Zyatsv.Bristled Five Corp.

Supreme Court of the State of New York, Nassau CountyJul 14, 2004
2004 N.Y. Slip Op. 51127 (N.Y. Misc. 2004)

015891/02.

Decided July 14, 2004.


This action arises out of injuries sustained by plaintiff on March 13, 2000 in the course of cutting down a tree in Yaphank, New York on a property which was to be developed into a subdivision named Pinewood Manor. Plaintiff brings this action against the general contractor of the project, Pinewood Construction Company ("Pinewood") and Bristled Five Corp. ("Bristled Five"). According to defendants, Bristled Five provided some of the funding for the project and was part of the same group of companies as the actual record owner of the land in Yaphank. Defendants move for summary judgment dismissing the complaint on grounds that Labor Law section 240(1) does not apply, that plaintiff did not properly plead Labor Law section 241(6) and that defendants were not negligent and were not liable under Labor Law section 200. Plaintiff cross moves for partial summary judgment with respect to defendants' Labor Law section 240(1) claim. The motion is determined as follows.

The plaintiff, James Zyats was employed by DLI Contracting Company ("DLI") which was hired by Pinewood, the general contractor, to clear trees from land in furtherance of the development of a subdivision to be known as the Pinewood Manor project in Yaphank. After commencement of the underlying action, defendants began a third party claim against DLI for indemnification which was later discontinued and DLI's attorneys were substituted for defendants' attorneys.

Each day when plaintiff arrived at the site in Yaphank, he received a priority list and a map which gave him his work instructions for the day. He received this paperwork from a person in a trailer whom plaintiff believed was the "GC or builder" (plaintiff's deposition at 31). Lewis Colascione, an employee of defendants who was project manager of the Pinewood Manor project, testified that it was his job to issue work orders, surveys and plans to the contractors (deposition at 8). In terms of his general responsibilities, Mr. Colascione testified that "it's part of my job to observe what is going on on the site as far as construction goes, what contractors were there, what contractors had to be contacted, what further work had to be done." (deposition at 18). He claimed that DLI did not have a safety coordinator on the site and that he had no responsibility to make certain that DLI was using the proper safety procedures or equipment. He also stated that he had observed the equipment that DLI employed to remove the trees (deposition at 19-22). In addition, plaintiff testified that he never received instructions from defendants on how to do his job (plaintiff's deposition at 45).

According to Mr. Colascione, defendants did not require the subcontractors, including DLI, to observe any particular safety procedures or wear hard hats or steel tip shoes (deposition at 38-39). Moreover, Mr. Colascione testified that he had authority to order the subcontractors to cease performing work if he thought that they were not doing their job properly or in a safe manner (deposition at 26-28). In such a case, he would contact a subcontractor's superior (deposition at 28).

The record also reflects a deposition of Malcolm Koubel, comptroller of defendant Pinewood. He testified that Pinewood's role was to check the progress of the subcontractors and inspect the work that they had performed (deposition at 29-30). According to Mr. Koubel, Pinewood did not supply equipment including safety equipment or employees to the subcontractors (deposition at 30), did not hold safety meetings with the subcontractors or maintain records with respect to the subcontractors' employees (e.g. concerning their qualifications) and the subcontractors did not store their equipment on the construction site (deposition at 49). Furthermore, Mr. Koubel claimed that the superintendent of the job site never informed him that DLI should perform additional work or perform its work in a different manner (deposition at 47).

On the day of the accident, plaintiff testified that he cut the offending tree at ground level (deposition at 95) and made the first cut about 5 feet 2 inches off the ground and the second cut a few inches higher on the opposite side of the tree. After making the second cut, he pulled the saw out of the tree and took about half a step away from the tree when the part of the tree above the cut (the `but' of the tree) came crashing down on his right foot causing serious injuries.

Defendants assert that they are entitled to summary judgment on all of their claims on the basis that there are no issues of material fact. Quoting Friends of Animals v. Associated Fur Mfrs., 46 NY2d 1065, 1067-1068, the Court in Zuckerman v. City of New York, 49 NY2d 557, 562 held that "to obtain summary judgment it is necessary that the movant establish his cause of action or defense `sufficiently to warrant the court as a matter of law in directing judgment' in his favor (CPLR 3212, subd [b]) and he must do so by tender of evidentiary proof in admissible form. On the other hand, to defeat a motion for summary judgment, the opposing party must `show facts sufficient to require a trial of any issue of fact' (CPLR 3212, subd [b]).

Normally if the opponent is to succeed in defeating a summary judgment motion he, too, must make his showing by producing evidentiary proof in admissible form."

