Carpio v. Tishman Const. Corp. of New York

• Decision Date: 12 June 1997
• Parties: Bienvenido CARPIO, Plaintiff-Appellant, v. TISHMAN CONSTRUCTION CORPORATION OF NEW YORK, et al., Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 919

658 N.Y.S.2d 919

240 A.D.2d 234

Bienvenido CARPIO, Plaintiff-Appellant, v. TISHMAN CONSTRUCTION CORPORATION OF NEW YORK, et al Defendants-Respondents [And a Third-Party Action]

Supreme Court, Appellate Division First Department.

June 12, 1997.

Kenneth R. Berman, for Plaintiff-Appellant.

Philip B. Murphy, for Defendants-Respondents.

Before ELLERIN, J.P., and WALLACH, NARDELLI, TOM and MAZZARELLI, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Diane Lebedeff, J.), entered November 6, 1995, which denied plaintiff's motion for partial summary judgment, and upon a search of the record, granted summary judgment to the non-moving defendants dismissing the Labor Law § 240(1) claim, reversed, on the law, without costs, the claim reinstated and plaintiff's motion is granted.

Plaintiff was employed by third-party defendant L & L Painting Co., Inc., which had been hired in connection with a construction project at the United States Post Office facilities located at 9th Avenue between 29th and 30th Streets. Defendants Tishman and Crow were the construction manager and general contractor, respectively. On September 24, 1992, plaintiff was given the task of painting the ceiling of the third floor, which he began performing by walking along the concrete floor while extending a paint roller up to the ceiling. As he was looking up at the ceiling while using the roller, plaintiff's foot backed into a hole in the floor, causing his leg to fall three feet below the surface to his groin area. The hole, referred to as a riser or sleeve, was 10-14 inches wide, was not covered and was created to permit the extension of piping to the floor below. There was at least one other similar hole on the third floor.

Plaintiff commenced this action, citing numerous violations of statutory provisions and regulations including Labor Law 240(1) in his bill of particulars. In June 1995, plaintiff moved for partial summary judgment on the Labor Law 240(1) claim, asserting that the defendants had breached their non-delegable duty of furnishing adequate safety devices to protect him from this elevation-related risk. The IAS Court denied the motion and granted summary judgment to defendants, who had not requested it. The court stated that the work being performed by the plaintiff did not involve an elevation-related risk because the worksite was "a floor" and "the work was not elevation-related." It distinguished those cases where the plaintiff had been injured while working on a roof, which it said "is clearly an elevated work site."

Labor Law § 240(1) imposes absolute liability upon owners and contractors who fail to provide or erect safety devices necessary to give proper protection to a worker who sustains injuries proximately caused by that failure (Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 513, 577 N.Y.S.2d 219, 583 N.E.2d 932; Bland v. Manocherian, 66 N.Y.2d 452, 459, 497 N.Y.S.2d 880, 488 N.E.2d 810; Singh v. Barrett, 192 A.D.2d 378, 379, 596 N.Y.S.2d 45). The Court of Appeals has stated that the statute is directed at "elevation-related hazards," and that "injuries resulting from other types of hazards are not compensable under [it] even if proximately caused by the absence of [a] required safety device" (Misseritti v. Mark IV Construction Co., 86 N.Y.2d 487, 490, 634 N.Y.S.2d 35, 657 N.E.2d 1318, quoting Ross v. Curtis Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 501, 601 N.Y.S.2d 49, 618 N.E.2d 82; see also, Groves v. Land's End Housing Co., 80 N.Y.2d 978, 980, 592 N.Y.S.2d 643, 607 N.E.2d 790). In Rocovich, at 514, 577 N.Y.S.2d 219, 583 N.E.2d 932, the Court of Appeals defined the covered risks as "those related to the effects of gravity where protective devices are called for either because of 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" (emphasis added).

Keeping in mind that section 240(1) " 'is to be construed as liberally as may be for the accomplishment of the purpose for which it was thus framed'. (See Quigley v. Thatcher, 207 N.Y. 66, 68, 100 N.E. 596.)" (Koenig v. Patrick Construction Corp., 298 N.Y. 313, 319, 83 N.E.2d 133), which is to place the responsibility of safety practices where it belongs--with the owners and contractors (Rocovich v. Consolidated Edison Co., supra at 513, 577 N.Y.S.2d 219, 583 N.E.2d 932), we find that the plaintiff's work herein subjected him to an elevation-related risk covered by the statute, and that he suffered injury as a result of defendants' failure to fulfill their statutory duties. Plaintiff, whose attention was focused toward the ceiling at the time he stepped into the uncovered hole, was entitled under the statute to protection "against the known hazards of the occupation" (Koenig v. Patrick Construction Corp., supra at 319, 83 N.E.2d 133), and this he did not receive. Here, the risk of injury existed because of the "difference between the elevation level of the required work" (the third floor), and "a lower level" (the bottom of the piping shaft), and common sense alone tells us that this accident was gravity-related. Plaintiff's partial fall through a hole at a construction site can hardly be characterized as only tangentially related to the effects of gravity (cf., Ross v. Curtis-Palmer Hydro-Elec. Co., supra at 501, 601 N.Y.S.2d 49, 618 N.E.2d 82; Limauro v. City of New York Department of Environmental Protection, 202 A.D.2d 170, 608 N.Y.S.2d 196).

