Macedo v. J.D. Posillico, Inc.

• Decision Date: 10 December 2009
• Docket Number: 108316/06,1732,85252/06,1733,1731
• Citation: 891 N.Y.S.2d 46,2009 NY Slip Op 9158,68 A.D.3d 508
• Parties: JONAS MACEDO, Respondent, v. J.D. POSILLICO, INC., Appellant-Respondent, et al., Defendant. J.D. POSILLICO, INC., Third-Party Plaintiff-Respondent, v. CARABIE CORP., Third-Party Defendant-Appellant. JONAS MACEDO, Appellant, v. J.D. POSILLICO, INC., Respondent, et al., Defendant. J.D. POSILLICO, INC., Third-Party Plaintiff-Respondent, v. CARABIE CORP., Third-Party Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

68 A.D.3d 508

2009 NY Slip Op 9158

891 N.Y.S.2d 46

JONAS MACEDO, Respondent, v. J.D. POSILLICO, INC., Appellant-Respondent, et al., Defendant.

J.D. POSILLICO, INC., Third-Party Plaintiff-Respondent, v. CARABIE CORP., Third-Party Defendant-Appellant.

JONAS MACEDO, Appellant, v. J.D. POSILLICO, INC., Respondent, et al., Defendant.

J.D. POSILLICO, INC., Third-Party Plaintiff-Respondent, v. CARABIE CORP., Third-Party Defendant-Respondent.

1731

108316/06

85252/06

1732

1733

Appellate Division of the Supreme Court of New York, First Department.

Decided December 10, 2009.

Order, Supreme Court, New York County (Carol Edmead, J.), entered December 1, 2008, which, insofar as appealed from, as limited by the briefs, granted plaintiff's motion for partial summary judgment on his Labor Law § 240 (1) claim, denied defendant Posillico's cross motion for summary judgment dismissing certain portions of plaintiff's Labor Law § 241 (6) claim, and granted Posillico's motion for summary judgment on its contractual indemnification claim, unanimously modified, on the law, to grant Posillico's cross motion to the extent of dismissing plaintiff's Labor Law § 241 (6) claim premised on Industrial Code (12 NYCRR) § 23-1.15 (c) and § 23-5.1 (c), and otherwise affirmed, without costs. Order, same court and Justice, entered August 14, 2008, which granted Carabie's motion for partial summary judgment dismissing plaintiff's claim for lost wages, unanimously reversed, on the law, without costs, the motion denied and the claim reinstated. Appeal from order, same court and Justice, entered June 26, 2009, denying reargument and renewal of the August 14, 2008 order, unanimously dismissed, without costs, as taken from a nonappealable order and as academic, respectively.

[Prior Case History: 2008 NY Slip Op 33198(U).]

Plaintiff met his prima facie burden of establishing that he was performing work covered by section 240 (1). It is undisputed that he was working on an elevated platform, attempting to lift a cone hanging from a rope, when he and a coworker fell from the platform (see Landgraff v 1579 Bronx Riv. Ave., LLC, 18 AD3d 385 [2005]; Kyle v City of New York, 268 AD2d 192 [2000], lv denied 97 NY2d 608 [2002]). Whether or not the platform failed or bent prior to plaintiff's fall is irrelevant because there is no question that neither plaintiff's safety device nor the platform and associated safety wire prevented his fall and subsequent injury.

Even were we to consider that plaintiff's right to recover under section 240 (1) requires that plaintiff prove that the platform failed, we note that no witness rebuts plaintiff's contention, supported by the testimony of his coworkers, that the platform bent or failed. Defendant Posillico merely offered testimony from persons who did not witness the accident that after the accident "no changes or repairs were made to the platform," and that the platform was "secure" after the accident. This simply does not refute the eyewitness testimony that the platform bent at the time of the accident.

The motion court properly refused to dismiss plaintiff's Labor Law § 241 (6) claim premised on Industrial Code (12 NYCRR) § 23-1.15. Indeed, section 23-5.1 (j) specifically requires safety railings for all scaffold platforms. Similarly, Industrial Code § 23-5.3 (e) requires safety railings for all metal scaffolds. While Industrial Code § 23-5.8, which covers suspended scaffolds, does not mention safety railings, there is no indication that the rules provided in section 23-5.1 and section 23-5.3 are not applicable to suspended scaffolds.

However, the motion court erred in refusing to dismiss plaintiff's Labor Law § 241 (6) claim premised on Industrial Code (12 NYCRR) § 23-1.15 (c). Indeed, section 23-1.15 (c) does not require the presence of a toe board when "such safety railing is installed at grade or ground level or is not adjacent to any opening, pit or other area which may be occupied by any person." Since there were no workers below the platform in this case, the claim based on section 23-1.15 (c) should have been dismissed.

The motion court properly refused to dismiss plaintiff's section 241 (6) claim premised on Industrial Code (12 NYCRR) § 23-1.16 (d), which requires that tail lines shall not be longer than four feet. Here, plaintiff testified that his line was approximately six feet long and that if he had not fallen that far he would not have experienced the jolt that caused his injury.

Finally, as this Court has previously held, the section 241 (6) claim premised on Industrial Code (12 NYCRR) § 23-5.1 (c) (1) must fail because the provision is insufficiently specific (Greaves v Obayashi Corp., 55 AD3d 409, 410 [2008], lv dismissed 12 NY3d 794 [2009]).

The motion court properly granted Posillico summary judgment on its contractual indemnification claim. It was undisputed that Carabie directed and controlled plaintiff's work as well as the construction and installation of the platform. Further, the Labor Law § 200 and commom-law negligence claims against Posillico were dismissed. Thus, while Carabie's negligence has not yet been...