1. Liability under Labor Law 240(1)

Section 240(1) of the Labor Law requires that owners and general contractors "in the erection, demolition, repairing, altering, painting, cleaning or pointing 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, swings, hangers, 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." The purpose of the statute is to protect workers who are otherwise unable to protect themselves and it places the responsibility on owners and general contractors who are better equipped to provide such protection. Ross v. Curtis-Palmer Hydro-Electric Co., 81 NY2d 494. The duty imposed by section 240(1) is nondelegable. Therefore, a violation of this section which is a proximate cause of an accident results in absolute liability on the part of an owner or general contractor, even in the absence of notice, direction or control of the work. Comparative negligence is no defense. Blake v. Neighborhood Housing Services of New York City, Inc., et al, 1 NY3d 280; Bland v. Manocherian, 66 NY2d 452.

The Court of Appeals has held that section 240(1) covers only elevation related hazards which result from "the effects of gravity where protective devices are called for either because of a difference between 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 or secured." Rocovich v. Consolidated Edison Co., 78 NY2d 509, 514.

The test in determining whether or not whether a particular "device" falls within the requirements of the statute is whether that device is intended to protect the plaintiff from the particular risk to which he was exposed and by which he was injured. Narducci v. Manhasset Bay Associates, et al, 96 NY2d 259; Ross v. Curtis-Palmer Hydro-Electric Co., supra; Rocovich v. Consolidated Edison Co., supra. "A correlation must exist between the worker's accident and the risk intended to be avoided by the device in order for liability under Labor Law § 240 to attach." Stacey v. Fulton Commons Care Center, Inc., et al, unpublished. Well settled is the proposition that the risks against which the enumerated devices (or their functional equivalent) must protect are (1) objects falling from above the worker, or (2) workers falling to a level below. There have been circumstances however where a worker is using elevation equipment which provides adequate protection for the elevation related hazards but the worker was injured in another manner. Melber v. 6333 Main Street, Inc. et al, 91 NY2d 759. See, e.g. Narducci, supra (laborer on a ladder working on a window frame was stuck by falling glass from an adjacent window); Hargobin v. K.A.F.C.I. Corp., et al, 282 AD2d 31 (worker in crane fell from his seat to the floor of a cab).

With respect to the type of activity covered by section 240(1), courts have extended the reach of section 240(1) to injuries incurred in a place or time removed from the "erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure." However, the Court of Appeals in Martinez v. City of New York, et al, 93 NY2d 322 rejected the previously held proposition that section 240(1) applies provided the work being performed is an integral and necessary part of a larger project. The Court held that the integral and necessary test improperly enlarges the scope of the statute. Rather, in order to qualify as "a person employed to carry out" the protected work, the Court in Martinez held that the work which injured employee was engaged must actually take place during work enumerated in the statute. Martinez, Id. at 326. The Court of Appeals stated that the plaintiff in Martinez, was not engaged in an activity enumerated in section 240(1) and that any covered activity was to be performed in the future by a different contractor. See also, Prats v. Port Authority of New York and New Jersey, 100 NY2d 878; Panek v. County of Albany, 99 NY2d 452; Campisi v. Epos Contracting Corp et al, 299 AD2d 4; Adams v. Pfizer, Inc., et al, 293 AD2d 291. In Panek v. County of Albany, supra at 457, the Court of Appeals, stated that Martinez v. City of New York, et al., supra, stands for the proposition that "section 240(1) afford[s] no protection to a plaintiff injured before any activity listed in the statute [is] under way."

It is certainly plausible that cutting down a tree is an activity to which section 240(1) could apply. Although a tree is a product of nature and not a "building or structure" as those terms are used in section 240(1), Lombardi v. Stout, 80 NY2d 290, et al., supra, courts have held prior to Martinez, that tree removal, which is conducted in connection with a protected activity listed in the statute (e.g. erection, demolition, repairing), may render section 240(1) applicable. See e.g., Lombardi v. Stout, 80 NY2d 290; Mosher v. St. Joseph's Villa, 184 AD2d 1000. Since Martinez was decided however, it is necessary to look at a "confluence of factors" to determine whether the tree removal occurred during an activity covered by section 240(1). Prats v. Port Authority of New York and New Jersey supra, at 883.

In this case, plaintiff was employed by defendant general contractor to clear trees from certain parcels of land. Clearing trees is not by itself an enumerated activity under section 240(1). In order for the general contractor or owner to be subject to section 240(1) liability therefore, the tree clearing operation would have to meet the standard enunciated in Martinez. Did the plaintiff perform the tree clearing during one of the activities specifically listed in section 240(1)? We find that he did not. The only connection that the tree clearing operation had to a protected activity under section 240(1), would be the construction of the housing development which was to occur at some time in the future. The trees were not cleared during construction, the tree clearing work was done in a different phase than the construction project and any future work, such as digging the foundation, pouring the concrete or framing the houses was to be performed by different contractors other than plaintiff. In Panek v. County of Albany, supra, at 457, the Court of Appeals reiterated the standard set forth in Martinez by stating, "in Martinez, we concluded that section 240(1) afforded no protection to a plaintiff injured before any activity listed in the statute was under way."

