McCoy v. Metropolitan Transportation Authority

• Decision Date: 15 March 2007
• Docket Number: 9489.
• Parties: CHARLES McCOY et al., Appellants, v. METROPOLITAN TRANSPORTATION AUTHORITY et al., Respondents.
• Court: New York Supreme Court — Appellate Division

38 A.D.3d 308

832 N.Y.S.2d 26

2007 NY Slip Op 02023

CHARLES McCOY et al., Appellants, v. METROPOLITAN TRANSPORTATION AUTHORITY et al., Respondents.

9489.

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

Decided March 15, 2007.

Order, Supreme Court, New York County (Robert D. Lippmann, J.), entered on or about June 16, 2005, which granted summary judgment dismissing the claims against defendants Metropolitan Transportation Authority and Metro North Commuter

Railroad for common-law negligence and under Labor Law § 200, and denied in part plaintiffs' cross motion to amend their bill of particulars so as to allege specified Industrial Code violations for purposes of their Labor Law § 241 (6) claim, modified, on the law, to the extent that plaintiffs' cross motion to amend their bill of particulars is granted in its entirety so as to permit the inclusion of allegations that defendants violated Industrial Code (12 NYCRR) § 23-8.1 (f) (1) (iv) and (2) (i) and § 23-8.2 (c) (3), and as so modified, affirmed, without costs.

The motion court correctly dismissed the claims against defendants Metropolitan Transportation Authority and Metro North Commuter Railroad for common-law negligence and under Labor Law § 200, in view of the absence of evidence that their representatives exercised any supervisory control over the work in question (see O'Sullivan v IDI Constr. Co., Inc., 7 NY3d 805 [2006], affg 28 AD3d 225 [2006]). However, it erred in limiting plaintiffs' amendment of their bill of particulars to the addition of claimed violations of Industrial Code (12 NYCRR) § 23-8.2 (d) (1) and (2) to support their Labor Law § 241 (6) claim; the claims of violations of Industrial Code § 23-8.1 (f) (1) (iv) and (2) (i) and § 23-8.2 (c) (3) should have been permitted as well.

We disagree with the view that these other three proffered provisions of the Industrial Code are inapplicable to this claim as a matter of law. All three provisions in question apply to cranes hoisting loads: section 23-8.1 (f) (1) (iv) requires that before a crane starts to hoist a load, the load must be "well secured and properly balanced ... before it is lifted more than a few inches," section 23-8.1 (f) (2) (i) prohibits sudden acceleration or deceleration of a moving load during a hoisting operation, and section 23-8.2 (c) (3) requires that tag or restraint lines be used when rotation or swinging of a load being hoisted by a mobile crane may create a hazard.

These provisions are not rendered inapplicable as a matter of law simply because the accident occurred while the beam was being propelled in a forward direction, having already been lifted a foot off the ground. When a crane is being used to move a large, heavy or unwieldy item from one spot to another, the term "hoisting" should not be read so narrowly as to apply only to the part of the process in which the item is being moved in an upward direction, and to preclude the part of the operation when the load, having been lifted upward, is being propelled horizontally. There is little logic to the idea that the Code would require a tag or restraint line to protect workers and others from the rotation or swinging of a load, but only when the load is being raised, and not when an already raised load is being moved horizontally.

Nor do the relied-upon cases support such a reading. In Biafora v City of New York (27 AD3d 506, 508 [2006]), the plaintiff was injured by a bucket that had been dragged along the ground until the cable connected to the bucket accidentally lifted it off the ground, whereupon it hit the plaintiff; the Court merely observed that under the alleged facts, any violations of the safe hoisting provisions were not a proximate cause of the accident. In Penta v Related Cos. (286 AD2d 674, 675 [2001], lv denied 100 NY2d 515 [2003]), the plaintiff was hit by a hook that swung free after a load of wood was unhooked from the crane; the Court held that Industrial Code § 23-8.1 (i), which requires that moving parts of a crane have guards securely fastened in place, is inapplicable to hooks, and that section 23-8.2 (c) (3), which it noted is designed to protect workers from hazards created by the horizontal movement of a load being hoisted by a crane, is inapplicable where there is no load. Neither case stands for the proposition that Code provisions that are designed to protect people from the uncontrolled movement of a load suspended from a crane only apply when the load is being moved upward.

The amendment of plaintiffs' bill of particulars therefore should have included each of the five claimed Industrial Code violations, any of which could provide a predicate for liability under Labor Law § 241 (6).

Concur — Mazzarelli, Saxe and McGuire, JJ.

Tom, J.P., and Buckley, J., dissent in part in a memorandum by Tom, J.P., as follows:

Plaintiff, an employee of the general contractor, sustained serious injury when he was run over by a mobile hydraulic forklift, known as a Gradall. The machine was being used to transport a three-foot-high, 20-foot-long steel beam from a construction area to a scrap heap. Plaintiff was walking in front of the machine steadying the right end of the beam, which was suspended about one foot off the ground, as a coworker steadied the opposite end. When the Gradall operator stopped for a traffic light, the beam rotated and plaintiff was pushed backward toward the machine. When the light turned green, the Gradall lurched forward, crushing plaintiff's legs...