Buckley v. Columbia Grammar & PreparatoryBuckley v. Columbia Grammar & Preparatory
Sacks and Sacks, LLP, New York City (Scott N. Singer of counsel), for appellants.
Cerussi & Spring, P.C., White Plains (Richard D. Bentzen of counsel), for Columbia Grammar and Preparatory, respondent.
Law Office of Carol R. Finocchio, New York City (Lisa M. Comeau of counsel), and Law Office of Michael F.X. Manning, Melville, for Kalikow Construction, Inc., respondent.
DLA Piper Rudnick Gray Cary US, LLP, New York City (Gregory J. Samurovich of counsel), for Kone Inc., respondent.
SULLIVAN, J.
This lawsuit arises from an accident on July 21, 2001, at Columbia Grammar and Preparatory School in Manhattan when plaintiff Scott Buckley was injured while he and a coworker were testing the operation of a car platform in the course of installing a new elevator, part of a renovation project at the school.
The injured plaintiff was an elevator mechanic‘s helper employed by third-party defendant Kone Inc. Pursuant to a written purchase order, Kone had been hired by defendant Kalikow Construction, the project manager, to furnish and install a “Monospace” AC gearless traction passenger elevator designed by Kone. Under the agreement, Kone was to provide all labor, materials and supervision relating to installation. The elevator, as constructed, moved by use of a motor, cables and counterweights housed in a frame that would travel up and down the shaft. At the time of the accident, the rails, counterweight frame, counterweights and motor had been installed. Although the elevator cab itself had not yet been installed, the platform on which it would sit had been. The elevator was designed so that when the car descended, a counterweight frame with partially enclosed weights on top of it would ascend, and vice versa. The Monospace design calls for the counterweights to be notched into their frame.
According to the testimony of the injured plaintiff and Birnbaum, his coworker, at the time of the accident they were bringing the elevator platform down the shaft from the top (eighth) floor to the basement for the first time, using a hand-held control box. Plaintiff was standing in the doorway to the elevator shaft at the basement level and Birnbaum, an elevator mechanic from whom he took his instructions, was at the lobby level. As the counterweight frame was ascending, it hit a nail-like spike, apparently composed of formtie wire, protruding from the wall of the elevator shaft, which damaged the frame, thus causing five of the counterweights to fall out of the compartment housing them. One or more of these counterweights struck plaintiff on his right side.
In a pretrial deposition, Birnbaum testified that he believed the spike had been poured into the concrete. No contractor other than Kone worked in the shaft during the weeks prior to the accident. Kone was responsible for inspecting the interior of the elevator shaft before commencing its onsite work in June
Four rails inside the elevator shaft were part of the mechanical system that allowed the elevator and counterweights to go up and down, two for the counterweights and two for the elevator cab. These rails were attached to the hoistway walls by brackets. The counterweight frame assembly with the counterweights, each weighing between 50 and 75 pounds, inside the frame was undergoing its initial test at the time of the accident.
Buckley and his wife, suing derivatively, commenced this action against Columbia and Kalikow, alleging negligence and violations of
On appeal, plaintiffs argue that Outar v City of New York (5 NY3d 731 [2005]) warrants not only reinstatement of their
The statute‘s protections, however, “extend only to a narrow class of special hazards” (Nieves v Five Boro A.C. & Refrig. Corp., 93 NY2d 914, 915-916 [1999]) and “do not encompass any and all perils that may be connected in some tangential way with the effects of gravity” (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [1993]). In order for
“Not every worker who falls at a construction site, and not every object that falls on a worker, gives rise to the extraordinary protections of
Labor Law § 240 (1) . Rather, liability is contingent upon the existence of a hazard contemplated insection 240 (1) and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein” (Narducci v Manhasset Bay Assoc., 96 NY2d 259, 267 [2001]).
In Narducci, the plaintiff was injured when a large piece of glass, not involved in the renovation, fell on him while he was standing on a ladder at the third floor exterior of a building, removing window frames. The falling glass was not being hoisted; nor was it part of a load that required securing for purposes of the work being undertaken. The Court held (at 268-269):
“This was not a situation where a hoisting or securing device of the kind enumerated in the statute would have been necessary or even expected. . . .
“The absence of a necessary hoisting or securing device of the kind enumerated in
Labor Law § 240 (1) did not cause the falling glass here. This was clearly a general hazard of the workplace, not one contemplated to be subject toLabor Law § 240 (1) .”
Thus, the determination of the type of protective device required for a particular job turns on the foreseeable risks of harm presented by the nature of the work being performed.
