Opinion
November 18, 1999
Defendants Metropolitan Transit Authority (hereinafter "MTA") and Metro-North Commuter Railroad Company (hereinafter "Metro-North") move pursuant to CPLR 3212 for summary judgment dismissing plaintiff Andrzej Strzelczyk's complaint in its entirety as based upon Labor Law §§ 240(1), 241(6) , and 200. Plaintiff crossmoves for partial summary judgment on the issue of liability as to his Labor Law § 240(1) claim or, in the alternative, to amend his bill of particulars to include an allegation that defendants violated section 23-1.7(d) of the Industrial Code.
Facts
On June 21, 1996, plaintiff, while engaged in lead paint removal, was injured on a job site at Grand Central Terminal in Manhattan. Plaintiff was employed by Trio Asbestos Removal Corporation to perform lead abatement from the exterior walls of the elevator shaft on the train platform. This work took place in a contained area. The lead abatement was performed weekdays from approximately 8:00 P.M. to 4:00 A.M. and was part of a major renovation of Grand Central Terminal. Plaintiff and his co-workers utilized tools powered by pressurized or compressed air to remove the lead paint. The compressed air outlet was located approximately 80 feet from the contained work area, midway between the platform level and the track bed.
Plaintiff testified that every evening, during the same period of time that the lead paint abatement was performed, Metro-North cleaning crews cleaned the platforms above the tracks, including those located in the area whereat plaintiff was working. The platforms were first swept and all rubbish was removed. The platforms were then cleaned with mops and water and sometimes a machine that used water to clean the platform was also utilized. Plaintiff testified that the platforms remained wet for approximately an hour or two before drying.
Each morning when plaintiff was finished removing lead paint for the day, he was required to take down all of the hoses that supplied the pressurized air. Between 2:00 and 4:00 A.M. on June 21, plaintiff began the process of disconnecting the hose that supplied the pressurized air. The hose was approximately 100 feet long, three to four inches in diameter, and weighed between 50 and 80 pounds. In order to accomplish this task, plaintiff had to stand on the edge of the platform, which was approximately five or six feet above the tracks, and pull the hose upward. On the morning of June 21, as plaintiff was standing on the edge of the platform pulling the hose, he slipped off of the platform, which he claims was wet as a result of defendants' cleaning crews, and fell onto the tracks sustaining various injuries.
Defendants move for summary judgment to dismiss plaintiff's claims as based upon Labor Law §§ 240(1), 241(6) , and 200. Plaintiff cross-moves for partial summary judgment on the issue of liability as to his Labor Law § 240(1) claim or, in the alternative, to amend his bill of particulars to include an allegation that defendants violated section 23-1.7(d) of the Industrial Code.
The court will first address that portion of plaintiff's cross motion that seeks summary judgment on his Labor Law § 240(1) claim.
In pertinent part, Labor Law § 240(1) provides that:
"All contractors and owners and their agents. . . in the . . . demolition, repairing, altering . . . of a building or structure, shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangars, 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."
This statute was specifically enacted to ensure that employees performing construction-related activities are protected from injuries through the provision of proper safety devices (Joblon v. Solow, 91 N.Y.2d 457, 463, citing Zimmer v. Chemung County Perf. Arts, 65 N.Y.2d 513, 520-521 ; Gordon v. Eastern Ry. Supp., 82 N.Y.2d 555, 559, 561-562 ; Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 500 — 501). In fact, the court in Rocovich v. Consolidated Edison Co. ( 78 N.Y.2d 509, 513 ) cited the memorandum in support accompanying the enactment of § 240(1), stating that "[t]he legislative purpose behind this enactment is to protect workers by placing'ultimate responsibility for safety practices at building construction jobs where such responsibility actually belongs, on the owner and general contractor' (1969 N.Y. Legis. Ann., at 407), instead of on workers who are'scarcely in a position to protect themselves from accident'" (see also, Klein v. City of New York, 89 N.Y.2d 833, 835 ).
Indeed, the duty to protect workers under § 240(1) is non-delegable and an owner will be held liable for a violation of this statute even in a situation in which the construction work is performed in the absence of the owner's supervision or control over the work (Rocovich, supra, at 513; Gordon v. Eastern Ry. Supp., supra, at 559; Ross v. Curtis-Palmer Hydro-Elec. Co., supra, at 500).
