Agli v. Turner Const. Co., Inc.

• Decision Date: 02 July 1998
• Citation: 246 A.D.2d 16,676 N.Y.S.2d 54
• Parties: , 1998 N.Y. Slip Op. 6894, 1998 N.Y. Slip Op. 6895 Christopher AGLI, Plaintiff-Respondent-Appellant, v. TURNER CONSTRUCTION COMPANY, INCORPORATED, et al., Defendants-Appellants-Respondents, Zimmcor USA Corp., et al., Defendants, PPG Industries, Defendant-Respondent. .
• Court: New York Supreme Court — Appellate Division

Page 54

676 N.Y.S.2d 54

246 A.D.2d 16, 1998 N.Y. Slip Op. 6894,

1998 N.Y. Slip Op. 6895

Christopher AGLI, Plaintiff-Respondent-Appellant, v. TURNER CONSTRUCTION COMPANY, INCORPORATED, et al.,

Defendants-Appellants-Respondents,

Zimmcor USA Corp., et al., Defendants,

PPG Industries, Defendant-Respondent.

[And Other Actions].

Supreme Court, Appellate Division,

First Department.

July 2, 1998.

Brian J. Isaac, of counsel (Thomas J. Moverman, on the brief, Lipsig, Shapey, Manus & Moverman and Pollack, Pollack, Isaac & DeCicco, attorneys), for plaintiff-respondent-appellant.

Kenneth Mauro, of counsel (Timothy R. Capowski, on the brief, Mauro & Goldberg and Diamond, Cardo, King & Peters, attorneys), for defendants-appellants-respondents Turner Construction Company, Incorporated and 450 Lexington Venture, L.P.

Timothy J. Keane, of counsel (Quirk & Bakalor, P.C., attorneys), for defendant-appellant-respondent David Schulinder Inc.

Glenn J. Pogust, of counsel (Jacob, Medinger & Finnegan, L.L.P., attorneys), for defendant-respondent PPG Industries, Inc.

Before LERNER, P.J., and SULLIVAN, MILONAS, ELLERIN and ANDRIAS, JJ.

SULLIVAN, Justice.

This is an action to recover damages for personal injuries sustained by plaintiff when he was allegedly struck by a portion of a falling, large, wire-mesh overhead net intended to protect workers at a construction site from falling debris. At issue on appeal is the applicability of certain provisions of the Labor Law to the accident.

Plaintiff had been employed by Gerald D. Hines Property Management, the managing agent of a 40-story office building under construction, as an operating engineer to perform certain maintenance tasks at the building, which had not yet been turned over to the owner. Plaintiff's assignment was to prepare the stock room and assemble the tools required to operate the building. As he expressed it, he was "[l]earning how to get around the building." As for his activities insofar as they related to construction activities, plaintiff described them as, "Once in a while you had to open a door or something for one of [the construction workers], let them in to do mechanical work, not really work with them." At the time of the accident he was on his way to read water meters, walking on a sidewalk near the loading dock where all construction site deliveries were made. The net, which was suspended at an angle, covered this area.

Insofar as is relevant, the defendants are 450 Lexington Venture, L.P., the owner of the property; Turner Construction Company, Inc., the project's general contractor; Zimmcor USA Corp., the subcontractor responsible for the construction of the curtain wall covering the building's exterior; and David Schulinder, Inc., Zimmcor's subcontractor for the glass installation in the curtain wall. Zimmcor impleaded PPG Industries, Inc., the owner of the tractor-trailer, loaded at a PPG plant in Ford City, Pennsylvania with crates of glass, which, at the time of the incident, was backing up in an alley leading to the loading dock. Despite the absence of any eyewitnesses to any contact between the truck and net, plaintiff claims, as do certain of the parties defendant, that, the truck struck the net. Another defendant, Charlie Hall, the driver of the tractor-trailer, was employed by Linden Motor Freight, a second third-party defendant.

Since, as noted, none of the witnesses saw the tractor-trailer strike the net, the manner of the net's falling must, to the extent possible, be ascertained from evidence exclusively circumstantial. In his second amended complaint, plaintiff alleges, upon information and belief, that the tractor-trailer "struck portions of the protective netting, causing it to collapse upon [him]", a position agreed to by Turner, whose duties included the removal of debris from the net as well as the maintenance of the net, and also by 450 Lexington, but not by Schulinder and PPG, who insist that the net fell due to the accumulation of debris or some inherent defect in the net. Plaintiff further alleges that James Jamerson Schulinder's employee, who was directing Hall as he edged his truck into the alleyway, was negligent, as was PPG, in that it had improperly loaded the trailer. The trailer's top, which was open, had been covered with canvas to a height of 13 feet, within the legal interstate limit of 13 feet 6 inches. According to his deposition testimony, while Hall was backing the tractor-trailer, at a rate of two or three miles per hour, he heard somebody yell "stop". At the same time, he heard "a clank or a noise, a strange noise." When he exited the truck to see what had happened, he observed the net lying across the entire trailer. He also noticed debris, such as paneling, sheetrock and garbage, that had fallen onto the truck when the net fell. At the time someone shouted "stop", the trailer, according to a Schulinder employee, was only six inches from the point where the glass would be unloaded.