Even if we deem the Martinez v. City of New York, Id, test satisfied, we find that plaintiff did not engage in an elevation-related hazard as required by section 240(1). The Court of Appeals has defined a section 240(1) elevation related hazard as those which result from "the effects of gravity where protective devices are called for either because of a difference between 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 or secured." Rocovich v. Consolidated Edison Co., 78 NY2d 509, 514.

It is undisputed that plaintiff cut the tree while he was on the ground. We are hard pressed to say therefore that plaintiff was working on a site which was "itself elevated or [was] positioned below the level where materials or load [are] hoisted or secured" Ross v. Curtis-Palmer Hydro-Electric Co., supra at 501 quoting Rocovich, supra. In Lombardi v. Stout, supra, relied on by plaintiff, the Court of Appeals denied defendants' motion for summary judgment, but in that case the worker was at an elevation because he fell from a ladder while cutting a tree. See also Mosher v. St. Joseph's Villa, supra. In Ross v. Curtis-Palmer Hydro-Electric Co., supra at 500, the Court of Appeals stated that "Labor Law § 240(1) was aimed only at elevation-related hazards and that, accordingly, injuries resulting from other types of hazards are not compensable under that statute even if proximately caused by the absence of an adequate scaffold or other required safety device." See also, Misseritti v. Mark IV Construction Co., Inc., 86 NY2d 487.

We find that the tree cutting activity which allegedly caused plaintiff's injuries was not conducted during an activity enumerated in section 240(1). The fact that houses were to be constructed in the future does not bring the tree clearing operation within the purview of section 240(1). Moreover, we find that plaintiff was not injured as a result of an elevation related hazard covered by Labor Law section 240(1). We do not need to reach the question of whether there was a correlation between plaintiff's accident and the risk intended to be avoided by any elevation related device. Stacey v. Fulton Commons Care Center, Inc. et al, supra. We also do not need to reach the issue of whether a violation of section 240(1) was a proximate cause of plaintiff's injuries.

Based on the foregoing, defendants' motion for summary judgment on the Labor Law section 240(1) claim is granted, and the plaintiff's cross motion for summary judgment on the Labor Law section 240(1) claim is denied as moot.

2. Liability under Labor Law 241(6)

In addition, defendants assert that they are entitled to summary judgment on plaintiff's claims under Labor Law section 241(6). Section 241(6) requires owners and contractors to provide workers with reasonable and safe working conditions. Section 241(6) also requires compliance with rules and regulations promulgated by the Commissioner of the Department of Labor. The duties created by section 241(6) and the Commissioner's regulations are nondelegable and thus cannot be defeated by proof that an owner or contractor did not exercise control or supervision over the worksite. Rizzuto v. L.A. Wenger Contracting Co., Inc., 91 NY2d 343 ; Ross v. Curtis-Palmer Hydro Electric Co., supra. However, a violation of section 241(6) is merely some evidence of negligence which a jury can take into consideration. Rizzuto v. L.A. Wenger Contracting Co., Inc. supra.

In order for section 241(6) to apply, there must be allegations that specific regulations have been breached. Ross v. Curtis-Palmer Hydro Electric Co., supra. If only generalized negligence standards are required for a section 241(6) claim, an injured party could rely on common law negligence standards and circumvent the requirement that a defendant must exercise supervision or control over a worksite (which is a necessary element in a common law negligence or Labor Law section 200 claim). McMahon v. Durst, et al, 224 AD2d 324. Therefore in order for a plaintiff to successfully make a claim under section 241(6), plaintiff must plead a specific implementing regulation. Rizzuto v. L.A. Wenger Contracting Co., Inc., supra ; Ross v. Curtis-Palmer Hydro Electric Co., supra ; Messina v. City of New York, 300 AD2d 121; Panetta v. Paramount Communications, Inc., et al, 255 AD2d 568; Phelan v. State of NY, 238 AD2d 882; Orr v. David Christa Construction, Inc., 206 AD2d 881; Lawyer v. Rotterdam Ventures, Inc., 204 AD2d 878; cf Desjardins v. Auburn Steel Co., 185 AD2d 627,; Nagel v. Metzger, 103 AD2d 1. Furthermore, even if a regulation is cited, that regulation must set forth requirements which are more than simply a reiteration of standards of common law negligence. Rizzuto v. L.A. Wenger Contracting Co., Inc., 91 NY2d 343, Ross v. Curtis-Palmer Hydro-Electric Co., supra. , Armer v. General Electric Co., 241 AD2d 581, Phelan v. State of NY, supra.

