New York State Court of Claims

New York State Court of Claims

FERNANDO v. THE STATE OF NEW YORK and THE NEW YORK STATE THRUWAY AUTHORITY, #2007-030-564, Claim No. 110618, Motion Nos. M-72515, M-72530, CM-72813


Synopsis


Cross-motions for summary judgment; motion to amend bill of particulars. Claimant was injured while working in an eight foot deep trench when braces holding steel sheeting within the trench used to secure the walls fell in and pinned claimant. Labor Law §§200, 240(1) causes of action dismissed. Undisputed facts establish that the activities resulting in claimant’s injury were controlled by his employer not defendants. Accident described does not result from an elevation related activity or the gravity related risks that statute was enacted to protect against, in that claimant did not fall from a height, nor was he struck from above by a falling object that had been improperly hoisted or secured. Cross-motions for summary judgment on Labor Law §241(6) cause of action are denied. Triable issues of fact and differing opinions of experts adequately raised concerning violations of the cited regulations. Motion to amend bill of particulars to include the two additional code violations is granted. No new factual allegations or theories of liability involved with such amendment and no prejudice to defendants

Case Information

UID:
2007-030-564
Claimant(s):
JOSE FERNANDO and LORENA FERNANDO
Claimant short name:
FERNANDO
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK and THE NEW YORK STATE THRUWAY AUTHORITY
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110618
Motion number(s):
M-72515, M-72530
Cross-motion number(s):
CM-72813
Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
WORBY GRONER EDELMAN, LLPBY: RICHARD S. VECCHIO, ESQ.
Defendant’s attorney:
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
FABIANI & COHEN, LLP OF COUNSEL
BY: JOSEPH J. RAVA, ESQ.
Third-party defendant’s attorney:

Signature date:
September 18, 2007
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

The following papers were read and considered on the parties’ motions for summary


judgment and on Claimants’ motion to amend the bill of particulars:

1,2 Notice of Motion for Summary Judgment [M-72515]; Attorney Affirmation by Richard S. Vecchio, Counsel for Claimants and attached exhibits

3-5 Notice of Motion for Summary Judgment [M-72530]; Affidavit in Support of Summary Judgment by Howard I. Edelson; Affirmation in Support by Joseph J. Rava, Counsel for Defendants, and attached exhibits

6,7 Notice of Cross-Motion [CM-72813]; Affirmation in Opposition and in Support of Cross-Motion by Richard S. Vecchio, Counsel for Claimants, and attached exhibits

  1. Affirmation in Opposition to Claimants’ Motion for Summary Judgment, in Opposition to Claimants’ Motion to Serve an Amended Bill of Particulars and in Reply to the Claimants’ Opposition to the Respondents’ [sic] Summary Judgment Motion by Joseph J. Rava, Counsel for Defendants and attached exhibit
  1. Reply Affirmation by Richard S. Vecchio, Counsel for Claimants and attached exhibits
10,11 Filed papers: Claim, Answer
BACKGROUND
This claim is brought pursuant to Labor Law §§200, 240(1) and 241(6). With respect to the alleged violation of Labor Law §241(6), Claimant[1] assert in the claim an underlying violation of Industrial Code Rule 23, specifically 12 NYCRR §§23-4.2(a); 23-4.2(b); 23-4.2(1); 23-4.4 (a) and 23-4.4(i). Mr. Fernando alleges generally that he was injured, on Tuesday, August 24, 2004, while working in an eight foot deep trench located on the Knollwood Road/I-287 overpass, near Route 119 in Greenburgh, New York, when steel sheeting within the trench used to secure the trench walls fell in, when it should have been secured, because of the absence of or inadequacy of a safety device of the kind enumerated in the statute, namely the braces holding back the steel sheeting. The braces were inadequate or failed, he urges, causing the sheeting to fall and pin Mr. Fernando.

ECCO III Enterprises, Inc. (ECCO) contracted with the New York State Department of Transportation (DOT) to perform work on a project known as Reconstruction of I-287 Stage II, encompassing the area of Claimant’s accident. [Affirmation in Support by Joseph J. Rava, Attorney for Defendants, Exhibits F and H]. The work involved the replacement of the Knollwood Road bridge over I-287, and the relocation of gas main and electric facilities on the new structure, and was performed in conjunction with Consolidated Edison (Con Ed).

