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LAWRENCE v. FINCH PRUYN & CO.

July 7, 1995

CLINTON M. LAWRENCE, Plaintiff,
v.
FINCH PRUYN & COMPANY, INC., Defendant, FINCH PRUYN & COMPANY, INC., Third-Party Plaintiff, vs. ALLWASTE ENVIRONMENTAL SERVICES/NORTH ATLANTIC, INC., Third-Party Defendant.



The opinion of the court was delivered by: DAVID N. HURD

 I. Introduction.

 Plaintiff, Clinton Lawrence ("Lawrence"), commenced this action against defendant, Finch Pruyn & Company, Inc. ("Finch Pruyn"), alleging violations of Labor Law §§ 200, 240 and 241, as well as state law causes of action for negligence and nuisance. *fn1" Finch Pruyn then brought action against third-party defendant, Allwaste Environmental Services/North Atlantic, Inc. ("Allwaste").

 Both Lawrence and Finch Pruyn moved for summary judgment on the deadline for filing of dispositive motions set out by the Pretrial Scheduling Order as amended on March 1, 1995. Plaintiff seeks partial summary judgment on the issue of liability for his claim under Labor Law § 240(1). Finch Pruyn seeks dismissal of all plaintiff's claims. Allwaste did not join in or oppose either motion. Oral argument was heard on May 25, 1995, in Utica, New York.

 II. Facts.

 Lawrence was employed by Allwaste as an industrial cleaner. In the fall of 1993, Finch Pruyn and Allwaste entered into a contract where Allwaste would undertake the cleaning of the premises known as the Finch Pruyn Paper Mill, located in Glens Falls, New York. This included a special project entailing the hydroblasting of built up slag on the inside walls of the No. 6 I.D. fan. *fn2" Lawrence claims that on November 3, 1993, he entered the fan chamber and began hydroblasting the slag away from the walls. He claims "that a large piece of slag was dislodged from above him. *fn3" It fell on him and caused him to lose control of the hydroblaster. The force of water came down across his foot and caused severe injury.

 Lawrence claims that Finch Pruyn was obligated to provide some form of protective net or cover, placed above him to protect him from just such an occurrence, and that he should have been required to wear metatarsal protection to prevent his injuries.

 III. Discussion.

 A motion for summary judgment may be granted only when the moving party carries its burden of showing the absence of a genuine issue of material fact. Fed. R. Civ. P. 56; Goldman, Antonetti, Ferraiuoli, Axtmayer & Hertell, Partnership v. Medfit Int'l. Inc., 982 F.2d 686, 689 (1st Cir. 1993); Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir. 1990) (citations omitted). In other words, a motion for summary judgment pursuant to Fed. R. Civ. P. 56 shall be granted only "when the pleadings, evidence obtained through discovery, and affidavits show that there is no genuine issue as to any material fact." Lang v. Retirement Living Pub. Co., 949 F.2d 576, 580 (2d Cir. 1991).

 "Ambiguities or inferences to be drawn from the facts must be viewed in a light most favorable to the party opposing the summary judgment motion." Project Release v. Prevost, 722 F.2d 960, 968 (2d Cir. 1983). "The judge's function is not . . . to weigh the evidence and determine the truth of the matter," Anderson v. Liberty Lobby, 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986), such "is the prerogative of the finder of fact." Murphy v. Provident Mutual Life Ins. Co., 923 F.2d 923, 930 (2d Cir. 1990) (Kearse, J., dissenting), cert. denied, 502 U.S. 814, 116 L. Ed. 2d 40, 112 S. Ct. 65 (1991). Rather, the judge's role is "to determine whether there does indeed exist a genuine issue for trial." Liberty Lobby, at 249.

 Labor Law § 240(1) imposes absolute liability on owners, contractors, and agents for failing to provide adequate safety devices. N.Y. Lab. Law § 240(1) (McKinney 1986). *fn4" New York's Court of Appeals explained the reach of the statute, stating:

 
Section 240(1) imposes absolute liability on owners, contractors and their agents for any breach of the statutory duty which has proximately caused injury. The duty imposed is 'nondelegable and . . . an owner is liable for a violation of the section even though the job was performed by an independent contractor over which it exercised no supervision or control.'

 Gordon v. Eastern Ry. Supply Co., 82 N.Y.2d 555, 559, 606 N.Y.S.2d 127, 129, 626 N.E.2d 912 (1993) (quoting Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 513, 577 N.Y.S.2d 219, 221, 583 N.E.2d 932 (1991)). Here, Finch Pruyn contracted with Allwaste for the industrial cleaning of the No. 6 I.D. fan housing. It is of no consequence then, whether Finch Pruyn did or did not supervise the work or direct the manner in which the work was to be performed. Furthermore, § 240(1) precludes any defense that the injured worker was contributorily negligent. Stolt v. General Foods Corp., 81 N.Y.2d 918, 920, 597 N.Y.S.2d 650, 651, 613 N.E.2d 556 ...


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