Villanueva v. 114 Fifth Ave. Assocs. LLC, 6634

• Decision Date: 05 June 2018
• Docket Number: 6634,Index 161658/14
• Citation: 162 A.D.3d 404,78 N.Y.S.3d 87
• Parties: Omar VILLANUEVA, Plaintiff–Respondent, v. 114 FIFTH AVENUE ASSOCIATES LLC, et al., Defendants–Appellants.
• Court: New York Supreme Court — Appellate Division

162 A.D.3d 404

78 N.Y.S.3d 87

Omar VILLANUEVA, Plaintiff–Respondent,

v.114 FIFTH AVENUE ASSOCIATES LLC, et al., Defendants–Appellants.

6634

Index 161658/14

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

ENTERED: JUNE 5, 2018

Barry, McTiernan & Moore LLC, New York (Laurel A. Wedinger of counsel), for appellants.

Morgan Levine Dolan, P.C., New York (Glenn P. Dolan of counsel), for respondent.

Sweeny, J.P., Webber, Gesmer, Singh, Moulton, JJ.

Order, Supreme Court, New York County (Joan M. Kenney, J.), entered April 3, 2017, which, to the extent appealed from, denied defendants' motion for summary judgment dismissing the claims for common-law negligence and violation of Labor Law §§ 200 and 240(1), and granted plaintiff's motion for partial summary judgment on the issue of liability on the Labor Law § 240(1) claim, unanimously modified, on the law, to grant defendants' motion to the extent of dismissing the common-law negligence and Labor Law § 200 claims, and otherwise affirmed, without costs.

Plaintiff was injured at a construction site owned by defendant 114 Fifth Avenue Associates LLC (114 Fifth Avenue) and managed by defendant Structure Tone Inc. (Structure Tone), when he and three other workers were attempting to load a 500–pound steel I-beam into an internal freight elevator at a construction site in order to transport it from the 18th floor to the ground floor. The elevator was four feet wide and five feet deep, with an eight foot ceiling, while the beam was 12 feet long. The workers opened a hatch on top of the elevator, and were attempting to stand the beam on its end, with the high end extending through the open hatch, when the beam fell down half a foot onto plaintiff's shoulder.

Plaintiff established his entitlement to judgment as a matter of law on the issue of liability on the § 240(1) claim. Plaintiff submitted evidence showing that he was engaged in an activity covered by the statute, that defendants failed to provide an adequate safety device to protect him, and that such violation was a proximate cause of the accident ( Barreto v. Metropolitan Transp. Auth., 25 N.Y.3d 426, 433, 34 N.E.3d 815 [2015] ). The half foot that the steel I-beam dropped onto plaintiff's shoulder is not de minimis, given the I-beam's weight and since the hazard was one directly flowing from the application of the force of gravity to a person (see Runner v. New York Stock Exch., Inc., 13 N.Y.3d 599, 604, 895 N.Y.S.2d 279, 922 N.E.2d 865 [2009] ; Auriemma v. Biltmore Theatre, LLC, 82 A.D.3d 1, 9, 917 N.Y.S.2d 130 [1st Dept. 2011] ).

We modify Supreme Court to the extent that it denied defendants' motion for summary judgment dismissing the claims for common-law negligence and violation of Labor Law § 200. Section 200 of the Labor Law"is a codification of the common-law duty imposed upon an owner or general contractor to provide construction site workers with a safe place to work" ( Prevost v. One City Block LLC, 155 A.D.3d 531, 533, 65 N.Y.S.3d 172 [1st Dept. 2017] citing Comes v. New York State Elec. & Gas Corp., 82 N.Y.2d 876, 877, 609 N.Y.S.2d 168, 631 N.E.2d 110 [1993] ). Claims under Labor Law § 200 and under the common law either arise from an alleged defect or dangerous condition existing on the premises or from the manner in which the work was performed ( Cappabianca v. Skanska USA Bldg. Inc., 99 A.D.3d 139, 143–144, 950 N.Y.S.2d 35 [1st Dept. 2012] ).

There is no evidence that the Labor Law § 200 claim arises from an alleged defect or dangerous condition existing on the premises. Where a defect is not inherent but is created by the manner in which the work is performed, the claim under Labor Law § 200 is one for means and methods and not one for a dangerous condition existing on the premises (see Cappabianca, 99 A.D.3d at 144, 950 N.Y.S.2d 35 ; Dalanna v. City of New York, 308 A.D.2d 400, 400, 764 N.Y.S.2d...