Jiron v. CHINA BUDDHIST ASSOCIATION

• Decision Date: 15 November 1999
• Citation: 266 A.D.2d 347,698 N.Y.S.2d 315
• Parties: MAXIMO JIRON, Appellant-Respondent,<BR>v.<BR>CHINA BUDDHIST ASSOCIATION, Defendant and Third-Party Plaintiff-Respondent-Appellant.<BR>GRAND PILLAR CONSTRUCTION CO., Third-Party Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

266 A.D.2d 347

698 N.Y.S.2d 315

MAXIMO JIRON, Appellant-Respondent,

v. CHINA BUDDHIST ASSOCIATION, Defendant and Third-Party Plaintiff-Respondent-Appellant.GRAND PILLAR CONSTRUCTION CO., Third-Party Defendant-Respondent.

Decided November 15, 1999.

Joy, J. P., Krausman and H. Miller, JJ., concur.

Ordered that the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.

On January 28, 1992, the plaintiff was hired to perform general labor on a project to renovate a commercial building owned by the defendant third-party plaintiff, China Buddhist Association. The plaintiff's duties entailed loading building materials onto a platform which mechanically hoisted the materials up an attached ladder to a higher level of the structure, approximately 20 feet above the ground. That afternoon, the plaintiff and two coworkers were directed to move this device, known as a "platform hoist", to a different location. As the plaintiff bent down to lift the device, the hoist motor allegedly disengaged from the platform on top of the ladder and fell, striking him in the head. Although the plaintiff admitted at his deposition that he has no actual recollection of the accident, he estimates that the hoist motor fell from a height of approximately 15 to 20 feet above the ground. In addition, one of the plaintiff's coworkers, who witnessed the accident, claims that a portion of the platform hoist fell from a height of 30 feet.

After the accident, the plaintiff commenced this action against China Buddhist Association (hereinafter China Buddhist), the property owner, and Grand Pillar Construction Co., his employer, to recover damages for negligence and alleged violations of Labor Law § 240 (1) and § 241 (6). By order dated March 12, 1997, the employer's motion for summary judgment dismissing the complaint and all cross claims against it was granted and the action against China Buddhist was severed. The plaintiff subsequently moved for summary judgment on the issue of liability pursuant to Labor Law § 240 (1), the "Scaffold Law" which imposes absolute liability upon property owners for injuries resulting from elevation-related hazards (see, Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 499-500). China Buddhist cross-moved for summary judgment, arguing that there was insufficient evidence of how the accident happened, and that even if the accident occurred in the manner claimed, it did not fall within the intended scope of Labor Law § 240 (1) because the motor fell while the plaintiff was moving the platform hoist at ground level, and not while he was hoisting materials to the top of the building. China Buddhist also contended that the plaintiff's Labor Law § 241 (6) claim should be dismissed because he failed to demonstrate a violation of a specific safety standard, which is necessary to establish liability pursuant to that provision. The Supreme Court denied the plaintiff's motion for summary judgment on his Labor Law § 240 (1) claim on the ground that there was an issue of fact regarding the manner in which the accident occurred, and granted the cross motion of China Buddhist for summary judgment to the extent of dismissing the plaintiff's Labor Law § 241 (6) cause of action.

On appeal, China Buddhist argues that, as a matter of law, the plaintiff's accident does not come within the ambit of Labor Law § 240 (1). We disagree. Labor Law § 240 (1) requires all contractors and owners to furnish or erect "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 construction workers employed on the premises. This provision, which is to be construed as liberally as possible to accomplish the purpose for which it was framed (see, Rocovich v Consolidated Edison Co., 78 NY2d 509, 513), reflects a legislative intent to protect workers against the "`special hazards' that arise when the work site either is itself elevated or is positioned below the level where `materials or load [are] hoisted or secured'" (Ross v Curtis-Palmer Hydro-Elec. Co., supra, at 501, quoting Rocovich v Consolidated Edison Co., supra, at 514). These "special hazards" consist of gravity-related accidents, such as "falling from a height or being struck by a falling object that was improperly hoisted or inadequately secured" (Ross v Curtis-Palmer Hydro-Elec. Co., supra, at 501).

