Torkel v. NYU Hospitals CenterTorkel v. NYU Hospitals Center
Order, Supreme Court, New York County (Debra A. James, J.), entered September 11, 2008, which denied defendants’ motion for summary judgment dismissing the complaint (except as to plaintiff‘s claim under
The construction debris from the project was removed from the site and taken to the street in Rite-Way‘s wheeled containers, which typically held about 250 pounds of material. HRH employees, with plaintiff‘s regular help, loaded the containers. Rite-Way employees would haul the debris away by truck about once a day, sometimes after an HRH employee had called and requested a pickup. The Rite-Way employees would drive a truck to the work site and, using a winch affixed to the truck, raise the containers and dump the debris into it.
On March 19, 2004, plaintiff, who had been sent to the work site by Rite-Way dispatchers, was injured while rolling a filled container from the work site to his truck parked on the street. When plaintiff arrived, he observed that a three-quarter-inch-thick sheet of plywood had been laid down as a makeshift ramp to bridge the gap in height bеtween the edge of the work site, at curb level, and the street, which was lower than usual because the surface layer of asphalt had been removed during ongoing repaving. The plywood was not braced or supported from beneath. Plaintiff stated that the height differential between the bridged levels was “[a]nywhere between 12 and 18 inches, give or take a few.” While plaintiff was maneuvering the container down the plywood ramp, the ramp collapsed, causing the container to spill concrete debris onto plaintiff‘s leg and fall over onto the sidewalk. Plaintiff was injured while trying to regain control of the container and keep it from tipping over.
Upon defendants’ motion for summary judgment, the motion
As a threshold matter, the only argument defendants made to the motion court for dismissing the
On appeal, defendants contend for the first time that the statute is inapplicable because plaintiff was not engaged in any of the enumerated activities set forth in the statute or in work that was “incidental and necessary” to the performance of those activities. Whatever its merit, this new argument is not properly before this Court because defendants’ failure to raise it before the motion court deprived plaintiff of the opportunity to submit evidence with which to refute it (see e.g. Douglas Elliman-Gibbons & Ives v Kellerman, 172 AD2d 307, 308 [1991], lv denied 78 NY2d 856 [1991]).
However, given that the bottom of the ramp was resting on the street and the top was resting on the adjacent sidewalk curb, and the height differential from the bottom to the top was at most 12 to 18 inches, we agree with defendants that plaintiff was not exposed to an elevation-related hazard as contemplated by
Plaintiff‘s
We note that defendants’ only argument to the motion court with respect to the
To support a finding of liability under
Defendants argue that they cannot be liable under
In addition, plaintiff made a prima facie showing that HRH was responsible for or was aware of the dangerous condition. The NYU defendants failed to meet their initial burden on the summary judgment motion by showing lack of responsibility or awareness.
Contrary to the dissent‘s assertion that plaintiff offers “no evidence as to how the piece of plywood came to be placed where it was,” the HRH foreman testified that (1) the ramps used to move the containers to the street were made of “whatever you can find to use,” (2) the ramp that caused the accident was made of plywood that “was probably taken out of one of the dumpsters” at the site, (3) during the four- or five-day period between the time the top surface of the roadway was stripped (making a ramp necessary to move the containers from the curb to the street) and plaintiff‘s accident, the foreman alone moved the containers to the trucks, and (4) to move the containers, “[y]ou find a piece of plywood, piece of steel, piece of tin and you put it on the curb.” These statements, coupled with
Andrias, J.P., and Nardelli, J., concur in part and dissent in part in а separate memorandum by Andrias, J.P., as follows: In this action to recover for personal injuries suffered by plaintiff on March 19, 2004 as he was using a roughly three-foot-by-two-to-four-foot piece of three-quarter-inch plywood as a makeshift ramp to push a minicontainer of construction debris from the freight entrance of a building at 660 First Avenue in Manhattan to his refuse removal truck, we all agree that defendants are entitled to summary judgment dismissing plaintiff‘s causes of action alleging violations of
While there are some differences in the testimony of the only two fact witnesses, plaintiff and defendant HRH Construction‘s laborer foreman Arthur Covelli, all parties agree that the operative facts, which derive from their testimony, are not in dispute. At the time of the accident, plaintiff was a driver for third-party defendant Rite-Way Internal Removal, Inc., and his job on the day in question was to pick up minicontainers filled with construction debris at various locations. Covelli, whom plaintiff knew only as “Artie,” was in charge of collecting the debris, putting it in the minicontainers provided by Rite-Way, and placing the minicontainers out on the sidewalk to be picked up.
