Opinion
29396/08.
November 24, 2010.
Plaintiff Carlos Castro was represented by George W. Ilchert, Esq. of the law firm of Samuel J. Lurie, Esq. Defendant JK USA Group, Inc. was represented by James Montgomery, Esq. of the law firm of Lawrence H. Olive, Esq. Defendant Wong Brothers' Realty, Inc. was represented by Heather L. Smar, Esq. of Friedman Harfenist Kraut Perlstein LLP.
On October 4, 2008, plaintiff Carlos Castro, a demolition worker who was in the process of dismantling a wall by striking cement blocks with a hammer, allegedly sustained personal injuries when a coworker "hit something" that caused a cement block to fall on Plaintiff's left hand.At the time of the accident, defendant JK USA Group, Inc. ("JK USA") was leasing the subject premises at 618 62nd Street in Brooklyn from the owner, defendant Wong Brothers Realty, Inc. ("Wong Brothers").
Labor Law § 240(1)In their respective motion and cross-motion, Wong Brothers and JK USA contend, among other things, that they are each entitled to summary judgment dismissal of Plaintiff's Labor Law § 240(1) cause of action on the ground that the falling object was not being hoisted or secured at the time of the accident, and that there was a minimal height differential from where the brick fell to where Plaintiff was struck. Plaintiff cross-moves for summary judgment against Defendants on his Labor Law § 240(1) cause of action on the ground that, among other things, he was not provided with any safety devices so as to give him proper protection from the falling cement block.
In support of their respective motions, the parties submit, among other things, a copy of plaintiff Carlos Castro's deposition testimony that he and two coworkers were involved in the demolition of a wall; that they stood on a plank of wood propped up between two A-frame ladders; that they started their work at the top of the wall; that each worker started at a different corner; that he was working on the far-right side, and that one of his coworkers, who was standing on the same plank of wood, was working to the left of him, but closer to the middle of the wall; that as he progressed he would move from the right to left along the plank; that prior to the accident, Plaintiff knocked about three to four levels of cinder blocks; that the accident happened when a coworker "hit something and the block hit me where I was"; that the cement block fell "from a height" above seven feet; that at the time of the accident he was holding the hammer with his right hand, and that he leaned his left hand against the wall; that his left hand was struck by the cement block; and that the first time he saw the subject cinder block was three minutes after it struck his hand.
Labor Law § 240 (1) provides:
"All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoist, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed."
The statute "protects workers from elevation-related hazards when they are injured while involved in [the] enumerated work activities" ( see Panek v County of Albany, 99 NY2d 452, 455) and "applies to both falling worker' and falling object' cases" ( see Narducci v Manhasset Bay Associates, 96 NY2d 259, 267.)
The fundamental principles of "falling object" liability under Labor Law § 240 (1) are found in Narducci v Manhasset Bay Assocs. ( 96 NY2d 259) and Runner v New York Stock Exch., Inc. ( 13 NY3d 599 .) Actually, in Narducci the Court if Appeals reviewed the First Department's decision in that action ( 270 AD2d 60 [1st Dept 2000]), as well as a Fourth Department decision in Capparelli v Zausmer Frisch Assocs. ( 256 AD2d 1141 [4th Dept 1998].) Both aspects of the Court of Appeals opinion are of importance here.
In Narducci, the worker was engaged in removing steel window frames, as part of a larger restoration project, from the third floor exterior of a fire-damaged warehouse. While he was sawing the frame of one of the windows loose, a large piece of glass from an adjacent window frame fell and severely cut his arm. In Capparelli, the worker was installing fluorescent light fixtures into a dropped ceiling grid as part of a renovation. The light fixture began to fall from the grid before the worker had secured it, and cut his hand and wrist as he tried to hold it. For somewhat different reasons, the Court of Appeals held that there was no liability under Labor Law § 240 (1) in either case.
In both "falling worker" and "falling object" cases, liability under Labor Law § 240 (1) "is contingent upon the existence of a hazard contemplated in" the statute "and the failure to use, or the inadequacy of, a safety device enumerated therein." ( See Narducci v Manhasset Bay Assocs., 96 NY2d at 267.) "With respect to falling objects, Labor Law § 240 (1) applies where the falling of an object is related to a significant risk inherent in . . . the relative elevation . . . at which materials or loads must be positioned and secured'" ( id. at 267-68 [ quoting Rocovich v Consolidated Edison Co., 78 NY2d 509, 514 (1991)].) "A plaintiff must show that the object fell . . . because of the absence or inadequacy of a safety device of the kind enumerated in the statute." ( Id. at 268.)
