| Harrison v State of New York |
| 2011 NY Slip Op 07606 [88 AD3d 951] |
| October 25, 2011 |
| Appellate Division, Second Department |
| Michael J. Harrison, Respondent, v State of New York,Appellant. |
—[*1] Hofmann & Schweitzer, New York, N.Y. (Paul T. Hofmann of counsel), forrespondent.
In a claim, inter alia, to recover damages for personal injuries, the defendant appeals from anorder of the Court of Claims (Lack, J.), dated June 30, 2010, which denied its motion forsummary judgment dismissing the claim and granted the claimant's cross motion for summaryjudgment on the issue of liability pursuant to Labor Law § 240 (1).
Ordered that the order is modified, on the law and the facts, by deleting the provisionsthereof denying those branches of the defendant's motion which were for summary judgmentdismissing so much of the claim as alleged violations of Labor Law §§ 200 and 241(6) and substituting therefor provisions granting those branches of the motion; as so modified,the order is affirmed, without costs or disbursements.
The claimant, a construction worker employed on the State of New York's Wantagh Bridgeproject, was assigned by his supervisor to build a rain shelter over other workers with theassistance of two coworkers. To do so, the claimant and his coworkers needed to move a portablegenerator weighing 150 to 200 pounds from one bridge pier to another. Although there werecranes on site, none were available to move the generator. Instead, the workers' supervisor toldthem to move the generator using a tugboat. The claimant's coworkers lifted the generator to thelip of the pier and the claimant, who was standing on the boat, attempted to steady it from thedeck of the boat, approximately 5½ to 6 feet below. However, before the claimant'scoworker could get down to help him lift the generator to the boat's deck, the generator slippedtoward the claimant, caught on his tool belt, and pulled him to the deck, injuring his back.
The claimant brought this claim against the State of New York, the owner of the site,alleging violations of Labor Law §§ 200, 240 (1) and § 241 (6). The Statemoved for summary judgment dismissing the claim, and the claimant cross-moved for summaryjudgment on the issue of liability pursuant to Labor Law § 240 (1). The Court of Claimsgranted the claimant's cross motion and denied the State's motion in its entirety. We modify.[*2]
The goal of Labor Law § 240 (1) is to "provide'exceptional protection' for workers against the 'special hazards' which stem from a work site thatis either elevated or positioned below the level where materials are hoisted or secured" (La Veglia v St. Francis Hosp., 78AD3d 1123, 1126 [2010], quoting Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d494, 501-502 [1993]; see Cun-En Lin vHoly Family Monuments, 18 AD3d 800 [2005]). However, "[n]ot every worker whofalls at a construction site, and not every object that falls on a worker, gives rise to theextraordinary protections of Labor Law § 240 (1). Rather, liability is contingent upon theexistence of a hazard contemplated in section 240 (1) and the failure to use, or the inadequacy of,a safety device of the kind enumerated therein" (Narducci v Manhasset Bay Assoc., 96NY2d 259, 267 [2001]; see Gutman vCity of New York, 78 AD3d 886, 887 [2010]). Thus, injuries arising from "routineworkplace risks" rather than from elevation differentials will not fall within the statute'sprotection (Runner v New York StockExch., Inc., 13 NY3d 599, 603 [2009]; see Rocovich v Consolidated Edison Co.,78 NY2d 509, 513 [1991]). Instead, "the single decisive question is whether the [claimant's]injuries were the direct consequence of a failure to provide adequate protection against a riskarising from a physically significant elevation differential" (Runner v New York Stock Exch.,Inc., 13 NY3d at 603; see Gasques vState of New York, 59 AD3d 666, 667 [2009], affd 15 NY3d 869 [2010]).
Here, despite the State's arguments to the contrary, the 5½ or 6 foot elevation betweenthe pier and the deck of the boat that the claimant was standing on created a sufficientelevation-related risk to trigger Labor Law § 240 (1) liability (compare Outar v City ofNew York, 286 AD2d 671, 672 [2001], affd 5 NY3d 731 [2005]). The State'sarguments that this was a routine hazard typically associated with a construction site and that theheight of the generator above the claimant was de minimis are unavailing (see Runner v NewYork Stock Exch., Inc., 13 NY3d at 602-603; Pritchard v Tully Constr. Co., Inc., 82 AD3d 730 [2011]; Mendoza v Bayridge Parkway Assoc.,LLC, 38 AD3d 505, 506 [2007]; Salinas v Barney Skanska Constr. Co., 2 AD3d 619, 620-621[2003]; but see Gutman v City of New York, 78 AD3d at 886-887; Garcia v Edgewater Dev. Co., 61AD3d 924, 925 [2009]; Ienco vRFD Second Ave., LLC, 41 AD3d 537, 538-539 [2007]). Accordingly, the courtproperly granted the claimant's cross motion for summary judgment on the issue of liabilitypursuant to Labor Law § 240 (1).
