Tornabene v. City of N.Y.

• Decision Date: 27 June 2013
• Citation: 40 Misc.3d 992,970 N.Y.S.2d 394,2013 N.Y. Slip Op. 23220
• Parties: Guiseppe TORNABENE, Plaintiff, v. The CITY OF NEW YORK, MTA New York City Transit Authority, Roadway Contracting, Inc., Schiavone Construction Co., Inc., and Schiavone/Granite Halmar, Defendants.
• Court: New York Supreme Court

40 Misc.3d 992

970 N.Y.S.2d 394

2013 N.Y. Slip Op. 23220

Guiseppe TORNABENE, Plaintiff,

v.The CITY OF NEW YORK, MTA New York City Transit Authority, Roadway Contracting, Inc., Schiavone Construction Co., Inc., and Schiavone/Granite Halmar, Defendants.

Supreme Court, Kings County, New York.

June 27, 2013.

Laurence D. Rogers, Esq., Dinkes & Schwitzer PC, New York, for Plaintiff.

Thomas King, Esq., Harris King & Fodera, New York, for defendant Roadway Contracting, Inc.

Lynn Abelson Liebman, Esq., Greenblatt Lesser LLP, New York, for the remaining defendants, City of New York, New York City Transit Authority, and Schiavone Construction Co., Inc./Granite Halmar Construction Company, Inc.

SYLVIA G. ASH, J.

This action arises out of a utility worker's fall into an open trench in a roadway at the New South Ferry Terminal Structural Box, a major construction project in Manhattan. Along the perimeter of the trench and at the depth of one to two inches below the road surface ran a horizontalI-beam with the flange width of about 12 inches. On October 31, 2005, Plaintiff, Guiseppe Tornabene, was walking on the flange when he fell into the trench. As a result of the fall, he injured his right hand and re-injured his right shoulder. He has brought this action against (1) the roadway owner, the City of New York (the “City”), (2) the project owner, the New York City Transit Authority (incorrectly sued herein as MTA New York City Transit Authority and hereinafter referred to as the “Transit Authority”), (3) the general contractor Schiavone Construction Co., Inc./ Granite Halmar Construction Company, Inc., a Joint Venture (incorrectly sued herein as Schiavone/Granite–Hal Mar), and its member Schiavone Construction Co., Inc. (collectively, the “Joint Venture”), and (4) a subcontractor for the relocation of utilities at the project, Roadway Contracting, Inc. (“Roadway Contracting”). He asserts that Defendants are liable to him for his injuries under Labor Law § 240(1) for failing to provide him with protection from elevation-related risks, and further under Labor Law § 241(6) for failing to barricade the trench to prevent him from falling inside. He also asserts claims for negligence and violation of Labor Law § 200.¹ DEFENDANTS HAVE JOINED ISSUE, INTERPOSING CROSS CLAIMS AGAINST ONE another for contribution and indemnification. The City, the Transit Authority, and the Joint Venture (collectively with the Joint Venture, the “Joint Venture Defendants”) are represented here by single counsel, while Roadway Contracting is represented by separate counsel.² Discovery having been completed, Plaintiff has moved for partial summary judgment on liability on his cause of action under Labor Law § 240(1), while Defendants have moved or cross-moved for summary judgment dismissing Plaintiff's complaint and co-Defendants' cross claims.³ By short-form order, dated May 29, 2013, the Court requested additional documents from the parties to fill in the evidentiary gaps. The Court has received and reviewed such additional documents in the form of two letter submissions with paper enclosures and a CD–ROM with the project's construction documents.⁴

Pretrial Testimony

Plaintiff, a utility worker with a Verizon subsidiary Empire City Subway Co. Ltd. (“Empire”), was working on exposed underground conduits in an open trench. The trench, measuring about 20 feet long, 10 feet wide, and 8–10 feet deep,⁵ was excavated in the roadway and was fenced off from vehicular traffic during work hours.⁶ During non-work hours, the trench was covered by steel plates that laid together side by side transversely. The plates, when placed across the trench, would rest on the flange ⁷ of the I-beam that ran along all four sides of the trench at the depth of about one to two inches below the road surface to form a rectangular frame. When the plates were laid on the flange, loose strips of rubber (or rubber-like substance) were placed between the plates and the flange to prevent the plates from rubbing against the flange as vehicular traffic passed over the plates.

On Monday morning, October 31, 2005, Plaintiff drove his company truck into the construction site, which, as noted, was fenced off from general vehicular traffic during work hours. The trench in which Plaintiff was to work that day (and in which he had worked for about a week prior) had already been opened up for him and his co-workers. Although the steel plates had been removed, some loose rubber strips had remained on top of the flange side of the I-beam. According to Plaintiff, there were no guardrails or barricades around the trench on that day. The ground was dry, and the weather was cool.

