Scott v. 122 E. 42 St. LLC, No. 17472/2007.

CourtUnited States State Supreme Court (New York)
Writing for the CourtCHARLES J. MARKEY
Citation950 N.Y.S.2d 611
PartiesSteven SCOTT and Marta Scott, Plaintiffs, v. 122 EAST 42 STREET LLC, Stahl Real Estate Co., Henegan Construction Company, Inc., Henick–Lane Inc., and Adria Industrial Piping Ltd., Defendants.
Decision Date01 March 2012
Docket NumberNo. 17472/2007.

950 N.Y.S.2d 611

Steven SCOTT and Marta Scott, Plaintiffs,
122 EAST 42 STREET LLC, Stahl Real Estate Co., Henegan Construction Company, Inc., Henick–Lane Inc., and Adria Industrial Piping Ltd., Defendants.

No. 17472/2007.

Supreme Court, Queens County, New York.

March 1, 2012.

Schwartz, Goldstone & Campisi, LLP, by Mordecai T. Schwartz, David A. Kates, and Alan J. Plumer, Esqs., New York City, for the Plaintiffs.

Morenus, Conway, Goren & Brandman, by Frank R. Matozzo, Esq., Melville, for Defendant Henick–Lane, Inc.

O'Conner, Redd LLP, by Alak Shah, Esq., White Plains, for Defendant Adria Industrial Piping, Ltd.

Law Office of Andrea G. Sawyers, by David R. Holland, Esq., Melville, for Defendant Henegan Construction Company, Inc.

Carroll, McNulty & Kull LLC, by Michael R. Schneider and David H. Bavli, Esqs., New York City, for Defendant 122 East 42 Street LLC and Stahl Real Estate Co.

Martyn, Toher & Martyn, by Frank B. Toher, Esq., Mineola, for Second Third–Party Defendant Chemical Specifics, Inc.

                ¦Notices of Motions–Affidavits–Exhibits ¦1–8 ¦
                ¦Notices of Cross Motions–Affidavits–Exhibits¦9–21 ¦
                ¦Answering Affidavits–Exhibits ¦22–53¦
                ¦Reply Affidavits ¦54–70¦

This complex Labor Law case, involving numerous parties and third-party litigants, developed after the plaintiff worker slipped on a hose left on an “I” beam. One of the interesting and novel issues is whether the existing hose laying on the “I” beam of the roof constitutes a “premises condition,” triggering one liability standard, or whether it instead implicates the “means and methods” of the contractor's work, thereby involving a different yardstick for determining liability.

Plaintiffs in this negligence and Labor Law action seek damages for personal injuries sustained by plaintiff Steven Scott (hereinafter referred to either as “the plaintiff” or “the injured plaintiff”) on May 7, 2007, while in the course of his employment with Chemical Specifics, Inc. (“Chemical”). The action by Marta Scott is derivative. Plaintiffs allege that while the injured plaintiff stood on an “I” beam reaching toward an air conditioning unit, he slipped on a hose lying across the “I” beam and fell several feet to the roof surface. The accident happened at 122 East 42nd Street (“122 East'), in New York City (“the building” ), which is owned by defendant 122 East. Stahl Real Estate Co. (“Stahl” ) was the managing agent of the building. Freddie Mac was a tenant of the property at the time and contracted Henegan Construction Company, Inc. (“Henegan”) to serve as general contractor for the construction project. Henegan contracted Henick–Lane Inc. (“Henick–Lane”) to construct the HVAC component of the renovation work. Henick–Lane, in turn, contracted Adria Industrial Piping, Ltd. (“Adria”) to conduct pressure testing, and contracted Chemical to flush chemically (hereinafter “clean”) the newly-installed piping for the air conditioning units.

In the bill of particulars, the injured plaintiff asserts that he was caused to fall off an elevation as a result of obstructions and a tripping condition. The injured plaintiff further asserts, in the bill of particulars, that Henegan was negligent in the operation, maintenance, control, supervision and direction of the premises in that it failed to provide plaintiff with a safe place to work and failed to provide him with proper and approved safety devices. Plaintiffs allege common law negligence and violations of Labor Law sections 200, 240(1) and 241(6). In support of Labor Law section 241(6), the plaintiffs claim that defendants violated the following sections of the New York State Industrial Code: 12 NYCRR 23–1.5; 23–1.7; 23–1.8; 23–1.16; 23–1.21; 23–1.22; 23–1.24; 23–1.32; 23–2.1; 23–2.3 and 23–2.62

The Facts

The injured plaintiff testified that, at the time of the incident, he was employed as a mechanic's helper for Chemical. That day, he was to assist co-worker “Johnny Morales” at the building in question. Plaintiff's employer had assigned them to clean chemically the piping of a newly-installed air conditioning unit located on the roof of the building. After arriving at the premises around 7:30 A.M., plaintiff spoke with some steam-fitters. The steam-fitters were pressure testing the same air-conditioning unit pipes that the injured plaintiff was assigned to flush chemically. He was told that the job was not ready for him yet since the pipes were still being pressure tested for leaks.

