Narducci v. Manhasset Bay

• Decision Date: 10 May 2001
• Citation: 750 N.E.2d 1085,96 N.Y.2d 259,727 N.Y.S.2d 37
• Parties: ALEX NARDUCCI et al., Respondents, v. MANHASSET BAY ASSOCIATES et al., Appellants, et al., Defendants. MANHASSET BAY ASSOCIATES et al., Third-Party Plaintiffs-Appellants, v. ATLANTIC WINDOWS, Third-Party Defendant-Respondent, et al., Third-Party Defendants. (And Other Actions.) LOUIS A. CAPPARELLI, JR., et al., Appellants, v. ZAUSMER FRISCH ASSOCIATES, INC., et al., Respondents. ZAUSMER FRISCH CONSTRUCTION CO., INC., Third-Party Plaintiff-Respondent, v. BURNS ELECTRIC CO., INC., Third-Party Defendant-Respondent.
• Court: New York Court of Appeals Court of Appeals

96 N.Y.2d 259

750 N.E.2d 1085

727 N.Y.S.2d 37

ALEX NARDUCCI et al., Respondents, v. MANHASSET BAY ASSOCIATES et al., Appellants, et al., Defendants.

MANHASSET BAY ASSOCIATES et al., Third-Party Plaintiffs-Appellants, v. ATLANTIC WINDOWS, Third-Party Defendant-Respondent, et al., Third-Party Defendants. (And Other Actions.)

LOUIS A. CAPPARELLI, JR., et al., Appellants, v. ZAUSMER FRISCH ASSOCIATES, INC., et al., Respondents.

ZAUSMER FRISCH CONSTRUCTION CO., INC., Third-Party Plaintiff-Respondent, v. BURNS ELECTRIC CO., INC., Third-Party Defendant-Respondent.

Court of Appeals of the State of New York.

Argued March 27, 2001.

Decided May 10, 2001.

Fiedelman & McGaw, Jericho (James K. O'Sullivan of counsel), and Alan I. Lamer, Elmsford, for Manhasset Bay Associates and another, defendants and third-party plaintiffs-appellants in the first above-entitled action.

Bunin & DiGiulio, New York City (Sheldon Bunin of counsel), for EBH Construction, Ltd., defendant and third-party plaintiff-appellant in the first above-entitled action. Alexander J. Wulwick, New York City, and Mitchell Parnes for respondents in the first above-entitled action.

Colligan & Hickey, Roslyn Heights (Anita Nissan Yehuda of counsel), for third-party defendant-respondent in the first above-entitled action. Hancock & Estabrook, L. L. P., Syracuse (Janet D. Callahan of counsel), and Cherundolo, Bottar & Leone, P. C. (Edward S. Leone of counsel), for appellants in the second above-entitled action.

Costello, Cooney & Fearon, L. L. P., Syracuse (Paul G. Ferrara of counsel), for defendants and third-party plaintiffs-respondents in the second above-entitled action.

Mackenzie Smith Lewis Michell & Hughes, L. L. P., Syracuse

(Nancy L. Pontius of counsel), and James P. O'Connor, New York City, for third-party defendant-respondent in the second above-entitled action.

Fiedelman & McGaw, Jericho (Andrew Zajac of counsel), Kenneth M. Dalton, Dawn C. DeSimone, Elizabeth Anne Bannon, Kathleen B. Foley and Richard B. Polner for Defense Association of New York, Inc., amicus curiae in the second above-entitled action.

Chief Judge KAYE and Judges SMITH, LEVINE, WESLEY, ROSENBLATT and GRAFFEO concur.

OPINION OF THE COURT

CIPARICK, J.

These appeals require us to examine the circumstances under which Labor Law § 240 (1) liability may be imposed upon property owners and contractors when an object falls on a worker at a construction site. Neither situation presented here gives rise to liability under Labor Law § 240 (1).

Plaintiff Alex Narducci, an employee of Atlantic Windows, was assigned the task of removing steel window frames, as part of a larger restoration project, from the third floor exterior of a fire-damaged Long Island City warehouse owned by Manhasset Bay Associates and leased to Thypin Steel. To oversee the restoration, Thypin hired Preferred Restoration Experts as its general contractor and Preferred, in turn, hired EBH Construction as its construction manager on the site. Preferred also hired the window subcontractor, A & D Windows who hired Atlantic.

On the day of his accident, plaintiff began by working on the window frame furthest to the right of the three that he was assigned to remove. As he stood on a ladder propped against the right-most window frame sawing the frame loose, plaintiff paused, looked over and saw a large piece of glass from an adjacent window frame falling toward him. He turned to avoid being hit in the face by the glass, but was severely cut on his right arm. Plaintiff did not fall from the ladder, nor did the ladder malfunction in any way.

Plaintiff brought suit under Labor Law § 240 (1), alleging that he should have been given a scissor jack—a type of hydraulic platform—to perform his work properly. Supreme Court denied motions by defendants Manhasset Bay Associates, Thypin Steel and EBH Construction to dismiss plaintiff's Labor Law § 240 (1) claim, holding that issues of fact existed as to whether scaffolding could have prevented the accident. Further, the court denied EBH Construction's motion to dismiss plaintiff's Labor Law § 200 claim against it. A divided Appellate Division affirmed. We now reverse.

