Cappabianca v. Skanska U.S. Bldg. Inc.

• Court: New York Supreme Court
• Writing for the Court: HON. SALIANN SCARPULLA, J.
• Citation: Cappabianca v. Skanska USA Bldg. Inc., 2010 NY Slip Op 33958(U), Index No.: 103046/06 (N.Y. Sup. Ct. May 03, 2010)
• Decision Date: 03 May 2010
• Docket Number: Index No.: 103046/06
• Parties: JOHN CAPPABIANCA, Plaintiff, v. SKANSKA USA BUILDING INC., SKANSKA USA INC., NEW YORK CITY SCHOOL CONSTRUCTION AUTHORITY, BOARD OF TRUSTEES OF THE NEW YORK CITY SCHOOL CONSTRUCTION AUTHORITY, THE CITY OF NEW YORK BOARD OF EDUCATION, THE NEW YORK CITY DEPARTMENT OF EDUCATION, THE CITY OF NEW YORK, AND SAFETY AND QUALITY PLUS, INC., Defendant.

2010 NY Slip Op 33958(U)

JOHN CAPPABIANCA, Plaintiff, v. SKANSKA USA BUILDING INC., SKANSKA USA INC.,NEW YORK CITY SCHOOL CONSTRUCTION AUTHORITY,BOARD OF TRUSTEES OF THE NEW YORK CITY SCHOOL CONSTRUCTION AUTHORITY,THE CITY OF NEW YORK BOARD OF EDUCATION,THE NEW YORK CITY DEPARTMENT OF EDUCATION,THE CITY OF NEW YORK,AND SAFETY AND QUALITY PLUS, INC., Defendant.

Index No.: 103046/06

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 19

FILED: May 10, 2010

May 3, 2010

DECISION AND ORDER

HON. SALIANN SCARPULLA, J.:

Motion sequence numbers 004 and 005 are hereby consolidated for disposition.

This is an action to recover damages for personal injuries sustained by a bricklayer while working at a construction site for a future high school located at 94-102 104^th Street, Ozone Park, New York on July 29, 2005.

In motion sequence number 004, defendant Safety and Quality Plus, Inc. ("Safety") moves for summary judgment dismissing plaintiff John Cappabianca's ("Cappabianca") complaint and all cross claims asserted against it, as well as for summary judgment in its favor on its cross claims for common-law and contractual indemnification as against defendants Skanska USA Building Inc., Skanska USA Inc.(collectively referred to as "Skanska"), New York City School Construction Authority ("NYCSCA"), Board of Trustees of the New York City School Construction Authority, The City of New York Board of Education, The New York City Department of Education and The City of New York (collectively referred to as "defendants").

In motion sequence number 005, defendants move for summary judgment dismissing the complaint and Safety's cross claims asserted against them, as well as granting summary judgment in their favor on their cross claims asserted against Safety.

Cappabianca cross-moves for partial summary judgment in his favor on the issue of liability under common-law negligence and Labor Law §§ 200, 240 (1) and 241 (6), or, in the event that the court finds his cross motion untimely, he requests that the court search the record and grant him partial summary judgment in his favor on the issue of liability.

Background

NYCSCA was the owner of the premises where the accident took place ("the site"). NYCSCA hired Skanska to serve as general contractor on a project to build a high school ("the project") at the site. Skanska subcontracted with non-party Job Opportunities for Women ("JOFW") to perform masonry work at the site. Skanska hired Safety to conduct various safety inspections for the project, to identify and report safety deficiencies and to conduct safety meetings. On the day of the accident, Cappabianca was employed by JOFW as a bricklayer.

Cappabianca testified that, while at the site, he reported directly to his foremen, Ken Shutte ("Shutte") and Jim McCoy ("McCoy"). Cappabianca also maintained that he received all of his job instructions from Shutte and McCoy, and that he received no instructions from defendants. Cappabianca also stated that all of the tools and equipment used by him, such as rubber gloves, earplugs and a rubber apron, were either owned by him or were provided to him by JOFW.

Cappabianca explained that his job on the project consisted of cutting bricks with an electric stationary circular wet saw ("the saw"). The saw sat on a stand which was placed on a movable pallet. Cappabianca then stood on an adjacent wooden pallet to use and operate the saw. The floor of the pallet was composed of slats positioned approximately three inches apart. Cappabianca stated that he used this same saw for two months prior to the accident. In addition, he maintained that the saw and the stand remained in the same position throughout the entire length of the project. Cappabianca stated that JOFW owned the saw, but he did not know who owned and assembled the saw stand and pallets. He also noted that, without the pallet, the wet saw would be inoperable, as he needed to stand on the pallet in order to reach the saw and operate the foot pedal.

Cappabianca further explained that, in order to cut the bricks, water, which was pumped via a hose from an adjacent 55-gallon drum, which also sat on the pallet, was sprayed onto the brick through the saw's blade from underneath the blade's hood cover.Excess water from the wet saw was collected in a sliding tray, which was situated at the bottom of the saw. This tray had to be drained two to three times per day.

