Cardenas v. One State Street, LLC

• Decision Date: 03 December 2009
• Docket Number: 113453/06,1645
• Citation: 68 A.D.3d 436,890 N.Y.S.2d 41,2009 NY Slip Op 8961
• Parties: JOSE CARDENAS, Respondent-Appellant, v. ONE STATE STREET, LLC, Appellant-Respondent.
• Court: New York Supreme Court — Appellate Division

68 A.D.3d 436

2009 NY Slip Op 8961

890 N.Y.S.2d 41

JOSE CARDENAS, Respondent-Appellant, v. ONE STATE STREET, LLC, Appellant-Respondent.

1645

113453/06

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

Decided December 3, 2009.

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered December 22, 2008, which denied defendant's motion for summary judgment dismissing the complaint and denied plaintiff's cross motion for summary judgment on the issue of liability on his Labor Law § 240 (1) and § 241 (6) causes of action, unanimously modified, on the law, the motion granted to the extent of dismissing the Labor Law § 200 and common-law negligence causes of action, the cross motion granted with respect to section 240 (1), and otherwise affirmed, without costs.

Contrary to defendant's contention, plaintiff was exposed to an elevation-related hazard when he was instructed to pry from the wall an 80-pound, three-foot-high-by-five-foot-wide-by-one-foot-deep electrical panel that was positioned six or seven feet above the ground, and lower it to the floor. He was thereby engaging in an activity covered by section 240 (1) (see Francis v Foremost Contr. Corp., 47 AD3d 672 [2008]). Plaintiff testified that the panel was too heavy and bulky to hold in his hands as he was removing and lowering it, and that the only way to get it down without a hoist or other safety device was to pry it from the wall with a crowbar and let it fall to the ground through the force of gravity. Such an activity clearly posed a significant risk to plaintiff's safety due to the position of the heavy electrical panel above the ground, even if such elevation differential was slight, and was thus a task where a hoisting or securing device of the kind enumerated in the statute was indeed necessary and expected precisely because the object was too heavy to be hoisted or secured by hand (see Brown v VJB Constr. Corp., 50 AD3d 373 [2008]; Mendoza v Bayridge Parkway Assoc., LLC, 38 AD3d 505 [2007]; Salinas v Barney Skanska Constr. Co., 2 AD3d 619 [2003]). Moreover, plaintiff offered uncontroverted evidence that he was not provided with any safety equipment to aid in accomplishing the task he was instructed to perform, and that the failure to provide any such device was the proximate cause of his injuries (see Mendoza and Salinas, supra). Plaintiff testified that, when the electrical panel separated from the wall, the electrical conduit stubs connected to the top of the panel collided with the pipes that ran horizontally beneath the ceiling, redirecting the panel so that instead of falling away from plaintiff, it fell onto his left arm and shoulder, causing severe injury. Defendant's argument—that plaintiff's admitted failure to test the electrical panel prior to applying force with the crowbar was the sole proximate cause of his accident—is unavailing because no evidence was presented remotely suggesting that plaintiff had adequate safety devices available, that he knew they were available and he was expected to use them, that he chose for no good reason not to do so, or that had he not made that choice he would not have been injured (see Kosavick v Tishman Constr. Corp. of N.Y., 50 AD3d 287, 288 [2008]).

Plaintiff has conceded that he has no viable claims under section 200 and for common-law negligence. The undisputed evidence demonstrates that defendant did not supervise, direct or control plaintiff's work (see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 505 [1993]).

On the other hand, the section 241 (6) cause of action raises triable issues of...