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Guenther v. Modern Continental Companies

August 1, 2007

DENNIS GUENTHER AND DEBORAH GUENTHER, PLAINTIFFS,
v.
MODERN CONTINENTAL COMPANIES, MODERN CONTINENTAL CONSTRUCTION CO. OF NEW YORK, INC., MODERN CONTINENTAL CONSTRUCTION CO., INC., THE HALLEN CONSTRUCTION CO., INC., AND STONE & WEBSTER, INC., DEFENDANTS.



The opinion of the court was delivered by: Ramon E. Reyes, Jr., U.S.M.J.

OPINION

Plaintiff Dennis Guenther ("Guenther" or "plaintiff") brought this action against defendants Modern Continental Companies, Modern Continental Construction Co. of New York, Inc., Modern Continental Construction Co., Inc., The Hallen Construction Co., Inc. ("Hallen"), and Stone & Webster, Inc. ("S & W") for violations of the New York Labor Law §§ 200, 240, and 241.*fn1 This Court has subject matter jurisdiction over the action based on diversity of citizenship. See 28 U.S.C. § 1332(a)(1). Before the Court is S & W's motion for partial summary judgment. The parties have consented to have me decide this motion pursuant to 28 U.S.C. § 636(c)(1). For the reasons set forth below, S & W's motion for partial summary judgment is granted in part and denied in part.

Facts

Guenther claims he sustained injuries on May 22, 2003, while working at the Hunts Points Facility-Eastchester Extension located in Bronx, New York. Statement of Material Undisputed Facts ("Def's 56.1 Stmt") ¶¶ 1-2; Plaintiffs' Response to Defendant/Third Party Defendant's Statement of Undisputed Material Facts ("Pls' 56.1 Response") ¶¶ 1-2. Con Edison was the owner of the construction site, and Iroquois Gas Transmission System, L.P. ("Iroquois") was the project owner. Def's 56.1 Stmt ¶ 4; Pls' 56.1 Response ¶ 4. Iroquois contracted with S & W to perform work on the site. Def's 56.1 Stmt ¶ 6; Pls' 56.1 Response ¶ 6. Iroquois also contracted with Hallen to be the general contractor on the site. Def's 56.1 Stmt ¶¶ 5, 7; Pls' 56.1 Response ¶¶ 5, 7. Hallen then contracted with plaintiff's employer at the time, Spearin, Preston & Burrows ("Spearin"), to drive piles into the ground.*fn2 Def's 56.1 Stmt ¶¶ 1, 7; Pls' 56.1 Response ¶¶ 1, 7.

At the time of his alleged injuries, plaintiff was performing work called "monking." Def's 56.1 Stmt ¶ 1; Pls' 56.1 Response ¶ 1. Plaintiff's work required him to position the pile so that the crane could drive the pile into the ground. Def's 56.1 Stmt ¶ 1; Pls' 56.1 Response ¶ 1. A device called a hammer was attached to the crane to drive the pile into the ground. Def's 56.1 Stmt ¶ 3; Pls' 56.1 Response ¶ 3. Plaintiff's alleged injuries occurred when a portion of the hammer struck him. Def's 56.1 Stmt ¶ 3; Pls' 56.1 Response ¶ 3.

Discussion

I. Summary Judgment Standard

A motion for summary judgment will be granted where there is no genuine issue as to any material fact and it is clear that the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The burden is on the moving party to demonstrate the absence of a genuine issue of material fact. Am. Int'l Group, Inc. v. London Am. Int'l Corp., 664 F.2d 348, 351 (2d Cir. 1981). In addition, the court must resolve all ambiguities and draw all reasonable inferences in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). If, however, the opposing party fails to make a showing of an essential element of its case for which it bears the burden of proof, summary judgment will be granted. Celotex, 477 U.S. at 323; Smith v. Half Hollow Hill Cent. Sch. Dist., 349 F. Supp. 2d 521, 524 (E.D.N.Y. 2004).

To overcome a motion for summary judgment, the opposing party must show that there is an issue of material fact in dispute. That is, the disputed fact must be one which "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 242. If the opposing party does not set forth specific facts showing that there is a genuine issue for trial, summary judgment is appropriate. FED. R. CIV. P. 56(c).

II. Plaintiff's New York Labor Law § 200 Claim Does Not Survive Summary Judgment

S & W contends that under New York Labor Law § 200 it is not liable for plaintiff's injuries because there is no evidence that it was involved in the work plaintiff was performing when he was injured. Plaintiff concedes that S & W did not direct his work. However, plaintiff contends that S & W is liable because S & W had the duty to ensure all contractors complied with the relevant safety regulations.

Section 200 of New York Labor Law provides that:

All places to which this chapter applies shall be so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein or lawfully frequenting such places. All machinery, equipment, and devices in such places shall be so placed, operated, guarded, and lighted as to provide reasonable and adequate protection to all such persons . . . .

N.Y. LAB. LAW § 200 (2007). This statute codified "the common-law duty imposed upon an owner or general contractor to maintain a safe construction site." Rizzuto v. L.A. Wenger Contracting Co., 91 N.Y.2d 343, 352, 693 N.E.2d 1068, 1073 (1998). Liability under § 200 also extends to agents of the owner and general contractor. Everitt v. Nozkowski, 728 N.Y.S.2d 58, 60 (2d Dept. 1994). In order to be liable, "the party charged . . . [must] have the authority to control the activity bringing about the injury to ...


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