Opinion
6712/02.
Decided August 13, 2007.
Motion by plaintiff for summary judgment on the issue of liability, pursuant to Labor Law § 240(1), is granted. Cross-motion by defendant to amend it answer, pursuant to CPLR 3025(b), to assert specifically the affirmative defense of sole proximate cause and recalcitrant worker, to vacate the note of issue and strike the action from the trial calendar, pursuant to 22 NYCRR § 2022.21 or, in the alternative, to allow defendant to conduct non-party discovery, and for summary judgment dismissing plaintiff's causes of action brought pursuant to Labor Law sections 200, 240(1) and 241(6), and common law negligence, is granted solely to the extent of allowing defendant to amend its answer to articulate the affirmative defenses of sole proximate cause and recalcitrant worker, as plaintiff does not oppose that branch of the cross-motion. The amended answer annexed as exhibit "C" to the cross-motion is deemed served and filed nunc pro tunc. The cross-motion is denied in all other respects.
Decedent was an iron worker employed by Perini Corporation, which was hired by defendant to demolish the Honeywell Bridge located on Queens Boulevard in Queens County. The record on this motion indicates that he was engaged in cutting and dropping a steel beam approximately 18 feet above the ground on May 29, 2001. He was sitting about 10 feet from the south end of the beam where the beam is attached to a metal expansion joint. He was facing the north end and was torch-cutting through it in front of him. The end that was attached to the expansion joint was behind him. Another worker, Mr. Leo, was at the north end of the beam cutting through it in decedent's direction while standing on an adjacent beam. He cut completely through his end before decedent had cut through his end. Leo's end of the beam then dropped, ripping decedent's end of the beam out of its expansion joint, catapulting decedent and causing him to plummet to the ground, followed by the beam which fell on top of him.
Plaintiff contends that she is entitled to summary judgment under § 240(1) upon three grounds: first, that the beam upon which decedent was sitting was a work platform and that when a work platform collapses and the failure of the platform is a proximate cause of the worker's injuries, plaintiff is entitled to summary judgment as a matter of law; second, that defendant is liable for its failure to provide necessary safety lines, safety cables, tag lines or safety netting; and third, that defendant is liable for failing to secure the beam which fell on decedent.
Defendant cross-moves for summary judgment dismissing plaintiff's causes of action brought pursuant to Labor Law sections 200, 240(1) and 241(6), and pursuant to common law negligence, and for an order vacating the note of issue and for leave to conduct further discovery. Since plaintiff is entitled to summary judgment under § 240, this Court does not reach those branches of the cross-motion seeking dismissal of plaintiff's causes of action brought pursuant to §§ 200 and 241(6) and pursuant to common law negligence and for vacatur of the note of issue and for leave to conduct discovery. In any event, the cross-motion seeking summary judgment with respect to said sections of the Labor Law is untimely.
Pursuant to CPLR 3212(a), a motion for summary judgment must be made within 120 days after the date the note of issue is filed, unless a different date has been set by the Court.
The note of issue herein was filed on September 21, 2006 and the instant cross-motion was not served until February 21, 2007, one month after the 120-day period for making summary judgment motions.
The cross-motion is, therefore, untimely with respect to those branches thereof seeking summary judgment pursuant to Labor Law §§ 200 and 241(6) and pursuant to common law negligence.
Defendant's explanation for its failure to make the instant cross-motion in a timely fashion namely, that although the affidavit of service thereof indicates that it was served upon defendant on September 18, 2006, it did not receive the mailing and it was not made aware that the note of issue had been filed until it was noticed with plaintiff's motion on January 19, 2007 does not constitute good cause so as to allow the instant cross-motion on such ground.
Pursuant to the stipulation of the parties dated May 4, 2006, so-ordered by Justice David Elliot, it was agreed that plaintiff's time to file a note of issue was extended to September 29, 2006. Therefore, even if counsel's office never received the mailing, counsel, nevertheless, was aware that the note of issue deadline was September 29, 2006, having specifically stipulated to that date, and could have ascertained whether or not a note of issue had been filed. Moreover, even if there were good cause shown, CPLR 3212(a) requires "leave of court on good cause shown." Defendant did not seek leave of this Court and, therefore, the cross-motion with respect to Labor Law §§ 200 and 241(6) and common law negligence was improperly brought ( see Brill v. City of New York, 2 NY3d 648).
