| Williams v Town of Pittstown |
| 2012 NY Slip Op 07943 [100 AD3d 1250] |
| November 21, 2012 |
| Appellate Division, Third Department |
| Joseph Williams et al., Appellants-Respondents, v Town ofPittstown, Respondent-Appellant. |
—[*1] Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale (Gregory A.Cascino of counsel), for respondent-appellant.
McCarthy, J. Cross appeals from an order of the Supreme Court (McGrath, J.), entered May31, 2012 in Rensselaer County, which denied plaintiffs' motion for partial summary judgment onthe issue of liability pursuant to Labor Law § 240 (1) and denied defendant's cross motionfor partial summary judgment dismissing the common-law negligence and Labor Law §200 causes of action.
Defendant's highway superintendent contacted plaintiff Joseph Williams (hereinafterplaintiff), a self-employed hydraulics specialist, to repair defendant's Gradall, a machine used toclean ditches. To get to the hydraulic pump, plaintiff needed to remove the counterweight, whichweighs 6,000 pounds. After the pump was repaired, plaintiff asked the highway superintendentfor two employees and some equipment to assist him in putting the counterweight back on theGradall. Plaintiff told one employee to lift the counterweight into place with a forklift, had theother employee position a bucket loader against the counterweight to keep it in place, andplaintiff went underneath the Gradall to line up bolt holes in the Gradall and counterweight.While the forklift was backing away after setting the counterweight on the Gradall, thecounterweight fell to the ground, crushing plaintiff's foot and requiring a below-the-kneeamputation of his leg.[*2]
Plaintiff and his wife, derivatively, commenced thisaction asserting causes of action for, among other things, common-law negligence and violationsof Labor Law §§ 200 and 240 (1). Plaintiffs moved for partial summary judgment onthe issue of liability pursuant to Labor Law § 240 (1). Defendant cross-moved for partialsummary judgment seeking dismissal of the common-law negligence and Labor Law § 200causes of action. Supreme Court denied both motions. Plaintiffs appeal and defendantcross-appeals.
Supreme Court erred in denying plaintiffs' motion. The parties do not dispute that plaintiffwas repairing a structure when he was injured by the counterweight falling approximately 53inches to the ground, which renders Labor Law § 240 (1) applicable. To prevail on hisclaim under that statute, plaintiff must show that defendant failed to provide a safety device orthe device was inadequate, and that this violation was a proximate cause of his gravity-relatedinjuries (see Jock v LandmarkHealthcare Facilities, LLC, 62 AD3d 1070, 1071 [2009]). Plaintiff submitted proof thatdefendant did not provide any pulleys, hoists, braces or ropes that would be appropriate safetydevices to secure a heavy object, such as the counterweight, while it was being lifted. Even if theforklift and bucket loader can be considered safety devices (compare Miranda v Norstar Bldg. Corp., 79 AD3d 42, 46-47[2010]), they were inadequate because they failed to perform the function of preventing thecounterweight from falling (see Morin vMachnick Bldrs., 4 AD3d 668, 670 [2004]). The counterweight was unsecured due tothe lack of a safety device and fell off the forklift because it was unsecured, proximately causingplaintiff's injuries. A property owner is liable under Labor Law § 240 (1) even if itexercised no control or supervision over a subcontractor performing a job on the property (see Arey v M. Dunn, Inc., 29 AD3d1137, 1139 [2006]). Despite plaintiff being responsible for deciding how to move thecounterweight, defendant is not relieved of liability because plaintiff chose a method he had beentaught and had safely used more than 10 times in the past, such that his decision simplyconstitutes comparative fault that is not a defense under the statute (see Pearl v Sam Greco Constr., Inc., 31AD3d 996, 997 [2006], lv denied 11 NY3d 710 [2008]).
Defendant did not establish the recalcitrant worker defense, which requires proof that a safetydevice was available and visible at the work site and the employee deliberately refused to use it(see Arey v M. Dunn, Inc., 29 AD3d at 1139). While defendant's expert opined thatplaintiff should have at least loosely attached the counterweight to the Gradall with four securingbolts before removing the forklift, those bolts were not safety devices but were part of theGradall. Plaintiff did not refuse to use those bolts; he planned to install them once the forkliftwas out of the way. His failure to install them while the forklift was still holding thecounterweight was not recalcitrance, but perhaps poor judgment that would be applicable to theunavailable defense of comparative negligence.
Defendant also contends that plaintiff should have attached eyebolts to the top of the Gradalland lifted it with a chain. While defendant had a heavy chain on its property, the evidence isunclear as to whether defendant had eyebolts of the proper size. Plaintiff considered that methodof lifting, but ruled it out because the bolt holes were rusty. One of defendant's employeestestified that after plaintiff's accident, he put the counterweight back on the Gradall using thechain and eyebolts, but he had to spend an hour cleaning and repairing the bolt holes so theycould accept the eyebolts. Although in hindsight it may have been better for plaintiff to repair thebolt holes and use a chain to lift the counterweight, defendant did not demonstrate that plaintiffwas a recalcitrant worker by choosing to use an alternate method rather than the eyebolt methodthat was not immediately available at the time he was performing the task that caused his [*3]injury (see Powers v Del Zotto & Son Bldrs., 266 AD2d668, 670 [1999]; see also Kouros v State of New York, 288 AD2d 566, 567 [2001];Tennant v Curcio, 237 AD2d 733, 734 [1997] [finding owner's offer to fashion a securingbracket not equivalent to supplying a safety device]). Accordingly, plaintiffs were entitled topartial summary judgment as to liability on their Labor Law § 240 (1) cause of action.
Supreme Court properly denied defendant's cross motion seeking dismissal of thecommon-law negligence and Labor Law § 200 causes of action. Defendant contends that itlacked the authority to supervise or control plaintiff's performance and that its employees becamespecial employees of plaintiff during this project. The determination of special employee status isgenerally a question of fact (see Ribeirov Dynamic Painting Corp., 23 AD3d 795, 796 [2005], lv denied 6 NY3d 707[2006]; Armstrong v Foxcroft Nurseries, 283 AD2d 814, 815 [2001]). Although the twoemployees took all of their directions for this project from plaintiff and were instructed by thehighway superintendent to treat plaintiff as their boss for the project, they were assigned to theproject for one day, were paid by defendant, used defendant's equipment and did not considerthemselves plaintiff's employees. Considering this evidence, defendant did not show as a matterof law that plaintiff had "exclusive control and direction of the manner, details and ultimateresults of" the work by defendant's two employees (Armstrong v Foxcroft Nurseries, 283AD2d at 814).
Rose, J.P., Lahtinen, Spain and Kavanagh, JJ., concur. Ordered that the order is modified, onthe law, without costs, by reversing so much thereof as denied plaintiffs' motion for partialsummary judgment on the issue of liability on their Labor Law § 240 (1) cause of action;motion granted; and, as so modified, affirmed.