Claimant explained during his deposition that he had been employed as a foreman for ECCO for eleven years. [Ibid. Exhibit D]. The project ECCO was working on at the time of the accident involved the installation of a gas main on Knollwood Road in Greenburgh, New York. [Id.]. His supervisor was ECCO Superintendent Ciro Poccia. [Id.].

The actual mechanics of the accident do not appear to be in much dispute. On the night of the accident Claimant was told by Mr. Poccia that one of the trenches dug the previous workday - a Friday - had to be widened, so that Con Ed could replace a gas line. The modification required removal of the shoring supporting the sides of the 8 foot deep trench, including two steel plates and four wooden braces, in order to move the trench further east. Some of the area of the trench would need backfilling in order to excavate the second trench. The braces consisted of two each 2 x 10's placed vertically against the face of the steel plates, and two other 2 x 10's placed horizontally at the top and bottom of the steel plates. The braces were nailed in to the vertical lags. At approximately 10:00 p.m. Mr. Fernando instructed two other laborers to go to his pickup truck to obtain shackles for removing the two steel plates. Claimant descended into the trench[2], and used a claw hammer to extract the nails from the wooden braces. He removed the braces and placed them over the edge of the trench. After he had removed three of the four braces - a project that took approximately five minutes for each brace - and as he walked toward the ladder, the steel plate from which the braces had been partially removed fell over on him pinning him against the other steel plate.

The DOT’s consulting engineers on the project were Boswell Engineering. James Plagianos, an inspector employed by Boswell who supervised other inspectors and who was present on the night of the accident, testified at his deposition that the shoring and bracing of the trench was secure the night before the accident. [Ibid. Exhibit G]. He was not present at the site on the night of the accident until after it occurred, however, and based the report he wrote on interviews with personnel. [Ibid. see Exhibit I].

He wrote in his report, and repeated during his deposition, that the steel plates came down because the bracing was removed and the steel plates had not been secured by the excavator - meaning the backhoe - during the removal of the cross-bracing described. [Ibid. Exhibits G and I]. The methodology that should have been used, according to Mr. Plagianos, would be that the crew “would chain the plate to the backhoe, or the backhoe would secure it with the arm, the bucket, the chain, something the proper way that the plate cannot go anywhere,” while the cross-bracing was removed. [Ibid. Exhibit G]. Or knee braces could have been used, he said. [Ibid. Exhibit G]. He likened the procedure selected by Mr. Fernando to sitting on a tree limb as you cut it off. [Ibid. Exhibit G]. He agreed that the State of New York did not provide any backhoes to hold the plates with chains, or other securing equipment, but noted that would be the contractor’s responsibility, and that there was a backhoe present. [Ibid. Exhibit G]. By the time Mr. Plagianos arrived at the scene, the steel plate had been removed from Mr. Fernando, and Mr. Fernando was lying in the trench on his back. [Ibid. Exhibit G]. He did not recall any DOT employees present on the night of the accident. [Ibid. Exhibit G].

Kerril B. Hynes was the DOT’s engineer in charge for the project. At his deposition, Mr. Hynes confirmed that Boswell Engineering had been hired to provide consulting engineering services for the project, to make sure ECCO was building the project according to contract specifications. [Ibid. Exhibits F and H]. James Plagianos was the chief inspector employed by Boswell, assigned to night operations and usually present at the job site during the evening hours. [Ibid. Exhibit F]. Mr. Hynes said the DOT would not have provided any tools, equipment, supplies or materials to ECCO, nor would any State workers or employees have been provided to assist the contractor’s employees on the job. [Ibid. Exhibit F]. No machinery or safety devices were provided by the State. [Ibid. Exhibit F]. The steel plates were supplied by ECCO, as well. [Ibid. Exhibit F]. He did not have any specific recollection of visits to the site either before or after the accident, was not present on the night of the accident, and was not aware of the State performing any tests on the soil in the area of the excavation. [Ibid. Exhibit F]. He had never personally performed work in an excavation where wood bracing was removed from secured shoring, nor had he ever observed or supervised or inspected such work. [Ibid. Exhibit F]. No one from DOT would inspect such installations to his knowledge, as such inspections would be performed by Boswell. [Ibid. Exhibit F]. He said that Boswell’s inspectors had the authority to stop the work if an unsafe practice or procedure were observed. [Ibid. Exhibit F].