In his verified complaint, plaintiff alleges violation of Section 23 of the Industrial Code of the State of NY without making claims based on violations of specific regulations. Furthermore, the plaintiff's Bill of Particulars states that defendants' actions violated Section 23 and the Building Code of the City of New York. The Court notes that plaintiff's reference to the NYC Building Code is a misstatement which led the Court to expend time and consideration and which will, in the future, warrant the imposition of sanctions.

Based on the foregoing, defendants' motion for summary judgment dismissing plaintiff's Labor Law section 241(6) claim is granted.

3. Liability under Labor Law § 200 and Common Law Negligence

Section 200 of the Labor Law codifies the "common law duty imposed upon an owner or general contractor to provide construction site workers with a safe place to work." Comes v. New York State Electric and Gas Corp., 82 NY2d 876, 877. When an injury is caused by a subcontractor's methods or materials rather than by the condition of the worksite itself, owners or general contractors can only be held liable under section 200 if they exercised supervision or control over a subcontractor's operations which brought about the injury. Rizzuto v. L.A. Wenger Contracting Co., Inc., 91 NY2d 343; Comes, supra; Ross v. Curtis-Palmer Hydro-Electric Company, et al, supra; Lombardi v. Stout, 80 NY2d 290; Russin v. Picciano Son, et al, 54 NY2d 311 Reilly v. Newireen Associates, et al, 303 AD2d 214; Begor v. Mid-Hudson Hardwoods, Inc., 301 AD2d 550.

The record does not establish facts necessary to support a finding that defendants exercised the requisite supervision or control sufficient to find section 200 liability. In this case, it is undisputed that DLI provided plaintiff with the equipment, including the chain saws, oil and gas cans and file to sharpen the saws (plaintiff's deposition at 38-39) and when a chain saw was not operational, plaintiff would inform an employee of DLI (plaintiff's deposition at 193). Plaintiff also testified that the person in the trailer (defendants' project manager) never gave him instructions as to how to do his job other than to give him a map (plaintiff's deposition at 45-46). Plaintiff asserts however that the supervision or control standard is met by virtue of the fact that Mr. Colascione (project manager for defendants) frequented the work site and had the authority to direct the subcontractors to cease work if he believed that they were working in an unsafe manner.

We are unpersuaded by plaintiff's argument. There are many duties that an owner or general contractor can assume which do not rise to the level of supervision and control necessary for section 200 liability. The fact that an owner or general contractor is present at a worksite, coordinates a project, issues work orders including the ability to tell workers where to work on a given day or has the authority to review and enforce safety standards and report violations or stop work in the event of observing an unsafe procedure, is not sufficient to establish that the owner or general contractor maintained the requisite supervision or control over a worker's activities. Comes v. New York State Electric and Gas Corporation, supra; Reilly v. Newireen Associates, supra; Loiacono v. Lehrer McGovern Bovis, Inc., 270 AD2d 464; Soshinsky v. Cornell University, 268 AD2d 947; Mamo v. Rochester Gas and Electric Corp., 209 AD2d 948. In Lombardi v. Stout, 80 NY2d 290, 295 there was no section 200 liability imposed on defendant owner after plaintiff fell from a ladder while cutting down a tree since defendant did not have "any input as to how the branch was to be removed".

Furthermore, plaintiff asserts that at the very least, defendants had constructive knowledge of the unsafe methods employed by plaintiff and that this knowledge alone provokes section 200 liability. We disagree. In Comes v. New York State Electric and Gas Corp., supra at 878 the Court of Appeals stated that "this Court has not adopted the reasoning of Nagel [ v. Metzger, 103 AD2d 1] and imposed liability under the statute solely because the owner had notice of the allegedly unsafe manner in which the work was performed."

The uncontroverted evidence in this case is that defendants did not exercise the requisite supervision and control over plaintiff's activities to warrant a finding of liability under section 200. Accordingly, defendant's motion for summary judgment dismissing plaintiff's common law negligence and Labor Law section 200 claims is granted.

We have examined parties' remaining contentions and find them to be without merit.

On the basis of the foregoing, it is

ORDERED, defendants' motion for summary judgment dismissing plaintiff's complaint under Labor Law section 240(1) is granted; and it is further

ORDERED, plaintiff's cross motion for partial summary judgment under Labor Law section 240(1) is denied as moot; and it is further

ORDERED, defendants' motion for summary judgment under Labor Law section 241(6) is granted; and it is further

ORDERED, defendants' motion for summary judgment under Labor Law section 200 is granted.

This constitutes the order of the Court.