Lelek v. Verizon New York, 2007 NY Slip Op 31578(U) (N.Y. Sup. Ct. 5/31/2007)
| Decision Date | 31 May 2007 |
| Docket Number | 0100377/2004.,Motions Seq. No. 004.,Motions Seq. No. 005.,Third-Party Index No. 590736/04. |
| Citation | 2007 NY Slip Op 31578 |
| Parties | Antoni Lelek, Plaintiff, v. VERIZON NEW YORK, INC., SLATTERY SKANSKA, INC., and A Joint Venture Among Two or More of the Following Entities, PERINI CORPORATION, JOHN J. SLATTERY ASSOCIATES, INC., KOCH SKANSKA, INC., KARL KOCH ERECTING CO., INC., SLATTERY SKANSKA, INC., SKANSKA USA, INC. and AIR RAIL CONSTRUCTION JOINT VENTURE, a Joint Venture composed of SLATTERY SKANSKA, INC., PERINI CORPORATION, KOCH SKANSKA, INC. and SKANSKA (USA) INC., Defendants. VERIZON NEW YORK, INC., Third-Party Plaintiff, v. LVI SERVICES, INC. Third-Party Defendant. |
| Court | New York Supreme Court |
Motions sequence numbers 004 and 005 are consolidated for disposition.
This is an action pursuant to Labor Law § 240(1), 241(6) and 200 and for common law negligence.
The third-party action seeks common law indemnification, contractual indemnification and contribution.
Defendant/third-party plaintiff Verizon New York, Inc. ("Verizon") now moves (under motion sequence number 004) for an order: (i) granting it summary judgment dismissing plaintiff's Complaint and all cross-claims against it; or, in the alternative, (ii) granting it summary judgment on its cross-claims against the co-defendants for common law indemnification; and (iii) granting it summary judgment on its third-party claim against third-party defendant LVI Services, Inc. ("LVI Services") for contractual indemnification.
Plaintiff Antoni Lelek moves (under motion sequence number 005) for partial summary judgment on the issue of liability on his claim pursuant to Labor Law § 240(1).
Defendants Slattery Skanska, Inc., Perini Corporation, John J. Slattery Associates, Inc., Koch Skanska, Inc. s/h/a Koch Skanska, Inc. and Karl Koch Erecting Co., Inc., Skanska USA, Inc. and Air Rail Construction Joint Venture (collectively, "the Joint Venture defendants") cross-move for summary judgment dismissing plaintiff's Complaint.
Third-party defendant LVI Services cross-moves for summary judgment dismissing defendant/third-party plaintiff Verizon's third-party Complaint and all cross-claims against it.1
The Joint Venture defendants cross-move (by a second Notice of Cross-Motion) for an order dismissing third-party defendant LVI Services' `cross-claims' against them for contribution and indemnification.
In this action, plaintiff seeks to recover damages for personal injuries he sustained on April 11, 2003 while working as an asbestos handler at a construction project at the Foch Boulevard overpass to the Van Wyck Expressway in Jamaica, Queens.
The overpass was owned by the Port Authority of New York and New Jersey, but the conduit situated within the concrete of the overpass was owned by defendant/third-party plaintiff Verizon.
Verizon retained third-party defendant LVI Services and/or non-party LVI Environmental Services, Inc. ("LVI Environmental"), a wholly-owned subsidiary of LVI Services, to remove asbestos from the conduit. Plaintiff was employed by one of the LVI entities.2 Plaintiff's accident occurred during LVI's first day of work on the job site.
At the time of the accident, plaintiff and a co-worker were carrying a plywood panel from an LVI vehicle parked on the adjacent service road, to be used in the construction of an asbestos decontamination chamber. Below the roadway was an exposed steel structural "I" beam, and below the beam was a wooden deck (or platform) used to catch construction debris.
As plaintiff was attempting to step down from the roadway onto the steel "I" beam, he became entangled and tripped on a protruding rebar and fell down to the wood catch platform below.
The demolition and replacement of the Foch Boulevard overpass was part of a larger project relating to the construction of the Air Train from Jamaica to Kennedy International Airport ("Air Train project"), which was a joint venture named AirRail Construction Joint Venture ("the Joint Venture"). The Joint Venture was comprised of "the Joint Venture defendants", i.e., Slattery Skanska, Inc., Perini Corporation, Koch Skanska, Inc. and Skanska (USA), Inc.
Plaintiff contends that the Joint Venture served as the general contractor of the overall Air Train project and performed the demolition work at the overpass, including cutting the rebar, prior to plaintiff's accident. The Joint Venture defendants, however, deny that they had any obligation to supervise or control the asbestos abatement work which they characterize as independent in time and nature from the work performed by the Joint Venture.
