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June 7, 1993



The opinion of the court was delivered by: ROBERT W. SWEET

Sweet, D.J.

 The plaintiffs, James Violette ("Violette") and Loretta Violette ("Mrs. Violette") (collectively, the "Violettes") have moved for reargument of this Court's decision dated December 10, 1992, pursuant to Local Rule 3(j), or, in the alternate, for certification for an interlocutory appeal pursuant to 28 U.S.C. § 1292 (b). If upon reargument the Plaintiff's motion is granted, defendant Campbell Chain Co., Inc. ("Campbell"), a division of defendant Cooper Industries, Inc. ("Cooper"), has submitted an affirmation in opposition requesting the Court to sever the case against these two Defendants for a separate trial on the issues of liability. For the reasons given below, the motion to reargue is granted. Upon reargument, the Plaintiffs' motion for summary judgment is again denied and the Plaintiffs' motion pursuant to Section 1292(b) motion is also denied. Since the Plaintiffs' motion for summary judgment is again denied, this Court does not reach Campbell's request to sever the case.

 The Parties

 Plaintiff James Violette was injured on November 10, 1988, when a chain (the "hoist chain") broke and the ripper fell upon the Plaintiff, causing serious injury. The hoist chain has been attached to a bulldozer in order to hoist the 10,600 pound ripper while Violette attached the ripper to a bulldozer in order to prepare the equipment for use in clearing a site for construction. He has brought claims for violations of New York State Labor Laws §§ 240 and 200, and for negligence and strict products liability. His wife, Loretta Violette, sues for an additional claim based on loss of consortium. Both plaintiffs are residents of the state of Connecticut.

 Defendant Armonk Associates, L. P. ("Armonk") is a New York partnership which was and is the owner of property known as the Dellwood Estate ("Dellwood Estate"), in the Town of New Castle, County of Westchester, New York. Defendant Carol Management Corp. ("Carol") is a New York corporation and a real estate developer which initiated the construction of Dellwood Estates. Defendant CMC Realty and Development, Inc. ("CMC") is also a New York corporation and successor to Carol.

 Defendant Campbell, a North Carolina corporation and a division of defendant Cooper, is alleged to be the manufacturer of the defective hoist chain.

 Defendant and third-party plaintiff Elmar Contracting Corp. ("Elmar") is a New York corporation and the general contractor for construction on Dellwood Estate.

 Third-party defendant Major Machinery ("Major") is a Connecticut corporation which directly employed James Violette and which leased the bulldozer to Elmar.

 Prior Proceedings

 The Plaintiffs commenced this action in July, 1990, to establish liability of the owner and contractors of his worksite under New York Labor Law § 240(1). Defendant Elmar filed a third-party complaint against Violette's employer Major in August 1990. The Plaintiffs moved for summary judgment against Armonk, Elmar, CMC & Carol, and Armonk, CMC, and Carol cross-moved against Elmar for indemnity. By an opinion dated December 10, 1992, familiarity with which is assumed, this Court denied the motion of the Violettes for summary judgment under Labor Law § 240(1) and granted the cross-motion of Armonk, CMC, and Carol. The Plaintiffs then filed this motion for reargument on December 21, 1992. Oral argument was heard on January 20, 1993, and the motion was considered fully submitted as of that date.


 Standards for a Motion to Reargue

 To be entitled to reargument under Local Rule 3(j), the moving party must demonstrate that the Court overlooked controlling decisions or material factual matters that were before the court on the underlying motion. Swan Brewery v. U.S. Trust, 145 F.R.D. 40 (S.D.N.Y. 1992); Ashley Meadows Farm, Inc. v. Am. Horse Shows Ass'n, 624 F. Supp. 856, 857 (S.D.N.Y. 1985). The standard for review is strict, because the provision for reargument is not design to allow wasteful repetition of arguments already briefed, considered, and decided. Morgan Guaranty Trust Co. v. Garrett Corp., 625 F. Supp. 752, 756 (S.D.N.Y. 1986).

 The Plaintiffs argue that this Court overlooked the holding of the Court of Appeals in Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 583 N.E.2d 932, 577 N.Y.S.2d 219 (1991). They advance the theory that Rocovich and the cases which depend upon it, such as Fitzgibbons v. Olympia & York Battery Park Co., 182 A.D.2d 1069, 582 N.Y.S.2d 870 (4th Dept. 1992), holds that Labor Law § 240(1) applies to labor where either a worker or materials are elevated using any equipment enumerated in the statute, such as stays, hoists, slings and cables, even if the injured worker and all other materials were on the ground at the time of the accident. Although the Court cited to and quoted from Rocovich extensively in its prior opinion, it did not consider this theory. Therefore, the motion to reargue is granted, and the holding of Rocovitch is reconsidered.


 The Violettes maintain that, prior to Rocovitch, New York Courts had agreed that workers who were injured by falling off scaffolding or ladders were covered under Section 240(1), but that these courts were split over whether injuries caused by falling objects at construction sites should also be included. It is the Violette's position that Rocovitch resolved the split by holding that falling objects were covered by Section 240(1). They cite only Yaeger v. New York Telephone Co., 148 A.D.2d 308, 538 N.Y.S.2d 526, 527 (1st Dep't 1989), which does point out that the Fourth Department required a "fall from a height." However, Siragusa v. State, 117 A.D.2d 986, 499 N.Y.S.2d 533 (4th Dept. 1986) makes it clear this covers both objects falling from a scaffolding and the dangers to workers themselves of falling from a height. At any rate, despite the split, it was evident before Rocovich that a collapsing scaffolding, even if it collapsed upon a worker standing on the ground, was covered under Labor Law § 240(1). See Callovi v. Olympia & York Battery Park Co., 663 F. Supp. 855 (S.D.N.Y. 1987) (analyzing New York law in all four Departments to conclude that Section 240(1) covers injuries due to collapse of temporary construction lowered into place by crane; plaintiff's own fall from a height not required). Cf. De Haen v. Rockwood Sprinkler Co., 258 N.Y. 350, 353, 179 N.E. 764, 765 (1932) (Cardozo, J.) (holding that Labor Law § 241 applied to protecting passers-by from falling objects as well as to protect construction workers):

The chief object of this statute is to protect workmen from the hazard of falling into a shaft. We cannot say, however, that no other hazard was within the ...

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