Ricottone v. Pseg Long Island, LLC

221 A.D.3d 1032

200 N.Y.S.3d 445

Anthony RICOTTONE, appellant,

v.PSEG LONG ISLAND, LLC, et al., respondents.

2021–02524

Index No. 620948/16

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

Argued—September 5, 2023

November 29, 2023

Buttafuoco & Associates, PLLC, Woodbury, NY (Ellen Buchholz and Scott Szczefny of counsel), for appellant.

Zaklukiewicz, Puzo & Morrissey, Islip Terrace, NY (Joseph M. Puzo of counsel), for respondents.

FRANCESCA E. CONNOLLY, J.P., ANGELA G. IANNACCI, PAUL WOOTEN, WILLIAM G. FORD, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an amended order of the Supreme Court, Suffolk County (Linda J. Kevins, J.), dated March 17, 2021. The amended order granted the defendants’ cross-motion for summary judgment dismissing the causes of action alleging violations of Labor Law §§ 200, 240(1), and 241(6), and denied the plaintiff's motion for summary judgment on the issue of liability on those causes of action.

ORDERED that the amended order is modified, on the law, by deleting the provisions thereof granting those branches of the defendants’ cross-motion which were for summary judgment dismissing the causes of action alleging violations of Labor Law §§ 200 and 241(6), and substituting therefor provisions denying those branches of the cross-motion; as so modified, the amended order is affirmed, without costs or disbursements.

On November 21, 2016, the plaintiff, an employee of nonparty Verizon Communications (hereinafter Verizon), allegedly was injured when he dove underneath his truck in response to an "explosion," which occurred during the hoisting of a portion of a damaged utility pole by employees for the defendants. The plaintiff was part of a work crew for Verizon that had been dispatched, along with crews for the defendants, to replace the utility pole after it had been struck and damaged by a vehicle. At the time of the incident, the plaintiff was standing approximately 150 feet away from the utility pole, and was waiting for the defendants’ employees to remove the upper half of the pole, which had snapped off the base and had energized power lines attached to it. The plaintiff and his crew were waiting to install a new utility pole after the completion of the defendants’ work.

In December 2016, the plaintiff commenced this action against the defendants to recover damages for personal injuries, alleging, inter alia, violations of Labor Law §§ 240(1), 241(6), and 200. Thereafter, the plaintiff moved for summary judgment on the issue of liability on the Labor Law causes of action, and the defendants cross-moved for summary judgment dismissing those causes of action. In an amended order dated March 17, 2021, the Supreme Court granted the defendants’ cross-motion and denied the plaintiff's motion. The plaintiff appeals.

" Labor Law § 240(1) was designed to prevent those types of accidents in which the scaffold, hoist, stay, ladder or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person" ( Ross v. Curtis–Palmer Hydro–Elec. Co., 81 N.Y.2d 494, 501, 601 N.Y.S.2d 49, 618 N.E.2d 82 [emphasis omitted]; see Runner v. New York Stock Exch., Inc., 13 N.Y.3d 599, 604, 895 N.Y.S.2d 279, 922 N.E.2d 865 ; Bonkoski v. Condos Bros. Constr. Corp., 216 A.D.3d 612, 615, 188 N.Y.S.3d 137 ). However, "[t]he extraordinary protections of Labor Law § 240(1) extend only to a narrow class of special hazards, and do ‘not encompass any and all perils that may be connected in some tangential way with the effects of gravity’ " ( Nieves v. Five Boro A.C. & Refrig. Corp., 93 N.Y.2d 914, 915–916, 690 N.Y.S.2d 852, 712 N.E.2d 1219 [emphasis omitted], quoting Ross v. Curtis–Palmer Hydro–Elec. Co., 81 N.Y.2d at 501, 601 N.Y.S.2d 49, 618 N.E.2d 82 ; see Cruz v. 451 Lexington Realty, LLC, 218 A.D.3d 733, 193 N.Y.S.3d 238 ).

Here, the defendants established, prima facie, that the plaintiff's injuries did not flow directly from the application of the force of gravity to an object or person, and thus, were not caused by an elevation-related or gravity-related risk within the scope of Labor Law § 240(1) (see Misseritti v. Mark IV Constr. Co., 86 N.Y.2d 487, 489, 634 N.Y.S.2d 35, 657 N.E.2d 1318 ; Clark v. FC Yonkers Assoc., LLC, 172 A.D.3d 1159, 1161, 98 N.Y.S.3d 870 ). The defendants submitted, inter alia, a transcript of the plaintiff's deposition testimony, wherein he acknowledged that no portion of the utility pole fell where he was standing, approximately 150 feet away, and that his injuries were caused by his diving underneath his truck. In opposition to the defendants’ prima facie showing, the plaintiff failed to raise a triable issue of fact. Accordingly, the Supreme Court properly granted that branch of the defendants’ cross-motion which was for summary judgment dismissing the cause of action alleging a violation of Labor Law § 240(1) and denied that branch of the plaintiff's motion which was for summary judgment on the issue of liability on that cause of action.