Each party has also appended the affidavits of their respective experts opining that the injuries resulted from the alleged breaches of duty, as well as to the applicability of the cited Industrial Code provisions. [See generally Affidavit in Support of Summary Judgment (Defendants) by Howard I. Edelson; Affirmation in Opposition and in Support of Cross-Motion (Claimants), Exhibit B (Affidavit by Joseph S. Champagne)].
DISCUSSION AND CONCLUSION
Civil Practice Law and Rules §3212(b) provides in pertinent part:
. . . A motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions. The affidavit shall be by a person having knowledge of the facts; it shall recite all the material facts; and it shall show that there is no defense to the cause of action or that the cause of action or defense has no merit. The motion shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party. . . the motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact. If it shall appear that any party other than the moving party is entitled to a summary judgment, the court may grant such judgment without the necessity of a cross-motion.
Assuming a movant has made a prima facie showing of entitlement to judgment as a matter of law by proffering sufficient evidence to eliminate any genuine, material, issues of fact, the party in opposition to the motion for summary judgment must tender evidentiary proof in admissible form to establish the existence of material issues which require a trial. Winegrad v New York University Medical Center, 64 NY2d 851 (1985); Zuckerman v City of New York, 49 NY2d 557 (1980). The use of an attorney’s affirmation appending pertinent deposition testimony, documentary evidence, and a verified pleading reciting material facts, is not a fatal procedural flaw in a presentation. Alvarez v Prospect Hospital, 68 NY2d 320, 325 (1986).[3]

As an initial matter, the Court will treat the motions as adequately supported and made after full disclosure.

Claimant has asserted causes of action pursuant to Labor Law §§200, 240(1) and 241(6), and asks that summary judgment be granted with respect to the Labor Law §§240(1) and 241(6) causes of action asserted. Claimant also cross-moves to amend and/or supplement his bill of particulars to add additional Rule 23 violations. Defendants move to dismiss all three causes of action. Defendants argue that the Labor Law §200 cause of action is not supported because the uncontroverted facts establish that the activities resulting in Claimant’s injuries were controlled by his employer, not the defendants herein. They argue that the strict liability provisions provided for under Labor Law §240(1) as against owners do not apply since the accident did not result from any dangers associated with an elevation related activity. Finally, the Defendants argue the alleged violations of the Industrial Code provision that allegedly resulted in liability under Labor Law §241(6) are not pertinent to the facts of the case and were not violated in any event.

§240(1) Labor Law - the so-called Scaffold Law - imposes strict liability and requires
“. . . [ a]ll contractors and owners and their agents . . . [with some exceptions] in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, 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 work being done should contain an elevation related risk, and the injury suffered by the worker should be associated with that risk.
Labor Law §200 codifies the common-law duty of an owner or contractor to exercise reasonable care in providing workers a safe place to work. Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 877 (1993). “Where the alleged defect or dangerous condition arises from the contractor’s methods and the owner exercises no supervisory control over the operation, no liability attaches to the owner under the common law or under Labor Law §200 . . . (citation omitted).” Comes v New York State Elec. & Gas Corp., supra. “. . . [S]upervision is not required to establish liability if . . . [the worker’s] injuries were caused by a dangerous condition on the premises of which the owner or general contractor had actual or constructive notice . . . (citation omitted).” Wallace v City of New York, 8 Misc 3d 1024(A) (Sup Ct, NY Co 2005).

Liability under Labor Law §241(6) attaches if the owner or contractor has violated a rule or regulation of the Commissioner of Labor that sets forth a specific standard of conduct - as opposed to a general statement of common law principles. Labor Law §241(6) requires all owners and their agents, with certain exceptions, to provide “reasonable and adequate protection and safety to the persons employed therein . . . ,” and directs that appropriate regulations be promulgated to carry into effect the provisions of the statute. Violation of that specific standard must be a proximate cause of the accident. See generally 12 NYCRR §23-1.1 et seq.
LABOR LAW §240(1)
Given Mr. Fernando’s own testimony, the accident described does not result from an elevation related activity or the gravity related risks that the statute was enacted to protect against. He did not fall from a height, nor was he struck from above by a falling object that had been improperly hoisted or secured. Labor Law §240(1) should be applied only to those cases where there is
“ . . . a significant risk inherent in the particular task because of the relative elevation at which the task must be performed or at which materials or loads must be positioned or secured. The contemplated hazards are those related to the effects of gravity where protective devices are called for either because of a difference between the 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 (1991).

