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Gasques v. State of New York

February 24, 2009

WANDERLEI GASQUES, ET AL., APPELLANTS,
v.
STATE OF NEW YORK, RESPONDENT. (CLAIM NO. 108518)



In a claim to recover damages for personal injuries, etc., the claimants appeal from an order of the Court of Claims (Waldon, J.), dated September 6, 2006, which granted the defendant's motion for summary judgment dismissing the claim.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

STEVEN W. FISHER, J.P., MARK C. DILLON, WILLIAM E. McCARTHY and ARIEL E. BELEN, JJ.

DECISION & ORDER

ORDERED that the order is modified, on the law, by deleting the provision thereof granting those branches of the defendant's motion which were for summary judgment dismissing the Labor Law § 200 and common-law negligence claims, and substituting therefor a provision denying those branches of the motion; as so modified, the order is affirmed, without costs or disbursements.

The injured claimant, while ascending the Brooklyn tower of the Koscuiszko Bridge on a two-point suspension scaffold, sustained injuries when he stopped the scaffold, and his hand was crushed between the motor control of the scaffold and the steel of the bridge. The injured claimant and his wife (hereinafter the claimants) brought the instant claim alleging violations of Labor Law §§ 240(1), 241(6), and 200, and common-law negligence.

"Labor Law § 240(1) provides exceptional protection for workers against the special hazards that arise when the work site itself is either elevated or is positioned below the level where materials or load are being hoisted or secured" (Natale v City of New York, 33 AD3d 772, 773-774; see Narducci v Manhasset Bay Assoc., 96 NY2d 259, 267-268). "These special hazards do not encompass any and all perils that may be connected in some tangential way with the effects of gravity. Rather, they are limited to such specific gravity-related accidents as falling from a height or being struck by a falling object that was improperly hoisted or inadequately secured" (Gonzalez v Turner Constr. Co., 29 AD3d 630, 631).

The defendant made a prima facie showing of entitlement to judgment as a matter of law dismissing the Labor Law § 240(1) claim by demonstrating that the injured claimant's injury, while tangentially related to the effects of gravity, was not caused by the limited type of elevation-related hazards encompassed by the statute (see Sajid v Tribeca N. Assoc. L.P., 20 AD3d 301; O'Brien v Triborough Bridge & Tunnel Auth., 17 AD3d 105; Zdunczyk v Ginther, 15 AD3d 574). In opposition, the claimants failed to raise a triable issue of fact.

Labor Law § 200 is a codification of the common-law duty imposed on owners and contractors to provide workers with a safe place to work (see Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 352). "This provision applies to owners, contractors, and their agents" (Romang v Welsbach Elec. Corp., 47 AD3d 789, 789). The accident here stems not "from a dangerous condition on the premises" (Keating v Nanuet Bd. of Educ., 40 AD3d 706, 708), but from the manner in which the work was being performed (id.). To be held liable under Labor Law § 200 and for common-law negligence when the method and manner of the work is at issue, it must be shown that "the party to be charged had the authority to supervise or control the performance of the work" (Ortega v Puccia, 57 AD3d 54, 61; see Chowdhury v Rodriguez, 57 AD3d 121). While the right to generally supervise the work, stop the contractor's work if a safety violation is noted, or to ensure compliance with safety regulations and contract specifications is insufficient to impose liability under Labor Law § 200 or for common-law negligence (see McLeod v Corporation of Presiding Bishop of Church of Jesus Christ of Latter Day Sts., 41 AD3d 796, 798; Peay v New York City School Constr. Auth., 35 AD3d 566, 567; Warnitz v Liro Group, 254 AD2d 411), the defendant, on the record before us, failed to make a prima facie showing that it did not have the authority to control the manner in which the plaintiff's work was performed (see Hurtado v Interstate Materials Corp., 56 AD3d 722).

12 NYCRR 23-1.5(c)(1) is a general safety standard, which is an insufficient predicate for liability under Labor Law § 241(6) (see Maday v Gabe's Contr., LLC, 20 AD3d 513; Sparkes v Berger, 11 AD3d 601; Madir v 21-23 Maiden Lane Realty, LLC, 9 AD3d 450). Therefore, the defendant met its prima facie burden of establishing its entitlement to summary judgment dismissing the Labor Law § 241(6) claim by showing that the claimants failed to allege the violation of a sufficiently specific Industrial Code provision. In opposition, the claimants failed to raise a triable issue of fact.

Accordingly, the Court of Claims properly granted those branches of the defendant's motion which were for summary judgment dismissing the Labor Law §§ 240(1) and 241(6) claims and erred in granting those branches of the defendant's motion which were for summary judgment dismissing the Labor Law § 200 and common-law negligence claims.

FISHER, J.P., DILLON and McCARTHY, JJ., concur.

BELEN, J., concurs in part and dissents in part and votes to modify the order by deleting the provisions thereof granting those branches of the defendant's motion which were for summary judgment dismissing the Labor Law §§ 200 and 240(1) claims and the common-law negligence claim, and substituting therefor provisions denying those branches of the motion, and, as so modified, to affirm the order, with the following memorandum:

I respectfully dissent. While I concur with the majority that the Labor Law § 241(6) claim must be dismissed, and that the Labor Law § 200 and common-law negligence claims should not be dismissed, I disagree with the majority's dismissal of the Labor Law § 240(1) claim, and its conclusion ...


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