The opinion of the court was delivered by: Herbert Kramer, J.
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 printed Official Reports.
Upon the foregoing papers, defendants New York Times Building, LLC, the New York Times Building Condominium (collectively, NYT), Turner Construction Company (Turner) and Amec Construction Management, Inc. (Amec) (collectively, defendants)*fn1 move, pursuant to CPLR 3212, for summary judgment dismissing plaintiffs' complaint. Plaintiffs John Huether (plaintiff) and Dawn Huether (collectively, plaintiffs) cross-move for partial summary judgment against NYT, Turner, and Amec under their Labor Law §§ 241 (6) and 200 causes of action.
Background Facts and Procedural History
On October 21, 2006, plaintiff sustained various injuries while unloading building supplies during the construction of the New York Times Building located on Eighth Avenue between 40th and 41st Streets in Manhattan. At the time of the accident, plaintiff was employed as a carpenter by non-party Jacobson and Company (Jacobson). Jacobson had previously been hired to perform work on the project by Turner, which shared general contracting duties with Amec. In this regard, both Turner and Amec were hired by the building owner NYT, with Amec responsible for building the exterior superstructure of the building and Turner responsible for "fitting out" the interior of the building once the outer structure was in place.
On the morning of the accident, plaintiff and two Jacobson co-workers, Joe Dickey and Sheldon Gravesande, were directed by their foreman, Robert Russolese, to unload building materials from a flatbed truck operated by defendant Kamco Supply Corp. (Kamco). Accordingly, plaintiff and his co-workers proceeded to a loading dock area on the job site where deliveries were received and began unloading materials from the truck which including some 950 pieces of drywall, 10 bundles of metal studs, and several bundles of insulation. Although the bed of the truck was level with the loading dock, there was an eight to ten inch gap between the edge of the flatbed and the loading dock due to the presence of a metal frame on the back of the truck which made it impossible to back up the truck until it was flush with the loading dock.*fn2
While unloading the metal studs and insulation, the workers merely stepped over the gap between the truck bed and loading dock. However, when the time came to unload the drywall, it was necessary to bridge the gap since the drywall was unloaded using a four-wheeled A-frame dolly. Specifically, the workers placed 16 to 18 pieces of drywall onto the dolly and then rolled it off the back of the truck onto the loading dock. Accordingly, the workers placed a heavy steel plate measuring approximately 24 inches by 36 inches over the gap and began removing the drywall from the truck using the dolly. It is undisputed that the plate was not secured to the truck or the loading dock. Instead, the plate was held in place only by its own weight.
The accident occurred after approximately two-thirds of the drywall had been unloaded from the truck. In particular, as plaintiff and two co-workers attempted to push the dolly over the metal plate onto the loading dock, the front wheels of the dolly struck the plate and caused it move and fall into the gap. As a result, the two front wheels went into the gap and the dolly tipped to the side. After briefly attempting to hold the dolly upright, plaintiff jumped out of the way onto the loading dock. However, the dolly and its load of drywall, which weighed an estimated 1000 pounds, collapsed on top of plaintiff and crushed his right leg. According to Mr. Russolese's sworn affidavit, following the accident, Jacobson supplied its own plate for unloading operations which was fitted with angle irons to prevent the plate from slipping. However, the driver of the Kamco truck, Joseph Jupiter, testified that following the accident, Jacobson workers secured the plate by nailing it to the wooden floor of the flatbed truck in order to prevent the plate from moving.
By summons and complaint dated November 13, 2006, plaintiffs commenced the instant action against defendants and Kamco alleging violations of Labor Law §§ 240 (1), 241 (6), 200, as well as common-law negligence. In addition, plaintiff's wife, Dawn Huether, asserted a derivative claim against defendants. In subsequent bills of particulars, plaintiffs alleged violations of 12 NYCRR 23-1.22, 1.2, 1.3, and 1.5 in support of their Labor Law § 241 (6) claim.
On August 25, 2008, plaintiffs filed a note of issue. Thereafter, defendants moved to strike the note of issue so as to allow them the opportunity to depose plaintiff's non-party co-workers who witnessed the accident. While that motion was pending, on or about October 27, 2008, defendants made the instant summary judgment motion seeking dismissal of plaintiffs' complaint. On November 17, 2008, defendants' motion to strike the note of issue was heard by Justice Balter in the Central Compliance Part. After hearing oral arguments, Justice Balter issued a short form order which denied defendants motion to strike the note of issue but granted their motion for open commissions to conduct the non-party depositions of plaintiffs' co-workers. Justice Balter further denied defendants' motion to extend the time to serve dispositive motions.*fn3
On November 14, 2008, plaintiffs served a supplemental bill of particulars in which they alleged a violation of 12 NYCRR 23-1.7(b)(1) in support of their Labor Law § 241 (6) claim. On November 21, 2008, plaintiffs' cross-moved for partial summary judgment against defendants under their Labor Law §§ 241 (6) and 200 causes of action. In moving for summary judgment under Labor Law § 241 (6), plaintiffs relied upon alleged violations of 12 NYCRR 23-1.22(b)(1), 23-1.22(b)(3), and 23-1.7(b)(1)(i). Thereafter, defendants made a cross motion which (again) sought dismissal of plaintiffs Labor Law § 241 (6). In this regard, the cross motion addressed plaintiffs' reliance upon a violation of 23-1.7(b)(1)(i), which had not been alleged at the time defendants originally moved for summary judgment.*fn4 The instant motions are now before the court.
Plaintiffs' Labor Law § 240 (1) Claim
Defendants move for summary judgment dismissing plaintiffs' Labor Law § 240 (1) claim. In so moving, defendants argue that plaintiff's accident did not involve the type of extraordinary gravity-related risks covered under the statute. In support of this argument, defendants point to the fact that plaintiff neither fell from a height, nor was he struck by a falling object. Instead, plaintiff was injured when a dolly loaded with drywall that was at the same level as him tipped over onto his right leg. According to defendants, this accident falls outside the purview of Labor Law § 240 (1).
Plaintiffs have failed to offer any opposition to that branch of defendants' motion which seeks dismissal of their Labor Law § 240 (1) claim. Moreover, at oral argument on the motions, plaintiffs attorney conceded that the statute is not applicable inasmuch as the accident was not gravity-related for purposes of Labor Law § 240 (1). Accordingly, ...