In addition, to establish a prima facie case under
Plaintiffs rely on Outar v City of New York (5 NY3d 731 [2005], supra) and Bush v Gregory/Madison Ave. (308 AD2d 360 [2003]) in arguing that the counterweights were not properly secured at the time of the accident. Outar and Bush are both factually distinguishable. In Outar, the plaintiff, a track worker, was injured when a track dolly routinely used in his work, which had been left completely unsecured on a 5 1/2-foot bench wall adjacent to the work site, fell on him. In Bush, an angle iron that had apparently been left unsecured to the wall fell from an elevated work site on the floor above, and struck the plaintiff. In both cases, that the objects in question posed a significant risk of falling on workers was foreseeable. They thus were objects that should have been secured within the meaning of
Plaintiffs argue that Outar represents a change in
In Boyle v 42nd St. Dev. Project, Inc. (38 AD3d 404, 408 [2007]), cited by the dissent, a narrowly divided Court held that a threaded, six-foot steel rod, loosely connected to a staircase being installed, which came loose and fell down an elevator shaft, striking the plaintiff, “should have been completely ‘secured’ or some safety device . . . used . . . to prevent the ‘special hazard’ of a gravity-related accident such as ‘being struck by a falling object that was improperly hoisted or
Here, it was not foreseeable that the counterweights that fell on the injured plaintiff posed an elevation-related hazard inherent in testing the functioning of the elevator platform on the day of the accident. All that was involved was the moving of the platform up and down using a hand-held control unit. At the time, the counterweights were placed in a frame in their intended, eventual resting place in accordance with Kone‘s design of the elevator and the instructions in the installation manual. The elevator shaft was constructed according to Kone‘s specifications. As Birnbaum testified, before installing the counterweight rails, he inspected the walls of the shaft and looked for anything projecting from the walls that might impinge on the space where the counterweights would ascend and descend. According to Birnbaum, everything was in proper order.
Thus, it could not reasonably be expected at the time of the testing that the counterweight frame would tilt or move in a way that would cause the counterweights to fall. Such an event was not a foreseeable risk inherent in the testing of the elevator, and as such, did not compel the need for a protective device as contemplated by
We are all in agreement that the
Here, plaintiffs rely upon alleged violations of Industrial Code (12 NYCRR)
“(a) Overhead hazards.
“(1) Every place where persons are required to work or pass that is normally exposed to falling material or objects shall be provided with suitable overhead protection. Such overhead protection shall consist of tightly laid sound planks at least two inches thick full size, tightly laid three-quarter inch exterior grade plywood or other material of equivalent strength. Such overhead protection shall be provided with a supporting structure capable of supporting a loading of 100 pounds per square foot” (emphasis added).
As plainly expressed, this regulation only applies to places normally exposed to falling material or objects. Thus, where an object unexpectedly falls on a worker in an area not normally exposed to such hazards, the regulation does not apply (see e.g. Daly v City of New York, 254 AD2d 214 [1998] [plaintiff, working on a leak, injured when ceiling of underground steam vault collapsed; no evidence that this work was in an area “normally exposed to falling material or objects“]; see Quinlan v City of New York, 293 AD2d 262 [2002]; see also Favia v Weatherby Constr. Corp., 26 AD3d 165 [2006]).
Industrial Code
“(a) Storage of material or equipment. . . .
“(2) Material and equipment shall not be stored upon any floor, platform or scaffold in such quantity or of such weight as to exceed the safe carrying capacity of such floor, platform or scaffold. Material and equipment shall not be placed or stored so close to any edge of a floor, platform or scaffold as to endanger any person beneath such edge.”
Clearly, although there is a paucity of precedent interpreting this regulation, it does not apply to material and equipment that is not being stored. The few cases that have considered the issue have so held (see McLaughlin v Malone & Tate Bldrs., Inc., 13 AD3d 859, 861 [2004]; Castillo v Starrett City, 4 AD3d 320, 321 [2004]).
Where an alleged defect or dangerous condition arises from a subcontractor‘s methods over which the defendant exercises no supervisory control, liability will not attach under either the common law or
Here, it is undisputed that neither Columbia nor Kalikow in any way supervised, directed or controlled the elevator work being performed by the injured plaintiff and Birnbaum on the day of the accident; Kone was exclusively responsible for supervising its employees. That Kalikow may have had general supervisory powers to coordinate the progress of the work and correct any unsafe conditions that came to its attention is insufficient
Faced with this obstacle, plaintiffs argue that the accident arose not out of Kone‘s methods, but out of a defective condition at the job site, namely, the five-inch spike protruding from the elevator shaft, of which Kalikow should have been aware by virtue of its employees’ daily walk-throughs. But the accident did result solely from Kone‘s methods, over which Kalikow and Columbia undeniably exercised no supervision or control. In any event, while notice of the injury-causing condition is not enough—supervisory control still being necessary to make an owner or general contractor liable under the Labor Law (McFarland v Travelers Ins. Co., 302 AD2d 328 [2003])—there is no evidence that either defendant had actual or constructive notice of any inherent defect in the elevator shaft.
We have examined plaintiffs’ other arguments and find them to be without merit.
