Makarius v. Port Auth. of N.Y. and N.J.

Decision Date07 September 2010
Citation76 A.D.3d 805,907 N.Y.S.2d 658
PartiesRichard MAKARIUS, Plaintiff-Respondent, v. PORT AUTHORITY OF NEW YORK AND NEW JERSEY, Defendant-Appellant, S.E. Elite, Inc., et al., Defendants.
CourtNew York Supreme Court — Appellate Division

Kathleen G. Miller, New York, for appellant.

Bisogno & Meyerson, Brooklyn (Elizabeth Mark Meyerson of counsel), for respondent.

Order, Supreme Court, New York County (Debra A. James, J.), entered January 29, 2009, which insofar as appealed from as limited by the briefs, denied defendant Port Authority's motion for summary judgment dismissing plaintiff's causes of action under Labor Law §§ 200 and 240(1) and for common law negligence, modified, on the law, to dismiss the cause of action under Labor Law § 240(1), and otherwise affirmed, without costs. Appeal from order, same court and Justice, entered January 27, 2009, which granted plaintiff's motion for partial summaryjudgment on the issue of the Port Authority's liability under Labor Law § 240(1), dismissed, without costs, as academic.

ROMÁN, J. concurs in a separate memorandum; ANDRIAS, J.P. and McGUIRE, J. concur in part and dissent in part in a separate memorandum by McGUIRE, J.; and MOSKOWITZ and FREEDMAN, JJ. concur in part and dissent in part in a separate memorandum by MOSKOWITZ, J.

ROMÁN, J. (concurring)

This action is for common-law negligence and violations of Labor Law §§ 200 and 240(1). Plaintiff, an employee of a nonparty, was injured while working at premises owned by defendant Port Authority of New York and New Jersey (the Port Authority). The premises had been leased by the Port Authority to nonparty United Stated Post Office, which, for purposes of altering the same, hired plaintiff's employer. On the date of plaintiff's accident, during work performed by one of plaintiff's coworkers, there was a break in a domestic water pipe inside an electrical closet. As plaintiff and one of his coworkers attempted to repair the pipe, a transformer that had been affixed to the wall, at a height of six to seven feet, fell, striking plaintiff in the head. At the time of the accident, plaintiff was standing on the ground, holding the ladder on which his co-worker stood.

Weeks before plaintiff's accident the wall to which the transformer was affixed had been repeatedly exposed to water emanating from pipes that the Port Authority was obligated to repair. The Port Authority was notified about these leaks, and weeks before both plaintiff's accident and the installation of the transformer the leaks were repaired and the wall had dried. The leak that plaintiff and his coworker were attempting to repair, however, caused the wall to which the transformer was affixed to become wet. The Port Authority was notified of the leak and shut off the main water supply, allowing plaintiff and his coworker to attempt a repair of the broken pipe.

The Port Authority's construction supervisor testified that "[a]ll mains [were to be] repaired by Port Authority. And the branches [all other pipes] are repaired by the tenant." She also testified that the leak on the date of the accident emanatingfrom a domestic pipe was the Port Authority's responsibility to repair. When asked whether the water that had fallen on the wall had compromised its strength and integrity, she further testified that once it dried, the wall's strength "should be the same."

Labor Law § 240(1) applies where the work being performed subjects those involved to risks related to elevation differentials ( Gordon v. Eastern Ry. Supply, 82 N.Y.2d 555, 561, 606 N.Y.S.2d 127, 626 N.E.2d 912 [1993]; Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 514, 577 N.Y.S.2d 219, 583 N.E.2d 932 [1991] ). Specifically, the hazards contemplated by the statute "are those related to the effects of gravity where protective devices are called for ... because of a difference between the elevationlevel of the required work and a lower level" ( Gordon at 561, 606 N.Y.S.2d 127, 626 N.E.2d 912 [internal quotation marks omitted] ). Since Labor Law § 240 (1) is intended to prevent accidents where ladders, scaffolds, or other safety devices provided to a worker prove inadequate to prevent an injury related to the forces of gravity ( id.), it applies equally to injuries caused by falling objects and falling workers ( Narducci v. Manhasset Bay Assoc., 96 N.Y.2d 259, 267-268, 727 N.Y.S.2d 37, 750 N.E.2d 1085 [2001] ). However, not every accident at a work site means that Labor Law § 240(1) has been violated ( Blake v. Neighborhood Hous. Servs. of N.Y. City, 1 N.Y.3d 280, 288, 771 N.Y.S.2d 484, 803 N.E.2d 757 [2003] ) inasmuch as not every fall from a scaffold or ladder nor every instance of a falling object constitutes a violation of Labor Law § 240(1) ( Narducci at 267, 727 N.Y.S.2d 37, 750 N.E.2d 1085). Thus, a distinction must be made between those accidents caused by the failure to provide a safety device required by Labor Law § 240(1) and those caused by general hazards specific to a workplace (id. at 268-269, 727 N.Y.S.2d 37, 750 N.E.2d 1085). The former give rise to liability under Labor Law § 240(1), the latter do not ( Thompson v. St. Charles Condominiums, 303 A.D.2d 152, 153, 756 N.Y.S.2d 530 [2003], lv. dismissed 100 N.Y.2d 556, 763 N.Y.S.2d 814, 795 N.E.2d 40 [2003] ).