According to plaintiff, no one other than the Rite-Way dispatcher directed, supervised or controlled his activities on a daily basis. On the morning in question, he was given a route sheet by his dispatcher listing the locations at which he was to make pickups that day. One of these was 660 First Avenue, where HRH was the general contractor and construction manager of a project for the complete renovation of 2,700 square feet of the ground floor, including the Emergency Department of Radiology at the NYU Medical Center. Rite-Way was not performing any work at 660 First Avenue. Plaintiff was there simply to pick up dumpsters.
Plaintiff testified at one point that when he first arrived at
Plaintiff gave the following account of his accident:
“I went to where the containers were by the freight area. I went to push a container, a mini, half yard mini container overloaded of [sic] concrete to the truck, and I went down a makeshift plywood ramp and the plywood ramp gave way.
“I tried to hold the container up and I couldn‘t since it was too heavy and that‘s how my injury occurred.”
The exact location of the piece of plywood and the height differential between the top and the bottom are not entirely clear. Again, however, any differences in the witnesses’ testimony have no legal significance.
Plaintiff testified that when he arrived at the site he double-parked his truck in front of a “cut sidewalk . . . [f]or a driveway” about 25 to 50 feet from the freight entrance and got out. He then walkеd to the freight entrance, grabbed a container and pushed it outside. He had no problem pushing the container to the piece of plywood, but as he pushed the overloaded container down it the plywood “buckled. You heard it cracked [sic].” As the container tipped over on the sidewalk, either it or some of its contents grazed plaintiff‘s right leg, causing him to twist his leg. Thus far, no one from HRH had been present or had spoken to him. Plaintiff testified that, after Covelli arrived at the scene, they and two other men who were working across the street for either Consolidated Edison or the Department of Environmental Protection righted the dumpster. Covelli then wheeled it over to the truck, and plaintiff hooked up two chains and a winch cable and dumped the contents into the truck.
According tо Covelli, his duties at HRH‘s job site were “general housekeeping.” (“I have to maintain the site so there‘s no tripping hazard, rubbish on the floor for fire, rodents. And removal of all the rubbish that‘s on the floor.“) He also testified that his duties were limited to the inside of the building. (“Inside the building I am responsible for, outside the building I am not responsible. If there is a sign from the telephone people or bus stop I‘m not responsible for that. But inside the building, yes.“) Covelli testified that, at about 9:00 or 10:00 A.M. on the day in question, he filled up six or seven minicontainers with construction debris, moved them from the work site and lined them up on the sidewalk up against the building, where they waited to be picked up. Sometime later that morning, Rite-Way‘s
The minicontainers, which contained approximately 250 pounds of debris, were usually lined up near the freight entrance and were pushed 15 feet along the “very smooth” sidewalk to a driveway where plaintiff had parked his truck. Normally the containers were simply pushed down the driveway into the street without assistance because there was about a two-to-four-inch differential between the street and the steel curb of the driveway apron. However, because Con Edison had stripped the asphalt from the street down to the concrete four or five days earlier, prior to repaving it, there was a six-to-eight-inch differential between the steel curb and the surface of the street. As a result, for the four or five days preceding plaintiff‘s accident, Covelli used a piece of plywood, steel or tin as a makeshift ramp to facilitate pushing the minicontainers down the driveway to street level, where they were hooked up to a winch by a Rite-Way employee, who emptied the contents into the truck. After all the containers were emptied, the makeshift ramp would be picked up and thrown into the back of the truck to be discarded.
The containers were picked up on a daily basis by various Rite-Way drivers. Sometimes the driver would help Covelli push the containers to the truck; sometimes he would not help.
“It‘s basically we‘re trying to help each other. I want the containers emptied and they want to get to their next stop. So we try and help each other. We push the container to the truck, we help him that way and then he dumps it and tries to get it done as quick as he can.