However, that branch of the cross-motion seeking summary judgment as to Labor Law § 240(1) may properly be considered by this Court, even in the absence of good cause shown, since it seeks the identical relief sought by the motion, which was timely ( see Filannino v. Triborough Bridge and Tunnel Authority, 34 AD3d 280 [1st Dept 2006]). Plaintiff's counsel does not oppose the cross-motion for summary judgment on the basis of § 240(1).
Labor Law § 240(1) is clearly implicated in this case since decedent fell from an elevated work site while engaged in the demolition of a structure ( see Beard v. State of New York, 25 AD3d 989 [3rd Dept 2006]).
This Court agrees with plaintiff's contention that the beam upon which decedent sat was the functional equivalent of a scaffold or work platform and that the collapse thereof, in and of itself, constituted prima facie proof that § 240(1) was violated and that the violation of that section of the Labor Law was the proximate cause of decedent's death.
It has been held that surfaces which consist of the work itself cannot constitute a scaffold within the meaning of § 240 ( see Broderick v. Cauldwell-Wingate Co., 301 NY 182; see also Futo v. Brescia Building Company, Inc., 302 AD2d 813 [3rd Dept 2003]). Although the Court of Appeals has never overruled its holding in Broderick, a narrow exception is recognized in situations where the work itself becomes part of the place to work. In Kennedy v. McKay, ( 86 AD2d 597, 598 [2nd Dept 1982]), the Second Department held, "The old rule, that anything which constituted a part of the work itself could not at the same time constitute a scaffold within section 240 [citing Broderick], appears to have given way to the extent that the work itself may now become part of the place to work and may fall within the statute (see Lagzdins v. United Welfare Fund-Security Div. Marriott Corp., supra, p 588)."
In Lagzdins v. United Welfare Fund-Security Div. Marriott Corp. ( 77 AD2d 585 [2nd Dept 1980]), cited in Kennedy, plaintiff installed roof joists, or trusses, and temporary bracing between the trusses and subsequently climbed on top of the roof and commenced removing the temporary bracing, nailing blocks between the trusses and then nailing plywood sheets on top of the trusses. After a few plywood sheets had been laid, the trusses collapsed. The Court therein held that although the braced trusses were part of the work itself, they also "became a place to work and the safety of the entire structure as a work place was dependent upon the adequacy of the bracing. Hence the braces are within the purview of the statute" (at 588, citations omitted).
In Borland v. Sampson Steel Fabricators, Inc. ( 298 AD2d 831 [4th Dept 2002), a joist was hoisted by crane on top of other beams. The plaintiffs in that case climbed onto the joist to unhook it from the crane. After they had done so and were in the process of climbing back down, the joist tipped and fell 30 feet onto other beams, taking plaintiffs with it. The court therein granted plaintiffs summary judgment on their § 240(1) claim, finding that the joist was a device functionally similar to a scaffold and that plaintiffs' injuries were caused by the failure of the safety device to provide them proper protection.
In McGurk v. Turner Construction Co., 127 AD2d 526 [1st Dept 1987]), plaintiff slipped and fell off a beam he was traversing to reach a place on the beam where a stone soffit had become improperly wedged and which needed to be corrected. The First Department affirmed the granting of summary judgment to plaintiff on the issue of liability under § 240(1), finding that the beam was being used in lieu of a scaffold.
Labor Law § 240(1) is to be construed as liberally as necessary to accomplish its purpose ( see Rocovich v. Consolidated Edison Co, 78 NY2d 509). That purpose is to provide exceptional protection for workers against elevation-related hazards ( id.) by placing the ultimate responsibility for their safety upon the owner and general contractor instead of the workers who are not in a position to protect themselves from accident ( see Zimmer v. Chemung County Performing Arts, 65 NY2d 513).
Based upon the established case law precedent which interprets the definition of a scaffold within the meaning of § 240(1) liberally and expansively, this Court is of the opinion that the beam upon which decedent was sitting that subsequently fell was the functional equivalent of a scaffold within the meaning of § 240(1). It served as the work platform to support decedent in the work he was performing. Although that work was to cut and drop the very beam upon which he was sitting while he was sitting on it the evidence on this record establishes that the beam was employed as a support platform to the extent that the portion of it which decedent and his partner were cutting away was in front of him so that once that section dropped, decedent would be left supported (or so it was thought) by the 10-foot end that was still attached to the expansion joint.