Labor Law § 240(1)
Defendant/third-party plaintiff Verizon argues that plaintiff's claim pursuant to Labor Law § 240(1) should be dismissed on the grounds that: (i) it was not the `owner' or `general contractor' of the construction site — i.e., Verizon merely owned the conduit and did not supervise or control the worksite — and thus cannot be subject to absolute liability under the statute (see, Albanese v. City of New York, 5 N.Y.3d 217 [2005]); (ii) the accident did not result from a gravity-related risk; and (iii) plaintiff was provided with `proper protection' from falling to the ground (i.e., the wooden deck below the "I" beam).
Plaintiff opposes this portion of the motion and separately moves for partial summary judgment on the issue of liability on his cause of action pursuant to Labor Law § 240(1) arguing that Verizon cannot escape liability due to its status as a non-titleholder of the worksite itself since there is no dispute that it owned the conduit and contracted with plaintiff's employer for the asbestos removal work being performed.
This Court agrees that Verizon may be held liable pursuant to Labor Law § 240(1) since it was the "owner" of the structure at issue.3
Plaintiff further argues that the trench-like recess was at least three feet deep and thus constituted a gravity-related risk within the scope of section 240(1).
It is well settled that in determining whether Labor Law § 240(1) applies, the Court must determine whether there is "a significant risk inherent in the particular task because of the relative elevation at which the task must be performed or at which materials or loads must be positioned or secured." Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 514 (1991). See also, Dilluvio v. City of New York, 264 A.D.2d 115, 118 (1st Dep't 2000), aff'd, 95 N.Y.2d 928 (2000).
According to plaintiff, the distance between the roadway to the beam was 36 to 39 inches. Plaintiff's supervisor, Crzbieca (Elzbieta) Ciborowska, on the other hand, testified that it was at most a foot and a half from the top of the beam to the bottom of the beam, and that the wooden deck was erected a few inches below the "I" beam, which prevented plaintiff from falling to the ground.
Thus, there is some discrepancy in the papers submitted regarding the extent of the height differential. Moreover, "the extent of the elevation differential may not necessarily determine the existence of an elevation-related risk" (Rocovich v. Consolidated Edison Co., supra at 514) where, as here, a steel beam was being used as the functional equivalent of a temporary stairway to facilitate plaintiff's access to a different elevation level (see, Megna v. Tishman Construction Corp., 306 A.D.2d 163 [1st Dep't 2003]).
Accordingly, based on the papers submitted and the oral argument held on the record on May 3, 2006, this Court finds that there are outstanding issues of fact as to whether plaintiff was exposed to an elevation-related risk within the meaning of Labor Law § 240(1) and as to whether plaintiff was provided with proper protection against said risk which preclude the granting of either those portions of the motion and cross-motions seeking to dismiss plaintiff's claim pursuant to Labor Law § 240(1) or plaintiff's motion for summary judgment on said claim.
Labor Law § 241(6)
Defendant/third-party plaintiff Verizon and the Joint Venture defendants argue that plaintiff's claim pursuant to Labor Law § 241(6) should also be dismissed because the Industrial Code sections relied upon by plaintiff, as set forth in his Verified Bill of Particulars, either do not apply or are not specific enough to implicate liability.
Plaintiff argues that there are issues of fact as to whether there were violations of 12 NYCRR 23-1.7(e) (1) and (2) which preclude granting summary judgment dismissing his claim pursuant to Labor Law § 241(6).
Section 23-1.7(e) () provides as follows:
(1) Passageways. All passageways shall be kept free from accumulations of dirt and debris and from any other obstructions or conditions which could cause tripping. Sharp projections which could cut or puncture any person shall be removed or covered.
(2) Working areas. The parts of floors, platforms and similar areas where persons work or pass shall be kept free from accumulations of dirt and debris and from scattered tools and materials and from sharp projections insofar as may be consistent with the work being performed.
The Joint Venture defendants argue that: (i) section 23-1.7(e) (1) does not apply because plaintiff was not working in a `passageway' and did not trip on "accumulations of dirt and debris" or "any other obstructions or conditions which could cause tripping"; and (ii) section 23-1.7(e)(2) does not apply because plaintiff did not trip on "accumulations of dirt and debris" or "scattered tools and materials" or "sharp projections."
While plaintiff continues to contend that these sections apply to the facts of this case,4 plaintiff alternatively argues that there are issues of fact as to whether there were violations of 12 NYCRR 23-1.7(f) and 23-4.3.5
Section 23-1.7(f) (Vertical passage) provides as follows:
Stairways, ramps or runways shall be provided as the means of access to...
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