However, § 240(1) is not applicable to every "hazard or danger encountered in a construction zone" (Misseritti v. Mark IV Constr., 86 N.Y.2d 487, 490 ). Rather, it was intended to protect workers from the special risks involved in construction projects involving elevation-related activities (Joblon v. Solow, supra, at 462-463; Felker v. Corning, 90 N.Y.2d 219, 224 ; Covey v. Iroquois Gas Transmission System, 89 N.Y.2d 952, 954, affg 218 A.D.2d 197 ; Gordon v. Eastern Ry. Supp., supra, at 561; Ross v. Curtis-Palmer Hydro-Elec. Co., supra, at 500-501; Rocovich v. Consolidated Edison Co., supra, at 514; Baker v. Barron's Educ. Svc. Corp., 248 A.D.2d 655, 656 ; Del Vecchio v. State, 246 A.D.2d 498, 499 ). Specifically, the "special hazards" covered by this statute are "those related to the effects of gravity where protective devices are called for either because of a difference between the elevation level of the required work and a lower level or a difference between the elevation level where the worker is positioned and the higher level of the materials or load being hoisted" (Heizman v. Long Is. Light. Co., 251 A.D.2d 289, 291 , appeal dismissed, leave denied 92 N.Y.2d 1012, citing Rocovich v. Consolidated Edison Co., supra). Moreover, special hazards do not include all perils related to the effects of gravity but rather "are limited to such specific gravity-related accidents as falling from a height or being struck by a falling object that was improperly hoisted or inadequately secured" (Ross v. Curtis-Palmer Hydro-Elec. Co., supra, at 501; Covey v. Iroquois Gas Transmission System, supra, at 954; Del Vecchio v. State, supra, at 499).
In opposition to plaintiff's cross motion, and in support of its motion, defendants argue that Labor Law § 240(1) is inapplicable to the facts of the instant case as plaintiff was not exposed to any of the extraordinary elevation risks covered under the statute. Defendants additionally assert that "plaintiff was exposed to no greater risk than any Metro-North passenger waiting for a train to arrive at a station." As such, defendant avers, "plaintiff should not be afforded greater protection that [sic] [than] the general public." Finally, defendants claim that plaintiff's Labor Law § 240(1) claim should be dismissed as the absence of any safety device was not the proximate cause of plaintiff's fall. Conversely, plaintiff argues that it is uncontroverted that he fell from a height of five to six feet from his work site onto the railroad tracks below while performing a work-related task and, as such, Labor Law § 240(1) applies.
The court will first examine defendants' assertion that Labor Law § 240(1) is inapplicable under the facts herein as plaintiff was not exposed to any extraordinary elevation risks. The court rejects this argument. Plaintiff's work site was located on an elevated platform, at least five feet above an area from which he was required to lift hoses. Courts have consistently extended the protections of Labor Law § 240(1) to plaintiffs sustaining injuries as a result of a fall from an elevated work site. In fact, in two recent decisions from the Second Department, involving facts similar to the case herein, liability was imposed where workers sustained injuries as a result of a fall from a worksite located at heights of five and four feet, respectively. In Aiello v. Rockmor Electric Enterprises, Inc. ( 255 A.D.2d 470 ), the court held an owner absolutely liable pursuant to Labor Law § 240(1) where plaintiff fell five to six feet to the ground below, from a loading dock whereat he tripped on debris causing his fall. In addition, in Moran v. Corporate Property Investors ( 251 A.D.2d 558, 559 ), that court granted summary judgment to a worker who fell four feet off an I-beam that he was working on (see also, Gettys v. Port Auth. of New York New Jersey, 248 A.D.2d 226, 227 [holding that a fall from a platform elevated as little as two feet from the ground would be covered under the statute]; Carpio v. Tishman Constr. Corp., 240 A.D.2d 234, 235 ; Robertti v. Chang, 227 A.D.2d 542, 543 [extending the protections of Labor Law § 240(1) to falls caused as a result of a collapse of a floor regardless of the distance that plaintiff fell and whether or not he made contact with the ground]). Accordingly, the court finds that plaintiff was indeed exposed to the elevation related risks encompassed under Labor Law § 240(1).
The court now turns to defendants' second argument that it was relieved of its responsibility to provide plaintiff with any safety devices as "plaintiff should not be afforded greater protection that [sic] [than] the general public." The court rejects this argument. Indeed, Zimmer v. Chemung County Performing Arts, the court held that:
"[t]o determine an owner or contractor's liability for a violation of § 240(1) by reference to whether safety devices customarily are used, and, if so, which ones give "proper protection" would allow owners and contractors to diminish their obligations under that statute and to set their own standard of care for the protection of workers at the worksite. This would clearly contravene the legislative purpose of placing'ultimate responsibility for safety . . . on the owner and general contractor'" (1969 N.Y. Legis Ann, at 407).
