| Kropp v Town of Shandaken |
| 2012 NY Slip Op 00161 [91 AD3d 1087] |
| Jnury 12, 2012 |
| Appellate Division, Third Department |
| John P. Kropp, Jr., et al., Respondents, v Town of Shandaken,Appellant, et al., Defendants. |
—[*1] Melley Platania, P.L.L.C., Rhinebeck (Steven M. Melley of counsel), forrespondents.
Garry, J. Appeal from an amended order of the Supreme Court (Cahill, J.), entered March 28,2011 in Ulster County, which, among other things, partially granted plaintiff's motion for partialsummary judgment.
In 2009, plaintiff John P. Kropp, Jr. (hereinafter plaintiff) was struck and injured by an ironpipe while employed by Merritt Construction, Inc., which had contracted with defendant Town ofShandaken (hereinafter defendant) to construct a new water system. Plaintiff and his wife,derivatively, thereafter commenced this personal injury action alleging, among other things,violations of Labor Law § 240 (1) and § 241 (6). Following discovery, plaintiffsmoved for partial summary judgment on the issue of liability under both statutes. Defendantopposed the motion and cross-moved for summary judgment dismissing the cause of actionpursuant to Labor Law § 241 (6). Defendant also separately moved to vacate the note ofissue and certificate of readiness. Supreme Court granted plaintiffs' motion as to Labor Law§ 240 (1), did not address their motion as to Labor Law § 241 (6) or defendant'scross motion, and denied defendant's motion to vacate the note of issue. Defendant appeals.
Initially, defendant contends that summary judgment as to liability under Labor Law §240 (1) is precluded by issues of fact as to how the accident occurred. The parties essentially[*2]agree that at the time of the accident, plaintiff was working atthe bottom of a trench that was between four and eight feet deep, connecting lengths of pipe thatwere being lowered into the trench by an excavator operated by plaintiff's supervisor. Theyfurther agree that plaintiff was struck by an iron pipe measuring 18 inches in diameter and 18 feetlong, and that fittings had been attached to one end of the pipe to permit it to be connected with anarrower pipe, resulting in a total weight of approximately 1,500 pounds. A device called a fourway, consisting of a ring from which four chains with hooks on the ends were suspended, wasused to lower the pipe into the trench. The ring was attached to the bucket of the excavator, andthe chains were hooked to slings made of nylon straps wrapped around the pipe. While theparties agree that the pipe dropped as it was being moved, they disagree as to how far it dropped,why this occurred, and whether the hoisting equipment was adequate to meet the requirements ofthe task and Labor Law § 240 (1).
Plaintiff testified that, just before the accident, he did not know that the pipe was beingmoved. He stated that he was squatting in the trench with his back to the excavator, cleaning theend of a previously laid pipe, when he heard chains rattling overhead and stood up. He allegedlysaw the pipe as it fell past the surface level of the trench, struck him in the "midsection" and legs,and pinned him briefly against the wall of the trench. Plaintiff testified that the pipe was stillsuspended from its slings after it struck him and that he did not know why it fell, but that hissupervisor and Mark Fisher, another Merritt employee, witnessed the accident and later told himthat the chains had come unhooked. Plaintiffs submitted a workers' compensation employer'sreport (form C-2) prepared by a Merritt employee on the day after the accident stating that theaccident occurred because a "chain let go and rehooked."[FN1]
Steven Jacobs, a coworker, testified by affidavit that he was working in the trench nearplaintiff when he saw the pipe being hoisted overhead. He stated that he moved away because hebelieved the load was improperly secured and that, when the pipe was six to eight feet above thebottom of the trench, he heard chains rattling and saw the pipe "drop free of the hooks" and strikeplaintiff in the legs. Jacobs averred that the hooks lacked safety clips to prevent them fromcoming loose, and that Merritt had used this hoisting method only because it did not have an"OSHA-approved" clamp large enough for the 18-inch pipe. Plaintiffs' expert, a board-certifiedsafety professional, opined that the accident was caused by the use of improper hoistingequipment that failed to properly balance and secure the pipe, allowing it to slip unexpectedly inits bindings, drop downward at one end, and strike plaintiff. He opined that tag lines, hooks fittedwith safety self-closing latches, and an 18-inch pipe clamp, among other things, should havebeen used. We agree with Supreme Court that the foregoing evidence was sufficient to establishon a prima facie basis that plaintiff's injury arose from an elevation-related hazard, that defendantfailed to provide adequate safety devices, and that the failure proximately caused the injury(see Labor Law § 240 [1]; Georgia v Urbanski, 84 AD3d 1569, 1569 [2011]; Jock v Landmark Healthcare Facilities,LLC, 62 AD3d 1070, 1071-1072 [2009]).[*3]