In the Narducci case, "the glass that fell on plaintiff was not a material being hoisted or a load that required securing for the purposes of the undertaking at the time" ( id.)
"No one was working on the window from which the glass fell, nor was there evidence that anyone worked on that window during the renovation. The glass that fell was part of the pre-existing building structure as it appeared before the work began. This was not a situation where a hoisting or securing device enumerated in the statute would have been necessary or even expected." ( Id.)
Although the risk of falling glass was "assuredly greater at a warehouse whose windows have been damaged in a fire," "[t]he absence of a necessary hoisting or securing device . . . did not cause the falling glass"; rather, the falling glass "was clearly a general hazard of the workplace." ( See id. at 268-69.)
The differences in our case seem obvious. Here, there is no contention that the cement block that fell and injured Plaintiff did so because of the compromised structure of the building unrelated to the demolition work on the wall; the cement block fell because it was dislodged by one of Plaintiff's coworker as part of the work. The risk of being struck by a falling cement block was not, therefore, "a general hazard of the workplace" ( see id. at 269.) The only question under Narducci is whether a hoisting or securing device was "necessary" or "expected," recognizing that "different risks arise from different construction practices" ( see id. at 268.)
In the Capparelli case, "there was no height differential between plaintiff and the falling object," as "[p]laintiff was working at ceiling level when his accident occurred." ( Id. at 269.) "The ceiling that plaintiff was working at was ten feet high, while the ladder he was given was eight feet tall." ( Id.) "Plaintiff was standing no less then halfway up the ladder when the light fixture fell on his arm, causing the injury." ( Id.)
Notwithstanding that the worker's accident "could be classified as gravity related' . . . stemming from [an] . . . inadequately secured object[]," an "exclusion made for the de minimis elevation . . . [was] appropriate." ( Id. at 270.)
Indeed, in Runner v New York Stock Exch., Inc. ( 13 NY3d 599 ), the Court stated that "the single decisive question" in the case was "whether plaintiff's injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential" ( id. at 603 [emphasis added].) Runner expanded the application of Labor Law § 240 (1) with the holding that "the applicability of the statute in a falling object case . . . does not . . . depend upon whether the object has hit the worker," but "rather whether the harm flows directly from the application of the force of gravity to that object." ( See id. at 604.)
The injured worker in Runner was engaged with several coworkers in moving "a large reel of wire, weighing some 800 pounds, down a set of about four stairs." ( See id. at 602.) The plaintiff was holding the loose end of a rope that was part of a makeshift pulley while coworkers began to push the reel, to which the other end of the rope was attached, down the stairs. "The expedient of wrapping the rope around [a metal] bar proved ineffective to regulate the rate of the reel's descent and plaintiff was drawn horizontally into the bar, injuring his hands as they jammed against it." ( Id.)
The elevation differential could not "be viewed as de minimus, particularly given the weight of the object and the amount of force it was capable of generating, even over the course of a relatively short descent." ( Id. at 605.) "[T]he causal connection between the object's inadequately regulated descent and plaintiff's injury was . . . unmediated"; the injury was the "direct consequence of a failure to provided statutorily required protection against a risk plainly arising from a workplace injury." ( See id.)
The scope of Runner's expansion of liability under Labor Law § 240 (1) has proven to be in dispute, as illustrated by the First Department's ruling in Makarius v Port Authority of NY N.J. ( 76 AD3d 805 [1st Dept 2010].) There was no opinion that reflected the views of more than two justices. The five-justice panel produced three opinions: a concurrence by Justice Roman ( see id. at 806); a concurrence and dissent by Justices McGuire and Andrias ( see id. at 809); and a concurrence and dissent by Justices Moskowitz and Freedman ( see id. at 814.)
A majority of the court, comprised of Justices Roman, McGuire and Andrias, upheld dismissal of the plaintiff's Labor Law § 240 (1) claim, at least in part because there was no significant elevation differential ( see id. at 807-08, 810-11.) Justices Moskowitz and Freedman in the minority appear to conclude that Runner eliminated the requirement that there be a significant elevation differential; they state, "That the [object] fell only a few feet is of no moment" ( see id. at 815), and characterize Narducci as "no longer viable because [it] predate[s] the Court of Appeals' expansive reading [of Labor Law § 240 (1)] in Runner" ( see id. at 816-17.)
Here, Defendants' motions must be granted if, as a matter of law, Plaintiff's injury was the result of a "general hazard of the workplace" ( see Narducci v Manhasset Bay Assocs., 96 NY2d at 269), and not "the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation risk" ( see Runner v New York Stock Exch., Inc., 13 NY3d at 603.)
