Enderlin
v.
Hebert Indus. Insulation, Inc.

Appellate Division of the Supreme Court of New York, Fourth DepartmentFeb 2, 1996
224 A.D.2d 1020 (N.Y. App. Div. 1996)
224 A.D.2d 1020638 N.Y.S.2d 262

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Summaries written by judges

Summaries

  • affirming dismissal of plaintiff's section 200 claim because plaintiff failed to make the requisite showing that [defendants] supervised or controlled the manner and method of construction of the enclosures on which plaintiff was working and holding that defendants general supervisory authority established by contract was insufficient to establish liability under Labor Law § 200"

    Summary of this case from Malone v. Med Inn Centers of America, LLC

February 2, 1996

Appeal from the Supreme Court, Monroe County, Bergin, J.

Present — Green, J.P., Pine, Fallon, Callahan and Boehm, JJ.


Order unanimously reversed on the law without costs, motion granted and complaint dismissed. Memorandum: Defendant Rochester Gas Electric (RGE), the owner of the Ginna Nuclear Power Plant, contracted with defendant Hebert Industrial Insulation, Inc. (Hebert), the general contractor, to remove asbestos insulation around pipes at the power plant and to install new insulation. Hebert contracted with Salhen Enterprises, Inc. (Salhen), the subcontractor, to build enclosures around the pipes from which the asbestos insulation was to be removed. While standing on a stepladder using a power screw gun, George D. Enderlin (plaintiff), an employee of Salhen, lost his balance when the gun slipped. Although he did not fall from the ladder, plaintiff twisted his back when he grabbed a pipe or metal stud to steady himself. Plaintiff and his wife brought this action, alleging violations of Labor Law §§ 200 and 241. Supreme Court denied defendants' motion for summary judgment dismissing the complaint. We reverse.

With respect to Labor Law § 200, plaintiff failed to make the requisite showing that either RGE or Hebert supervised or controlled the manner and method of the construction of the enclosures on which plaintiff was working (see, Comes v. New York State Elec. Gas Corp., 82 N.Y.2d 876, 877; Adams v. Glass Fab, 212 A.D.2d 972, 973; Hunter v. BTC Block 17/18, 210 A.D.2d 968). Plaintiff testified at his examination before trial that neither RGE nor Hebert had ever given him directions how to carry out his work. The general supervisory authority of Hebert contained in the contract between RGE and Hebert is insufficient to establish liability under Labor Law § 200 (see, Ross v Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 505-506; Tambasco v Norton Co., 207 A.D.2d 618, 621, lv dismissed 85 N.Y.2d 857; Hayes v. Crane Hogan Structural Sys., 191 A.D.2d 978; Dewitt v Pizzagalli Constr. Co., 183 A.D.2d 991, 993), nor does Hebert's authority to enforce general safety standards and to determine the location of the enclosures establish actual control or supervision (see, Comes v. New York State Elec. Gas Co., supra, at 877; Mamo v. Rochester Gas Elec. Corp., 209 A.D.2d 948, 949, lv dismissed 85 N.Y.2d 924; see also, Clayson v Oldfield, 181 A.D.2d 993). The fact that RGE inspectors visited the job site to observe whether the work was being performed in compliance with safety standards is also insufficient to establish liability under Labor Law § 200 (see, Comes v. New York State Elec. Gas Corp., supra, at 877; Mamo v. Rochester Gas Elec. Corp., supra, at 949; Paterson v. Hennessy, 206 A.D.2d 919).

Plaintiff's allegation that defendants violated 12 NYCRR 23-1.21 (e) is specific enough to support a Labor Law § 241 (6) cause of action (see, Adams v. Glass Fab, supra, at 973; Durfee v. Eastman Kodak Co., 212 A.D.2d 971, 972, lv dismissed 85 N.Y.2d 968). That regulation requires that, "[w]hen work is being performed from a step of a stepladder 10 feet or more above the footing, such stepladder shall be steadied by a person stationed at the foot of the stepladder or such stepladder shall be secured against sway by mechanical means" ( 12 NYCRR 23-1.21 [e] [3]). Nevertheless, plaintiff failed to show that "a violation of [that regulation] * * * was the proximate cause of the accident" (Ares v. State of New York, 80 N.Y.2d 959, 960; see, McCullum v Barrington Co., 192 A.D.2d 489). The purpose of 12 NYCRR 23-1.21 is to protect workers from hazards arising from the movement or swaying of unsecured stepladders. There is no evidence that the stepladder moved before or after the screw gun slipped. The argument that, if the stepladder had been secured, plaintiff could have grabbed it instead of the pipe or metal stud, is speculative. Because plaintiff failed to show that the movement of the stepladder was a cause of his injuries, the court should have granted summary judgment dismissing the Labor Law § 241 (6) cause of action.