McLean v. Tishman Constr. Corp.

• Citation: 2016 N.Y. Slip Op. 07754,40 N.Y.S.3d 771 (Mem),144 A.D.3d 534
• Parties: Loren McLEAN, et al., Plaintiffs–Appellants, v. TISHMAN CONSTRUCTION CORPORATION, et al., Defendants–Respondents.
• Decision Date: 17 November 2016
• Court: New York Supreme Court — Appellate Division

144 A.D.3d 534

40 N.Y.S.3d 771 (Mem)

2016 N.Y. Slip Op. 07754

Loren McLEAN, et al., Plaintiffs–Appellants,

v.TISHMAN CONSTRUCTION CORPORATION, et al., Defendants–Respondents.

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

Nov. 17, 2016.

Kelner and Kelner, New York (Gail S. Kelner of counsel), for appellants.

Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Patrick J. Lawless of counsel), for respondents.

Order, Supreme Court, New York County (Joan M. Kenney, J.), entered December 18, 2015, which denied plaintiffs' motion for summary judgment on the issue of liability on the Labor Law § 240(1)

claim and granted defendants' motion for summary judgment dismissing the complaint, unanimously modified, on the law, to grant plaintiffs' motion and deny defendants' motion as to the § 240(1) claim, and otherwise affirmed, without costs.

The injured plaintiff testified that a metal beam, while being placed on a flatbed truck, fell off the blades of a forklift, slamming plaintiff's foot and causing him to fall off the truck. This unrefuted testimony established prima facie that “plaintiff's injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential” and therefore that liability exists under Labor Law § 240(1)

(Runner v. New York Stock Exch., Inc., 13 N.Y.3d 599, 603, 895 N.Y.S.2d 279, 922 N.E.2d 865 [2009] ). The cases that defendants rely on are inapposite, since they involve not objects falling on or toward workers on flatbeds but workers falling from flatbeds, implicating only the adequacy of safety devices for falling workers, which is not at issue here (see

Berg v. Albany Ladder Co., Inc., 10 N.Y.3d 902, 903, 861 N.Y.S.2d 607, 891 N.E.2d 723 [2008] ; Toefer v. Long Is. R.R., 4 N.Y.3d 399, 408, 795 N.Y.S.2d 511, 828 N.E.2d 614 [2005] ; Brown v New York–Presbyt.

Healthcare Sys., Inc., 123 A.D.3d 612, 999 N.Y.S.2d 66 [1st Dept.2014] ).

Nor was plaintiff the sole proximate cause of his injuries since the injuries “were caused at least in part by the lack of safety devices to check the beam's descent as well as the manner in which [his coworker] lowered the beam” (Bonaerge v. Leighton House Condominium, 134 A.D.3d 648, 649–650, 22 N.Y.S.3d 52 [1st Dept.2015]

; see

Blake v. Neighborhood Hous. Servs. of N.Y. City, 1 N.Y.3d 280, 290, 771 N.Y.S.2d 484, 803 N.E.2d 757 [2003] ).

The motion court properly deemed the Labor Law § 241(6)

claims predicated on Industrial Code (12 NYCRR) §§ 23–1.16, 23–2.3, 23–6.1 and 23–8.1 abandoned, since plaintiff failed to specify any particular subsection(s) and subdivision(s) of these provisions (see Pantelis v. Skanska, 2012 N.Y. Slip Op 33000[U]

, *16–17, 2012 WL 6682162 [Sup.Ct., N.Y. County 2012] ). The remaining provisions on which plaintiff relies, 12 NYCRR 23–1.5(a) and (c)(1) and (2), are insufficient as predicates for Labor Law § 241(6) liability, since they set forth general rather than specific standards of conduct (Gasques v. State of New York, 15 N.Y.3d 869, 910 N.Y.S.2d 415, 937 N.E.2d 79 [2010] ; Maldonado v. Townsend Ave. Enters., Ltd. Partnership, 294 A.D.2d 207, 741 N.Y.S.2d 696 [1st Dept.2002] ; Williams v. White Haven Mem. Park, 227 A.D.2d 923, 643 N.Y.S.2d 787 [4th Dept.1996] ).

Defendants established prima facie that they did not have the authority and control over the injury-producing work necessary to support the Labor Law § 200

and common-law negligence claims (see

Rizzuto v. L.A. Wenger Contr. Co., 91 N.Y.2d 343, 352, 670 N.Y.S.2d 816, 693 N.E.2d 1068 [1998] ). While defendant Tishman, in its capacity as construction manager, had general supervisory and coordinating responsibilities, it did not have the requisite level of direct supervision and control over the injury-producing activity (see

Geonie v. OD & P N.Y. Ltd., 50 A.D.3d 444, 855 N.Y.S.2d 495 [1st Dept2008] ; Scott v. American Museum of Natural History, 3 A.D.3d 442, 443, 771 N.Y.S.2d 499 [1st Dept.2004] ). Nor is Tishman's authority to control safety at the work site and stop work if it observed a dangerous condition...