Guallpa v. Canarsie Plaza, LLC

144 A.D.3d 1088

42 N.Y.S.3d 293

2016 N.Y. Slip Op. 08046

Jorge GUALLPA, respondent-appellant,

v.CANARSIE PLAZA, LLC, et al., appellants-respondents, et al., defendants.

(and two third-party actions).

Supreme Court, Appellate Division, Second Department, New York.

Nov. 30, 2016.

Morris Duffy Alonso & Faley, New York, NY (Arjay G. Yao, Kevin G. Faley, Amanda B. Plawner, and Stephanie Tebbett of counsel), for appellants-respondents.

Gorayeb & Associates, P.C., New York, NY (John M. Shaw of counsel), for respondent-appellant.

JOHN M. LEVENTHAL, J.P., ROBERT J. MILLER, HECTOR D. LaSALLE, and VALERIE BRATHWAITE NELSON, JJ.

In an action to recover damages for personal injuries, the defendants Canarsie Plaza, LLC, ACRS, Inc., and FJM–Ferro, Inc., appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Vaughan, J.), dated September 30, 2014, as denied that branch of their motion which was for summary judgment dismissing the cause of action alleging a violation of Labor Law § 240(1) insofar as asserted against them, and the plaintiff cross-appeals, as limited by his brief, from so much of the same order as denied his cross motion for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1) insofar as asserted against those defendants and granted those branches of the motion of those defendants which were for summary judgment dismissing the cause of action alleging a violation of Labor Law § 241(6) insofar as asserted against them, and the causes of action alleging a violation of Labor Law § 200 and common-law negligence insofar as asserted against the defendant FJM–Ferro, Inc.

ORDERED that the order is modified, on the law, (1) by deleting the provision thereof denying that branch of the motion of the defendants Canarsie Plaza, LLC, ACRS, Inc., and FJM–Ferro, Inc., which was for summary judgment dismissing the cause of action alleging a violation of Labor Law § 240(1) insofar as asserted against them, and substituting therefor a provision granting that branch of the motion, and (2) by deleting the provision thereof granting that branch of the motion of the defendants Canarsie Plaza, LLC, ACRS, Inc., and FJM–Ferro, Inc., which was for summary judgment dismissing so much of the cause of action alleging a violation of Labor Law § 241(6) as was based on 12 NYCRR 23–2.3(a)(1) insofar as asserted against them, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed insofar as cross-appealed from, without costs or disbursements.

The plaintiff allegedly was injured while working as an ironworker for a subcontractor, GI Iron Works, Inc. (hereinafter GI), at a construction site owned by Canarsie Plaza, LLC (hereinafter Canarsie), when he was standing on a ladder installing nuts and bolts into an elevated steel beam. GI had been hired by the contractor FJM–Ferro, Inc. (hereinafter FJM), to perform the structural steel work. At the time of the accident, the plaintiff's foreman was operating a hi-lo forklift on the ground, and the machine either struck or pushed an elevated steel beam that was connected to the steel beam that the plaintiff was working with, causing the steel beam to move and pin the plaintiff's left elbow against a concrete wall that was next to the steel beam.

The plaintiff commenced this action against, among others, Canarsie, FJM, and ACRS, Inc. (hereinafter ACRS), which acted as Canarsie's agent at the construction site (hereinafter collectively the moving defendants), alleging violations of Labor Law §§ 200, 240(1), and 241(6), and common-law negligence. The moving defendants sought summary judgment dismissing the complaint insofar as asserted against them, and the plaintiff cross-moved for summary judgment on the issue of liability on the Labor Law § 240(1) cause of action. The Supreme Court denied the relief sought in the motion and cross motion with respect to the Labor Law § 240(1) cause of action. The court also granted those branches of the moving defendants' motion which were for summary judgment dismissing the causes of action alleging common-law negligence and violations of Labor Law § 241(6) and § 200 insofar as asserted against them. The moving defendants appeal, and the plaintiff cross-appeals.

Labor Law § 240(1) “ ‘was designed to provide exceptional protection for workers against the special hazards which stem from a work site that is either elevated or positioned below the level where materials are hoisted or secured’ ” (Niewojt v. Nikko Constr. Corp., 139 A.D.3d 1024, 1026–1027, 32 N.Y.S.3d 303, quoting La Veglia v. St. Francis Hosp., 78 A.D.3d 1123, 1126, 912 N.Y.S.2d 611 ; see Ross v. Curtis–Palmer Hydro–Elec. Co., 81 N.Y.2d 494, 501–502, 601 N.Y.S.2d 49, 618 N.E.2d 82 ). Its purpose is “to protect construction workers not from routine workplace risks, but from the pronounced risks arising from construction work site elevation differentials” (Runner v. New York Stock Exch., Inc., 13 N.Y.3d 599, 603, 895 N.Y.S.2d 279, 922 N.E.2d 865 ). Merely because “a worker is injured while working above ground does not ipso facto mean that the injury resulted from an elevation-related risk contemplated by Section 240(1) of the Labor Law ” (Scharff v. Sachem Cent. School Dist. at Holbrook, 53 A.D.3d 538, 538, 861 N.Y.S.2d 406 ; see Striegel v. Hillcrest Hgts. Dev. Corp., 100 N.Y.2d 974, 977, 768 N.Y.S.2d 727, 800 N.E.2d 1093 ).