The record contains evidence that the net required frequent maintenance and repair; it was often damaged by "burning operations". The record shows that trucks frequently struck the net at its low end but that, despite heavy trafficking, not a single truck ever struck the high end of the net, which was suspended approximately 18 to 20 feet above the ground. The accident in question happened under the high end of the net. Prior to backing in, Hall, the driver, inspected the alley and concluded that the 18-to-20 foot height clearance was more than sufficient. According to Jamerson, who was at the back of the tractor-trailer guiding the driver, at no time did the top of the tractor-trailer and the net come within five inches of each other. And, although he could not see the top right side of the tractor since he was standing on the other side, no part of the tractor extended higher than the 13-foot-high trailer. Jamerson saw rocks, bottles and sand fall from the net. Another witness saw debris, including concrete, in the fallen net. Immediately after the accident, Turner was issued a violation for failing properly to maintain the net. Turner's site safety manager, not a witness to the accident, suggested, as an explanation of how it happened, that a crank, between two and twelve inches high, located on the top of the tractor, became caught in the net, straining it and causing it to become detached from its mooring. When he arrived at the accident site, he observed what he believed were crank handles, which he thought were entangled in the fallen net. According to Jamerson, as the tractor-trailer was being backed into the alley, the crank used to tighten the canvas on the top of the tractor was folded below the top of the vehicle.

In his complaint, plaintiff alleges common-law negligence, as well as violations of Labor Law §§ 200, 240(1) and 241(6). After joinder of issue, plaintiff moved for partial summary judgment against Turner and 450 Lexington on the issue of liability pursuant to Labor Law § 240(1). Turner and 450 Lexington cross-moved for, in part, dismissal of such claim and, in the event plaintiff were to be awarded summary judgment on its Labor Law § 240(1) claim, for summary judgment against Zimmcor on their claim for contractual indemnification. Schulinder also cross-moved for summary judgment dismissing the complaint and third-party complaint against it, as well as all cross-claims. PPG cross-moved for the same relief or, alternatively, for summary judgment on its indemnification claim against Hall and Linden. Finally, Zimmcor moved for summary judgment against Schulinder based on contractual indemnification.

The IAS court denied plaintiff's motion for partial summary judgment and granted Turner and 450 Lexington's cross-motion to dismiss the Labor Law 240(1) claim on the ground that plaintiff "was not performing any of the construction activities listed in the statute" and thus plaintiff "fail[ed] to establish that he was a member of the class intended to be protected by [the statute]." It denied, however, without explanation, their motion as to plaintiff's other Labor Law claims. In light of the dismissal of the Labor Law § 240(1) claim the court denied, as moot, Turner and 450 Lexington's request for summary judgment on their contractual indemnification claim against Zimmcor. The latter's cross-motion for summary judgment against Schulinder was denied as premature, since "[t]here has been no determination that Schulinder's negligence was a substantial factor in causing the accident", a prerequisite under the contract between Schulinder and Zimmcor to Schulinder's indemnification of Zimmcor.

The IAS court granted PPG's cross-motion for summary judgment dismissal on the ground that "[t]here is no proof that PPG did anything other than supply a trailer loaded with glass to be driven by Linden from New Jersey to the site", but declined to do the same for Schulinder because "[i]t is for the jury to decide whether to infer that it was more probable than not that the net collapsed from the weight of debris, from some other cause, or because it was snagged by the truck that was being directed down the alleyway by a Schulinder employee."

On these cross-appeals, plaintiff argues that the motion court erred in determining that he was not entitled to the protection of Labor Law § 240(1) and in dismissing the complaint against PPG. Turner and 450 Lexington cross-appeal from the court's failure to dismiss plaintiff's claims under Labor Law §§ 200 and 241(6), as well, arguing that since plaintiff was not in any way employed or involved in construction work he was not entitled to Labor Law protection. Turner and 450 Lexington also argue that, given the unresolved questions as to its liability, the court erred in granting summary judgment to PPG. Finally, Schulinder cross-appeals from the denial of its summary judgment motion, arguing that while, where appropriate, circumstantial evidence will support a verdict, speculation...