“Q. So it wouldn‘t be out of the ordinary for them to pull the full dumpster toward the truck to assist in the dumping?
“A. That‘s correct. It‘s done every day.”
According to Covelli, plaintiff‘s duties were to operate the truck and dump the contents of the container into the back of the truck. “When he arrives on the job site, we‘re supposed to bring the containers to the truck, we help him hook them uр to
HRH, and the NYU defendants, the owner of the premises, moved for summary judgment dismissing the complaint on the ground that there is no evidence that plaintiff‘s accident resulted from the effects of gravity as required by
As in all summary judgment motions, once the movants establish prima facie entitlement to judgment as a matter of law, the burden shifts to the opposing party to present sufficient evidence either to raise a substantial question of fact warranting a trial or to establish its entitlement to judgment as a matter of law. Therefore, since in his opposition plaintiff agreed that there is no dispute as to the relevant facts, the issue for the motion court to decide was whether the agreed-upon facts were sufficient to impose liability upon defendants as a matter of law.
As to his
The motion court denied defendants’ motion and, upon searching the record, granted plaintiff summary judgment on
Defendants appeal, and argue that plaintiff was not performing a protected activity since he was merely at the site to pick up debris; that the piece of plywood cannot be called an “elevated work surface” since none of the safety devices enumerated in
As to his
Plaintiff relies heavily on this Court‘s decision in Rivera for the proposition that removing debris is an integral part of a construction project. However, all the relevant facts are not set forth in our memorandum decision in Rivera. An examination of the appellate record demonstrates, as discussed below, that the relevant facts in that case are readily distinguishable.
In avoiding any discussion of Rivera, which is extensively briefed by the parties, the majority adopts plaintiff‘s argument that defendants’ claim that removing construction debris from a work site is not a protected activity under
In Rivera (184 AD2d 239 [1992]), an employee of a subcontractor performing demolition work on the 25th through 27th floors of an office building was assigned to help a fellow employee empty the contents of 14 dumpsters into their employer‘s garbage truck. To do so, the truck was equipped with a mechanism to which the loaded dumpsters were attached by a metal rod and then hoisted and their contents dumped into the garbage truck. The containers were located on the loading dock on the ground floor of the building. The accident occurred when debris became stuck in one of the containers that was being hoisted. Plaintiff attempted to loosen the debris and had his arms inside the container when his coworker pulled the lever to activate thе hoist. Plaintiff was lifted off the ground with the
First, unlike the plaintiff here, Rivera was an employee of the demolition subcontractor that was actually performing the demolition work in the building at the time of the accident and thus was a member of a team within the meaning of Prats v Port Auth. of N.Y. & N.J. (100 NY2d 878, 882 [2003]). As the court stated in Prats, explaining Martinez v City of New York (93 NY2d 322 [1999]), where there are separate, sequential phases in a particular project, involving different employees working for different contractors, work being performed during “a separate phase easily distinguishable from other parts of the larger construction project” may therefore fall outside the protection of
Here, on the other hand, the record is clear that, at the time of plaintiff‘s accident, plaintiff‘s employer, Rite-Way, was not hired to perform any demolition work on the premises, and the work being performed by plaintiff fell into “a separate phase easily distinguishable from other parts of the larger construction project.” Plaintiff was not a person “employed” to carry out any demolition work and was there merely to pick up garbage. Thus, unlike the plaintiffs in Rivera and Prats, he was not within the class of workers that
Among the issues presented in Rivera was whether
Thus, although the intent of
Moreover, although removal of debris may be a necessary part of any construction or demolition process, “the question whether a particular [activity (e.g., an inspection or, as in this case, removal of debris)] falls within
Even assuming arguendo that plaintiff was engaged in an enumerated activity, it is well settled that the “special hazards” against which the Legislature intended to protect workers under
Viewing the evidence in the light most favorable to plaintiff, the record establishes that (1) he was not part of a “team” involved in an activity requiring protection; (2) he was never supervised or directed by HRH or NYU in his work; and (3) rather than wait for an HRH employee, he undertook to push the minicontainer to his truck using a piece of plywood that was already in place as a makeshift ramp to make it easier to push the minicontainer to street level. There is absolutely no evidence as to how the piece of plywood came to be placed where it was.