Defendant contends that triable issues of fact exist basedon the sharply different accounts of the accident offered by the other witnesses and its expert.Plaintiff's supervisor, who had a "bird's-eye" view of the trench from within the excavator, andFisher, who was standing on the surface beside the trench, testified that before the pipe washoisted, plaintiff was standing in the trench, facing the excavator, and that he signaled to thesupervisor to move the pipe. The supervisor allegedly operated the excavator's bucket to raise thepipe about one foot off the ground and position it over the trench; Fisher then helped to guide thepipe as it was lowered into the trench. They testified that plaintiff put his hands on the pipe toguide it into place when the pipe was at the approximate level of his waist, and that the end of thepipe to which the fittings had been attached then dropped downward about one foot, strikingplaintiff in the leg. Both testified that the hooks were equipped with safety clips and did notdetach from the slings, and that the pipe was still suspended from the chains and slings after theaccident occurred. Fisher testified that plaintiff did nothing to cause the accident, and that it wasa "possibility" that the pipe slipped sideways in the sling before it dropped. Although thesupervisor testified that the pipe "slid," he also testified that he did not know if it had slipped, andhe believed that plaintiff caused the pipe to drop by pushing downward on it with his hands.Defendant's expert engineer opined by affidavit that the hoisting mechanism was adequate andappropriate for the circumstances, and the accident occurred because plaintiff altered the balanceof the load when he pushed on the pipe.[FN2]
Initially, we agree with Supreme Court that summary judgment in plaintiffs' favor is notprecluded by the discrepancies in the witness accounts as to the distance of the pipe's fall.Despite defendant's contention that a one-foot drop, if proven, would be "de minimis" and thusoutside the scope of protection of Labor Law § 240 (1) (Narducci v Manhasset BayAssoc., 96 NY2d 259, 270 [2001]), the dispositive inquiry is not merely how far the pipefell, but "whether plaintiff's injuries were the direct consequence of a failure to provide adequateprotection against a risk arising from a physically significant elevation differential" (Runner v New York Stock Exch., Inc.,13 NY3d 599, 603 [2009] [emphasis added]). The accident occurred while the 1,500-poundpipe in question was being lowered at least five or six feet into the trench where plaintiff wasworking; even if, as defendant contends, it did not fall until near the end of its descent anddropped only one foot before it struck plaintiff, such an elevation differential "cannot [*4]be viewed as de minimis, particularly given the weight of the objectand the amount of force it was capable of generating" (id. at 605; see Wilinski v 334 E. 92nd Hous. Dev.Fund Corp., 18 NY3d 1, 10 [2011] [standing metal pipes fell four feet]; Harris v City of New York, 83 AD3d104, 110 [2011] [one-ton concrete slab fell three or four feet]; Pritchard v Tully Constr. Co., Inc., 82AD3d 730, 730-731 [2011] [300-pound motor fell three feet]; Gutman v City of New York, 78 AD3d886, 886-887 [2010] [1,300-pound rail fell 12 to 16 inches]; Brown v VJB Constr. Corp., 50 AD3d373, 376 [2008] [1,000-pound stone slab fell three feet]; see also Ortlieb v Town ofMalone, 307 AD2d 679, 679-680 [2003] [850-pound pipe rolled 15 feet down a slope andthen fell three feet into a trench]). The accident was attributable to " 'the pronounced risks arisingfrom construction work site elevation differentials' " and thus falls within the scope of Labor Law§ 240 (1) (Davis v WyethPharms., Inc., 86 AD3d 907, 909 [2011], quoting Runner v New York Stock Exch.,Inc., 13 NY3d at 603). However, the conflicting expert opinions as to the adequacy of thehoisting equipment and the divergent testimony as to whether safety clips were present on thehooks, and whether the accident occurred because these hooks came loose, because the pipeslipped in its slings or because plaintiff altered its balance by pushing on it, pose issues of fact asto whether the absence or inadequacy of a safety device proximately caused plaintiff's injuries.Thus, plaintiffs' motion for partial summary judgment should not have been granted on the LaborLaw § 240 (1) cause of action (see Wilinski v 334 E. 92nd Hous. Dev. Fund Corp.,18 NY3d at 11; Quattrocchi v F.J.Sciame Constr. Corp., 11 NY3d 757, 759 [2008]; Beardslee v Cornell Univ., 72 AD3d 1371, 1372 [2010]).