Since the hazards that Labor Law § 240(1) is intended to prevent are those that by virtue of height differentials, e.g., work being performed at elevations or loads being hoisted or positioned above a worker, relate to the effects of gravity (see Toefer v. Long Is. R.R., 4 N.Y.3d 399, 407, 795 N.Y.S.2d 511, 828 N.E.2d 614 [2005] ), there can be no liability under the statute where the work is not being performed at an elevated level ( see Misseritti v. Mark IV Constr. Co., 86 N.Y.2d 487, 634 N.Y.S.2d 35, 657 N.E.2d 1318 [1995] ) or where there is no appreciable height differential between a worker and the falling object that strikes him or her ( Melo v. Consolidated Edison Co. of N.Y., 92 N.Y.2d 909, 680 N.Y.S.2d 47, 702 N.E.2d 832 [1998]; Malecki v. Wal-Mart Stores, 222 A.D.2d 1010, 635 N.Y.S.2d 888 [1995]; Ruiz v. 8600 Roll Rd., 190 A.D.2d 1030, 594 N.Y.S.2d 474 [1993] ); cf Thompson at 154, 756 N.Y.S.2d 530 [Plaintiff injured by objects that fell off a collapsing scaffold only four feet high; absence of appreciable height differential not dispositive where accident caused not merely by gravity but also by "absence of, or a defect in, a (listed) protective device needed for the job"] ).

In denying the Port Authority's motion for summary judgment dismissing plaintiff's claim under Labor Law § 240(1) and in granting plaintiff partial summary judgment on that claim, the motion court erred because plaintiff was not working at an elevation and there was no appreciable height differential between plaintiff's head and the falling transformer. The accident occurred when the transformer, mountedsix to seven feet off the ground, fell on top of plaintiff's head as he stood on the ground near it. Plaintiff is five feet, eight inches tall, meaningthat the distance between his head and the transformer was less than two feet. Nor does Runner v. New York Stock Exch., Inc., 13 N.Y.3d 599, 895 N.Y.S.2d 279, 922 N.E.2d 865 [2010] avail plaintiff. While the Court of Appeals in Runner stated that the relevant inquiry with respect to Labor Law § 240(1) is "whether the harm flows directly from the application of the force of gravity to the object" ( id. at 604, 895 N.Y.S.2d 279, 922 N.E.2d 865), the court first stated that "the single dispositive question is whether plaintiff's injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential " ( id. at 603, 895 N.Y.S.2d 279, 922 N.E.2d 865 [emphasis added] ) and it later stated that "[t]he elevation differential here involved cannot be viewed as de minimis, particularly given the weight of the object and the amount of force it was capable of generating" ( id. at 605, 895 N.Y.S.2d 279, 922 N.E.2d 865). Clearly a significant height differential between the work being performed and the object being hoisted or secured continues to be a required element of the statute ( Narducci at 269-270, 727 N.Y.S.2d 37, 750 N.E.2d 1085).

Under Labor Law § 200, in addition to liability for a dangerous condition arising from the methods employed by a subcontractor, over which the owner or general contractor exercises supervision and/or control, liability can also arise when the accident is caused by a dangerous condition at the worksite, that was either created by the owner or general contractor or about which they had prior notice ( see Mitchell v. New York Univ., 12 A.D.3d 200, 201, 784 N.Y.S.2d 104 [2004]; Ortega v. Puccia, 57 A.D.3d 54, 61-62, 866 N.Y.S.2d 323 [2008] ); Paladino v. Society of N.Y. Hosp., 307 A.D.2d 343, 345, 762 N.Y.S.2d 637 [2003]. Similarly, under the common law, no liability lies absent proof that a defendant created the dangerous condition alleged to have caused a plaintiff's accident or unless the defendant has prior actual or constructive notice of the same ( Piacquadio v. Recine Realty Corp., 84 N.Y.2d 967, 969, 622 N.Y.S.2d 493, 646 N.E.2d 795 [1994]; Bogart v. Woolworth Co., 24 N.Y.2d 936, 937, 301 N.Y.S.2d 995, 249 N.E.2d 771 [1969]; Armstrong v. Ogden Allied Facility Mgt. Corp., 281 A.D.2d 317, 318, 722 N.Y.S.2d 503 [2001]; Wasserstrom v. New York City Tr. Auth., 267 A.D.2d 36, 37, 699 N.Y.S.2d 378 [1999] lv. denied 94 N.Y.2d 761, 707 N.Y.S.2d 142, 728 N.E.2d 338 [2000] ).

Here, at least three issues of fact preclude summary judgment in the Port Authority's favor on plaintiff's Labor Law § 200 and common law claims: whether the leak on the date of the accident was a dangerous condition on the Port Authority's property that did not arise from the methods used by plaintiff's employer, arising instead from a defect in the pipes, whether the water falling on the wall on the date of...

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