Here, in support of their motion for summary judgment, the moving defendants established, prima facie, that the plaintiff's accident did not involve a gravity-related or elevation-related hazard (see Nicometi v. Vineyards of Fredonia, LLC, 25 N.Y.3d 90, 99, 7 N.Y.S.3d 263, 30 N.E.3d 154 ; Torres v. City of New York, 127 A.D.3d 1163, 1166, 7 N.Y.S.3d 539 ; Oakes v. Wal–Mart Real Estate Bus. Trust, 99 A.D.3d 31, 948 N.Y.S.2d 748 ). In opposition, the plaintiff failed to raise a triable issue of fact. Accordingly, the Supreme Court should have granted that branch of the moving defendants' motion which was for summary judgment dismissing the Labor Law § 240(1) cause of action insofar as asserted against them, and properly denied the plaintiff's cross motion for summary judgment on the issue of the liability of the moving defendants on that cause of action.

Labor Law § 241(6) imposes on owners and contractors a nondelegable duty to “provide reasonable and adequate protection and safety to persons employed in, or lawfully frequenting, all areas in which construction, excavation or demolition work is being performed” (Lopez v. New York City Dept. of Envtl. Protection, 123 A.D.3d 982, 983, 999 N.Y.S.2d 848 ). As a predicate to a Labor Law § 241(6) cause of action, a plaintiff must allege a violation of a concrete specification promulgated by the Commissioner of the Department of Labor in the Industrial Code (see Misicki v. Caradonna, 12 N.Y.3d 511, 515, 882 N.Y.S.2d 375, 909 N.E.2d 1213 ; Ross v. Curtis–Palmer Hydro–Elec. Co., 81 N.Y.2d at 505, 601 N.Y.S.2d 49, 618 N.E.2d 82 ; Perez v. 286 Scholes St. Corp., 134 A.D.3d 1085, 1086, 22 N.Y.S.3d 545 ).

Here, the Supreme Court properly granted those branches of the moving defendants' motion which were for summary judgment dismissing, insofar as asserted against them, so much of the cause of action alleging Labor Law § 241(6) violations premised upon three of the enumerated Industrial Code provisions. First, 12 NYCRR 23–9.2(b)(1) is merely a general safety standard that does not give rise to a nondelegable duty under Labor Law § 241(6) (see Abelleira v. City of New York, 120 A.D.3d 1163, 1165, 992 N.Y.S.2d 324 ; Gonzalez v. Perkan Concrete Corp., 110 A.D.3d 955, 958, 975 N.Y.S.2d 65 ; Scott v. Westmore Fuel Co., Inc., 96 A.D.3d 520, 521, 947 N.Y.S.2d 15 ; Hricus v. Aurora Contrs., Inc., 63 A.D.3d 1004, 1005, 883 N.Y.S.2d 61 ; Berg v. Albany Ladder Co., Inc., 40 A.D.3d 1282, 1285, 836 N.Y.S.2d 720, affd. 10 N.Y.3d 902, 861 N.Y.S.2d 607, 891 N.E.2d 723 ). Second, forklifts are expressly exempted from the safety provisions of 12 NYCRR 23–6.1(c) and (d), and a forklift was being used at the time of the plaintiff's accident (see Martinez v. 342 Prop. LLC, 128 A.D.3d 408, 409, 8 N.Y.S.3d 309 ). Third, 12 NYCRR 23–1.5(b) serves to amplify other provisions of the Industrial Code that require a designated individual to perform or supervise work, and thus does not provide an implementing regulation upon which to predicate a Labor Law § 241(6) cause of action (see Smith v. Homart Dev. Co., 237 A.D.2d 77, 80, 666 N.Y.S.2d 218 ; see generally Sharrow v. Dick Corp., 233 A.D.2d 858, 860–861, 649 N.Y.S.2d 281 ).

However, the Supreme Court erred in directing the dismissal of so much of that cause of action as was based on an alleged violation of 12 NYCRR 23–2.3(a)(1) insofar as asserted against the moving defendants. The evidence they submitted failed to establish, prima facie, that, prior to the plaintiff's accident, a crane “securely fastened in place” the structural steel beams that pinned the plaintiff's elbow against the wall (see Cardenas v. BBM Constr. Corp., 133 A.D.3d 626, 628, 20 N.Y.S.3d 103 ; Young v. Buffalo Color Corp.,

255 A.D.2d 920, 920–921, 680 N.Y.S.2d 385 ; ...