| Medina v City of New York |
| 2011 NY Slip Op 06458 [87 AD3d 907] |
| September 15, 2011 |
| Appellate Division, First Department |
| Luis Medina, Appellant, v City of New York,Respondent. |
—[*1] Wallace D. Gossett, New York (Steve S. Efron of counsel), for respondent.
Judgment, Supreme Court, Bronx County (Mary Brigantti-Hughes, J.), entered March 1,2010, upon a directed verdict, dismissing the complaint, unanimously modified, on the law, toreinstate plaintiff's Labor Law § 241 (6) claim, the matter remanded for a new trial on saidclaim, and otherwise affirmed, without costs.
Plaintiff, an inspector for the New York City Transit Authority (TA), was injured onSeptember 17, 2005 while inspecting a subway rail. Plaintiff was standing on the track bed whena 12-foot section of the rail, unsecured and weakened by saw cuts, suddenly sprang upward andthen fell, striking his leg. Plaintiff brought this action asserting claims pursuant to, inter alia,Labor Law § 240 (1) and § 241 (6).
During the liability portion of the bifurcated trial, plaintiff testified that he was installing newtrack. He stated that this was part of a subway system modification project and not a repairproject to replace worn rails. At the time of his accident, plaintiff and his crew were attempting to"strip" and remove a rail.
The operating superintendent for the track department of TA testified at trial that during threeattempts to cut the rail, the saw blade jammed, indicating that the rail was expanding. Heexplained that the welded rails could expand significantly due to temperature variations, placingthe rails under significant compression tension. The superintendent testified that typically spikeanchors were installed every 10 feet to keep the rails from expanding and moving vertically orlaterally. However, his post-accident investigation revealed that there were no anchors in placealong a 600-foot section of rail that included the section where plaintiff was injured. Thesuperintendent testified that he did not know how long the anchors had been missing, but the factthat there were no anchors should have been discovered during twice-weekly track inspections.
The superintendent characterized plaintiff's work as "routine maintenance." However, helater conceded that the upgrade to the D subway line was part of a five-year signal improvementcontract, which entailed replacement of 400 to 500 obsolete signal rails that were incompatiblewith updated braking and signaling systems.
At the close of plaintiff's case, the parties moved for directed verdicts. Defendant contendedthat plaintiff was engaged in routine maintenance and that his work did not pose anelevation-related risk as contemplated by section 240 (1). Defendant further contended that withregard [*2]to the section 241 (6) claim, plaintiff was not engagedin "demolition" within the meaning of Industrial Code (12 NYCRR) § 23-3.3. Plaintiffargued that the work was "alteration" pursuant to section 240 (1) and/or "demolition," which iscovered by both sections of the Labor Law.
On March 1, 2010, a judgment on the verdict was entered in favor of defendant on theground that plaintiff's work was "routine maintenance" and therefore not within the scope of theLabor Law. For the reasons set forth below, we find that plaintiff's section 240 (1) claim wasproperly dismissed, but that the court erred in dismissing plaintiff's section 241 (6) claim.
A directed verdict may be rendered where the court finds that, "upon the evidence presented,there is no rational process by which the fact trier could base a finding in favor of the nonmovingparty" (Sorrentino v Fireman, 13AD3d 122, 123 [2004], quoting Szczerbiak v Pilat, 90 NY2d 553, 556 [1997]). Thefacts established at trial must be considered in the light most favorable to plaintiff, and the courtmust afford plaintiff every favorable inference which may properly be drawn from those facts(Sorrentino at 123; Villoch v Lindgren, 269 AD2d 271 [2000]). Applying thisstandard, defendant's motion for a directed verdict on plaintiff's Labor Law § 241 (6) claimshould have been denied.
In order to recover under section 241 (6), a plaintiff must demonstrate that there was aviolation of a specific regulatory provision of the Industrial Code which resulted in his injury(Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 350 [1998]). 12 NYCRR 23-3.3 (c),the section relied upon by plaintiff, requires "continuing inspections" during "hand demolitionoperations" to protect against hazards "resulting from weakened or deteriorated floors or walls orfrom loosened material." "Demolition" is defined in the Industrial Code as "work incidental to orassociated with the total or partial dismantling or razing of a . . . structure includingthe removing or dismantling of machinery or other equipment" (12 NYCRR 23-1.4 [b] [16]).
Under this definition, the removal and dismantling of the rail constituted demolition of astructure. The record supports the view that the repeated saw cuts loosened the rail, rendering itunstable. We find that on this record, the stressed rail was the kind of hazard contemplated bysection 23-3.3 (c) (see e.g. Wade vAtlantic Cooling Tower Servs., Inc., 56 AD3d 547 [2008]). We further find questions offact on the existing trial record as to whether defendant conducted the "continuing inspections"required by section 23-3.3 (c) (see e.g.Salinas v Barney Skanska Constr. Co., 2 AD3d 619, 622-623 [2003]).
Furthermore, uncontradicted testimony establishes that the rails at issue were being removedfor the purpose of upgrading the subway signal system, and not because they were worn, and thatthe "general context of the work" was a five-year capital improvement contract. These factorsraise triable issues that militate against a finding, as a matter of law, that plaintiff was engaged inroutine maintenance (see Prats v Port Auth. of N.Y. & N.J., 100 NY2d 878, 881-882[2003]; Joblon v Solow, 91 NY2d 457, 466 [1998]; cf. Esposito v New York City Indus. Dev. Agency, 1 NY3d 526,528 [2003]). Thus, the court should not have directed a verdict for defendant dismissingplaintiff's section 241 (6) claim (seeKoren-DiResta Constr. Co. v New York City School Constr. Auth., 2 AD3d 114[2003]; see e.g. Hamill v Mutual of Am.Inv. Corp., 79 AD3d 478 [2010]).
We find, however, that plaintiff's Labor Law § 240 (1) claim was properly dismissed,albeit on different grounds. In order to recover under section 240 (1), the hazard to whichplaintiff was exposed must have been one "directly flowing from the application of the force ofgravity to an object or person" (Prekulaj v Terano Realty, 235 AD2d 201, 202 [1997],citing Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494 [1993]). Here, the rail waspropelled by the [*3]kinetic energy of the sudden release oftensile stress in the steel rail. Thus, plaintiff's injuries were not the result of the effects of gravity(see Daley v City of New York Metro. Transp. Auth., 277 AD2d 88 [2000]).Concur—Andrias, J.P., Friedman, Catterson, Renwick and DeGrasse, JJ.