Opinion
012255/04.
Decided March 23, 2009.
Motion (No. 2636) of defendant Apple Coring Sawing, LLC for summary judgment dismissing the complaint and cross claims against it is granted, in part, and denied, in part, as is the cross motion (No. 144) for like relief of defendant the City of New York; plaintiffs' cross motion (No. 3153) for partial summary judgment on the issue of liability as against both defendants is denied.
This personal injury action arises out of an accident that occurred on November 19, 2003 at the Oakwood Beach water treatment plant located at 751 Mill Road, Staten Island, New York. The facility is owned by defendant City of New York (hereinafter "City") and operated by its Department of Environmental Protection. At the time of plaintiff's accident, a construction project was ongoing at the site to upgrade the "sludge de-watering" building.
According to the complaint, plaintiff Julio Velecela (hereinafter "plaintiff") was employed as an apprentice by the plumbing contractor for the project, nonparty Crescent Contracting Corp. (hereinafter "Crescent"), which had been retained for that purpose by the City. To the extent relevant, Crescent then hired defendant Apple Coring Sawing, L.L.C. (hereinafter "Apple") to drill or "core" six-inch circular openings through the twelve-inch thick concrete floors on the second floor of the facility to allow the installation of piping. It is undisputed that Apple's drilling process created certain debris, e.g., water, slurry and pieces of concrete, and that the portion of said debris that could not be vacuumed by the operator of the drill would ultimately fall onto the floor below.
Insofar as it appears, plaintiff was dispatched to protect the surface of the floor on the mezzanine level directly below the drilling work (i.e., the machinist's room). In order to accomplish this task, plaintiff was positioned on the middle rung of a six-foot A-frame ladder holding a plastic bucket approximately 20 inches deep and 15 inches in diameter to catch the falling debris. It is undisputed that this equipment was provided to plaintiff by his employer, Crescent. The injury allegedly occurred when a circular piece of the concrete weighing approximately 33 pounds fell on plaintiff, striking him on his right knee and causing both plaintiff and the ladder to fall.
Plaintiff testified at his EBT that on the day of the accident, he was instructed by a "co-worker", i.e., his supervisor, to climb on the ladder with the bucket to catch any waste water that resulted from Apple's drilling work. According to plaintiff, it was his understanding that "dirty water and small amounts of dirt and pieces of . . . concrete from the floor above would also fall in the bucket." It is undisputed that shortly before the accident, a power loss occurred in the machinist's room as the apparent result of Apple's severing an electrical conduit in the floor that was being cored. Nevertheless, the work proceeded with plaintiff's supervisor standing a short distance away from the ladder holding a flashlight so that plaintiff could see.
In moving for summary judgment, defendant Apple relies upon the affidavit of a former Crescent employee, Joseph Argento, plaintiff's purported foreman on the day of the accident, in which he acknowledges that plaintiff was "assigned" by him to work on the mezzanine level while "Gary", an Apple employee, cut holes in the concrete ceiling above. However, according to Mr. Argento, he "instructed plaintiff to remain on the floor beneath the area where Gary [was] sawing . . . and [to] utilize a ladder and a bucket [to contain debris] underneath the area where Gary was cutting the hole" (emphasis supplied). In addition, Mr. Argento stated that "[a]t no time that day did Gary provide [any] instructions to plaintiff with regard to these activities", and that "Gary" neither supervised, directed or controlled plaintiff's work. Apple also points out that the deposition testimony of Crescent's "part owner and project manager", Quinn Rickman, confirmed that his employees received instructions solely from his foreman or himself, and that as a project manager, he was responsible for site safety.
Although this version of the events does not conform to plaintiff's version, a "recalcitrant worker" defense has not been asserted.
Based on the foregoing evidence, Apple maintains that it lacked the authority to supervise, direct or control plaintiff's work and, therefore, was not a "statutory agent" of the owner. Accordingly, it is claimed that it may not be held liable for plaintiff's injuries under Labor Law §§ 240(1) and 241(6). Apple further maintains that the uncontroverted deposition testimony of its principal, Michael Ingaro, demonstrates that (1) his company was retained and compensated solely to perform the coring, and supplied but a single worker with drilling equipment to accomplish this task; and (2) Crescent was obligated to supply someone "to do the core catching . . . and do all the protection" with its own equipment. Thus, in view of the parties' contractual agreement, Apple argues that since it was not delegated to perform the injury-producing work, there is no basis for imposing liability upon it under the cited sections of the Labor Law.
