Labor Law § 240(1) is not applicable to work accident in which Claimant was injured. Further, Claimant has failed to show Defendant either exercised control of the work being performed or had notice of the alleged dangerous condition. However, Claimant's sandblasting of State-owned bridge was an activity covered under § 241(6) of the Labor Law. Defendant's motion for summary judgement granted in part. Claimant's motion for partial summary judgment denied.
|Claimant short name:||LOVE|
|Footnote (claimant name) :|
|Defendant(s):||NEW YORK STATE THRUWAY AUTHORITY and THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Motion number(s):||M-66626, CM-66873|
|Judge:||RENÉE FORGENSI MINARIK|
|Claimant's attorney:||LIPSITZ, GREEN, FAHRINGER, ROLL, SALISBURY &
BY: SHARON M. HEIM, ESQ.
|Defendant's attorney:||HON. ELIOT SPITZER
New York State Attorney General
BY: DAMON & MOREY LLP
HEDWIG M. AULETTA, ESQ.
|Third-party defendant's attorney:|
|Signature date:||December 9, 2003|
|Appellate results:||17 AD3d 1000|
|See also (multicaptioned case)|
The following papers, numbered 1 to 14, were read on motion by Defendant for summary judgment and cross-motion by Claimant for partial summary judgment:
1) Defendant's Notice of Motion (M-66626), filed April 1, 2003;
2) Affirmation of Hedwig M. Auletta, Esq., dated March 10, 2003, with attached exhibits;
3) Affidavit of Afshin Sadaghiani-Tabrizi, sworn to March 4, 2003:
4) Affidavit of Michael W. Zubrzycki, sworn to March 5, 2003;
5) Defendant's Memorandum of Law, dated March 18, 2003;
6) Claimant's Notice of Cross- Motion (CM-66873), filed May 27, 2003;
7) Affirmation of Sharon M. Heim, Esq., dated May 19, 2003, with attached exhibits;
8) Reply Affirmation of Hedwig M. Auletta, Esq., dated June 11, 2003, with attached exhibit;
9) Reply Affidavit of Michael W. Zubrzycki, sworn to May 29, 2003;
10) Affidavit of Robert C. Gratzinger, sworn to June 2, 2003;
11) Affidavit of Paul A. Starzynski, sworn to June 3, 2003, with attached exhibit;
12) Defendant's Reply Memorandum of Law, dated June 11, 2003;
13) Defendant's correspondence, dated November 24, 2003, with enclosure;
14) Claimant's correspondence, dated December 5, 2003, with enclosure.
Upon the foregoing papers, and upon oral argument from counsel in this matter, Defendant's motion is granted in part, Claimant's cross-motion is denied.BACKGROUND
Claimant, Sheryl Love, was injured in a workplace accident on June 8, 1999. At the time of the accident, Claimant was employed by Global Construction Inc., a contractor for the New York State Thruway Authority, who had been hired to paint the bridge over Indian Church Road in the Town of West Seneca, New York. Ms. Love was in the process of sandblasting the bridge when either a clamp or a piece of the bridge itself dislodged and fell on her left hand. She sustained injuries to her left hand, including a fracture of her thumb and damage to her index finger. She alleges violations of Labor Law §§ 200, 240(1) and 241(6).DEFENDANT'S MOTION
In its motion papers, Defendant concedes that the incident occurred, but asserts that the State may not be held liable for Claimant's injuries under Labor Law § 200 because Defendant did not control or supervise Claimant's work. Defendant also argues that, as the bridge was being repainted, and no structural changes to the bridge were contemplated, the work being done by Claimant was in the nature of routine maintenance and, therefore, is not one of the activities covered by Labor Law § 241(6). Defendant also asserts that Labor Law § 240(1) is not applicable in this matter because the object which fell upon Claimant was not being hoisted or secured. Defendant asserts that, based upon these arguments, the claim should be dismissed in its entirety.CLAIMANT'S CROSS-MOTION
Claimant does not dispute that Defendant did not control or supervise Claimant's work. However, Claimant argues that, if what fell on Claimant's hand was a piece of stone that had been dislodged from the bridge, then Defendant is exposed to Labor Law § 200 liability because Defendant was aware that certain portions of the concrete of the bridge had cracked and, therefore, Defendant had notice of the dangerous condition which led to her injury. Claimant further argues that the project on which Claimant was working was complex, took months to complete, and was performed only every 20 years or so. For this reason, Claimant argues that her work was not routine maintenance but more in the nature of construction and, therefore, should be covered under Labor Law § 241(6). Finally, Claimant argues that, if what fell on Claimant's hand was a clamp that was being used to support the tarp under which the work was being conducted, this object was something that was being secured and therefore Labor Law § 240(1) applies. For this reason, Claimant requests summary judgment in her favor on the § 240 issue.LABOR LAW § 200
Both parties agree that Defendant did not control or supervise Claimant's work. Although Defendant argues that Claimant's Labor Law § 200 cause of action should be dismissed on this basis, Claimant correctly points out that, in such instances, § 200 liability can still attach if Claimant can demonstrate that the injuries suffered was the result of a dangerous or defective condition on the owner's property, and that Defendant had notice of the alleged dangerous or defective condition (Blackburn v Eastman Kodak Co., 256 AD2d 1123).
