Myiow v. City of New York ( 2016 )

Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered September 2, 2014, which granted plaintiff’s motion for summary judgment on the issue of liability under Labor Law § 240 (1), and order, same court and Justice, entered September 2, 2014, which, to the extent appealed from as limited by the briefs, denied defendants’ cross motion for summary judgment dismissing the Labor Law § 240 (1) claim, affirmed, without costs.

On or about September 16, 2009, plaintiff, an employee of nonparty Brooklyn Welding Corp. was working at Harlem Hospital, located at 506 Lenox Avenue in Manhattan. The hospital, owned by defendant City of New York and operated by defendant New York City Health and Hospitals Corporation, was constructing a new patient pavilion. Defendant TDX Construction was the construction manager for the project. Defendant Metropolitan Steel Industries, Inc. was a prime contractor hired to fabricate and erect steel at the site. Brooklyn Welding was engaged in erecting steel at the site as part of a joint venture agreement with Metropolitan Steel.

Plaintiff was injured while in the process of preparing one of the steel beams that had been brought to the facility on a flatbed truck to be lifted off the truck by a crane and then hoisted for installation. While plaintiff was standing on the beams for the purpose of wrapping a steel rope (the “choke”) around a beam for it to be hoisted, a piece of flat wooden skids (the “dunnage”) separating the beams broke, causing plaintiff to fall off the truck to the ground below, sustaining injury.

Plaintiff testified that at the time of his accident, his responsibilities included preparing the steel for unloading at the site and assisting in hoisting the steel to the structure for installation. He was supervised by and reported to James Marquis and Cecil Kemp. Plaintiff had done this for over a dozen shipments of steel to the site prior to his accident.

Plaintiff testified that on the day of his accident, the load of steel that contributed to his injury arrived on site at approximately 1:30 p.m. and Marquis, his foreman, instructed him on how to unload the beams. Plaintiff and his partner, Kaniehtakeron Martin, climbed onto the flatbed to assess how best to unload the beams since they were stacked closely together. Plaintiff described the beams as resting on the dun-nage which separated them. The beams were stacked in order: beam, dunnage, beam. Plaintiff testified that because the beams were packed tightly together, he told his foreman, Marquis, that he would have to “shake out” the beams to get the chokers around them so the crane could hoist them off the truck and onto the ground prior to lifting them up onto the building.

Plaintiff and Martin made a “load” of beams, working from the outside of the truck in toward the center in order to prepare the beams for lifting. They used a “spreader hook” to stack the outer beams on top of the inner beams. Plaintiff did not have any problems getting the two outer beams “synced on top” of the two inner beams. Once Martin secured the choker around four of the beams, plaintiff secured his choker around his end of the beams. At that moment, the dunnage underneath the beams broke, causing the beams and plaintiff to fall onto the ground.

Plaintiff testified that he was wearing a harness at the time of the incident, but it had not been tied off with a lanyard. Plaintiff stated that he typically wore the harness all day, but that no one told him or recommended to him that it be tied off while he was working on the flatbed truck prior to his accident.

Plaintiff moved for partial summary judgment on the issue of defendants’ section 240 (1) liability, arguing that he was “clearly entitled” to summary judgment, because he fell from a height of 13 to 14 feet from the trailer while standing atop a load of stacked steel beams. Plaintiff contended that defendants had failed to provide him with proper, adequate safety protection or devices, and that this proximately caused his accident.

Defendants cross-moved for summary judgment dismissing the section 240 (1) claim. Defendants argued that plaintiff’s accident did not fall under the protections of the statute because it was not an elevation-related hazard. Defendants contended that plaintiff was not using the flatbed trailer as a ladder, platform, or scaffold to work above him; he was simply unloading steel, and that is when the accident occurred. Defendants argued that New York law is clear that the unloading of a flatbed truck does not present the type of “extraordinary elevation-related hazard” contemplated by section 240 (1). Defendants further argued that plaintiff could not demonstrate that any of the safety devices enumerated in the statute would have prevented his fall.

The motion court granted plaintiff’s motion for partial summary judgment on the issue of defendants’ section 240 (1) liability and denied defendants’ cross motion. The court observed that because plaintiff was “working at an elevation, some sort of protective device should have been used.” The court also noted that the list of devices included in the statute was not exhaustive and that what was relevant was that plaintiff was “up there some 13 or 14 feet above ground on an unstable surface” which was made more “unstable because the dunnage broke,” causing plaintiff to fall. The motion court correctly determined that defendants, other than Metropolitan Steel, were liable under Labor Law § 240 (1) for plaintiff’s injuries because they failed to provide plaintiff with an adequate safety device to prevent his fall from steel beams placed on a flatbed trailer. Here, as in Naughton v City of New York (94 AD3d 1 [1st Dept 2012]), defendants’ contention that the accident is outside the scope of Labor Law § 240 (1) is without merit, because plaintiff’s fall from a height of 13 or 14 feet above the ground “constitutes precisely the type of elevation-related risk envisioned by the statute” (id. at 8). The fact that plaintiff did not ask for a specific safety device prior to the accident is not dispositive and is not a prerequisite for recovery under Labor Law § 240 (1) (id.). Plaintiff has met his burden of showing that his fall resulted from the lack of a safety device and is, therefore, entitled to summary judgment on liability (see Phillip v 525 E. 80th St. Condominium, 93 AD3d 578, 579 [1st Dept 2012] [the plaintiff entitled to summary judgment where evidence showed that the plaintiff, who fell while unloading scaffolding material from the flatbed of a truck, was provided with a safety harness, but there was no place where the harness could be secured]).

Contrary to the dissent’s view, Berg v Albany Ladder Co., Inc. (10 NY3d 902 [2008]) and Toefer v Long Is. R.R. (4 NY3d 399 [2005]) do not compel a different result in this case. In Berg, the plaintiff’s claim was properly dismissed because there was evidence that the plaintiff’s accident was caused by rolling trusses that were improperly moved by a forklift, not by the lack of a safety device, and the plaintiff failed to adduce proof sufficient to create a question of fact on this issue (10 NY3d at 904). In Toefer, the plaintiff’s Labor Law § 240 (1) claim was based on an accident he had when he was working on a flatbed truck only four feet above the ground and was struck in the head and propelled backwards (4 NY3d at 405). Ultimately, the Court of Appeals held that the claim was not successful because it “did not present the kind of elevation-related risk that the statute contemplates” (id. at 408). Although “ £[n]ot every worker who falls at a construction site . . . gives rise to the extraordinary protections of Labor Law § 240 (1)’ ” (id. at 407, quoting Narducci v Manhasset Bay Assoc., 96 NY2d 259, 267 [2001]), here, it is clear that the elevation-related risks contemplated by the statute are present given the fact that plaintiff fell 13 or 14 feet to the ground and was provided with an inadequate safety harness.

The dissent points out that a plaintiff must present evidence as to which specific and identifiable safety device would have prevented his fall, a requirement that derives from Ortiz v Varsity Holdings, LLC (18 NY3d 335 [2011]), where the Court stated that “to prevail on summary judgment, plaintiff must establish that there is a safety device of the kind enumerated in section 240 (1) that could have prevented his fall, because liability is contingent upon . . . the failure to use, or the inadequacy of such a device” (id. at 340 [internal quotation marks omitted]). Here, as in Phillip, which was decided by this Court after Ortiz, plaintiff meets this burden by showing that he was provided with a safety harness, but that it proved to be inadequate because there was no location where the harness could be secured.

Concur — Tom, J.P., Saxe, Richter and Kapnick, JJ.