Plaintiff and his partner returned to their truck, had breakfast and were later told that the pipes were ready to be cleaned chemically. The air-conditioning unit that plaintiff was going to work on was situated on top of several “I” beams that were elevated three or four feet above the roof surface. The floor of the roof was covered in plywood sheet and was “uneven” in that “the wood wasn't tacked to the ground” so plaintiff felt that if he stood on one side, “the other side may go up a little.” However, he had no trouble walking on the roof surface, on the plywood, for about 20 feet. After getting to the roof, plaintiff sat on one of the “I” beams and lifted himself up with the intention of attaching a fitting to a pipe on the air conditioning unit.

As plaintiff attempted to stand up, his foot slipped on a hose that was lying on top of the “I” beam and he lost his balance and fell. The hose upon which plaintiff stepped, which was a half inch in diameter and black in color, was attached to the air conditioning unit and ran approximately twenty feet along the top of the “I” beam until it entered the building. Plaintiff believes it was a pressure testing hose which was used by the steam fitters. Plaintiff testified that he did not see the hose until after he fell.

William Fulton testified on behalf of Henegan. According to Fulton, Henegan was the general contractor in the re-fit of a floor of the building for tenant Freddie Mac. Fulton was the project manager assigned to the project and was on site every day. The project included the installation of HVAC equipment on a fourth floor exterior roof area. Fulton believed the HVAC units were installed by Henick–Lane. Fulton testified that he believes that Henick–Lane would typically hire a third-party subcontractor that specializes in pipe cleaning to chemically clean the HVAC unit pipes and that Henick–Lane could do so without authorization from Henegan. In his role as project manager, Fulton would “walk” the project, including the roof area where the accident occurred, looking for safety issues. He never observed any unsafe conditions in that area prior to the time of plaintiff's accident.

Joseph Hodgkinson testified on behalf of Henick–Lane. Hodgkinson was the project manager for Henick–Lane. Henegan hired Henick–Lane to perform the installation of a complete HVAC system as part of a larger renovation project. After Henick–Lane entered into a contract with Henegan, Henick–Lane entered into subcontracts with Chemical and Adria. Hodgkinson testified that he answered to Henegan and Henick–Lane's subcontractors answered to him.

According to Hodgkinson, the extent of Henegan's involvement with Henick–Lane's subcontractors was to show them where the air conditioning unit was. Henegan was not responsible for coordinating the work between Adria and Chemical. Likewise, Henegan never directed the employees of Henick–Lane's subcontractors in how to do their work. The subcontract with Adria called for Adria to pressure test the components of the HVAC system, and the subcontract with Chemical called for Chemical to flush chemically the newly-installed HVAC system. Hodgkinson testified, finally, that it was entirely possible that the work of Chemical and Adria might have overlapped such that employees of each would be onsite working at the same time.

John Morales testified on behalf of Chemical. Morales is employed by Chemical as a mechanic and plaintiff was his helper. The date of the accident was the first day working at the subject premises. They were at the premises to chemically clean out the HVAC system and to add antifreeze to the same. The HVAC unit they were working on was located on a setback roof area. Upon arriving at the roof area, Morales observed a “steam fitter” doing pressure testing on the HVAC unit with a tank and a hose. The tank was located inside the building and the hose ran out through a window to the outside roof area where it was connected to the HVAC unit piping.

The steam fitter told Morales that the HVAC unit was not ready for them yet so Morales, and plaintiff left to get coffee. When they returned approximately a half hour later, the hose was still clearly observable and was positioned such that it was coming out from the window and connected to the HVAC unit piping. The hose was hanging a few inches above one of the “I” beams on the roof. When plaintiff's accident occurred, Morales was working but plaintiff had not yet started working. Morales testified that in order to access the work area, you had to walk over an “I” beam because there was no walkway. The work that the plaintiff was going to do, however, did not require plaintiff to stand on the “I” beam, since the area of the HVAC unit that plaintiff was to attach fittings could be reached by standing on the surface of the roof itself. Morales did not see the accident.

Slavko Gavrilovic testified on behalf of Adria. On the day of the accident, Gavrilovic was employed as a foreman by Adria, which was in the business of performing heating, cooling, and air conditioning work. One of his duties included pressure testing of pipes of HVAC installations to check for leaks. Adria had been retained by Henick–Lane to do pressure testing of pipes at the...

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