In a demolition case, dislodged bricks and other masonry is clearly "material . . . that require[s] securing for the purposes of the undertaking" ( see Narducci v Manhasset Bay Assocs., 96 NY2d at 268; see also Quattrocchi v F.J. Sciame Constr. Corp. , 11 NY3d 757 , 758-59; Outar v City of New York , 5 NY3d 731 , 732.)
In Tylutki v Tishman Technologies ( 7 AD3d 696 [2d Dept 2004]), the plaintiff "was struck and injured by a falling piece of sprinkler pipe while engaged in the demolition of a building." ( See id. at 696.) "[T]he plaintiff's coworker hit a section of pipe with a hammer causing the pipe to fall . . ." ( Id.) The Second Department further noted that "it is undisputed that no protective device designed to catch the falling pieces of pipe was utilized in connection with the work" ( see id.), and held that the plaintiff was entitled to summary judgment on his Labor Law § 240(1) cause of action. The court noted that, contrary to the defendant's contentions, the plaintiff was "exposed to a gravity-related hazard within the meaning of Labor Law § 240(1), and that the plaintiff sufficiently established prima facie that the absence of a safety device of the kind enumerated in the statute proximately caused the plaintiff's injury.
In Tylutki and other decisions, the Second Department has explicitly or implicitly rejected the notion that falling masonry or other structural components unsecured as part of a demolition or other work covered by Labor Law § 240(1) is an "inherent" or "ordinary" risk of the work not contemplated by the statute. ( See Mendoza v Bayridge Parkway Assoc., LLC , 38 AD3d 505, 507 [2d Dept 2007]; Portillo v Roby Anne Dev., LLC , 32 AD3d 421 , 422 [2d Dept 2006]; Bornschein v Shuman , 7 AD3d 476 , 478 [2d Dept 2004]; see also Lucas v Fulton Realty Partners, LLC , 60 AD3d 1004 , 1006 [2d Dept 2009].)
In those cases where a worker doing demolition or similar work was denied the protection of Labor Law § 240(1), the falling object was deliberately dropped or thrown, apparently as part of the method of the work. ( See Roberts v General Elec. Co., 97 NY2d 737, 738; Fried v Always Green, LLC, 2010 NY Slip Op 7510, *1-*2 [2d Dept 2010]; Donnelly v City of Niagara Falls , 5 AD3d 1103 , 1103-04 [4th Dept 2004]; Harinarain v Walker , 73 AD3d 701 , 701-02 [1st Dept 2010].) Defendants here make no such contention.
In addition, however, to showing that the fallen object required securing, an injured plaintiff "must show that the object fell because of the absence or inadequacy of a safety device of the kind enumerated in the statute'" ( see Novak v Del Savio , 64 AD3d 636 , 638 [2d Dept 2009] [ quoting Narducci v Manhasset Bay Assocs., 96 NY2d at 268]) that was required to protect the worker from a "physically significant elevation risk" ( see Runner v New York Stock Exch., Inc., 13 NY3d at 603.) The defendant seeking summary judgment must negate, at least prima facie, one of those elements.
Turning to Wong Brothers's and JK USA's contentions, "falling object' liability under Labor Law § 240(1) is not limited to cases in which the falling object is in the process of being hoisted or secured." ( See Quattrocchi v F.J. Sciame Construction Corp., 11 NY3d at 758-59, citing Outar v City of New York , 5 NY3d 731 .) As such, Wong Brothers's and JK USA's contention that they are entitled to summary judgment dismissal on the ground that the cement block was not being hoisted or secured at the time of the accident must be rejected.
Nor do Wong Brothers and JK USA point to any evidence establishing prima facie that the cement block did not "require securing for the purposes of the undertaking" ( see Narducci v Manhasset Bay Assocs., 96 NY2d at 268; see also Quattrocchi v F.J. Sciame Constr. Corp., 11 NY3d at 758-59; Outar v City of New York, 5 NY3d at 732.) Defendants do not point to any evidence that there was any protective device designed to catch the cement blocks as the wall was being dismantled in the manner described by Plaintiff. ( See e.g. Tylutki v Tishman Technologies, 7 AD3d at 696.)