In his deposition, when Leo was asked whether it was out of the ordinary or odd that decedent was sitting on the very beam he was cutting, he answered in the negative. In response to the question of whether it is a usual ironworker practice to sit on the same beam one is cutting, Leo responded, "He was cutting in front of him" (transcript pp. 163-164).
Gregory Shaw, steel superintendent for Perini at the time of the accident, stated in his affidavit that he had personally directed decedent to be tied off while he was burning steel beams, and that if at the time he was sitting on the subject beam and cutting it decedent had properly been tied off to an adjacent beam, he would not have fallen. He also stated that Perini controlled the means and methods of the work that decedent was performing at the time of the accident.
The record on this motion shows, and defendant does not dispute, that the procedure of sitting on the subject beam as it was being cut was usual and in fact was not prohibited by Perini. Indeed, defendant does not dispute that the subject beam that fell was being used as a work platform in lieu of a scaffold.
A scaffold is one of the safety devices listed in § 240(1). Whether a furnished safety device provided proper protection within the meaning of § 240(1) is ordinarily a question of fact to be resolved at trial ( see Canino v. Electronic Technologies Co., 28 AD3d 932 [3rd Dept 2006]). However, the collapse of scaffolding constitutes a failure of the safety device and, thus, establishes a prima facie showing of proximate cause linking the violation to decedent's death ( see Manning v. P.J. Kenneally Construction Company, Inc., 168 AD2d 861 [3rd Dept 1990]). Therefore, where the uncontroverted evidence establishes that the device collapsed or otherwise failed to safely support the worker, a prima facie entitlement to summary judgment under § 240(1) has been demonstrated ( see Ball v. Cascade Tissue Group-New York, Inc., 36 AD3d 1187 [3rd Dept 2007]).
There is no dispute that the beam upon which decedent was sitting was being utilized as the functional equivalent of a scaffold as his work platform and, thus, was a safety device within the meaning of Labor Law § 240(1), nor that said scaffold collapsed. Moreover, the record on this motion clearly establishes that the collapse of the beam was the proximate cause of decedent's death. Therefore, plaintiff has established a prima facie case of liability under § 240(1) ( see Zimmer v. Chemung County Performing Arts, supra). In opposition, defendant fails to raise an issue of fact.
Defendant's sole opposition, and the basis of its cross-motion, consists of the argument that the accident would not have occurred but for his failure to tie off properly to an adjacent beam and that such failure was the sole proximate cause of his death. Defendant points to the deposition testimony of Shaw wherein the latter states that he directed decedent to tie off, but that decedent failed to do so.
Labor Law § 240(1) is a strict liability provision that imposes upon owners and contractors absolute liability for any breach of the statutory duty that proximately causes injury ( see Panek v. County of Albany, 99 NY2d 452). What is meant by "strict" or "absolute" liability in the Labor Law context is that any negligence on the part of plaintiff which contributes to his injuries is not a defense and will not diminish the owner's or contractor's liability under Labor Law § 240(1) if it is established both that there was a violation of the statute and that the violation was a proximate cause of the injury ( see Blake v. Neighborhood Housing Services of New York, 1 NY3d 280). Thus, where plaintiff's own conduct is the sole proximate cause of his injuries no liability attaches under Labor Law § 240(1) ( see Weininger v. Hagedorn Company, 91 NY2d 958).
Although defendant contends that it is absolved of liability under § 240(1) based upon the defense of sole proximate cause, its opposition and cross-moving papers are devoted to the argument that decedent was a recalcitrant worker who failed to tie off despite having attended safety briefings and being ordered to tie off when working on steel beams.
In the first instance, the defense of sole proximate cause has no application under the facts of this case, since it is clear that the collapse of the beam was a substantial factor in causing decedent's death, even if it were established, which it has not been, that decedent was recalcitrant and that his refusal to tie off was also a substantial factor in causing him to fall.