Nevertheless, citing Conklin v Triborough Bridge & Tunnel Auth. (49 AD3d 320, 321 [2008]), supra, the motion court found that since defendants did not deny that the makeshift ramp was necessary to move the minicontainers through the height differentials of the loading dock, the curb and the street, they were required to provide appropriate safety devices. However, Conklin is readily distinguishable in that the so-called ramp or “chicken ladder” in that case consisted of two 10- or 12-foot-long planks with two-by-fours nailed across the planks at approximately 20-inch intervals, to act as rungs or crosspieces, and was laid on a 45-degree slope to provide the sole means of access to the plaintiff‘s employer‘s shanty. To access the shanty, the worker first had to climb down an aluminum ladder backwards, turn or zigzag at its base, and then go forward eight feet down the chicken ladder to the shanty. Clearly, not only the height differential involved, but also its use as the functional equivalent of a ladder, a device enumerated in the statute,
Here, on the other hand, whether accepting plaintiff‘s or Covelli‘s description, the height differential between the top end and bottom end of the piece of plywood was, at most, 18 inches. Such height differentials have been found insufficient to implicate
As noted above, the motion court, citing McCann v Central Synagogue (280 AD2d 298, 299-300 [2001]), nevertheless reasoned that defendants were liable under any interpretation of the facts. However, in McCann, the plaintiff was pushing a bin filled with debris up an unbarricaded wooden ramp four to eight feet high when he fell. This Court found that the issue was not whether the ramp itself was a safety device but whether it was constructed and maintained with adequate safety devices, such as railings or safety curbs.
As to plaintiff‘s
That leaves only plaintiff‘s
With regard to these claims, the majority rightly asserts that, to support a finding of liability, plaintiff must show that defendants supervised or controlled plaintiff‘s work or had actual or constructive knowledge of the alleged unsafe condition in an area over which they had supervision or control, or created the unsafe condition (Griffin v New York City Tr. Auth., 16 AD3d 202, 202-203 [2005]). Curiously, however, although the majority finds that the fact that plaintiff was performing his work pursuant to a contract between HRH and Rite-Way has no bearing on his
While there is a February 11, 2002 subcontract in the record calling for Rite-Way to perform $13,500 in demolition work for NYU‘s Emergency Department radiology renovation project, neither the parties nor the motion court allude to it and there is no evidence that such demolition work was being performed more than two years later on March 19, 2004, the date of plaintiff‘s accident. In fact, both plaintiff and Covelli testified at their depositions that on the day of the accident Rite-Way was not performing any work at that location and that plaintiff was there simply to pick up dumpsters.
Any argument that the parties’ conduct, i.e., cooperating in
Plaintiff knew nothing about any contract. Covelli, when asked whether there was a written contract or whether it was done by phone, responded: “I think it is done verbally.” None of the contracts in the record address the agreement or course of conduct, whether written or oral, whereby Rite-Way would pick up any construction debris when necessary and haul it away. Both witnesses testified that plaintiff was there simply to pick up garbage (“Q. They [Rite-Way] had no employees who actually worked inside the building do [sic] any demolition or other work? A. [Covelli]. No, sir“). As noted above, 660 First Avenue was only one of a number of locations at which plaintiff was scheduled to make pickups that day.
As to HRH‘s control and supervision of plaintiff‘s work, the majority is aware that the sole basis fоr the motion court‘s finding that there was a question of fact as to defendants’ control over plaintiff‘s work was that “the foreman [Covelli] testified that when plaintiff assisted in moving the carts the foreman did not stop him from doing so.” The majority does not adopt this questionable rationale, which relies upon a double negative, since it is also aware that both plaintiff and Covelli consistently testified that Covelli never supervised plaintiff‘s work in any way. Nevertheless, the majority would still find that Covelli‘s testimony that in the past plaintiff sometimes helped HRH employees move the containers to the truck (with HRH‘s implicit acquiescence), because “basically we‘re trying to help each other,” when coupled with his statement that it was HRH‘s responsibility to move the containers to the street, creates an issue of fact as to control and notice. This conclusion totally misses the point regarding control and supervision. To impose liability on an owner or general contractor under
Accordingly, for all the foregoing reasons, summary judgment should be granted and the complaint dismissed in its entirety against all defendants.