Defendant next contends that Supreme Court should have granted its cross motion forsummary judgment dismissing plaintiffs' cause of action under Labor Law § 241 (6). "Toestablish a claim under Labor Law § 241 (6), plaintiff[s] must allege that defendantsviolated a rule or regulation promulgated by the Commissioner of Labor that sets forth a specificstandard of conduct" (St. Louis v Townof N. Elba, 70 AD3d 1250, 1250 [2010], affd 16 NY3d 411 [2011]; see Ross v Curtis-PalmerHydro-Elec. Co., 81 NY2d 494, 501-502 [1993]). As plaintiffs concede, two of theregulations on which they rely are insufficiently specific to support a Labor Law § 241 (6)claim (see 12 NYCRR 23-1.5, 23-4.2 [k]; Weinberg v Alpine Improvements, LLC, 48 AD3d 915, 918[2008]; Friot v Wal-Mart Stores, 240 AD2d 890, 891 [1997]). However, plaintiffs furtherallege that defendant violated 12 NYCRR 23-9.4 (e) by failing to use wire rope fitted with safetyself-closing latches to suspend the pipe from the excavator's bucket. The disagreement betweenthe parties' respective experts as to whether wire rope was appropriate to suspend this particularpipe, and whether the hooks were equipped with appropriate safety latches, presents factualissues to be resolved at trial (seeDeshields v Carey, 69 AD3d 1191, 1194 [2010]; Copp v City of Elmira, 31 AD3d 899, 900 [2006]). Further, theconflicting testimony as to how the accident occurred presents factual issues as to whether, asplaintiffs' expert alleges, defendant violated 12 NYCRR 23-9.4 (h) (5) by "[c]arrying orswinging" the suspended pipe over the area where plaintiff was working. We reject plaintiffs'additional contention that certain provisions of 12 NYCRR subpart 23-8, pertaining to mobilecranes, tower cranes and derricks, are applicable because the excavator was being used in thesame manner as a mobile crane. The safety requirements of 12 NYCRR 23-9.4 are applicable tothe excavator, which was being used at the time of the accident "in the manner of a power shovelin attempting to elevate construction material" (Copp v City of Elmira, 31 AD3d at 900;see 12 NYCRR 23-9.1, 23-9.5; St. Louis v Town of N. Elba, 16 NY3d 411,415-416 [2011]). "[C]ranes and derricks" are explicitly excluded from the coverage of 12NYCRR subpart 23-9 (12 NYCRR 23-9.1). An excavator that is functioning in the same manneras a power shovel and is therefore subject to the requirements of 12 NYCRR 23-9.4 cannotsimultaneously be considered a crane for purposes of 12 NYCRR subpart 23-8 (compareMontayne v Village of Hoosick Falls, 26 [*5]Misc 3d1201[A], 2009 NY Slip Op 52619[U], *4-6 [2009]). Accordingly, in the interest of judicialeconomy, we will exercise our power to search the record and grant partial summary judgmentdismissing plaintiffs' Labor Law § 241 (6) claim except to the extent that it relies on 12NYCRR 23-9.4 (see Shields vCarbone, 78 AD3d 1440, 1443 n 2 [2010]; Schultes v Kane, 50 AD3d 1277, 1278 [2008]).