Where the task being worked on is essentially at the same level, a court would be straining statutory interpretation to hold that the falling steel plates were “falling objects” within the meaning of the absolute liability statute, or that the work being performed contained an elevation related risk, rather than the normal risks associated with work on a construction site.

In “falling object” cases, for Labor Law §240(1) to apply the worker “must show more than simply that an object fell causing injury to a worker . . . [He] 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,” and that the positioning of the materials vis
à
vis
where the worker was standing contained an inherent gravity related risk that the object could fall if not properly hoisted or secured. See Narducci v Manhasset Bay Associates, 96 NY2d 259, 267-268 (2001).

In Misseritti v Mark IVConstruction Co., Inc., 86 NY2d 487, 491 (1995) for example, the Court of Appeals held that Labor Law §240(1) did not apply when a worker was injured at ground level due to a collapse of an unbraced fire wall. The Court said, the shoring and “the ‘braces’ referred to . . . [in the statute are those which] support elevated work sites not braces designed to shore off or lend support to a completed structure.” See also Rodriguez v Margaret Tietz Center for Nursing Care, Inc., 84 NY2d 841 (1994);[4] Natale v City of New York, 33 AD3d 772 (2d Dept 2006); [5] O'Connell v Consolidated Edison Co. of New York, Inc., 276 AD2d 608 (2d Dept 2000); [6] Vitaliotis v Village of Saltaire, 229 AD2d 575 (2d Dept 1996);[7] Staples v Town of Amherst, 146 AD2d 292 (4th Dept 1989).[8]

Here Mr. Fernando was in a trench removing braces designed to support the steel plates defining the trench. He was not working at an elevated work site, or working in a location doing a task that became associated with an elevation related risk because of the manner in which it was being performed with unsecured equipment, for example. See e.g. Outar v City of New York, 286 AD2d 671 (2d Dept 2001) affd 5 NY3d 731 (2005) ;[9] Van Eken v Consolidated Edison Co. of New York, 294 AD2d 352 (2d Dept 2002);1[0] see also Ortlieb v Town of Malone, 307 AD2d 679 (3d Dept 2003).1[1] The danger Mr. Fernando was exposed to was not one intrinsic to dangers associated with elevated work sites or work involving height differentials of consequence, but rather the ordinary dangers of working on a construction site.

Accordingly, Defendants’ motion for summary judgment dismissing Claimant’s Labor Law §240(1) cause of action is hereby granted, Claimant’s motion for summary judgment on this cause of action is denied, and Claimant’s Labor Law §240(1) cause of action is hereby dismissed.
LABOR LAW §200
No triable issues of fact have been raised with regard to the Claimant’s cause of action alleging violation of Labor Law §200, sufficient to defeat Defendants’ application for summary judgment. All the work, equipment and personnel on the job was supplied by ECCO, as was the guidance for how the job should be done. Indeed, Claimant was instructed and then applied on his own the instructions given without any involvement by the Defendants. While Boswell Engineering may have been viewed as able to halt the work, the uncontroverted factual scenario presented is that they did not have any concerns about the manner in which the work was being performed until after the fact. This mere “suggestion” that the State of New York had some supervisory control of the work through the consultants it hired is not a triable issue of fact warranting a plenary trial on this cause of action. Merely sending inspectors to review the work’s progress or observe the methods used will not render an owner liable in negligence. Comes v New York State Elec. & Gas Corp., supra; Allen v Cloutier Construction Corp., 44 NY2d 290 (1978).

