Torkel v. NYU Hospitals Center , 883 N.Y.S.2d 8 ( 2009 )

Order, Supreme Court, New York County (Debra A. James, J.), entered September 11, 2008, which denied defendants’ motion for summary judgment dismissing the complaint (except as to plaintiff’s claim under Labor Law § 241 [6] based on Industrial Code [12 NYCRR] § 23-2.1 [b]) and, upon a search of the record, granted summary judgment in favor of plaintiff on the issue of liability under Labor Law § 240 (1), modified, on the law, to the extent of dismissing plaintiff’s claims under Labor Law § 240 (1) and § 241 (6), and otherwise affirmed, without costs.

Plaintiff was employed by third-party defendant Rite-Way Internal Removal, Inc. (Rite-Way), which had been engaged as a subcontractor by defendant HRH Construction (HRH) to haul debris away from a work site on the ground floor of a medical school building where a new magnetic resonance imaging research facility was being installed. HRH was employed as the general contractor and construction manager on the project, defendant New York University (NYU) owns the premises, and the other defendants are NYU affiliates. The construction agreement between NYU and HRH required the latter to hire subcontractors to perform the work, which included keeping the work site “free at all times from unreasonable accumulation of waste material or rubbish” caused by the project. A June 2002 transmittal letter from HRH to defendant NYU Hospitals Center indicates that HRH had contracted with Rite-Way to perform “[d]emolition” work on the project, and other correspondence from HRH to Rite-Way reflects HRH’s intent to award Rite-Way a contract for the work. A form of contract for the work by Rite-Way is also included in the record.

The construction debris from the project was removed from the site and taken to the street in Rite-Way’s wheeled containers, which typically held about 250 pounds of material. HRH employees, with plaintiffs regular help, loaded the containers. Rite-Way employees would haul the debris away by truck about once a day, sometimes after an HRH employee had called and requested a pickup. The Rite-Way employees would drive a truck to the work site and, using a winch affixed to the truck, raise the containers and dump the debris into it.

On March 19, 2004, plaintiff, who had been sent to the work site by Rite-Way dispatchers, was injured while rolling a filled container from the work site to his truck parked on the street. When plaintiff arrived, he observed that a three-quarter-inch-thick sheet of plywood had been laid down as a makeshift ramp to bridge the gap in height between the edge of the work site, at curb level, and the street, which was lower than usual because the surface layer of asphalt had been removed during ongoing repaving. The plywood was not braced or supported from beneath. Plaintiff stated that the height differential between the bridged levels was “[ajnywhere between 12 and 18 inches, give or take a few.” While plaintiff was maneuvering the container down the plywood ramp, the ramp collapsed, causing the container to spill concrete debris onto plaintiffs leg and fall over onto the sidewalk. Plaintiff was injured while trying to regain control of the container and keep it from tipping over.

Upon defendants’ motion for summary judgment, the motion court searched the record and granted summary judgment to plaintiff as to liability under Labor Law § 240 (1), and denied summary judgment to defendants with respect to the claims under Labor Law §§ 200 and 241 (6), to the extent the latter were based on Industrial Code (12 NYCRR) § 23-1.7 (f) and § 23-1.22 (b) (2). The court granted summary judgment to defendants with respect to plaintiffs claim based on Industrial Code § 23-2.1 (b) and denied it with respect to the Labor Law § 200 and common-law negligence claims.

Labor Law § 240 (1) provides in relevant part: “All contractors and owners and their agents ... in the . . . demolition [or] altering ... of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.” Section 240 (1) imposes absolute liability on owners, contractors and their agents for injury proximately caused by a breach of the statutory duty (Gordon v Eastern Ry. Supply, 82 NY2d 555, 559 [1993]). The hazards that warrant the protection contemplated by the statute are “those related to the effects of gravity where protective devices are called for . . . because of a difference between the elevation level of the required work and a lower level” (Rocovich v Consolidated Edison Co., 78 NY2d 509, 514 [1991]).

As a threshold matter, the only argument defendants made to the motion court for dismissing the section 240 (1) claim is that plaintiff was not exposed to the type of elevation-related hazard contemplated by the statute. However, in its order, the court stated that “[wjith respect to plaintiffs Labor Law 240 claim defendants argue that the plaintiff was not engaged in an activity requiring protection. Defendants’ argument is meritless. Defendants’ foreman stated that plaintiff regularly assisted in moving the carts from the building to the truck. This work was carried out as part of a construction contract between defendants including the third-party defendant, plaintiffs employer. Defendants also do not deny that a ramp was necessary to move the carts between the height differential of the loading dock, the curb and the street although that differential was only over one foot high due to construction occurring on the roadway and sidewalk. Therefore, defendants were required to provide appropriate safety devices.” Here the court not only addressed and rejected defendants’ argument that plaintiff was not exposed to an elevation-related hazard, but also raised new matter sua sponte. The court’s findings that plaintiff moved containers from the building to the truck and that he performed his work pursuant to a contract between defendants, including his employer, have no bearing on whether his work presented an elevation-related hazard, which was the only argument before the court with respect to whether plaintiff was “engaged in an activity requiring protection” under section 240 (1).