Turning to Defendants' further contention, while a defendant may under certain circumstances be entitled to summary judgment on the ground that there was no "physically significant elevation risk" for which a safety device would be required ( see Runner v New York Stock Exch., Inc., 13 NY3d at 603), Defendants fail to establish prima facie that, in light of the work being performed, the cement block did not pose such a risk. Plaintiff's testimony about how the accident occurred is not clear as to whether the cement block fell from a physically significant elevation. He testified that the cement block fell from a height of seven feet; however, he also testified that he did not observe the subject cement block until after the accident. Moreover, he testified that a coworker was standing on the same plank and level as him, and it is unclear as to whether that coworker was the one who "hit something" causing the cement block to fall. In this regard, Plaintiff testified that there was another worker who was also demolishing the wall, and Defendants do not point to any evidence demonstrating the location of this coworker in relation to Plaintiff. In sum, Plaintiff's testimony is not clear as to how and from what height the cement block fell, and Defendants point to nothing else.
"As a general rule, a party does not carry its burden in moving for summary judgment by pointing to gaps in its opponent's proof, but must affirmatively demonstrate the merit of its claim or defense." ( Mennerich v Esposito , 4 AD3d 399 , 400 [2d Dept 2004] [ quoting Larkin v Trucking Co. v Lisbon Tire Mart, 185 AD2d 614, 615 (4th Dept 1992)].) Here, Defendants fail to affirmatively demonstrate prima facie that there was no physically significant elevation differential between the cement block and Plaintiff.
In its cross-motion, defendant JK USA also contends that it is entitled to summary judgment dismissal of Plantiff's Labor Law 240(1) cause of action on the ground that "[t]here is nothing in the record to establish that JK USA had hired Hernandez or All Corp., or that JK USA had the power to control the manner in which the work was being performed, or did in fact control the work being carried out by Hernandez/All Corp." such that it could be deemed an "owner" or "agent of the owner" for purposes of Labor Law § 240(1).
A defendant moving for summary judgment must establish, at least prima facie, the basis for an affirmative defense ( see CPLR 3018 [b]), or must negate, at least prima facie, an essential element of the plaintiff's cause of action. ( See Velasquez v Gomez , 44 AD3d 649, 650-51 [2d Dept 2007]; Restrepo v Rockland Corp. , 38 AD3d 742 , 743 [2d Dept 2007]; Pappalardo v Long Is. R.R. Co. , 36 AD3d 878 , 880 [2d Dept 2007]; England v Vacri Construction Corp. , 24 AD3d 1122 , 1124 [3d Dept 2005]; Calderone v Town of Cortlandt , 15 AD3d 602 , 602-03 [2d Dept 2005].) Again, "[a]s a general rule, a party does not carry its burden in moving for summary judgment by pointing to gaps in its opponent's proof, but must affirmatively demonstrate the merit of its claim or defense." ( Mennerich v Esposito, 4 AD3d at 400 [ quoting Larkin v Trucking Co. v Lisbon Tire Mart, 185 AD2d at 615].)
Since defendant JK USA does not even attempt to show that it was not an owner or an agent of the owner, it fails to demonstrate prima facie entitlement to summary judgment. Indeed, Labor Law § 240(1) may apply to a lessee "who hire[s] a contractor, and thus ha[s] the right to control the work being done" ( see Ferluckaj v Goldman Sachs Co., 12 NY3d 316, 320), or "where the lessee has the right or authority to control the work site, even if the lessee did not hire the general contractor." ( See Zaher v Shopwell, Inc. , 18 AD3d 339 , 339-40 [1st Dept 2005]; Bart v Universal Pictures, 277 AD2d 4, 5 [1st Dept 2000].) JK USA makes no showing that it does not fall into one of those categories.
Accordingly, the branches of Wong Brothers's and JK USA's respective motions for summary judgment dismissal of Plaintiff's Labor Law § 240(1) cause of action are DENIED.
In support of his cross-motion for summary judgment on his Labor Law § 240(1) cause of action, Plaintiff only points to his own deposition testimony, which, as stated above, is not clear as to how and from what height the cement block fell. As such, Plaintiff fails to demonstrate prima facie that the cement block required securing, or that it fell "because of the absence or inadequacy of a safety device of the kind enumerated in the statute'" ( see Novak v Del Savio, 64 AD3d at 638 [ quoting Narducci v Manhasset Bay Assocs., 96 NY2d at 268]), which is meant to protect the worker from a "physically significant elevation risk" ( see Runner v New York Stock Exch., Inc., 13 NY3d at 603; see also Bennett v SDS Holdings, 300 AD2d 1212, 1213 [4th Dept 2003].)
Accordingly, Plaintiff's cross-motion for summary judgment on his Labor Law § 240(1) cause of action against Defendants is DENIED.
[The Court considers the remaining branches of the motions.]