" Labor Law § 241(6) imposes a nondelegable duty upon owners and contractors to provide reasonable and adequate protection and safety to construction workers" ( Washington–Tatum v. City of New York, 205 A.D.3d 976, 977, 166 N.Y.S.3d 577 [internal quotation marks omitted]). "To establish liability under Labor Law § 241(6), a plaintiff must demonstrate that the injuries allegedly sustained were proximately caused by a violation of an Industrial Code provision that is applicable under the circumstances of the case" ( Carranza v. JCL Homes, Inc., 210 A.D.3d 858, 860, 179 N.Y.S.3d 95 [internal quotation marks omitted]). "[C]ourts have generally held that the scope of Labor Law § 241(6) is governed by 12 NYCRR 23–l.4(b)(13) which defines construction work expansively" ( Vernieri v. Empire Realty Co., 219 A.D.2d 593, 595, 631 N.Y.S.2d 378 ). Under 12 NYCRR 23–1.4(b)(13), "construction" work is defined to include "[a]ll work of the types performed in the construction, erection, alteration, repair, maintenance, painting or moving of buildings or other structures." "Although maintenance work performed in connection with construction, demolition, or excavation work is included under Labor Law § 241(6), ‘[r]outine maintenance is not within the ambit of Labor Law § 241(6) ’ " ( Washington–Tatum v. City of New York, 205 A.D.3d at 978, 166 N.Y.S.3d 577, quoting Garcia–Rosales v. Bais Rochel Resort, 100 A.D.3d 687, 688, 954 N.Y.S.2d 148 ). "Generally, courts have held that work constitutes routine maintenance where the work involves replacing components that require replacement in the course of normal wear and tear" ( Washington–Tatum v. City of New York, 205 A.D.3d at 977, 166 N.Y.S.3d 577 [internal quotation marks omitted]; see Esposito v. New York City Indus. Dev. Agency, 1 N.Y.3d 526, 528, 770 N.Y.S.2d 682, 802 N.E.2d 1080 ).

Here, the defendants failed to establish, prima facie, that the work they were performing at the time of the incident constituted routine maintenance or repairs not within the ambit of Labor Law § 241(6) (see Nooney v. Queensborough Pub. Lib., 212 A.D.3d 830, 832, 183 N.Y.S.3d 452 ; Wass v. County of Nassau, 173 A.D.3d 933, 934, 103 N.Y.S.3d 478 ). The defendants’ evidentiary submissions indicated that the incident occurred while the defendants were hoisting a portion of the utility pole to enable the total replacement of the pole, which had been severely damaged after a vehicle hit the pole. Thus, the defendants’ evidentiary submissions did not demonstrate, prima facie, that the work involved merely "replacing components that require replacement in the course of normal wear and tear" ( Washington–Tatum v. City of New York, 205 A.D.3d at 977, 166 N.Y.S.3d 577 [internal quotation marks omitted]). Accordingly, the Supreme Court should have denied that branch of the defendants’ cross-motion which was for summary judgment dismissing the cause of action alleging a violation of Labor Law § 241(6), without regard to the sufficiency of the plaintiff's opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ).

Furthermore, the plaintiff failed to eliminate triable issues of fact as to whether the Industrial Code provisions upon which the alleged violation of Labor Law § 241(6) is predicated are applicable to the circumstances of this incident (see Sanchez v. 74 Wooster Holding, LLC, 201 A.D.3d 755, 756, 156 N.Y.S.3d 915 ). Thus, the Supreme Court properly denied that branch of the plaintiff's motion which was for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 241(6), without regard to the sufficiency of the defendants’ opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d at 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ).

" Labor Law § 200 is a codification of the common-law duty of [property] owners, contractors, and their agents to provide workers with a safe place to work" ( Bonkoski v. Condos Bros. Constr. Corp., 216 A.D.3d at 616, 188 N.Y.S.3d 137 [internal quotation marks omitted]; see Rizzuto v. L.A. Wenger Contr. Co., 91 N.Y.2d 343, 352, 670 N.Y.S.2d 816, 693 N.E.2d 1068 ). "Cases involving Labor Law § 200 fall into two broad categories: namely, those where workers are injured as...