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Salazar v. Novalex Contracting Corp.

April 1, 2010

RAUL SALAZAR, PLAINTIFF-APPELLANT,
v.
NOVALEX CONTRACTING CORP., ET AL., DEFENDANTS-RESPONDENTS. [AND A THIRD-PARTY ACTION]



Order, Supreme Court, Bronx County (Mary Ann Brigantti-Hughes, J.), entered on or about December 19, 2007, which, to the extent appealed from as limited by the briefs, granted the motion of defendants Novalex Contracting Corp., 96 Rockaway, LLC, and T-Construction Co., Inc. for summary judgment dismissing plaintiff's Labor Law § 240(1) and § 241(6) claims, reversed, on the law, without costs, the motion denied, and the claims reinstated.

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.

Mazzarelli, J.P., Friedman, Moskowitz, Acosta, JJ.

21604/04

Plaintiff was injured while he was spreading freshly poured concrete in the basement of a building that was being renovated. He fell into an open trench while walking backwards and using a tool to smooth out the concrete. Although his torso remained at floor level, his entire right leg went into the trench. According to plaintiff, the room in which the accident occurred contained several trenches. He testified that the trench he fell into was approximately 4 feet deep, 2 feet wide and between 10 and 15 feet long. A representative of defendant Novalex Contracting Corp., the general contractor, stated that there was only one continuous trench, which branched off in several directions. That witness testified that the depth of the trench varied from one foot to three feet and that it was two feet wide. He stated that the trench had been dug so that another contractor could lay underground piping for the building's sanitary system.

Part of plaintiff's task was to spread concrete that was to be poured into and over the trenches. However, he testified that when the accident occurred, he was spreading concrete on the floor and was not attempting to spread concrete in or into any trench. Indeed, he did not know that a trench was behind him when he fell.

Defendant T-Construction Co., Inc., plaintiff's employer,*fn1 moved for summary judgment dismissing the complaint as against it. As is pertinent to this appeal, it argued that the evidence established that it did not violate Labor Law § 240(1) and 241(6). With regard to section 240(1), the employer maintained that the trench into which plaintiff fell was not an elevation-related hazard and that it was just one of the usual and ordinary dangers associated with a construction site. With regard to section 241(6), the employer asserted that none of the predicate Industrial Code provisions cited by plaintiff, including 12 NYCRR § 23-1.7(b)(1), governing "hazardous openings," applied to the facts of this case.

The owner, 96 Rockaway, LLC, and general contractor cross-moved for summary judgment. Both expressly adopted the employer's arguments regarding Labor Law § 240(1) and § 241(6).

The motion court found that section 240(1) did not apply because the "accident did not result from a fall from a significant height or gravity related risk that could have been prevented with the use of one of [the] protective devices enumerated in the statute." The court further found that Industrial Code (12 NYCRR) § 23-1.7(b), upon which the section 241(6) claim was predicated, did not apply because plaintiff "did not fall through an opening to a level below."

Carpio v Tishman Constr. Corp. of N.Y. (240 AD2d 234 [1997]) involved facts similar to those of this case. There, the plaintiff was extending a paint roller that he was going to use to paint a ceiling. As he was looking up at the ceiling, his leg fell three feet down a 10- to 14-inch-wide shaft in the surface of the floor. This Court awarded him summary judgment on his Labor Law § 240(1) claim. Relying in part on "common sense," we observed that the risk of injury to the plaintiff was "gravity-related" because it was created by "the difference between the elevation level of the required work' . . . and a lower level'" (240 AD2d at 235, quoting Rocovich v Consolidated Edison Co., 78 NY2d 509, 514 [1991]).

Here, the basement floor on which plaintiff was walking immediately before his accident was equivalent to the floor on which the plaintiff in Carpio was standing before he fell. The bottom of the trench into which plaintiff fell is no different from the bottom of the shaft in Carpio. Because the risk in this case was elevation-related, as in Carpio, Labor Law § 240 applies, and it was error for the motion court to dismiss plaintiff's claim under that section.

The holdings in Rocovich v Consolidated Edison Co. (78 NY2d 509 [1991], supra) and Toefer v Long Is. R.R. (4 NY3d 399 [2005]) do not alter this conclusion. In Rocovich, the Court of Appeals found that there was no liability under Labor Law § 240 because it was "difficult to imagine how plaintiff's proximity to" a 12-inch deep, 18- to 36-inch-wide trough carrying a stream of hot oil "could have entailed an elevation-related risk" (78 NY2d at 514-515). Here, plaintiff's task required him to traverse a floor that contained an opening of significantly greater width and depth than that encountered in Rocovich. Indeed, in contrast to Rocovich, the bottom of the trench in this case represented a separate level, which, relative to the floor itself, surely constituted a gravity-related hazard covered by section 240, even by the standard articulated by the Court of Appeals in Rocovich (id.).

In Toefer, the Court of Appeals held that section 240 did not apply to a worker's fall from the inherently stable surface of a flatbed truck (4 NY3d at 408-409). Toefer has no bearing on this case, because there the surfaces on which the plaintiffs were working were inherently safe and a reasonable owner or contractor would not foresee that a person would fall from them. Here, it was eminently foreseeable that a worker would fall into a portion of the trench while spreading concrete on the floor.

The dissent asserts that this case is analogous to other cases in which this Court found that Labor Law ยง 240(1) did not apply. However, those cases are inapposite. In both Romeo v Property Owner (USA) LLC (61 AD3d 491 [2009]) and Geonie v OD & P NY Ltd. (50 AD3d 444 [2008]), the worker stepped into an opening in a raised "computer floor" that was created when one of the floor tiles was removed. In Romeo the opening was a mere 2 feet by 2 feet and 18 inches ...


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