It is well settled that a subcontractor hired for a specific project is subject to liability under Labor Law §§ 240(1) and 241(6) as the statutory agent of an owner or general contractor only if it has been delegated to perform the work in which plaintiff was engaged at the time of his injury ( see Russin v Louis N. Picciano Son, 54 NY2d 311, 318; Torres v LPE Land Dev. Constr. , 54 AD3d 668, 669; Coque v Wildflower Estates Developers, Inc. , 31 AD3d 484, 488; see also Ross v Curtis-Palmer Hydro-Elec., 81 NY2d 494, 500). Stated otherwise, the nondelegable liability imposed by Labor Law §§ 240(1) and 241(6) can attach only to a subcontractor that has the authority to supervise and control the work that caused the injury ( see Tomyuk v Junefield Assoc., ___ AD3d ___, 2009 NY Slip Op 9586; Torres v LPE Land Dev. Constr., 54 AD3d at 669).
In the instant case, the uncontroverted evidence establishes that Apple had neither contracted for nor been delegated the tasks of protecting the mezzanine floor from water and debris, or supplying the equipment to do so. Notably in this regard, Apple's principal (Mr. Ingaro), explained the customary methods and equipment utilized to catch drilling cores include (1) placing a jack at ceiling level to secure plywood to the underside of the concrete floor above, (2) positioning a "perry scaffold" or a ladder, and placing a bucket on top to catch the core, (3) installing a "unistrut" system, or (4) allowing a worker, i.e., a "core catcher", with a safety harness that is bolted to the wall or ceiling, to climb up a ladder to observe when the drill bit "is coming through the concrete" in order to "put [a] bucket up" in the proper location and descend the ladder before any debris falls. Clearly, none of the above was required of Apple in this case, as evidenced by (1) the testimony of Mr. Ingaro and (2) the company's "Job Order" which provides that Apple was engaged solely to drill six core holes (three in the wall and three in the floor) measuring approximately 6 inches by 12 inches, and to supply one worker with the equipment necessary to the accomplishment of same. Thus, Apple has demonstrated prima facie its right to dismissal under sections 240 and 241 of the Labor Law.
In opposition, plaintiffs have failed to raise a triable issue of fact. In this regard, plaintiff's (hearsay) testimony that "a decision was made between [his foreman] and the man [using] the machine" that plaintiff would be sent below to catch the water is insufficient to raise a triable issue as to whether Apple had the requisite authority to control the work that brought about plaintiff's injury. Accordingly, Apple's motion for summary judgment dismissing those causes of action against it that are predicated upon violations of Labor Law §§ 240(1) and 241(6) should be granted ( see Coque v Wildflower Estates Developers, Inc., 31 AD3d at 488).
Somewhat similarly, "liability against a subcontractor based upon a claimed violation of Labor Law § 200 and common-law negligence requires a showing that authority was conferred [up]on [it] to supervise and control the activity which produced the injury" ( Kehoe v Segal, 272 AD2d 583, 584; see Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 352; Romang v Welsbach Elec. Corp. , 47 AD3d 789; Lopes v Interstate Concrete, 293 AD2d 579, 580). "The determinative factor on the issue of control is not whether a subcontractor [e.g.] furnishes equipment but whether he has control of the work being done and the authority to insist that proper safety practices be followed" ( Lopes v Interstate Concrete, 293 AD2d at 580, quoting Everitt v Nozkowski, 285 AD2d 442, 443-444). Thus, as there is no legal evidence before the Court that (1) Apple's site worker exercised authority and control over the manner and methods of plaintiff's core-catching, or (2) the subcontract delegated to Apple the authority for overall safety on the job ( see Lopes v Interstate Concrete, 293 AD2d at 580), summary judgment dismissing the remaining causes of action asserted in the complaint as against this subcontractor must be granted as well.
However, with respect to the City's cross claims for, inter alia, contribution and indemnification, Apple has failed to establish its entitlement to summary judgment, as questions of fact have been shown to exist regarding, e.g., whether this subcontractor's employee at the work site, Gary Cather, properly and safely performed his core-drilling tasks. More specifically, Apple's principal testified at his deposition that when the "bucket and ladder method" is employed, "you don't want a piece of [an] 8 inch diameter core, 12 inches thick coming into a bucket . . . you want a half-inch piece, 8 inches in diameter coming into a bucket so [that] somebody would be able to hold it." He further explained that it was standard practice when drilling to "snap the core", which he described as "drill[ing] down to a certain depth and . . . tak[ing] a wedge or a chisel and . . . hit[ting] it with a hammer . . . [to] break that core off so the [remaining] piece is smaller." Illustratively, he went on to state that "[i]f the floor is 12 inches in thickness you want to retrieve 11 [inches] of it from the top and let the other half of inch [fall] below (emphasis supplied)." Significantly, this witness also testified that (1) allowing an 8 inch by 12 inch thick piece of core to fall into a bucket during core-drilling was contrary to standard practice, and (2) it was contrary to Apple's practice to continue drilling a core when a power loss occurs. In view of this evidence of a possible failure to exercise due care in drilling the core, the City's cross claims for contribution and indemnification as against Apple cannot be dismissed.