More recently, the Second Department confirmed that
“To establish liability against an owner or general contractor pursuant to Labor Law § 200, it must be established that the owner or general contractor exercised supervision and control over the work performed at the site, or had actual or constructive notice of the allegedly unsafe condition . . . (citation omitted). The retention of the right to generally supervise the work, to stop the contractor's work if a safety violation is noted, or to ensure compliance with safety regulations, does not amount to the supervision and control of the work site necessary to impose liability on an owner or general contractor pursuant to Labor Law § 200.” Dennis v City of New York, 304 AD2d 611, 612 (2d Dept 2003).

In Dennis v City of New York, supra, the plaintiffs failed to offer any evidence to rebut the showing that the Defendant did not supervise or control the plaintiff, or direct the construction procedures or safety measures employed by its contractor. Indeed, even with alleged notice of defective practices, an owner will not necessarily be liable. Dennis v City of New York, supra at 612.1[2]

Accordingly, Defendants’ motion for summary judgment dismissing Claimant’s Labor Law §200 cause of action is hereby granted, and Claimant’s Labor Law §200 cause of action is in all respects dismissed.
LABOR LAW §241(6)
As noted, Labor Law §241(6) requires that owners and contractors among others comply with the rules and regulations set forth by the Commissioner of the Department of Labor, and codified at 12 NYCRR Part 23 as the Industrial Code. Strict liability may attach to an owner when a code provision that contains a specific command - as opposed to general declarations of safety standards - such command is violated, and the violation is a proximate cause of claimant’s injury. Ross v Curtis-Palmer Hydro-Electric Co., 81 NY2d 494 (1993); Dennis v City of New York, supra; O’Connell v Consolidated Edison Co. of New York, Inc., supra; Vitaliotis v Village of Saltaire, supra.

In the claim, Claimant asserts underlying violations of 12 NYCRR §§23-4.2(a); 1[3] 23-4.2(b);1[4] 23-4.2(l);1[5] 23-4.4 (a)1[6] and 23-4.4(i).1[7] As asserted by Claimant, at least some of these provisions have been found to be specific enough to support a claim under Labor Law §241(6). Claimants also seek permission to amend or supplement the bill of particulars to include violations of additional regulations.1[8] Those proposed are 12 NYCRR §§23-4.1(b)1[9] and 23-4.5(k).2[0]

In addition to the factual allegations the affidavit by Claimants’ expert, Joseph Champagne, adequately raises triable issues of fact as to the violations of most of the cited regulations. [See Affirmation in Opposition and in Support of Cross-Motion by Richard S. Vecchio, Exhibit B]. More specifically, Mr. Champagne opines that with regard to violation of Rules 23-4.2 (a), there is no record of anyone inspecting the trench daily, there was precipitation between the time the trench was excavated and the accident, that the provision applies to removal and erection of the shoring system, that no sheeting or shoring was provided to the Claimant by defendants, and that such failures created a cave-in that may have contributed to causing the steel plate to fall over during the brace removal procedure. [Ibid.]. The regulation concerning “prohibited entry” [23-4.1(b)] which Claimant wishes to add to the bill of particulars is also implicated, in Mr. Champagne’s opinion, because proper safeguards were not provided to Claimant and he was permitted to enter the trench without such safeguards, and was thus exposed to the cave-in. [Ibid.]. The regulation prescribing the methodology for backfilling and removal of trench supports which Claimant wishes to add to his bill of particulars as well [23-4.5(k)], was violated, he states, because the soil was apparently unstable, and the Defendants did not supply jacks, ropes or braces for safe removal of the braces, nor was Claimant informed of good construction practice requiring that bottom horizontal lagging be removed leaving the top horizontal lagging in place until all persons had exited the trench, and the steel plates had been secured. [Ibid.].

Defendants’ expert, Howard Edelson opines that 23-4.2(a) does not apply because initially the trench was properly shored and sheeted, and it was only when Claimant began removal of the sheeting that the problem occurred. [Affidavit in Support of Summary Judgment by Howard I. Edelson, ¶8]. He then opines that 23-4.2(b), 23-4.2(l), 23-4.4(a) and 23-4.4(i) do not apply. [Ibid. ¶¶9, 10,11 and 12]. None of these sections are discussed by Claimant’s expert in the affidavit concerning his opinion. [See Affirmation in Opposition and in Support of Cross-Motion by Richard S. Vecchio, Exhibit B].

