Luongo v. City of N.Y.

• Decision Date: 29 April 2010
• Citation: 899 N.Y.S.2d 235,72 A.D.3d 609
• Parties: Brian LUONGO, Plaintiff-Respondent, v. The CITY OF NEW YORK, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

899 N.Y.S.2d 235 72 A.D.3d 609 Brian LUONGO, Plaintiff-Respondent, v. The CITY OF NEW YORK, Defendant-Appellant. Supreme Court, Appellate Division, First Department, New York. April 29, 2010.

Wallace D. Gossett, Brooklyn (Lawrence Heisler of counsel), for appellant.

Lisa M. Comeau, Garden City, for respondent.

MAZZARELLI, J.P., ACOSTA, RENWICK, FREEDMAN, JJ.

Order, Supreme Court, Bronx County (Paul A. Victor, J.), entered March 17, 2009, which granted plaintiff's motion for partial summary judgment on the issue of liability under Labor Law § 240(1), unanimously affirmed, without costs.

Plaintiff was injured while bracing a hydraulic jack that was being used to lift a steel girder beneath an elevated subway line. He braced the base of the jack because it kept falling over, partly, according to plaintiff, because of the uneven surface and because the girder was simply too heavy for the type of jack that was being used. In order to give the jack more height, steel shim plates were placed on top of it as "spacers." Plaintiff held the spacers by hand because they too kept falling off. The procedure was described during plaintiff's EBT as holdingthe jack in place while another employee jacked it up and made contact with a "C channel [which bent under pressure]" that was positioned under the steel girder. Defendant's counsel then asked "was it the intention then to have the jack ... elevate the C channel and the girder, right?" Before plaintiff answered, his counsel asked him, "Is that correct, did you then lift the girder?," to which plaintiff responded, "Yes, that's correct." Later on, when asked how high he was told to raise the girder, plaintiff responded, "I think it needed to be another inch, but I'm not sure." Plaintiff was injured when the jack "jumped and then the steel fell down," causing the spacers to either shift or fall, injuring plaintiff's left hand. According to plaintiff, the "unleveled" surface combined with the spacers and the twisted C channel made the jack "get off contact."

Plaintiff's repair-related activity ( see Prats v. Port Auth. of N.Y. & N.J., 100 N.Y.2d 878, 881-882, 768 N.Y.S.2d 178, 800 N.E.2d 351 [2003] ) and injury fell within the ambit of Labor Law § 240(1) inasmuch as the enormous weight of the steel girder caused the jack and plates to fall or shift "while being ... secured, because of the absence or inadequacy of a safety device of the kind enumerated in the statute" ( Narducci v. Manhasset Bay Assoc., 96 N.Y.2d 259, 268, 727 N.Y.S.2d 37, 750 N.E.2d 1085 [2001]; Outar v. City of New York, 286 A.D.2d 671, 672, 730 N.Y.S.2d 138 [2001], affd. 5 N.Y.3d 731, 799 N.Y.S.2d 770, 832 N.E.2d 1186 [2005] [Labor Law § 240(1) liability found where unsecured dolly fell from a "bench wall" that was merely 5 1/2 feet high] ). Significantly, unlike Narducci, where there was no § 240(1) liability because the object that fell (a window) was part of the "pre-existing building structure as it appeared before work began" and was "not a situation where a hoisting or securing device of the kind enumerated in the statute would have been necessary or even expected" ( Narducci at 268, 727 N.Y.S.2d 37, 750 N.E.2d 1085), here the opposite is true. Both the jack and the 12 by 12 3/4 inch thick metal plates that came into contact with plaintiff's hand were not part of the "pre-existing structure" and clearly needed to be secured. Rather than having plaintiff use a securing device of the kind contemplated by the statute, however, the jack and the spacers were secured by plaintiff himself. Indeed, the spacers were not even...