affirmed insofar as cross-appealedfrom; and it is further,
Ordered that one bill of costs is awarded to the defendant Ammann & Whitney, Inc., alsoknown as Ammann & Whitney Consulting, payable by the plaintiffs.
The plaintiffs' decedent, a laborer employed by Chelmsford Contracting Corp., was part of acrew that was installing new pedestrian ramps at the corner of Hegeman Avenue and Herzl Streetin Brooklyn. The decedent was fatally injured when he was pinned against a flatbed truck by theoutrigger of a backhoe.
Contrary to the plaintiff's contention, the defendant Ammann & Whitney, Inc., also known asAmmann & Whitney Consulting (hereinafter A&W), a professional engineer on the project,established its entitlement to judgment as a matter of law on the cause of action to recoverdamages for a violation of Labor Law § 241 (6). A professional engineer such as A&Wcannot be liable under this statute where, as here, it does not "direct or control the work foractivities other than planning and design" (Labor Law § 241 [9]; Becker v Tallamy,Van Kuren, Gertis & Assoc., 221 AD2d 1014 [1995]; Mazurowski v Sverdrup Corp.,212 AD2d 433 [1995]; Carter v Vollmer Assoc., 196 AD2d 754 [1993]). In opposition,the plaintiffs failed to raise a triable issue of fact.
Contrary to the plaintiffs' further contention, the defendants City of New York, New YorkCity Department of Transportation, New York City Department of Design and Construction,AAH Construction, Corp., and Housing Preservation & Development (hereinafter collectivelythe City defendants) demonstrated their prima facie entitlement to judgment as a matter of law onthe cause of action to recover damages for Labor Law § 241 (6) based on an allegedviolation of 12 NYCRR 23-9.4 (h) (4). The decedent, as a member of the work crew, was not an"unauthorized person" who would not be permitted to stand adjacent to the backhoe pursuant to12 NYCRR 23-9.4 (h) (4) (see Carroll vCounty of Erie, 48 AD3d 1076 [2008]; Mingle v Barone Dev. Corp., 283 AD2d1028 [2001]). The plaintiffs failed to raise a triable issue of fact in opposition to this showing.
However, the Supreme Court erred in, in effect, granting that branch of the City defendants'motion which was for summary judgment dismissing the cause of action to recover damages fora violation of Labor Law § 241 (6) based on an alleged violation of 12 NYCRR 23-4.2 (k).Contrary to the Supreme Court's conclusion, 12 NYCRR 23-4.2 (k) provides a sufficientpredicate for the imposition of liability pursuant to Labor Law § 241 (6) (see Garcia vSilver Oak USA, 298 AD2d 555 [2002]). Further, contrary to the City defendants'contention, inasmuch as that subsection applies to persons such as the decedent working in "anyarea where they may be struck or endangered by any excavation equipment," it is applicable tothe facts of this case (12 NYCRR 23-4.2 [k]).
The Supreme Court also erred in denying that branch of the City defendants' motion whichwas for summary judgment dismissing the cause of action to recover damages for a violation ofLabor Law § 241 (6) based on an alleged violation of 12 NYCRR 23-9.5 (c). The Citydefendants established their prima facie entitlement to judgment as a matter of law on that causeof action by demonstrating that 12 NYCRR 23-9.5 (c) was inapplicable to these facts because thedecedent's accident was not related to a "power shovel" or "dipper bucket" (12 NYCRR 23-9.5[c]; see Bourne v Utopia I, LLC, 39AD3d 445 [2007]). The plaintiffs failed to raise a triable issue of fact in opposition.
Contrary to the plaintiffs' contention, the motions of the City defendants and A&W forsummary judgment dismissing the causes of action to recover damages for a violation of LaborLaw § 200 and for common-law negligence were properly granted. Where, as here, aplaintiff's claim arises out of the means and methods of the work, an owner or general contractorcannot be liable under Labor Law § 200 unless it is shown that they had the authority tosupervise or control [*3]the performance of the work (see La Veglia v St. Francis Hosp., 78AD3d 1123, 1125 [2010]; Orellanav Dutcher Ave. Bldrs., Inc., 58 AD3d 612 [2009]; Duarte v State of New York, 57 AD3d 715, 716 [2008]; Ortega v Puccia, 57 AD3d 54, 61[2008]). The City defendants and A&W established their prima facie entitlement to judgment asa matter of law by demonstrating that they did not supervise or control the performance of thework that led to the decedent's injuries and death. In opposition, the plaintiff failed to raise atriable issue of fact. General supervisory authority for the purpose of overseeing the progress ofthe work and inspecting the work product is insufficient to impose liability (see La Veglia vSt. Francis Hosp., 78 AD3d at 1125; Ortega v Puccia, 57 AD3d at 62-63; McLeod v Corporation of Presiding Bishopof Church of Jesus Christ of Latter Day Sts., 41 AD3d 796 [2007]). Rivera, J.P., Skelos,Sgroi and Miller, JJ., concur. [Prior Case History: 2010 NY Slip Op 31037(U).]