On appeal, defendants contend for the first time that the statute is inapplicable because plaintiff was not engaged in any of the enumerated activities set forth in the statute or in work that was “incidental and necessary” to the performance of those activities. Whatever its merit, this new argument is not properly before this Court because defendants’ failure to raise it before the motion court deprived plaintiff of the opportunity to submit evidence with which to refute it (see e.g. Douglas Elliman-Gibbons & Ives v Kellerman, 172 AD2d 307, 308 [1991], lv denied 78 NY2d 856 [1991]).

However, given that the bottom of the ramp was resting on the street and the top was resting on the adjacent sidewalk curb, and the height differential from the bottom to the top was at most 12 to 18 inches, we agree with defendants that plaintiff was not exposed to an elevation-related hazard as contemplated by section 240 (1) (see DeStefano v Amtad N.Y., 269 AD2d 229 [2000] [ramp rising 12 inches from ground to building entrance did not present an elevation-related hazard]; DeMayo v 1000 N. of N.Y. Co., 246 AD2d 506 [1998] [13-inch-high step from ground to shanty entrance not an elevation-related hazard]; cf. Arrasti v HRH Constr. LLC, 60 AD3d 582 [2009] [section 240 (1) claim stated where plaintiff fell from ramp connecting concrete floor with hoist platform constructed about 18 inches above floor]).

Plaintiff s Labor Law § 241 (6) claims predicated on Industrial Code (12 NYCRR) § 23-1.7 (f) and § 23-1.22 (b) should have been dismissed. Section 23-1.7 (f) applies to stairways, ramps and runways used “as the means of access to working levels above or below ground.” The ramp in this case, which bridged the height differential between a sidewalk curb and the adjacent road surface, did not provide access to an above- or below-ground working area within the meaning of the regulation.

We note that defendants’ only argument to the motion court with respect to the section 23-1.7 (f) claim was that they did not supply the ramp. However, since there is no dispute about how the ramp was used, the question whether section 23-L 7 (f) applies presents an issue of law that is properly before this Court (Buywise Holding, LLC v Harris, 31 AD3d 681, 682 [2006]; see also Anderson v Carduner, 279 AD2d 369, 370 [2001]).

Section 23-1.22 (b) applies to ramps used by “motor trucks or heavier vehicles,” “wheelbarrows, power buggies, hand carts or hand trucks” or by “persons only.” The use of the ramp in question as a means for workers to move wheeled dumpsters does not fall within the regulation’s enumerated categories.

To support a finding of liability under Labor Law § 200, which codifies the common-law duty of an owner or general contractor to provide a safe work site (see Perrino v Entergy Nuclear Indian Point 3, LLC, 48 AD3d 229 [2008]), a plaintiff must show that the defendant supervised and controlled the plaintiffs work, or had actual or constructive knowledge of the alleged unsafe condition in an area over which it had supervision or control, or created the unsafe condition (see Espinosa v Azure Holdings II, LP, 58 AD3d 287, 290-291 [2008]; Lane v Fratello Constr. Co., 52 AD3d 575, 576 [2008]; Hernandez v Columbus Ctr., LLC, 50 AD3d 597, 598 [2008]; Griffin v New York City Tr. Auth., 16 AD3d 202, 202-203 [2005]; Murphy v Columbia Univ., 4 AD3d 200, 201-202 [2004]).

Defendants argue that they cannot be liable under section 200 because plaintiff failed to show that they supervised or controlled his work. As evidence of control, however, plaintiff submitted testimony from an HRH foreman that HRH was responsible for moving the containers to the Rite-Way trucks parked on the street and that sometimes plaintiff and other Rite-Way employees moved the containers because “basically we’re trying to help each other.” This testimony, when coupled with HRH’s contractual obligation to have rubbish removed from the project site, creates an issue of fact as to control.

In addition, plaintiff made a prima facie showing that HRH was responsible for or was aware of the dangerous condition. The NYU defendants failed to meet their initial burden on the summary judgment motion by showing lack of responsibility or awareness.

Contrary to the dissent’s assertion that plaintiff offers “no evidence as to how the piece of plywood came to be placed where it was,” the HRH foreman testified that (1) the ramps used to move the containers to the street were made of “whatever you can find to use,” (2) the ramp that caused the accident was made of plywood that “was probably taken out of one of the dumpsters” at the site, (3) during the four- or five-day period between the time the top surface of the roadway was stripped (making a ramp necessary to move the containers from the curb to the street) and plaintiffs accident, the foreman alone moved the containers to the trucks, and (4) to move the containers, “[y]ou find a piece of plywood, piece of steel, piece of tin and you put it on the curb.” These statements, coupled with plaintiffs testimony that the ramp was in place when he arrived, could lead a finder of fact reasonably to conclude that it was more likely than not that someone under defendants’ control laid down the plywood and thereby created the dangerous condition. Concur—Moskowitz, Renwick and Freedman, JJ.