McGuire v. Independent Cement Corp.McGuire v. Independent Cement Corp.
Crоss appeals from an order of the Supreme Court (Connor, J.),
Defendants Independent Cement Corporation and St. Lawrence Cement, Inc. (hereinafter collectively referred to as ICC/ St. Lawrence) hired contractors, in connection with the demolition of its cement plant, to remove a 500-foot kiln which it sold to defendant Coloradо Minerals Development Corporation (hereinafter CMDC). Responsible for its dismantlement and removal, CMDC subcontracted with defendant Cameron Industries, Inc. who hired both defendant Precision Metals, Inc. (hereinafter Precision) to remove the brick and Environmental Management Corрoration (hereinafter EMC) to scrap the steel.
Plaintiff Randy W. McGuire (hereinafter plaintiff), an employee of EMC, was cutting steel with a blow torch while working on a metal platform on the first floor located approximately five feet from the ground. On the floor above him, a rаmp had been constructed to expand the opening of the kiln to accommodate the movement of construction equipmеnt. Notwithstanding the concrete floor separating plaintiff and the contractors above him, plaintiff contends that their use of a bulldozеr and its resultant vibrations caused a chunk of cement to dislodge from one of the I-beams overhead. The concrete hit plaintiff on his hard hat and between his shoulder blades, causing his hand to be driven into the piece of steel that he was cutting.
The resultant injuries were the basis of this аction commenced by plaintiff, and his wife derivatively, alleging violations of Labor Law §§ 200, 240 and 241 (6). After joinder of issue, ICC/St. Lawrence, as well as Camеron, moved for summary judgment. This prompted plaintiffs’ motion to amend the bill of particulars to include specific regulatory violations in support of its claim under Labor Law § 241 (6) and for partial summary judgment with regard to the Labor Law § 240 (1) cause of action. After Supreme Court granted plаintiffs’ motion to amend and denied all motions for summary judgment, these cross appeals ensued.
Addressing first the Labor Law § 200 claim, it is well settled that a рlaintiff must show that the defendants had “ ‘the authority to control the activity bringing about the injury’ ” (Comes v New York State Elec. & Gas Corp.,
While both ICC/St. Lawrence and Cameron assert that they did not have any supervisory role over EMC employees or plaintiffs worksite, the record reflects that ICC/St. Lawrence, as the owner of the premises, hired several employees in a supеrvisory capacity like Eugene Daniel, the project director, whose role was to oversee the demolition and constructiоn of the new plant. Edward Tanczos, civil engineer and safety manager, conducted safety meetings with all contractors on the projеct and, according to his own testimony, supervised the sale and disassembly of the machinery. Cameron, who was hired by CMDC, held safety meetings not only with his own employees but ultimately with the other contractors, and CMDC was found to have furnished all funds to pay Cameron employees. Moreover, Cameron, who had a long work history with Carlos Villachica, owner of CMDC, was found to be on site daily to oversee the dismantling of the kiln. As a result of this intеrmingled environment, ICC/St. Lawrence employee Joan Buser averred that it was her understanding that EMC, who employed plaintiff, was working for Camerоn and Villachica.
Viewing the evidence in a light most favorable to plaintiffs, we find that a triable issue of fact exists as to whether ICC/St. Lawrence or Cameron exercised the requisite degree of control over the construction area where plaintiff was injured to warrant responsibility to befall either one of them pursuant to Labor Law § 200 or through principles of common-law negligence.
As to the failure to dismiss рlaintiffs’ Labor Law § 240 (1) cause of action, we find error. The application of Labor Law § 240 (1) has been found to encompass “only spеcial hazards inherent in elevation-related tasks” (Gill v Kosoff & Sons,
Here, the record clearly demonstrates that plaintiff was not performing work at an elevated level requiring the provision of any of the devices listed in Labor Law § 240 (1) and that he was not struck by an object that was being improperly hoisted or inadequately secured. Instead, he was injured by a piece of concrete which was allegedly dislodged by the vibrations of the machinery usеd on the floor above him. In these circumstances, we cannot find that the mandates of Labor Law § 240 (1) were violated, thus making the imposition оf strict liability applicable (see, Smith v New York State Elec. & Gas Corp.,
Finally, as to the cause of action alleging a violation of Labor Law § 241 (6), we find no abuse of discretion in permitting plaintiffs to amend their bill of particulars for farther specificity. They did not allege any new facts nor could a viable claim of prejudice or surprise be asserted, especially since further discovery was permitted (see, Murray v City of New York,
Cardona, P. J., Spain, Carpinello and Graffeo, JJ., conсur. Ordered that the order is modified, on the law, without costs, by reversing so much thereof as denied the motions by defendants Independent Cement Corporation, St. Lawrence Cement, Inc. and Cameron Industries, Inc. for summary judgment dismissing the Labor Law § 240 (1) cause of action