Accordingly, the order of the Supreme Court, New York County (Shirley Werner Kornreich, J.), entered June 23, 2005, which granted defendant Kalikow‘s motion and defendant Columbia‘s cross motion for summary judgment and denied plaintiffs’ cross motion for partial summary judgment on their
MAZZARELLI, J.P. (dissenting in part). I would modify the order appealed, to the extent of reinstating plaintiffs’
The work took place in stages. First, Buckley and Birnbaum installed two rails for the elevator and two rails for its counterweights. They then erected a sling to contain the elevator platform. A motor room was constructed on top of the shaftway. After the counterweight frame was installed, cables were attached. Finally, the elevator platform was placed at the main floor level and raised to the top of the shaft, using a hoist.
On the day before the accident, Buckley assembled the counterweights within their frame. Birnbaum inspected the counterweights and confirmed that they were installed cor-
The day after completing the installation of the component parts, Buckley and Birnbaum started to test the elevator. As Buckley lowered the elevator platform to the basement where he was standing, Birnbaum heard a scraping sound. He directed plaintiff to stop and reverse the elevator‘s direction, to determine where the scraping noise was coming from. Buckley, as directed, raised the platform. Birnbaum saw some of the counterweights dislodge and fall into the shaft. He yelled to Buckley to get out of the way. However, Buckley was unable to escape as one or more counterweights fell from the eighth floor, and Buckley was struck. Bones in his right arm and foot were fractured.
At his deposition, Birnbaum testified that after the accident, he observed that the weights became dislodged because they had hit a spike sticking out of the concrete wall. When Birnbaum attempted to put the weights back into their frame, the spike prevented him from doing so.
The IAS court dismissed plaintiffs’
In Narducci, the Court of Appeals considered two consolidated appeals. In the first, plaintiff Alex Narducci was removing steel window frames from the third floor exterior of a fire-damaged warehouse. Mr. Narducci was assigned to remove three windows in a row, and he began with the one farthest to the right. As he stood on his ladder, “a large piece of glass from an adjacent window” fell toward him (96 NY2d at 266). Mr. Narducci turned to the right to avoid being hit in the face, but he was severely cut on his right arm. The Court of Appeals noted that plaintiff “did not fall from the ladder, nor did the ladder malfunction in any way” (id.).
In the companion appeal (Capparelli v Zausmer Frisch Assoc.), Louis Capparelli was assigned to install fluorescent light fixtures in a dropped ceiling grid as part of a building renovation (id.). Mr. Capparelli had climbed halfway up an eight-foot stepladder to reach the 10-foot ceiling. He lifted the light
The Court of Appeals held that neither plaintiff had an actionable claim under
“the glass that fell on plaintiff was not a material being hoisted or a load that required securing for the purposes of the undertaking at the time it fell . . . . No one was working on the window from which the glass fell, nor was there evidence that anyone worked on that window during the renovation. . . . This was not a situation where a hoisting or securing device of the kind enumerated in the statute would have been necessary or even expected. . . .
“The absence of a necessary hoisting or securing device of the kind enumerated in
Labor Law § 240 (1) did not cause the falling glass here. This was clearly a general hazard of the workplace, not one contemplated to be subject toLabor Law § 240 (1) .” (Emphasis added.)
In Mr. Capparelli‘s case, the Court held that
Subsequent to Narducci, this Court decided Doucoure, where the plaintiff construction worker was injured when a piece of concrete debris chipped loose, fell down an elevator shaft, and struck him on the head. We held that there was no liability under
Subsequent to Doucoure, the Court of Appeals decided the case of Outar v City of New York (5 NY3d 731 [2005]). The Outar plaintiff was a track worker for the New York City Transit Authority. He was lifting and replacing pieces of track when an unsecured dolly, which was used in his work and stored on top of a 5 1/2-foot wall adjacent to his work site, fell and hit him (see 286 AD2d 671 [2001]). The Court of Appeals affirmed the Second Department‘s determination that the accident involved an elevation-related risk necessary to “implicate the special
In a case with arguably similar facts, this Court recently held that Labor Law § 240 protected a worker who was injured while installing certain steel components of a metal stairway (Boyle v 42nd St. Dev. Project, Inc., 38 AD3d 404 [2007]). In Boyle, plaintiff‘s coworker was aligning the stairwell when a rod came loose, fell two flights, and struck plaintiff in the back (id. at 405). Distinguishing Narducci, this Court held that the rods “should have been completely ‘secured’ or some safety device should have been used . . . to prevent the ‘special hazard’ of a gravity-related accident such as ‘being struck by a falling object that was improperly hoisted or inadequately secured’ ” (id. at 408, quoting Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [1993]).
As in Boyle, the unsecured counterweights in this case posed an elevation-related risk implicating the protections afforded by
MARLOW, BUCKLEY and GONZALEZ, JJ., concur with SULLIVAN, J.; MAZZARELLI, J.P., dissents in part in a separate opinion.
Order, Supreme Court, New York County, entered June 23, 2005, affirmed, without costs or disbursements.