Wensley v. Argonox Const. Corp.

• Decision Date: 13 June 1996
• Citation: 228 A.D.2d 823,644 N.Y.S.2d 355
• Parties: William WENSLEY, Respondent, v. ARGONOX CONSTRUCTION CORPORATION, Defendant and Third-Party Plaintiff-Appellant-Respondent, and Galesi Group, Appellant-Respondent; Skyway Roofing of Troy Inc., Third-Party Defendant-Respondent-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 355

644 N.Y.S.2d 355

228 A.D.2d 823

William WENSLEY, Respondent, v. ARGONOX CONSTRUCTION CORPORATION, Defendant and Third-Party Plaintiff-Appellant-Respondent and Galesi Group, Appellant-Respondent Skyway Roofing of Troy Inc., Third-Party Defendant-Respondent-Appellant.

Supreme Court, Appellate Division Third Department.

June 13, 1996.

Robert Murphy Jr., Albany, for defendant and third-party plaintiff-appellant-respondent.

Ainsworth, Sullivan, Tracy, Knauf, Warner & Ruslander (Robert K. Ruslander, of counsel), Albany, for appellant-respondent.

Walsh & Hacker (Thomas J. Walsh, of counsel), Albany, for third-party defendant-respondent-appellant.

William A. Sekellick, Albany, for respondent.

Before MIKOLL, J.P., and CREW, WHITE, CASEY and PETERS, JJ.

MIKOLL, Justice Presiding.

Appeals (1) from an order of the Supreme Court (Ceresia Jr., J.), entered July 13, 1994 in Rensselaer County, which, inter alia, partially denied defendants' motions for summary judgment, and (2) from a supplemental order of said court, entered December 23, 1994 in Rensselaer County, which, inter alia, denied defendants' motion for summary judgment dismissing the cross claims and counterclaims for indemnification and contribution.

In this case plaintiff was injured while working on a reroofing project as a member of a crew removing an old gypsum roof by sections. The roof had been constructed by placing a sheetrock deck over rafters upon which wire was laid and over which three to four inches of gypsum was poured. On the day of the accident plaintiff's supervisor, Frank Kruczkowski, used a cutter to cut the roofing material into sections approximately 3 feet by 3 feet and weighing 175 to 300 pounds; Kruczkowski was unable to cut through the layer of wire mesh, so plaintiff had to use wire cutters to cut the wire mesh.

The accident occurred after Kruczkowski had cut a section of roof. Plaintiff and co-worker Billy Deerfield tipped the piece up on its side on a rafter, and plaintiff placed the fingers of his right hand through the wire mesh. Plaintiff then reached back to grab the cutters to cut the wire mesh when Deerfield apparently let go of the piece and plaintiff, feeling the piece about to fall, tightened his grip. However, the piece fell downward between the rafters, stretching plaintiff's arm before he could let go and causing the injury to his right arm. The injury was serious and he was unable to return to work.

The premises in question were owned by Scotia Industrial Park Inc. (hereinafter Scotia). Francesco Galesi owned Scotia under the assumed name Galesi Group. Skyway contracted with defendant Argonox Construction Corporation to reroof certain buildings at Scotia. Argonox was formed exclusively to act as contractor for the reroofing project, and to do construction work for other corporations under the Galesi Group name. Plaintiff was employed by third-party defendant, Skyway Roofing of Troy Inc. (hereinafter Skyway).

Plaintiff commenced this action seeking damages for his injuries based upon defendants' alleged violations of Labor Law §§ 200, 240, 241(6) and common-law negligence. Argonox and Galesi Group cross-claimed against each other for indemnification/contribution and Argonox filed a third-party complaint against Skyway for indemnification/contribution. Galesi Group cross-claimed against Skyway for indemnification/contribution and Skyway counterclaimed against both Argonox and Galesi Group to recover amounts paid by Skyway to workers' compensation and for medical benefits should plaintiff succeed, as well as for indemnification/contribution. The parties made various motions.

Supreme Court, in an order entered July 13, 1994, denied defendants' motions to dismiss plaintiff's Labor Law claims (first and second causes of action), but granted the motions as they pertained to plaintiff's negligence claim (third cause of action). Supreme Court also denied without prejudice Argonox's motion for summary judgment on its third-party complaint, ruling it premature. Argonox, Galesi Group and Skyway each appeal.

Subsequently, Supreme Court, by a supplemental order, disposed of those aspects of the prior motions concerning indemnification not addressed in the prior order. Argonox, Galesi Group and Skyway also appeal from this order.

Argonox, Galesi Group and Skyway contend that Supreme Court erred in holding that Labor Law § 240(1) is applicable to the facts of this case and in not dismissing the complaint herein because that section applies only to persons falling from a height or to objects falling from above onto a person. We reject this argument. In our view the instant accident fits within the ambit of Labor Law § 240(1) as the harm "directly [flowed] from the application of the force of gravity to an object or person" (Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 501, 601 N.Y.S.2d 49, 618 N.E.2d 82). The instant piece of roof fell through the rafters 18 to 20 feet above the ground and the harm to the worker flowed from the force of gravity. It was the elevation differential which caused plaintiff's arm to be violently stretched. Here, the elevation differential distinguishes this case factually from cases such as Misseritti v. Mark IV Constr. Co., 86 N.Y.2d 487, 634 N.Y.S.2d 35, 657 N.E.2d 1318 and Hunter v. BTC Block 17/18, 210 A.D.2d 968, 969, 621 N.Y.S.2d 270).

Defendants' argument, that plaintiff's claim asserted in the second cause of action based on a violation of Labor Law § 241(6), should be dismissed because plaintiff does not allege violations of specific regulations, is persuasive. It is well settled that a claim made pursuant to Labor Law § 241(6) must allege violations of specific regulations (see, Comes v. New York State Elec. & Gas Corp., 82 N.Y.2d 876, 878, 609 N.Y.S.2d 168, 631 N.E.2d 110; Ross v. Curtis-Palmer Hydro-Elec. Co., supra, at 502, 601 N.Y.S.2d 49, 618 N.E.2d 82; McCole v. City of New York, 221 A.D.2d 605, 606, 634 N.Y.S.2d 183, 184; Narrow v. Crane-Hogan Structural Sys., 202 A.D.2d 841, 842, 609 N.Y.S.2d 372). The allegations of violations of general safety standards, such as appear in this case, will not withstand a motion for summary judgment (see, Narrow v. Crane-Hogan Structural Sys., supra, at 842, 609 N.Y.S.2d 372). We reject plaintiff's assertion that reading Labor Law § 241(6) in conjunction with Labor Law § 240 (requiring devices such as hoists and stays) renders unnecessary allegations of violations of specific statutory regulations. Consequently, plaintiff's second cause of action should be dismissed.

Argonox's contention that because Supreme Court dismissed plaintiff's cause of action in common-law negligence it should also dismiss plaintiff's Labor Law § 200 claim, which is based on the same...