Buckley v. Columbia Grammar and Preparatory

• Decision Date: 16 August 2007
• Docket Number: 9091.
• Citation: 2007 NY Slip Op 06452,841 N.Y.S.2d 249,44 A.D.3d 263
• Parties: SCOTT BUCKLEY et al., Appellants, v. COLUMBIA GRAMMAR AND PREPARATORY et al., Respondents. KALIKOW CONSTRUCTION, INC., Third-Party Plaintiff-Respondent, v. KONE INC., Doing Business as MONTGOMERY COHEN ELEVATOR CO., Third-Party Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

44 A.D.3d 263

841 N.Y.S.2d 249

2007 NY Slip Op 06452

SCOTT BUCKLEY et al., Appellants, v. COLUMBIA GRAMMAR AND PREPARATORY et al., Respondents.

KALIKOW CONSTRUCTION, INC., Third-Party Plaintiff-Respondent, v. KONE INC., Doing Business as MONTGOMERY COHEN ELEVATOR CO., Third-Party Defendant-Respondent.

9091.

Appellate Division of the Supreme Court of the State of New York, First Department.

August 16, 2007.

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.

OPINION OF THE COURT

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 2001. Kalikow's employees walked through the site to monitor progress and safety, but did not test the elevator devices and would not use the elevator until Kone's work was done. It is undisputed that Kalikow did not supervise or control the methods and means of Kone's work.

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 Labor Law §§ 200, 240 (1) and § 241 (6). Kalikow impleaded Kone, which, under the terms of the purchase order, was obligated to indemnify Kalikow. After joinder of issue and the completion of discovery, Kalikow and Columbia separately moved for summary judgment dismissing the complaint. Plaintiffs cross-moved for partial summary judgment on liability under Labor Law § 240 (1). Supreme Court denied the cross motion and granted Kalikow's and Columbia's motions, holding Labor Law § 240 (1) inapplicable because the counterweights did not fall while being hoisted or secured, and their fall was not due to the absence of a statutorily enumerated safety device. It also found that the Industrial Code violations relied upon to support the section 241 (6) claim were factually inapplicable and insufficient. Finally, it determined that plaintiff had no sustainable claims for negligence or a section 200 violation against Kalikow or Columbia because of the failure to show that either of them supervised or controlled the work of either the injured plaintiff or the concrete subcontractor allegedly responsible for the protruding spike.

On appeal, plaintiffs argue that Outar v City of New York (5 NY3d 731 [2005]) warrants not only reinstatement of their Labor Law § 240 (1) claim, but summary judgment on liability with respect to that claim. They also argue that they have a valid claim under section 241 (6) based upon violations of Industrial Code (12 NYCRR) §§ 23-1.7 and 23-2.1, and that defendants are liable under Labor Law § 200 based upon their general supervision of the work site and the existence of the protruding spike in the shaftway. None of these claims has merit. Accordingly, we affirm.

Labor Law § 240 (1),^* popularly known as the Scaffold Law, was designed to protect workers in construction projects against injury from the expected risks of inherently hazardous work posed by elevation differentials at the work site (Misseritti v Mark IV Constr. Co., 86 NY2d 487, 491 [1995]). The use of the types of protective devices enumerated therein is required to prevent injuries from either "a difference between the elevation level of the required work and a lower level or a difference between the elevation level where the worker is positioned and the higher level of the materials or load being hoisted or secured" (Rocovich v Consolidated Edison Co., 78 NY2d 509, 514 [1991]; see Melo v Consolidated Edison Co. of N.Y., 92 NY2d 909 [1998]). It imposes absolute liability upon owners and contractors on proof that such a violation of the statute was a proximate cause of the injury sustained (Zimmer v Chemung County Performing Arts, 65 NY2d 513 [1985]).

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 section 240 (1) to apply, there must be a significant, inherent risk attributable to an elevation differential. The statute does not cover the type of ordinary and usual peril to which a worker is commonly exposed at a construction site (see Misseritti, 86 NY2d at 489; Rocovich, 78 NY2d at 514; Gonzalez v Turner Constr. Co., 21 AD3d 832 [2005]). Moreover, since a defendant is liable only for the "normal and foreseeable consequences" of its acts (see Gordon v Eastern Ry. Supply, 82 NY2d 555, 562 [1993]), a worker who is caused to fall or is injured by the application of an external force is entitled to the protection of the statute only if the application of that force was foreseeable (see Cruz v Turner Constr. Co., 279 AD2d 322 [2001] [electrician injured in fall from ladder caused by slip on lubricant that had dripped onto rungs held entitled to statute's protections since lubrication was commonly used to assist in pulling wires through piping, and drippage was a foreseeable consequence of work being performed]; see Nimirovski v Vornado Realty Trust Co., 29 AD3d 762 [2006] [statute applicable where foreseeable that pieces of metal that dropped to the floor could strike scaffold on which plaintiff was working and cause it to shake, rendering scaffold inadequate to protect him; additional safety devices necessary]; Bush v Goodyear Tire & Rubber Co., 9 AD3d 252, 253 [2004], lv dismissed 3 NY3d 737 [2004] [statute applied because "the absence of a proper safety device created the kind of foreseeable risk" within its contemplation]; Spaulding v Metropolitan Life Ins. Co., 271 AD2d 316 [2000] [worker entitled to protection of statute where ladder used was manifestly inadequate to protect him from foreseeable and inherent elevation-related risk of his work]).

"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 in section 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...