That branch of the State's motion which was for summary judgment dismissing so much ofthe claim as alleged a violation of Labor Law § 241 (6) should have been granted, as thespecific Industrial Code provision upon which the claimant predicated this claim has noapplication under the facts presented.
Labor Law § 241 (6) "imposes a nondelegable duty of reasonable care uponowners and contractors 'to provide reasonable and adequate protection and safety' to personsemployed in, or lawfully frequenting, all areas in which construction, excavation or demolitionwork is being performed" (Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 348 [1998],quoting Labor Law § 241 [6]). In so doing, owners are obliged to comply with anyapplicable regulations of the Industrial Code and may be held liable for a violation of a provision" 'mandating compliance with concrete specifications' " (La Veglia v St. Francis Hosp.,78 AD3d at 1125-1126, quoting Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d at 505;see Cun-En Lin v Holy Family Monuments, 18 AD3d at 802; Misicki v Caradonna, 12 NY3d511, 515 [2009]; Miano v SkylineNew Homes Corp., 37 AD3d 563, 565 [2007]; Labor Law § 241 [6]). Becausethis section imposes "a nondelegable duty on property owners, [a] plaintiff need not show that[the] defendant[ ] exercised supervision or control over the work site in order to establish a rightof recovery under section 241 (6)" (St.Louis v Town of N. Elba, 16 NY3d 411, 413 [2011]; see Romero v J & S Simcha, Inc., 39 AD3d 838, 839 [2007]).
Here, the State contends that the section relied upon by the claimant, namely, 12 NYCRR23-1.7 (f), is not applicable to the facts of this case and therefore cannot serve as the basis forliability under Labor Law § 241 (6). We agree.[*3]
Whether a regulation applies to a particular condition orcircumstance is a question of law for the court (see Spence v Island Estates at Mt. Sinai II, LLC, 79 AD3d 936, 938[2010]).
12 NYCRR 23-1.7 (f) provides that "[s]tairways, ramps or runways shall be provided as themeans of access to working levels above or below ground except where the nature or the progressof the work prevents their installation in which case ladders or other safe means of access shallbe provided." Here, the tugboat that the plaintiff was standing in was not a working level belowground requiring a stairway, ramp, or runway under the regulation (see Torkel v NYU Hosps. Ctr., 63AD3d 587 [2009]; Lavore v KirMunsey Park 020, LLC, 40 AD3d 711 [2007]; Amantia v Barden & Robeson Corp., 38 AD3d 1167, 1169 [2007];Farrell v Blue Circle Cement, Inc.,13 AD3d 1178 [2004]).
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" (LaVeglia v St. Francis Hosp., 78 AD3d at 1125; see Aguilera v Pistilli Constr. & Dev. Corp., 63 AD3d 763, 764[2009]). Where, as here, a claimant's Labor Law § 200 claim is premised upon "alleged. . . dangers in the methods . . . of the work" (Ortega v Puccia, 57 AD3d 54, 61[2008]), an owner or general contractor will be held liable only where it "had the authority tosupervise or control the performance of the work" (Austin v Consolidated Edison, Inc., 79 AD3d 682, 683-684 [2010][internal quotation marks omitted]; see La Veglia v St. Francis Hosp., 78 AD3d at 1125;Erickson v Cross Ready Mix, Inc.,75 AD3d 519, 522 [2010]). However, " '[t]he right to generally supervise the work, stop thecontractor's work if a safety violation is noted, or to ensure compliance with safety regulationsand contract specifications is insufficient to impose liability under Labor Law § 200 or forcommon-law negligence' " (Austin v Consolidated Edison, Inc., 79 AD3d at 684, quotingGasques v State of New York, 59 AD3d at 668; see La Veglia v St. FrancisHosp., 78 AD3d at 1125).
Here, the claimant testified at his deposition, as did his coworker, that the workers receivedtheir instructions from a contractor's foreman and that the State's inspectors primarily monitoredthe site for quality control. The State's engineer in charge confirmed that, although the State hadthe power to stop work due to safety risks, his primary role, and that of the inspectors, was toensure that work was performed in accordance with project specifications and to monitor forquality control. Since the State carried its prima facie burden of demonstrating that it lackedsufficient authority to supervise or control the work and the claimant did not raise a triable issueof fact, the Court of Claims erred in denying that branch of the State's motion which was forsummary judgment dismissing so much of the claim as alleged a violation of Labor Law §200 (see Gurung v Arnav RetirementTrust, 79 AD3d 969, 970 [2010]; Austin v Consolidated Edison, Inc., 79 AD3dat 684; La Veglia v St. Francis Hosp., 78 AD3d at 1125; Erickson v Cross ReadyMix, Inc., 75 AD3d at 522-523; Delahaye v Saint Anns School, 40 AD3d 679, 684 [2007]). Dillon,J.P., Balkin, Eng and Cohen, JJ., concur.