Plaintiff, age 36, height 5'7?, weight 165 lbs, wearing his steel-toe work boots with rubberized bottoms, approached the trench and stepped on the flange. He walked on the flange for the length of about seven feet to reach the entrance side of the trench where he descended into the trench using a ladder that had been placed inside the trench. As he was walking on the flange to reach the trench entrance, he did not walk on the rubber strips that rested on top of the flange, explaining (at page 125 of his pretrial deposition) that “[i]t [the rubber] was away from the beam,” suggesting that it was dangerous for him to step on the rubber strips. After working in the trench for over an hour, he decided to take a meal break. He climbed out of the trench and walked off the construction site, albeit without using the flange as a passageway. ⁸ About a quarter of an hour later, he returned to the construction site to resume his work in the trench. He again stepped onto the flange and started walking toward the trench entrance. As noted, the flange was only about 12 inches wide and was covered in some places by loose rubber strips. This time, however, he was not as lucky as before in reaching the trench entrance. After taking three or four steps along the length of the flange, he stepped onto a piece of a loose rubber strip that protruded beyond the flange edge and fell into the trench, landing 8 to 10 feet below on its rocky bottom.⁹ As a result of his accident-related injuries and his preexisting injuries, Plaintiff has been unable to return to work.

Claims/Cross Claims Against the Joint Venture Defendants¹⁰

As a threshold matter, the City contends that, as a mere owner of the roadway where the trench was excavated, it bears no statutory responsibility for the happening of Plaintiff's accident. The law is well-settled that “ownership of the premises where the accident occurred—standing alone—is not enough to impose liability under [the] Labor Law ... where the property owner did not contract for the work resulting in the plaintiff's injuries,” however, liability may nevertheless be imposed if there is “ some nexus between the owner and the worker, whether by a lease agreement or grant of an easement, or other property interest” ( Morton v. State of N.Y., 15 N.Y.3d 50, 56, 904 N.Y.S.2d 350, 930 N.E.2d 271 [2010] [internal quotation marks omitted; emphasis added] ).

Before the Court can address the issue of nexus, some explanation of the nature of the City's underground utility conduits is necessary. The underground conduits, built and maintained by Plaintiff's employer Empire, house low-tension electrical wires for transmitting telephone, television, and Internet signals ( see generally Alesi v. City of N.Y., 9 A.D.2d 236, 239, 192 N.Y.S.2d 929 [1st Dept. 1959], affd. without opn.12 N.Y.2d 703, 233 N.Y.S.2d 481, 185 N.E.2d 916 [1962] [describing the City's separate underground utility systems for low-tension (telephone) and high-tension (power) signals] ).¹¹ The conduits are not dedicated to a particular utility (such as Verizon's telephone wires) but, in accordance with Empire's agreement with the City, may be used by other utilities (such as Time Warner's cable wire). To use an example: if a utility requested access to the underground conduits, Empire would open them up to accommodate that utility's wires. In that scenario, Empire and the requesting utility would work together, while the City (except for issuing a street-opening permit) would be excluded from the process. A different scenario, however, would arise if the City were to request that Empire relocate its underground conduits to accommodate the City's needs, such as to make way for a new City sewer. That was the fact scenario in Linea v. City of N.Y., 2010 N.Y. Slip Op. 32622[U], 2010 WL 3800656 [Sup. Ct., N.Y. County 2010], in which the Court denied the City's motion for summary judgment, holding that the City's request to Empire to relocate its underground conduits established a sufficient nexus to subject the City to liability to an injured Empire employee under the Labor Law.

Turning to the facts of this case, the Court cannot determine as a matter of law whether Plaintiff here was working on conduits to accommodate another utility's wires (thereby negating the City's status as an owner under the Labor Law) or whether, in the alternative, Plaintiff was relocating the conduits at the City's request as was the case in Linea (thereby qualifying the City as an owner under the Labor Law). Accordingly, the portion of the City's motion for summary judgment dismissingPlaintiff's claims against it on the grounds that it was not a Labor Law owner is denied. The Court now turns to consider Plaintiff's Labor Law §§ 240(1), 241(6), 200, and common-law negligence claims against the City and the other Joint Venture Defendants, as well as the cross claims which they have asserted against one another.

Plaintiff's Labor Law § 240(1) Claim

In support of his motion for partial summary judgment and in opposition to Defendants' papers, Plaintiff points out that his accident occurred when he “stepped on the rubber and with no beam underneath fell eight (8) to ten (10) feet into the trench” (Opening Affirmation in Support, ¶ 4[i] ). He maintains that, as he “was not provided...