However, I find that Claimant has failed to demonstrate the existence of a dangerous condition, that Defendant had notice of such dangerous condition, or that such alleged dangerous condition contributed to Claimant's injuries. Claimant's argument that Defendant had notice generally that there were cracks in the concrete of the footers of the bridge is without merit. There is no showing that such cracks had anything to do with Claimant's injuries, or that the cracks in the footers constituted a dangerous condition. Claimant is unable to identify what hit her hand and caused her injuries. Even if Claimant were able to show that it was a piece of concrete from the bridge that dislodged and fell on her hand, there is no showing that this piece of brick was related to the cracks in the footers allegedly noticed by Defendant (see Blanco v Oliveri, 304 AD2d 599). Therefore Claimant's Labor Law § 200 cause of action must be dismissed.LABOR LAW § 240(1)
In her opposition to Defendant's motion, and in support of her own motion, Claimant alleges, for purposes of Labor Law § 240(1), that it was a clamp that fell on her hand. According to Claimant, the clamp had been used to secure a tarp or enclosure above her. For this reason, Claimant asserts that the clamp, a safety device, failed and that the requirements for § 240(1) liability as set forth in Narducci v Manhasset Bay Associates (96 NY2d 259) have been met.
In Narducci, the Court of Appeals stated that:
[F]or section 240 (1) to apply, a plaintiff must show more than simply that an object fell causing injury to a worker. A plaintiff must show that the object fell, while being hoisted or secured, because of the absence or inadequacy of a safety device of the kind enumerated in the statute. . . Absolute liability for falling objects under Labor Law § 240 (1) arises only when there is a failure to use necessary and adequate hoisting or securing devices. (citations omitted)
Narducci v Manhasset Bay Assoc., 96 NY2d 259, 268
Recently, in Eberhard v Alexander Central School District (765 NYS2d 289), the Appellate Division Fourth Department interpreted Narducci as it applies to a case very analogous to this one. In Eberhard, which was decided on October 2, 2003, the Court determined that no liability under § 240(1) arose when a brick securing a tarp above plaintiff's head fell and struck plaintiff in the face. Citing Narducci, the Court determined that the brick was not itself being hoisted or secured and that, for this reason, it was not a hazard contemplated by § 240(1). Similarly, in this case, the object, whether a brick or a clamp, was not an object being hoisted or secured. I find that Eberhard is on point and controlling in this instance, whether the object which fell on Claimant was a brick or a clamp.
I am not swayed by Claimant's reliance on Bush v Gregory/Madison Avenue LLC (308 AD2d 360) in her attempt to distinguish Eberhard. In Bush, the Court determined that there was a question of fact concerning what devices should have been provided to protect the plaintiff from an improperly secured angle iron. In other words, the angle iron was something that was being hoisted or secured. In this instance, we do not get to the same point in the analysis, as what fell on Claimant was not something being hoisted or secured. In any event, to the extent that Bush does contradict Eberhard, I am constrained to follow Eberhard, as it emanates from the Appellate Division, Fourth Department. For this reason, Claimant's Labor Law § 240(1) cause of action must be dismissed.LABOR LAW § 241(6)
Defendant also seeks summary judgment on Claimant's Labor Law § 241(6) cause of action, asserting that the work being performed, the painting of the bridge, was merely maintenance and therefore, because § 241(6) only applies to areas where construction, excavation or demolition is being performed, the statute is not applicable in this instance. Claimant has forcefully opposed Defendant's argument, pointing out that the bridge had not been painted in 23 years, that the Defendant called the project a "construction site," and that the project took two to three months to complete.
Though the bridge maintenance engineer employed by Defendant described the work as "routine scheduled maintenance" (Sadaghiani-Tabrizi affidavit paragraph 17), I find that it was more in the nature of a construction project and that § 241(6) is applicable. The case of Kalofonos v State of New York, (115 Misc 2d 692, affd 104 AD2d 75) is quite compelling on this issue. That case involved an identical project, the painting of a bridge owned by the State of New York. In Kalofonos, the Hon. Frank S. Rossetti determined that the work being performed by the claimant, sandblasting a bridge in preparation for painting, was an activity covered by § 241(6). I find that the provisions of § 241(6) are applicable in this matter because the work being performed by Claimant was not routine maintenance, but rather more in the nature of construction. For this reason, Defendant's motion must be denied with respect to this cause of action.
Based upon the foregoing it is:
ORDERED, that Defendant's motion for summary judgment is granted in part and Claimant's causes of action pursuant to Labor Law §§ 200 and 240(1) are dismissed. Defendant's motion for summary judgement is denied with respect to Claimant's Labor Law § 241(6) cause of action. Claimant's motion for partial summary judgment is denied.
December 9, 2003
Rochester, New York
RENÉE FORGENSI MINARIK
Judge of the Court of Claims