Freitas v. New York City Transit Authority

• Citation: 672 N.Y.S.2d 101,249 A.D.2d 184
• Decision Date: 28 April 1998
• Docket Number: RITE-WAY
• Court: New York Supreme Court Appellate Division
• Parties: , 1998 N.Y. Slip Op. 3788 Antonio FREITAS, et al., Plaintiffs-Appellants-Respondents, v. NEW YORK CITY TRANSIT AUTHORITY, Defendant-Respondent. LEHRER & McGOVERN, INC., etc., Defendant-Respondent-Appellant/Third-Party Plaintiff-Appellant, v.INTERIOR REMOVAL, INC., Third-Party Defendant.

Page 101

672 N.Y.S.2d 101

249 A.D.2d 184, 1998 N.Y. Slip Op. 3788

Antonio FREITAS, et al., Plaintiffs-Appellants-Respondents, v. NEW YORK CITY TRANSIT AUTHORITY, Defendant-Respondent.

LEHRER & McGOVERN, INC., etc., Defendant-Respondent-Appellant/Third-Party Plaintiff-Appellant, v. RITE-WAY INTERIOR REMOVAL, INC., Third-Party Defendant.

Supreme Court, Appellate Division,

First Department.

April 28, 1998.

Brian J. Isaac, for plaintiffs-appellants-respondents.

Emanuel N. Srebro, for defendant-respondent-appellant/third-party plaintiff-appellant.

Before ROSENBERGER, J.P., and ELLERIN, NARDELLI, WILLIAMS and ANDRIAS, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Robert Lippmann, J.), entered October 2, 1996, which, inter alia, granted defendant Lehrer & McGovern, Inc.'s motion for summary judgment on the Labor Law § 241(6) claims and dismissed said claims and denied the motion with respect to the claim under Labor Law § 200, unanimously modified, on the law, to the extent of denying that portion of defendant's motion directed against the claim based on a violation of Labor Law § 241(6) and 12 NYCRR 23-1.28(b), reinstating that claim, and otherwise affirmed, without costs or disbursements.

Plaintiff Antonio Freitas, in the employ of third-party defendant Rite-Way Interior Removal, Inc., was pushing a dumpster full of construction debris at a subway project when the wheels on the dumpster "got stuck." A co-employee pulled the dumpster to make it move and it tipped over, crushing plaintiff's hand.

The general contractor on the project moved to dismiss the plaintiffs' Labor Law claims and the IAS court granted this motion with respect to the claims pursuant to all sections of the Labor Law except § 200 alleging general negligence. The plaintiffs challenge the dismissal of their § 241(6) claims.

The IAS court properly dismissed the claim pursuant to Labor Law § 241(6) is based on an alleged violation of the Industrial Code provision providing, in pertinent part:

Where the demolition of any building or other structure is being performed by hand, debris, bricks and any other materials shall be removed as follows: [1] by means of chutes constructed and installed in compliance with this Part (rule); [2] by means of buckets or hoists; or [3] through openings in the floors of the building or other structure in compliance with this section.

(12 NYCRR 23-3.3[e] ).

As the motion court found, this rule obviously applies to debris being removed from a height to the ground and does not apply in the present situation where debris on the ground was being collected. In such circumstances, a "bucket," a "hoist" or "chute" would simply be inappropriate for the removal of debris while the wheeled container used was appropriate.

However, the other claim alleges a violation of 12 NYCRR 23-1.28(b):

Wheels of hand-propelled vehicles shall be maintained free-running and well secured to the frames of the vehicle. Buggy handles shall not extend beyond the wheels on either side.

Contrary to the conclusion reached by the IAS court, this regulation promulgated under the Labor Law is not simply "a routine incorporation of the ordinary tort duty of care" (Ross v. Curtis-Palmer, 81 N.Y.2d 494, 504, 601 N.Y.S.2d 49, 618 N.E.2d 82), but "a specific, positive command" ( Allen v. Cloutier Const. Corp., 44 N.Y.2d 290, 297, 405 N.Y.S.2d 630, 376 N.E.2d 1276). It "mandates a distinct standard of conduct, rather than a general reiteration of common-law principles" (Rizzuto v. L.A. Wenger Contracting Co., Inc., 91 N.Y.2d 343, 670 N.Y.S.2d 816, 693 N.E.2d 1068). It, therefore, can be relied upon as the source of a non-delegable duty by the owner or general contractor owed to all workers performing construction...