The dissent correctly notes that Labor Law 240(1) does not apply merely because work is performed at elevated heights, but rather, applies only where the work itself involves risks related to differences in elevation (see, Groves v. Land's End Housing Co., supra at 980, 592 N.Y.S.2d 643, 607 N.E.2d 790). However, it misapplies this principle in concluding that no elevation-related risk existed because the plaintiff was working on a "permanent concrete floor," and that this accident was no different from a situation where the plaintiff tripped on a pothole on the ground floor. Indeed, it is the risk posed by elevation differentials at a construction site, not the permanency of the structure, which is determinative of the statute's applicability (see, Richardson v. Matarese, 206 A.D.2d 353, 614 N.Y.S.2d 424).

This situation is similar to those where a construction worker was injured by falling through a hole in a roof, which courts have consistently found to be an elevation-related risk within the meaning of Labor Law 240(1) (see, Clark v. Fox Meadow Builders, 214 A.D.2d 882, 883, 624 N.Y.S.2d 685; Orcutt v. American Linen Supply Co., 212 A.D.2d 979, 623 N.Y.S.2d 457; Flansburg v. Merritt Meridian Construction Corp., 191 A.D.2d 756, 594 N.Y.S.2d 421; Linney v. Consistory of Bellevue Reformed Church, 115 A.D.2d 209, 495 N.Y.S.2d 293). While roof work may appear more elevation-related because a roof is usually the top portion of a structure and is unenclosed, in fact, the risks associated with working on a roof are no greater than those of working on a third floor with large holes in it. This plaintiff did not trip on a pothole, as the dissents suggests, but fell into a hole with a 3 foot elevation differential, and such a risk would fall within the statute even if it existed at ground level (see, DeLong v. State Street Associates, 211 A.D.2d 891, 621 N.Y.S.2d 172; Nichols v. Deer Run Investors, L.P., 204 A.D.2d 929, 612 N.Y.S.2d 691).

There is no triable issue of fact and, accordingly, plaintiff's motion for partial summary judgment on his Labor Law 240(1) claim is granted.

All concur except WALLACH and TOM, JJ., who dissent in a memorandum by TOM, J. as follows:

TOM, Justice (dissenting).

I respectfully dissent and vote to affirm the IAS court, which denied plaintiff's motion for partial summary judgment and, upon a search of the record, granted summary judgment to Tishman Construction Corp. and Crow Construction Co., Inc., dismissing plaintiff's claim for a violation of Labor Law Section 240(1).

This appeal concerns the issue of whether defendants can be held absolutely liable, pursuant to Section 240(1) of the Labor Law, for injuries allegedly sustained by plaintiff on the third floor of the construction site when he stepped into a hole in the finished poured concrete floor on which he was standing while engaged in painting a ceiling.

Plaintiff Bienvenido Carpio was employed by third-party defendant L & L Painting Co., Inc., a painting sub-contractor engaged in a construction project at the United States Post Office Building located at 341 Ninth Avenue, New York, New York. The Post Office owns the building; defendant/third-party plaintiff Tishman was the project manager; and defendant/third-party plaintiff Crow was the general contractor on the job site.

On September 24, 1992, plaintiff was painting the ceiling of the third floor of the building, which he performed by standing on the recently poured concrete floor and utilizing a paint roller attached to a six-foot extension pole in order to reach the ceiling. While proceeding along the floor, plaintiff stepped into a circular "riser" used for electrical or plumbing pipes, which was located in the concrete floor. Plaintiff contends that his right leg entered the hole, that his leg went approximately three feet below the surface of the worksite, and that the hole was uncovered but not visible to anyone looking in its direction.

Plaintiff commenced this action in April 1993 against Tishman and Crow, who subsequently commenced a third-party action against L & L. Plaintiff's verified complaint raises one cause of action asserting that his injuries were caused by the negligence of defendants and seeking $3,000,000 in damages. In the verified bill of particulars, plaintiff asserts that defendants violated various statutes, regulations and rules, including ...