Moreover, defendants' assertion evidences a basic misunderstanding of the legislative intent underlying Labor Law § 240(1), which was enacted to provide workers with a greater level of protection due to the dangers inherent in the work they are performing. Further, members of the general public, while walking along a railroad platform, are not required to pull 50 to 80 pound hoses from an area located midway between the track level and the platform, up onto the platform and thus are not exposed to the danger that plaintiff was.
The court rejects defendant's last assertion that plaintiff'sLabor Law § 240(1) claim should be dismissed as the absence of any safety device was not the proximate cause of plaintiff's fall. "In order to prevail on a Labor Law § 240(1) claim, the plaintiff must show a violation of the statute and that the violation was the proximate cause of his injuries" (Chacon v. New York Univ., ___ A.D.2d ___, 685 N.Y.S.2d 96, 97 ; see, Felker v. Corning, supra, at 224; Rocovich v. Consolidated Edison Co., supra, at 513; Bland v. Manocherian, 66 N.Y.2d 452, 459 ; Boice v. Jegarmont Rlty, 204 A.D.2d 674, 675 ; Keane v. Lee, 188 A.D.2d 636, 637 ). The Court of Appeals held in Gordon v. Eastern Ry. Supp. ( 82 N.Y.2d 555 ) that a prima facie case may be established when a plaintiff demonstrates that some risk of injury from a defendant's conduct is foreseeable. A plaintiff "need not demonstrate that the precise manner in which the accident happened or the injuries occurred was foreseeable" Gordon v. Eastern Ry. Supp., supra, at 562; see also, Derdiarian v. Felix Contr. Co., 51 N.Y.2d 308, 316, 317 ).
In the instant case, it is undisputed that defendants failed to provide any safety device to plaintiff that would have prevented him from falling off the platform and onto the railroad tracks. Defendants argue that plaintiff slipped on the train platform because it was wet. The court finds that in the instant case, notwithstanding the fact that the platform was wet due to the actions of defendants' cleaning crews, the absence of any safety devices to protect plaintiff while lifting a hose that weighed between 50 and 80 pounds, while standing on a platform that was five or six feet above the railroad tracks was a substantial and foreseeable cause of plaintiff's injury (Felker v. Corning, 90 N.Y.2d 219 ;. Gordon v. Eastern Ry. Supp., supra; Bland v. Manocherian, supra, at 461-462; DaSilva v. A.J. Contracting Co., 1999 N.Y. Slip Op 06208 ; Gonzalez v. 1251 Americas Assocs., ___ A.D.2d ___, 693 N.Y.S.2d 107, 108 ; Boice v. Jegarmont Rlty. Corp., supra, at 675). Accordingly, the court finds that defendants' failure to provide any safety device required for the safe lifting of the air hose at the end of each workday proximately caused the injuries sustained by plaintiff. As a result, defendants must be held absolutely liable for such injuries.
It is undisputed that defendants were the owners of the worksite at which plaintiff sustained his injuries. Ms. Lazelle Williams, senior environmental engineer for Metro-North, affirmed that she was the project manager for the asbestos and lead abatement project performed by plaintiff's employer, Trio Asbestos Removal Corporation. Further, it is undisputed that the lead removal was part of a larger project of renovating Grand Central Terminal, which is owned by defendants.
Accordingly, the court finds that absolute liability must be imposed upon defendants, as owners of the premises upon which plaintiff sustained his injuries, while performing work covered under Labor Law § 240(1), for which defendants failed to supply any safety devices. Therefore, that branch of plaintiff's cross-motion that seeks summary judgment on the issue of liability under Labor Law § 240(1) is granted. The court finds that the portion of plaintiff's motion which seeks to amend his bill of particulars is moot in light of the court's decision granting partial summary judgment on his Labor Law § 240(1) claim.
Having granted plaintiff's motion for summary judgment based onLabor Law § 240(1) and finding that absolute liability must be imposed upon defendants under the statute, the court "see[s] no need to consider the . . . arguments addressing the validity of other theories of liability asserted in plaintiff's complaint. It is clear from the record that plaintiff's damages are the same regardless of the theory of liability, and plaintiff can only recover these damages once . . . [As such] defendants' arguments concerning the validity of other theories of liability contained in the complaint are academic" (Covey v. Iroquois Gas Transmission Sys., 218 A.D.2d 197, 201, affd 89 N.Y.2d 952 ; see also,Torino v. KLM Constr. Inc., ___ A.D.2d ___, 685 N.Y.S.2d 24, 25 ). Accordingly, defendants' motion is deemed moot.
Upon filing a note of issue and payment of the requisite fees, if any, this matter shall be scheduled for an inquest on the damages which plaintiff is entitled to recover from defendant.
The foregoing constitutes the decision, order and judgment of the court.