Cappabianca testified that the accident occurred when water from beneath the pallet, as well as his movement in picking up some bricks from an adjacent pallet caused the pallet that he was standing on to turn. His left foot then went between two of the pallet's slats, and got caught, thereby causing him to fall to the concrete floor and sustain injuries to his knee.

Specifically, Cappabianca testified:

I was cutting brick on a wet saw, standing on the [pallet] in front of the saw I cut the brick, I turned to the left to put the brick on the [pallet], my left foot got caught between the slats of the [pallet], which caused me to fall backwards to my left, which tore my knee out of socket I guess. I landed on the concrete floor on my right shoulder.

Cappabianca maintained that his fall was not caused as a result of slipping on the pallet. He also noted that, on the day of his accident, there were no defects in the saw or the pallet on which he stood while utilizing the saw.

Discussion

'"The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case'." Santiago v Filstein, 35 A.D.3d 184, 185-186 (1^st Dept. 2006), quoting Winegrad v New York University Medical Center, 64 N.Y.2d 851, 853 (1985). The burden then shifts to the motion's opponent to "present evidentiaryfacts in admissible form sufficient to raise a genuine, triable issue of fact." Zuckerman v City of New York, 49 N.Y.2d 557, 562 (1980); Mazurek v Metropolitan Museum of Art, 27 A.D.3d 227, 228 (1^st Dept. 2006); DeRosa v City of New York, 30 A.D.3d 323, 325 (1^st Dept. 2006). If there is any doubt as to the existence of a triable issue of fact, the motion for summary judgment must be denied. Rotuba Extruders v Ceppos, 46 N.Y.2d 223, 231 (1978); Grossman v Amalgamated Housing Corporation, 298 A.D.2d 224, 226 (1^st Dept. 2002).

Cappabianca's Labor Law § 240 (1) Claim Against Defendants and Safety

Labor Law § 240 (1), also known as the Scaffold Law (Ryan v Morse Diesel, 98 A.D.2d 615, 615 [1^st Dept. 1983]), provides, in relevant part:

All contractors and owners and their agents ... in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.

"'Labor Law § 240 (1) was designed to prevent those types of accidents in which the scaffold ... or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person'." John v Baharestani, 281 A.D.2d 114, 118 (1^st Dept. 2001), quoting Ross v Curtis-Palmer Hydro-Electric Company, 81 N.Y.2d 494, 501 (1993). The Scaffold Law does not apply merely because work is performed at elevated heights, but also applieswhere the work itself involves risks related to differences in elevation. Binetti v MK West Street Company, 239 A.D.2d 214, 214-215 (1^st Dept 1997); see Ross v Curtis-Palmer Hydro-Electric Company, 81 N.Y.2d at 500-501).

To prevail on a section 240 (1) claim, the plaintiff must show that the statute was violated and that this violation was a proximate cause of the plaintiff's injuries. Blake v Neighborhood Housing Services of New York City, 1 N.Y.3d 280, 287 (2003); Felher v Corning Inc., 90 N.Y.2d 219, 224-225 (1997); Torres v Monroe College, 12 A.D.3d 261, 262 (1^st Dept. 2004). "The statute is designed to protect workers from gravity-related hazards such as falling from a height, and must be liberally construed to accomplish the purpose for which it was framed [internal citations omitted])." Valensisi v Greens at Half Hollow, LLC, 33 A.D.3d 693, 695 (2d Dept. 2006).

Initially, it should be noted that defendants, as owner and general contractors of the construction site, may be liable to Cappabianca under Labor Law §§ 240 (1) and 241 (6). However, it must be determined whether defendant Safety, as safety consultant, may be vicariously liable for Cappabianca's injuries under Labor Law §§ 240 (1) and 241 (6) as statutory agents of the owner.

When the work giving rise to the duty to conform to the requirements of Labor Law § 240 (1) is delegated to a third party, that third party then obtains "'the concomitant authority to supervise and control that work and becomes a statutory "agent" of the owneror general contractor'." Walls v Turner Construction Company, 4 N.Y.3d 861, 864 (2005), quoting Russin v Louis N. Picciano & Son, 54 N.Y.2d 311, 318 (1981).

A review of the record establishes that Safety did not have sufficient authority to supervise and control the injury-producing work at issue, so as to be held vicariously liable for Cappabianca's injuries as a statutory agent of the owner under Labor Law §§ 240 (1) and 241 (6). See Smith v McClier Corporation, 22 A.D.3d 369, 371 (1^st Dept. 2005)(Labor Law § 241 (6) claim dismissed as against defendant subcontractor because defendant was not owner or general contractor, and did not have authority to supervise and control injury-producing work); Lazarou v Turner Construction Company, 18 A.D.3d 398, 399 (1^st Dept. 2005) (Labor Law § 240 (1) claim dismissed as against defendant where record established that defendant did not have sufficient supervision or...