In cross-moving for summary judgment and dismissal of the complaint, the City maintains that it cannot be held liable (1) under Labor Law § 200 or common-law negligence, since it did not supervise, direct or control the means and methods of plaintiff's work; (2) under Labor Law § 240(1), since the objects that fell and struck plaintiff were not being "hoisted or secured"; and (3) under Labor Law § 241(6), since the two Industrial Code provisions upon which plaintiff purports to rely are either too general or inapplicable to the facts of this case.
It is within the Court's discretion to entertain a belated but meritorious cross motion for summary judgment in the interest of judicial economy, where, as here, it is served in response to a pending summary judgment motion that was timely interposed by a codefendant and made on nearly identical grounds ( see Bressingham v Jamaica Hosp. Med. Ctr. ,17 AD3d 496, 497; see also Boehme v A.P.P.L.E., A Program Planned for Life Enrichment, 298 AD2d 540, 541-542). Alternatively, it must be recognized that in the course of deciding a timely motion, the Court is empowered to search the record and award summary judgment to a nonmoving party ( see CPLR 3212[b]; Grande v Peteroy , 39 AD3d 590, 592; cf. Parrales v Wonder Works Constr. Corp. , 55 AD3d 579, 582).
Inasmuch as plaintiffs have conceded that the City has no liability under Labor Law § 200 or for common-law negligence, the branch of the cross motion which is for summary judgment dismissing these claims must be granted.
With respect to the balance of the cross motion, the Court is unpersuaded by the City's contention that "this is not a falling object case." In this regard, it is well established that Labor Law § 240(1) imposes liability on owners and contractors whenever a worker exposed to the risk of being injured due to the relative elevation at which the task must be performed, or at which materials or loads must be positioned or secured, sustains such an injury due to the lack of a required safety device, i.e., the so-called "falling object" and "falling worker"cases ( see Toefer v Long Island R.R. , 4 NY3d 399, 407; Rocovitch v Consolidated Edison Co., 78 NY2d 509). In addition, contrary to the City's position, the piece of concrete that fell during the drilling process in this case was plainly a "falling object" under those Court of Appeals decisions which have held that this category of accident is not limited to objects in the process of being hoisted or secured ( see e.g. Quattrochi v Sciame Constr. Co., 11 NY3d 757, 758-759; Outar v City of New York , 5 NY3d 731, 732, affg 286 AD2d 671). Thus, the City has failed to establish as a matter of law that the injured plaintiff would not be entitled to the protection of Labor Law § 240, since the evidence here indicates that the "external force" which allegedly caused him to fall was the foreseeable effect of gravity acting upon an object situated at a higher elevation ( see Buckley v Columbia Grammar and Preparatory , 44 AD3d 263, 267; Coque v Wildflower Estates Developers, 31 AD3d at 487; Cruz v Turner Constr. Co., 279 AD2d 322, 322-323). With this much established, it is worthy to note that it has not been alleged that the subject ladder was defective, i.e., that it malfunctioned, slipped or tipped, was placed improperly, or otherwise failed to support plaintiff at that elevation of three feet from which he fell ( see Felker v Corning Inc., 90 NY2d 219, 224).
The City has also failed to establish prima facie that additional precautionary devices or measures were not necessary to protect plaintiff from the foreseeable risk of harm from falling objects ( see Nimirovski v Vornado Realty Trust Co. , 29 AD3d 762, 762-763; Cruz v Turner Constr. Co., 279 AD2d 322, 322-323; Spaulding v Metropolitan life ins. Co., 271 AD2d 316), or that the absence of such devices was not a proximate cause of his injuries ( see Zimmer v Chemung County Performing Arts, 65 NY2d 513, 524). Pertinent in this regard is the testimony of Apple's principal who, although he was unqualified as an engineering expert, testified to the customary methods and equipment used in the trade to catch drilling cores. According to this witness, in addition to the "ladder and bucket" method (which, critically, does not call for an employee to stand on a ladder to "catch" the core), various other methods and equipment could have been utilized to perform plaintiff's task safely. In this regard, it is undisputed that nothing was provided in this case to shield plaintiff from the falling debris which was the expected result of coring, or to prevent him and/or the ladder from becoming unstable.