Applying these principles to the instant case, we reject the contention of China Buddhist that the plaintiff's cause of action pursuant to Labor Law § 240 (1) must be dismissed as a matter of law. The plaintiff's accident is alleged to have occurred when the motor of a hoist which was being used to transport building materials from ground level to a higher level of the structure broke apart from the platform. The hoist motor fell, from a height of at least 15 feet above ground, and struck the plaintiff in the head. If the accident occurred in the manner alleged by the plaintiff, proper construction and placement of the hoist, which is one of the safety devices enumerated in the statute, could have prevented it. The statutory requirement that workers be provided with proper protection extends not only to the hazards of building materials falling from the hoist as they are being conveyed to the top of the structure, but also to the hazard of a defective hoist, or portion of the hoist, falling from an elevated level to the ground (see, Smith v Jesus People, 113 AD2d 980, 982-983).

The cases upon which the dissent relies are factually distinguishable and not controlling. In Bomova v KMK Realty Corp. (255 AD2d 351), the record on appeal reveals that the injured plaintiff was standing at ground level, attempting to retract a ladder, when the upper extension section of the ladder suddenly collapsed and closed on his arm. This is not analogous to the case at bar, where an object detached from a hoist platform positioned at least 15 feet above the ground. Similarly, Rubino v Fisher Reese W.P. Assocs. (243 AD2d 620), did not involve a falling object. The dissent's reliance upon Carringi v International Paper Co. (184 AD2d 137), is also misplaced, since the plaintiff in that case was involved in the ground level assembly of equipment which could not be used as one of the devices contemplated by Labor Law § 240 (1) until the assembly was completed.

Although we reject the defendant's claim that the plaintiff's accident does not fall within the scope of Labor Law § 240 (1), we agree with the Supreme Court that it would be inappropriate to award the plaintiff summary judgment on this cause of action. In opposition to the plaintiff's motion for summary judgment, China Buddhist submitted the plaintiff's deposition testimony that he did not remember what happened after he bent down to pick up the platform hoist, and that a coworker subsequently explained to him what caused him to be knocked unconscious. In response, the plaintiff submitted an extremely brief affidavit from a coworker who allegedly witnessed the accident. Under these circumstances, the plaintiff has not sufficiently proven the manner in which the accident occurred to warrant an award of summary judgment in his favor.

We further find that the Supreme Court properly dismissed the plaintiff's Labor Law § 241 (6) cause of action. To establish a cause of action under Labor Law § 241 (6), a plaintiff must demonstrate that the defendant has violated a specific safety rule established by the Commissioner of the Department of Labor (see, Ross v Curtis-Palmer Hydro-Elec. Co., supra, at 503-505; Fills v Merit Oil Corp., 258 AD2d 556). Here, the Industrial Code provisions upon which the plaintiff relies either do not set forth specific safety standards, or have not been proven to apply to the facts of this case (see, Sears v Niagara County Indus. Dev. Agency, 258 AD2d 918; Daly v City of New York, 254 AD2d 214; Cardenas v American Ref-Fuel Co., 244 AD2d 377; Greenwood v Shearson, Lehman & Hutton, 238 AD2d 311).

Feuerstein, J., concurs in part and dissents in part and votes to modify the order appealed from by deleting the provision thereof denying that branch of the cross motion of China Buddhist Association which was for summary judgment dismissing the plaintiff's claim pursuant to Labor Law § 240 (1) and substituting therefor a provision granting that branch of the cross motion, with the following memorandum:

I respectfully disagree with my colleagues' conclusion that there is a question of fact regarding a violation of Labor Law § 240 (1) under the facts presented in this case.

The plaintiff was employed by a subcontractor hired by the owner of the property, the defendant third-party plaintiff, China Buddhist Association (hereinafter China Buddhist). The plaintiff and two coworkers were instructed to move a platform hoist to another location on the side of the building under construction. The platform hoist is essentially a ladder with an attached hoisting mechanism which allows building materials to be carried to the roof of a building. In performing the assigned task, the plaintiff stood in front of the platform hoist and, as he bent down to lift the ladder, the hoist motor disengaged, fell approximately 15 or 20 feet, and, apparently, hit the plaintiff in the back of the head.

Labor Law § 240 (1) provides, in pertinent part, as follows: "All contractors and owners * * * shall furnish or erect, or cause to be furnished or erected * * *...