Claimant’s application to amend the bill of particulars to include the two additional regulations is granted. Clearly, there are no new factual allegations or theories of liability involved with such amendment and there is no prejudice to Defendants. See O’Connell v Consolidated Edison Co. of New York, Inc., supra at 610. Moreover, the original Bill of Particulars avers that the asserted violations include but are not limited to those sited. Finally, the use of an un-noticed expert affidavit is not prejudicial at this stage of the proceedings either.

Accordingly, the Defendants’ application for summary judgment dismissing Claimant’s Labor Law §241(6) cause of action is denied, as is the Claimant’s application for summary disposition of same. [The experts opine differently, triable issues of fact arise.] Additionally, there are triable issues of fact as to whether the asserted failure to provide safeguards, and of what type such safeguards should have been, was a proximate cause of Claimant’s accident, as well as the relative responsibilities of each actor in terms of comparative fault, which remains applicable in a Labor Law §241(6) cause of action.

Trial on the issue of liability on Claimant’s remaining cause of action alleging violation of Labor Law §241(6) shall be held as soon as is practicable.

September 18, 2007
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[1].References to Claimant refer generally to Jose Fernando, as the claim of Lorena Fernando is derivitive.
[2]. Mr. Plagianos, the consulting engineer’s chief inspector, indicated that another laborer, Alfredo Melardo, was in the trench as well removing the bracing as reported to him by Mr. Melardo.
[3].“A fair reading of the attorney’s affirmation, the hospital records and the defendant’s deposition testimony compel the conclusion that no material triable issues of fact exist as to the claims of malpractice asserted against the defendant in the amended complaint as amplified by the bill of particulars. The fact that defendant’s supporting proof was placed before the court by way of an attorney’s affirmation annexing deposition testimony and other proof, rather than affidavits of fact on personal knowledge, is not fatal to the motion . . . (citations omitted).”
[4]. Plaintiff in this case was exposed to the usual and ordinary dangers of a construction site, and not the extraordinary elevation risks envisioned by Labor Law § 240 (1). In placing a 120-pound beam onto the ground from seven inches above his head with the assistance of three other co-workers, plaintiff was not faced with the special elevation risks contemplated by the statute.
[5]. Defendants were not liable for injuries sustained by plaintiff while installing gas line in trench when he was struck by falling segment of overhanging concrete sidewalk slab. Since hazard plaintiff encountered was not related to elevation differentials he was not entitled to protection afforded by statute; piece of concrete did not fall while being hoisted or secured, nor did it fall because of absence or inadequacy of safety device of kind enumerated in statute.
[6].Labor Law § 240(1) does not apply to a trench cave-in. Plaintiff working in a trench with several men putting together pipes and pipe fittings for surface drains when part of the trench wall collapsed and a pipe fitting laid out on the side of the trench above, slid down into the trench hitting his hand, and jamming it between a pipe, the side of the trench and the fitting which had fallen. “[T]he Court of Appeals has expressly held 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 [a] required safety device' (Misseritti v Mark IV Constr. Co., supra; Ross v Curtis-Palmer Hydro-Electric Co., 81 NY2d 494, 501, 601 NYS2d 49, 618 N.E.2d 82). In the instant case, the plaintiff's alleged injuries did not arise from such an elevation-related hazard . . . (citations omitted).”
[7].Plaintiff injured when the side of the trench he was digging and part of a nearby retaining wall collapsed, pinning him in the trench. Plaintiffs failed to establish a claim for relief based on Labor Law § 240(1), since plaintiff was not injured as the result of a gravity-related accident, as contemplated under this statute.
[8].Labor Law § 240 (1) does not impose liability in favor of plaintiff who was injured in the collapse of an excavation trench.
[9].Worker injured while working on subway tracks, lifting pieces of track and replacing them. An unsecured dolly, used in his work and stored on top of a 5 ½ foot high bench wall next to the worksite, fell and hit him. Defendant did not assert that the dolly was secured prior to the accident. Plaintiffs entitled to summary judgment on the issue of liability on their Labor Law § 240 (1) cause of action.