In a failed attempt to refute the claim that safety devices should have been provided at the work site by the City, the latter submits the affidavit of its own licensed professional engineer, Carl Abraham, a purported specialist in safety engineering and design, who opines that "the City did not violate either Labor Law § 240(1) or § 241(6)"; rather, it was plaintiff's employer, Crescent, which allegedly "breached its statutory duty to supply [its employee] with the proper safety equipment" such as a scaffold "that would have easily eliminated the subject accident." In any event, Dr. Abraham's fundamental position is that plaintiff's own negligence was the sole proximate cause of the accident. In so concluding, he attests that although plaintiff was ordered by his supervisor to stand on the floor adjacent to the ladder and place the bucket on the top step below the drilling, the former elected to disobey these instructions by standing on a ladder directly beneath the work area to steady the bucket. According to Dr. Abraham, this was contrary to plaintiff's "safety training" and instructions. However, in view of plaintiff's testimony that he was ordered to climb the ladder, this expert's affidavit is insufficient to eliminate questions of fact on the issue of causation ( see Kosavick v Tishman Constr. Corp. of NY , 50 AD3d 287, 289; cf. Kok Choy Yeen v NWE Corp. ,37 AD3d 547, 549).
Accordingly, the City is not entitled to summary judgment on plaintiffs' Labor Law § 240(1) cause of action.
Turning to that branch of the City's cross motion which is for summary judgment dismissing plaintiffs' claims under Labor Law § 241(6), it is well established that while the duties imposed upon an owner by this statute are also non-delegable, a cause of action thereunder must be based upon the violation of a specific provision of the Industrial Code regarding safety ( see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d at 502). In this case, plaintiffs purport to rely on the alleged violation of 12 NYCRR 23-1.21, which pertains to ladders and ladderways, and 12 NYCRR 23-1.16, which regulates the use of safety belts, harnesses, tail lines and lifelines.
Here, there is no factual basis for imposing liability under 12 NYCRR 23-1.21, since the condition of the subject ladder is not at issue, and the cited regulation does not require that the type of ladder used in this case be supported and secured ( cf.12 NYCRR 23-1.21[b][4][i], [iv]; [e][3]). However, the same cannot be said for the alleged violation of 12 NYCRR 23-1.16, which is facially applicable and sufficiently specific to sustain a cause of action under Labor Law § 241(6) for its breach. Accordingly, in view of the City's failure to establish, as a matter of law, that it did not violate 12 NYCRR 23-1.16, or that said violation was not a proximate cause of plaintiff's injury, the summary dismissal of plaintiffs' Labor Law § 241(6) cause of action as against the City is unwarranted.
Finally, plaintiffs' cross motion for partial summary judgment is denied. As set forth at length above, material issues of fact exist in this case as to whether the purported violations of Labor Law §§ 240(1) and/or 241(6) were a proximate cause of the subject injury. Thus, plaintiffs have failed to establish as a matter of law, e.g., that plaintiff was instructed by his supervisor to climb the ladder. In this regard, it may prove significant that the City's resident engineer at the work site, Alkesh Patel, testified at his deposition that plaintiff "[didn't] have to go on the ladder [to catch the core] because it was an easy reach for him to hold [or steady] the bucket" while remaining on the floor. This and other proof before the Court might reasonably satisfy a jury that the plaintiff's own conduct was the sole proximate cause of his injury ( see Kok Choy Yeen v NWE Corp., 37 AD3d at 549; cf. Norwood v Whiting-Turner Contr. Co. , 40 AD3d 718). In addition, plaintiff has failed to demonstrate that the absence of a required safety device was a proximate cause of his injury. On these facts, it could be found, inter alia, that the sheer size of the concrete core that Apple's employee allowed to fall through the drill hole would render any approved safety device ineffective to prevent or lessen plaintiff's injury .
The foregoing delineation of triable issues is representative only, and is not intended to exclude any other factual issues that may require resolution.
Accordingly, it is
ORDERED, that the motion for summary judgment of defendant Apple Coring Sawing, LLC is granted to the extent that the complaint as against this defendant is hereby severed and dismissed; and it is further
ORDERED, that the balance of the motion is denied; and it is further
ORDERED, that the cross motion for summary judgment by defendant City of New York is granted to the extent that the claims against it predicated upon the alleged violation of Labor Law § 200 and common-law negligence are hereby severed and dismissed; and it is further
ORDERED, that the balance of the cross motion is denied; and it is further
ORDERED, that the plaintiffs' cross motion for partial summary judgment on the issue of liability is denied in its entirety; and it is further
ORDERED, that the Clerk shall enter judgment accordingly.