Finally, we reject defendant's contention that its motion to vacate the note of issue shouldhave been granted because plaintiffs failed to disclose Jacobs as a witness, thus deprivingdefendant of the opportunity to depose him. "While a note of issue will generally be stricken ifthe case is not ready for trial, the motion to strike can be denied where the parties had sufficienttime to complete discovery" (Ireland vGEICO Corp., 2 AD3d 917, 917 [2003] [citations omitted]). Here, the parties wereengaged in discovery for three years, and the record reveals that defendant was aware during thattime that Jacobs witnessed the accident. Payroll statements submitted to defendant in 2006named Jacobs as a Merritt employee at the time of the accident, and Jacobs testified by affidavitthat, in the months following the accident, defendant's insurer asked him several times to sign astatement, but that he refused to do so. Defendant's counsel was copied on correspondence inwhich plaintiffs unsuccessfully attempted to serve a nonparty witness subpoena on Merritt for thepurpose of taking Jacobs' deposition. During their depositions, plaintiff and his supervisor bothtestified that Jacobs was in the trench when the accident occurred, and Fisher testified that he waspresent at the work site. Thus, the inclusion of Jacobs' affidavit in plaintiffs' October 2010 partialsummary judgment motion was not defendant's first notice that Jacobs had knowledge of theaccident. Moreover, in the subsequent month-long interval before the court-ordered deadline forfiling the note of issue, defendant neither objected to Jacobs' affidavit nor requested anopportunity to depose him or an adjournment of the deadline; not until several weeks after thenote of issue and certificate of readiness had been filed did defendant first claim that discoverywas incomplete for this reason. Accordingly, Supreme Court's denial of the motion to vacate thenote of issue was not an abuse of its "considerable discretion to supervise the discovery process"(Superintendent of Ins. of State of N.Y.v Chase Manhattan Bank, 43 AD3d 514, 516 [2007]).
Peters, J.P., Rose, Kavanagh and McCarthy, JJ., concur. Ordered that the amended order ismodified, on the law, without costs, by reversing so much thereof as granted plaintiffs' motionfor partial summary judgment on their Labor Law § 240 (1) cause of action; motion deniedto that extent and defendant's cross motion for summary judgment partially granted by dismissingthe Labor Law § 241 (6) cause of action against it except to the extent that it is based on 12NYCRR 23-9.4; and, as so modified, affirmed.
Footnote 1: Defendant's claim that the reportwas not properly authenticated was raised for the first time on appeal and is thereforeunpreserved (see Saratoga Assoc.Landscape Architects, Architects, Engrs. & Planners, P.C. v Lauter Dev. Group, 77 AD3d1219, 1221 n [2010]; Matter ofMitchell WW. [Andrew WW.], 74 AD3d 1409, 1411 [2010]).
Footnote 2: Defendant's expert based hisopinion that no failure of the hoisting equipment occurred on his conclusion that the pipe did notdrop downward before striking plaintiff, but instead "moved laterally." However, all of thewitnesses stated that the pipe fell downward, differing only as to the extent of the drop.Accordingly, we agree with Supreme Court that the expert's conclusion on this point isunsupported by an evidentiary foundation and without probative force (see Ann JJ. v Schenectady Assn. forRetarded Citizens, 59 AD3d 772, 773 [2009]). Nonetheless, the expert's opinion that thehoisting equipment was appropriate for the task was not based on this determination, but insteadon his professional experience, and his opinion that plaintiff altered the balance of the pipe bypushing on it was based on the supervisor's testimony that plaintiff did so; accordingly, theseaspects of his opinion are sufficiently supported to warrant consideration.