Benedict P. Morelli & Associates, New York City (David S. Ratner of counsel), for plaintiffs.
Mead, Hecht, Conklin & Gallagher, White Plains, for defendants.
Paul A. Victor, J.
Plaintiffs' motion to reargue a motion for summary judgment is granted, and on reargument, the Court determines as follows:
Background and Procedural History
Plaintiff, an employee of a subcontractor, was injured on July 10, 1998, when he fell from a platform which was at an elevation above 20 feet, at the exterior of the third floor of a building then under construction as part of the 42nd Street redevelopment project in New York City. Plaintiff claims that he lost his balance as he pulled a beam toward himself, and fell from the platform, both because it was not equipped with a safety railing as required by subdivision (2) of section 240 of the Labor Law, and because he was not otherwise provided with " proper protection," as required by subdivision (1) of section 240 of the Labor Law.
Defendants claim that the plaintiff was not working on a traditional scaffold, but rather, on a platform which was itself part of a " shoring system," comprised of interlocking horizontal and vertical pipes, which had been erected beyond the exterior of the building to facilitate the pouring of concrete. The shoring system was being dismantled at the time of the accident. Prior to the accident, the shoring system was allegedly equipped with guardrails, but it was necessary to remove the guardrails during the dismantling process. It is not disputed that at the time of the accident plaintiff had not been provided with any alternate safety personal fall arrest system, such as a safety harness, a lifeline, or safety netting.
Plaintiffs commenced this action alleging various causes of action based on common-law negligence as well as on alleged
violations of sections 200, 240 (1) and 241 (6) of the Labor Law. Plaintiffs now move to amend the pleadings and the bill of particulars to include a claim under section 240 (2), and for summary judgment against all defendants based only on alleged violations of subdivisions (1) and (2) of Labor Law § 240.
Amendment of Pleadings and Bill of Particulars
Plaintiffs seek to amend the pleadings and bill of particulars to assert an absolute liability claim pursuant to subdivision (2) of section 240 of the Labor Law, which provides generally that scaffolding more than 20 feet from the ground must be equipped with a safety rail. Plaintiffs argue that since there were no guardrails on the scaffold and the plaintiff fell from a height in excess of 20 feet, the plaintiffs are entitled to summary judgment. (Rose v Mount Ebo Assocs., 170 A.D.2d 766 [3d Dept. 1991].) Although this precise theory of recovery was not specifically raised in the prior pleadings and papers, the plaintiffs have always maintained that the platform was above 20 feet and lacked a safety rail. Consequently, any error by plaintiffs in failing to specify a violation of Labor Law § 240 (2) is both nonprejudicial and excusable. (CPLR 3025 [b]; Ganci v Port Auth. Trans-Hudson Corp., 258 A.D.2d 386 [1st Dept. 1999]; Napolitano v DGM-I Corp., 255 A.D.2d 567 [2d Dept. 1998].) However, although the motion to amend the pleadings and bill of particulars is granted, for the reasons set forth below, the plaintiffs' motion for summary judgment pursuant to Labor Law § 240 (2) is denied.
A. Core Objective of Section 240 as It Relates to ...