Matthew Boyle et al., Respondents-Appellants, v 42nd Street Development Project, Inc., et al., Respondents-Appellants. 42nd Street Development Project, Inc., et al., Third-Party Plaintiffs-Respondents-Appellants, v Archer‘s Iron Works, Third-Party Defendant-Appellant-Respondent, and Valley Forge Insurance Co., Sued Herein as CNA Commercial Insurance, Third-Party Defendant-Respondent. (And Another Action.)
Supreme Court, Appellate Division, First Department, New York
May 17, 2005
[835 NYS2d 7]
On July 8, 1999, plaintiff Matthew Boyle was one of a six-man crew engaged in the unloading, hoisting and installation of stringers, which are steel components that form the sides of metal stairs. The stringers, each about 10 to 13 feet long and weighing several hundred pounds, were being moved from the ground level to the building‘s upper floors. To achieve this, the stringers had to be hoisted through an open elevator shaft by an electrical chain fall, which was erected in the elevator shaft. The chain fall was hung from about the 10th floor and extended to ground level.
There were three workers at ground level attaching the stringers to the chain fall. Boyle was kneeling on a beam in the elevator shaft on the 6th floor and operating the chain fall, which required him to guide the stringers as they were being hoisted. Also, two workers, Fred Fegel and Thomas Frame, were positioned on the 8th floor and were unloading and installing the stringers. Fegel and Frame would swing the stringers out of the elevator shaft and onto a platform in the stairwell that was adjacent to the elevator shaft.
The assembly of steel stairs further required threaded rods, which are about six feet long and weigh between 10 and 15 pounds. The threaded rods were hung from the building‘s structural steel and the stringers were then hung from the rods before the stair treads and risers were placed between the stringers to form the staircase. The threaded rods were placed into clips that were attached to the structural steel and secured on both the top and bottom with washers and nuts. When installing the staircase, the nuts that secured the threaded rods were left loose so that the rods could be adjusted as the stairs were installed. The nuts were not tightened until final height adjustments were made and the stringers were plumb.
Fegel was in the process of aligning the stairs with the use of a hammer when he exposed his coworker to the effects of Newton‘s First Law. One of the threaded rods came loose and tumbled down the elevator shaft, striking Boyle in the back as he worked two floors below. As a result, Boyle sustained injuries, including an L2-L3 disc herniation and several bulging discs.
In May 2004, Boyle moved for summary judgment on the
The motion court erred in vacating its initial determination. The accident clearly falls within the purview of the statute inasmuch as plaintiff was struck by a falling object that had been inadequately secured (Outar v City of New York, 5 NY3d 731 [2005]; see also Tavarez v Sea-Cargoes, 278 AD2d 94 [2000] [the purpose of
Defendants’ assertion that the claim was properly dismissed because the threaded rod that struck Boyle was not being hoisted or secured at the time of the accident is without merit since it is based on a misreading of Narducci v Manhasset Bay Assoc. (96 NY2d 259, 267-268 [2001] [plaintiff must show that the object fell, while being hoisted or secured, because of the
In other words, the glass did not qualify as the type of falling object contemplated by the statute because it was not an integral part of the renovation/construction work undertaken by plaintiff that involved the hoisting or securing of objects.1 Similarly, in Roberts v General Elec. Co.(97 NY2d 737, 738 [2002]), a piece of asbestos that was deliberately dropped to the ground did not qualify as an object accidentally falling due to the inadequacy of a protective device. Neither Narducci nor Roberts stands for the proposition that an object must fall at the precise moment of being secured during the work process in order for the statute to apply.
In any event, even if we were to apply the narrowest interpretation possible, the facts of this case indicate that this was precisely a situation where the rods were in the process of being secured and therefore “where a hoisting or securing device of the kind enumerated in the statute would have been necessary or even expected” (see Roberts, 97 NY2d at 738, quoting Narducci v Manhasset Bay Assoc., 96 NY2d at 268).
Here, the record establishes that as Fegel and Frame were
It could not be stated more plainly that, if the nuts were not finally tightened, then the rods which the nuts were securing were not completely “secured” within the meaning of
The other safety device claimed as missing in this case was the two-inch-thick planking or equivalent which plaintiff alleges should have been covering the open shaft as required by
Andrias, J.P., and Friedman, J., dissent in part in a memorandum by Andrias, J.P., as follows: Because the majority‘s failure to dismiss plaintiffs claim pursuant to
Plaintiff, an ornamental ironworker employed by Archer‘s,
The majority‘s attempt to distinguish Roberts and Narducci on their facts is unpersuasive as is its reliance upon Outar v City of New York (5 NY3d 731 [2005]) and its characterization of the threaded rod that fell and struck plaintiff as an “integral” part of the work being performed by him at the time of the accident.
In Outar, the injured plaintiff, who was hurt while working on subway tracks, alleged that he was lifting pieces of track when an unsecured dolly fell from a height and struck him. It is impossible to tell from the Second Department‘s decision whether the dolly was “being hoisted or was a load that required securing” at the time it fell, and, on a review of submissions, the Court of Appeals merely held that “the dolly was an object that required securing for the purposes of the undertaking (cf. Narducci v Manhasset Bay Assoc., 96 NY2d 259, 268 [2001]).” (Id. at 732.) Moreover, to the extent that the majority finds defendants’ arguments to be based upon a misreading of Narducci and its conclusion that the accident clearly falls within the purview of the statute since plaintiff was struck by a falling object that was not secured, Narducci specifically held that “for
In construing the Scaffold Law, which enumerates devices, rather than hazards or circumstances, courts are required to scrutinize two interrelated issues: the work that is being performed by the laborer, and the nature of the protective device and the manner in which it is being utilized (Hargobin v K.A.F.C.I. Corp., 282 AD2d 31, 35 [2001]). Plaintiffs argued in Supreme Court, as they do on appeal, that
Plaintiffs also argued below, in support of their motion to reargue their motion for summary judgment, that “[t]he undisputed evidence establishes the complete absence of safety devices, stays, ropes or additional bolts which would have prevented the threaded rod from falling on plaintiff. Clearly, this case is dead on as the stairs and its components were still under construction. The stringers were not yet attached to the threaded rod. In fact, the stringers were being maneuvered into position at the moment of the accident.”
The majority seemingly accepts that argument and is of the opinion that neither Narducci nor Roberts stands for the proposition that an object must fall at the precise moment of being secured during the work process, in order for the statute to apply. In support of its rationale, the majority contends that the glass in Narducci “did not qualify as the type of falling object contemplated by the statute because it was not an integral part of the renovation/construction work [removing steel window frames from the third floor exterior of a fire-damaged warehouse] undertaken by plaintiff that involved the hoisting or securing of objects.” However, while plaintiff‘s work in this
Finally, as explained by Judge Hancock in Rocovich v Consolidated Edison Co. (78 NY2d 509, 513-514 [1991]), while