1[0].Plaintiff working in an excavation trench 16 to 18 feet deep, as part of a steam main project. While plaintiff was on his knees clearing away rubble with a shovel, a second worker was near him in the trench holding a jackhammer used to break up a concrete housing for the steam main. A third worker on street level lost his grip on a plywood sheet he was lowering into the trench, the second worker released his grasp on the jackhammer to deflect the falling plywood with his hands. When that happened, the 100 pound jackhammer fell and struck plaintiff in the back of his legs. Although plaintiff was not hit by the actual falling object: the plywood sheet; the plywood sheet was being lowered into the trench from street level without the use of a safety device, given circumstances, foreseeable that fellow worker would try to stop the falling, unsecured plywood. No triable issue of fact in opposition.
[1]1.Plaintiff was working in six-foot deep trench installing a water line when a 20-foot section of iron ductile pipe, weighing approximately 850 pounds, rolled into the six-foot deep trench injuring him. Crew had braced the pipe - which was laid out alongside the trench - with blocks, clumps of dirt, rocks or wood. Vibrations from operating equipment and muddy conditions caused the pipe to become loose and roll down a 15-foot slope before falling into the trench and striking plaintiff. Court decides the pipe was a load that required securing for the purposes of the undertaking thus plaintiff was exposed to an elevation-related hazard because his work site was positioned below the level where the pipe was secured and his injury was the result of being struck by a falling object that was improperly hoisted or inadequately secured.
1[2]. “[N]o liability will attach to the owner solely because it may have had notice of the allegedly unsafe manner in which work was performed (see Comes v New York State Elec. & Gas Corp., . . . [supra]; Colon v Lehrer, McGovern & Bovis, 259 AD2d 417, 419 [1999].
1[3]. 23-4.2 (a) “Whenever any person is required to work in . . . any trench or excavation five feet or more in depth which has sides or banks with slopes steeper than those permitted in Table I of this Subpart, such sides or banks shall be provided with sheeting and shoring in compliance with this Part (rule). Such sheeting and shoring system shall be in contact with the sides or banks of such trench or excavation. A designated person shall carefully inspect such sheeting and shoring at least once each day and more frequently in the event of rain, the presence of additional surface or ground water from any source, excessive ground vibrations or whatever additional loads of any kind have been imposed near or adjacent to such excavation. Additional protection against slides and cave-ins shall be provided whenever necessary . . . .”
1[4]. 23-4.2(b) “Where the sides or banks of a trench or area type excavation may be sloped back without causing subsidence or damage to buildings, structures, utilities, roads, streets, highways or similar facilities, sloping of the excavation sides or banks may be used as protection in lieu of the sheeting and shoring required by this Part (rule), provided such sloping conforms to the values set forth in Table I of this Subpart. Such sloping of the excavation sides or banks may be used in combination with sheeting and shoring. When such a combination is used, a level bench at least 24 inches in width shall be left between the toe of the sloped section and the braced section. The sheeting of the braced section shall extend at least 12 inches above the elevation of such level bench.”
1[5]. 23-4.2(l) “The sides of any excavation in stable rock may be vertical and are not required to be provided with sheeting and shoring. Such sides shall be scaled and kept free of all loose rock or material that may be dislodged or may fall into such excavation.”
1[6]. 23-4.4(a) “Where any excavation is not protected by sloped sides or banks in compliance with Table I of this Subpart, any person in such excavation shall be protected by sheeting, shoring and bracing in compliance with Tables II, III and IV of this Subpart . . . .”
1[7]. 23-4.4(i) “Timber sheeting shall consist of structurally sound hardwood at least two inches by six inches in size or of lumber of equivalent strength. The actual thickness of such timber sheeting shall be consistent with the size of the supporting timbers and the depth of the excavation.”
1[8]. Although claimant discusses the applicability of 23-4.1(a) it is not referred to in the claim, the bill of particulars, nor is it proposed as a provision that claimants wish to include in any supplemental bill of particulars.
1[9]. 23-4.1(b) Prohibited entry. No person shall be suffered or permitted to enter any trench or similar excavation where he may be exposed to side or bank failure or cave-in unless proper safeguards for his protection have been provided.”
2[0]. 23-4.5(k) “Backfilling and removal of trench supports shall progress together from the bottom of the trench. Jacks or braces shall be released slowly and, in unstable soil, ropes shall be used to remove the jacks or braces from above after employees have vacated the trench.”