Plaintiff Louis Capparelli, Jr., a journeyman electrician employed by Burns Electric Co., was assigned the job of installing fluorescent light fixtures into a dropped ceiling grid as part of the renovation of Onondaga Plaza, a facility in Syracuse. The owner of the facility, Council House Realty Corp., hired Zausmer Frisch Construction, Inc. as its general contractor for the renovation, and Zausmer Frisch contracted with Burns Electric.

Planning to install a ceiling fixture, plaintiff climbed about half-way up an eight-foot step ladder in order to reach the ten-foot ceiling. From his position on the ladder, plaintiff lifted the light fixture into the ceiling grid so that its edges rested on the grid. Plaintiff's next step would have been to secure the fixture to the ceiling grid by twisting metal tabs attached to the fixture; however, as he was about to descend the ladder in order to change position to perform that step, the light fixture began to fall from the grid. Plaintiff immediately reached out to stop the fixture from hitting him, but the fixture slid as he tried to hold it, cutting his right hand and wrist. Plaintiff did not fall from the ladder.

Plaintiff brought suit under Labor Law § 240 (1), alleging that he should have been given a scaffold to perform his work that day. Supreme Court denied cross motions for summary judgment on the Labor Law § 240 (1) claim, holding that issues of fact existed. The Appellate Division modified by granting the cross motion of third party defendant Burns Electric, holding that plaintiff's injury was caused by "the usual and ordinary dangers of a construction site" and not the "extraordinary elevation risks" covered by Labor Law § 240 (1) (256 AD2d 1141). Following a judgment of Supreme Court dismissing the remaining causes of action, plaintiff appealed. We now affirm.

Discussion

Not every worker who falls at a construction site, and not every object that falls on a worker, gives rise to the extraordinary protections of Labor Law § 240 (1). Rather, liability is contingent upon the existence of a hazard contemplated in section 240 (1) and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein (see, Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501).¹

Labor Law § 240 (1) "`is to be construed as liberally as may be for the accomplishment of the purpose for which it was * * * framed'" (Koenig v Patrick Constr. Corp., 298 NY 313, 319, quoting Quigley v Thatcher, 207 NY 66, 68), however, this principle operates to impose absolute liability only after a violation of the statute has been established. Even "a violation of [Labor Law § 240 (1)] cannot `establish liability if the statute is intended to protect against a particular hazard, and a hazard of a different kind is the occasion of the injury'" (Rocovich v Consolidated Edison Co., 78 NY2d 509, 513, quoting DeHaen v Rockwood Sprinkler Co., 258 NY 350, 353).

Labor Law § 240 (1) applies to both "falling worker" and "falling object" cases. With respect to falling objects, Labor Law § 240 (1) applies where the falling of an object is related to "a significant risk inherent in * * * the relative elevation * * * at which materials or loads must be positioned or secured" (Rocovich v Consolidated Edison Co., supra, 78 NY2d, at 514). Thus, for section 240 (1) to apply, a plaintiff must show more than simply that an object fell causing injury to a worker. A plaintiff must show that the object fell, while being hoisted or secured, because of the absence or inadequacy of a safety device of the kind enumerated in the statute (see, e.g., Pope v Supreme-K.R.W. Constr. Corp., 261 AD2d 523; Baker v Barron's Educ. Serv. Corp., 248 AD2d 655).

In addition, the fact that an injured plaintiff may have been working at an elevation when the object fell is of no moment in a "falling object" case, because a different type of hazard is involved. Working at an elevation does not increase the risk of being hit by an improperly hoisted load of materials from above. The hazard posed by working at an elevation is that, in the absence of adequate safety devices (e.g., scaffolds, ladders), a worker might be injured in a fall. By contrast, falling objects are associated with the failure to use a different type of safety device (e.g., ropes, pulleys, irons) also enumerated in the statute (see, Ross v Curtis-Palmer Hydro-Elec. Co., supra, 81 NY2d, at 501). Because the different risks arise from different construction practices, the hazard from one type of activity cannot be "transferred" to create liability for a different type of accident.

Applying these principles to the facts in Narducci, the glass that fell on plaintiff was not a material being hoisted or a load that required securing for the purposes of the undertaking at the time it fell, and thus Labor Law § 240 (1) does not apply. No one was working on the window from which the glass fell, nor was there evidence that anyone worked on that window during the renovation. The glass that fell was part of the pre-existing building structure as it appeared before work began. This was not a situation where a hoisting or securing device of the kind enumerated in the statute would have been necessary or even expected.

Furthermore, while the risk of falling glass is assuredly greater at a warehouse whose windows have been damaged in a fire, that is not the type of risk that Labor Law § 240 (1) was intended to address. Absolute liability for falling objects under Labor Law § 240 (1) arises only when there is a failure to use necessary and adequate hoisting or securing devices. The absence of a necessary hoisting or securing device of the kind enumerated in Labor Law § 240 (1) did not cause the falling glass here. This was clearly a general hazard of the...