Ragubirv.Gib. Mgmt. Co.

Supreme Court, Appellate Division, First Department, New York.Jan 17, 2017
45 N.Y.S.3d 76 (N.Y. App. Div. 2017)

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  • In Ragubir v Gibraltar Mgmt. Co. (146 AD3d 563, 564 1st Dept 2017]), the First Department affirmed plaintiff's entitlement to summary judgment where the plaintiff was injured when an unsecure roof collapsed on him despite defendant's testimony that "the object of the work was to get the entire roof on the ground as fast as possible..."

    Summary of this case from Sinchi v. HWA 1290 III LLC

01-17-2017

Rohan RAGUBIR, Plaintiff–Appellant–Respondent, v. GIBRALTAR MANAGEMENT CO., INC., et al., Defendants–Respondents–Appellants, [And a Third–Party Action].

The Altman Law firm PLLC, New York (Michael T. Altman of counsel), for appellant-respondent. Milber Makris Plousadis & Seiden, LLP, Woodbury (Lorin A. Donnelly of counsel), for respondents-appellants.


The Altman Law firm PLLC, New York (Michael T. Altman of counsel), for appellant-respondent.

Milber Makris Plousadis & Seiden, LLP, Woodbury (Lorin A. Donnelly of counsel), for respondents-appellants.

ACOSTA, J.P., MAZZARELLI, MANZANET–DANIELS, WEBBER, GESMER, JJ.

Order, Supreme Court, Bronx County (Mary Ann Brigantti, J.), entered December 7, 2015, which, insofar as appealed from as limited by the briefs, denied plaintiff's motion for partial summary judgment on the issue of liability on his Labor Law § 240(1) cause of action, and denied defendants' motion for summary judgment dismissing the Labor Law § 240(1) and § 241(6) causes of action, unanimously modified, on the law, to the extent of granting plaintiff's motion, and otherwise affirmed, without costs.

Labor Law § 240(1) imposes on owners, general contractors and their agents a nondelegable duty to provide safety devices to protect against elevation-related hazards on construction sites, and they will be absolutely liable for any violation that results in injury regardless of whether they supervised or controlled the work (see Blake v. Neighborhood Hous. Servs. of N.Y. City, 1 N.Y.3d 280, 287–288, 771 N.Y.S.2d 484, 803 N.E.2d 757 [2003] ). Where use of such a safety device would defeat or be contrary to the purpose of the work, however, no liability will attach for the failure to provide such a device (see Salazar v. Novalex Contr. Corp., 18 N.Y.3d 134, 139–140, 936 N.Y.S.2d 624, 960 N.E.2d 393 [2011] ; Maldonado v. AMMM Props. Co., 107 A.D.3d 954, 968 N.Y.S.2d 163 [2d Dept.2013] ).

Here, Raymond Lynch, the owner of defendant RA Lynch Excavating, acknowledged that demolition of the structure was to occur bay by bay, that plaintiff was in a different bay 40 feet from where the excavator operated by Lynch was grabbing at the roof, and that he was not expecting the roof of the adjoining bay to collapse. Such testimony established that the roof above plaintiff was not the intended target of the demolition at the time it collapsed on him, notwithstanding Lynch's testimony that the object of the work was to get the entire roof on the ground as fast as possible and that he was happy the roof of the adjoining bay came down at the same time, although he was unaware plaintiff was there. Accordingly, plaintiff was entitled to judgment as a matter of law on the issue of liability on his Labor Law § 240(1) claim (compare Maldonado, at 954–955, 968 N.Y.S.2d 163 ).

Since that part of the roof above plaintiff was not the intended target of demolition at the time of the collapse, Supreme Court properly denied defendants' motion for summary judgment dismissing the Labor Law § 241(6) cause of action (see Card v. Cornell Univ., 117 A.D.3d 1225, 1228, 985 N.Y.S.2d 740 [3d Dept.2014] ; 12 NYCRR 23–3.4 ).

Furthermore, defendant Gibraltar Management Co., Inc. was the manager of the property, which handled all activities related to its management and contracted with RA Lynch Excavating for the demolition of the building. Accordingly, it may be held liable as an agent of the owner pursuant to Labor Law § 240(1) and § 241(6) (see Voultepsis v. Gumley–Haft–Klierer, Inc., 60 A.D.3d 524, 525, 875 N.Y.S.2d 74 [1st Dept.2009] ).