In this case, plaintiff was allowed to sit on a beam suspended 18 feet in the air while not only he, but his partner Leo, were cutting through it. No one apparently had any problem with this arrangement. Defendant does not argue that sitting upon the very beam that was being cut was in any way an unauthorized, unilateral reckless act on the part of decedent that was the sole proximate cause of his death. Indeed, the record on this motion indicates that this precarious procedure was sanctioned by his employer. Rather, it argues that his death was caused solely by his failure to tie a choker around an adjacent beam and attach his safety harness to it so as to prevent him from falling after the beam collapsed under him.
Leo testified in his deposition that he was unaware that decedent was sitting on the other end of the beam and that he was surprised as he saw his end of the beam violently drop after he had cut completely through it, causing the other end upon which decedent was sitting to be ripped from its joint and as he watched decedent fly through the air past him overhead screaming.
Hence, it cannot be contested that a proximate cause of decedent's ensuing death was the collapse of his work platform/scaffold and that said beam failed to offer proper protection. Therefore, even if his failure to tie himself off were also deemed to be a proximate cause of his fall, such was not the sole proximate cause of his death and, thus, defendant may not avail itself of that defense to absolve it of liability under § 240(1).
With respect to the recalcitrant worker defense, there was no showing that decedent was recalcitrant in the sense that he refused to tie off properly ( see Guaman v. New Sprout Presbyterian Church of New York, 33 AD3d 758 [2nd Dept 2006]).
Shaw testified in his deposition that there was a safety meeting which decedent attended the morning of the accident before 7 A.M., before the start of work, wherein fall protection was discussed. This fact, alone, however, does not establish a defense of recalcitrant worker. "[T]he mere fact that generalized safety instructions were given at some point in the past" is not enough to defeat liability ( see Palacios v. Lake Carmel Fire Department, Inc., 15 AD3d 461 [2nd Dept 2005]).
Shaw also testified that after work had commenced, at approximately 8:15 A.M. he personally saw that decedent was, in fact, tied off. At approximately 10 A.M., after being alerted by a safety inspector that decedent was not tied off, he went to decedent's location and saw that decedent was not tied off. He ordered decedent to stop working and tie off. Decedent was not working on the subject beam at the time, but on an expansion dam. Decedent stopped working and complied with his direction and tied in to his choker which was wrapped around a girder. He was told that he had to stay tied off and decedent nodded affirmatively.
The accident occurred at approximately 12:40 P.M. after the lunch break. Shaw did not witness the accident, but heard the commotion. Neither he nor Leo saw whether or not decedent had his harness attached to a choker when he was working on the ill-fated beam. Shaw only saw decedent lying on the ground with a beam by him and wearing only his safety harness, and assumed from this that he had not been tied off.
These facts fail to establish that decedent refused to comply with an immediate order to tie off and thus fail to raise an issue of fact as to whether decedent was recalcitrant.
Even if decedent were a recalcitrant worker, which the record herein does not establish, defendant fails to raise an issue of fact to rebut plaintiff's prima facie showing that the catastrophic collapse of decedent's work platform was also a proximate cause indeed more so of the accident than decedent's failure to attach his safety harness to a choker around another beam ( see Milewski v. Benny Caiola, 236 AD2d 320 [1st Dept 1997]; Aragon v. 233 West 21st Street, Inc., 201 AD2d 353 [1st Dept 1994]). Given the extreme set of facts presented herein, defendant can hardly be heard to argue that decedent's death was entirely his fault because he failed to tie himself off while his partner, under the supervision of Perini, proceeded to cut off the very beam that was supporting him.
Since plaintiff has established proximate cause, she has, consequently, also established that defendant has failed, as a matter of law, to provide "proper protection" within the meaning of § 240(1) ( see Bradford v. State, 17 AD3d 995 [4th Dept 2005]).
Additionally, the collapse of a work site itself constitutes a prima facie violation of § 240(1) ( see Richasrdson v. Matarese, 206 AD2d 353). Since the beam upon which decedent was sitting which collapsed was part of the bridge structure being demolished, it not only served as the equivalent of a scaffold, and was thus a "safety device" pursuant to § 240(1), but it also constituted the work site itself.
Accordingly, plaintiff is entitled to summary judgment on the issue of liability pursuant to Labor Law § 240(1). With the exception of allowing the amendment of its answer, the balance of defendant's cross-motion is denied, for the reasons heretofore stated.