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Rought v. Price Chopper Operating Company

May 27, 2010

WALTER ROUGHT, RESPONDENT,
v.
PRICE CHOPPER OPERATING COMPANY, INC., DOING BUSINESS AS PRICE CHOPPER MARKET CENTER, ET AL., APPELLANTS.



The opinion of the court was delivered by: Lahtinen, J.

MEMORANDUM AND ORDER

Calendar Date: February 10, 2010

Before: Mercure, J.P., Spain, Rose, Lahtinen and Stein, JJ.

Appeal from an order of the Supreme Court (Ledina, J.), entered April 1, 2009 in Sullivan County, which partially denied defendants' motion for summary judgment dismissing the complaint.

Plaintiff was employed as an electrician by Demco New York Corporation, a subcontractor for defendant Konover Construction Corporation, the general contractor, at a construction site owned by defendants Price Chopper Operating Company, Inc. and Golub Corporation (hereinafter collectively referred to as the owners). Demco's supervisor jerry-rigged a system to move heavy commercial wire into place by using a forklift as a power source to pull a rope over two pulleys and through a conduit mounted on the walls of the electrical room of the building under construction. The conduit included turns as it ran up to the ceiling, across the ceiling and then down on the other side of the room. The wires were initially pulled by two men from a large spool on the floor up to the electrical room more than 10 feet above. A bundle of wrapped wires was then lifted or pushed by plaintiff into the beginning of the conduit, which initially ran four feet straight up to the ceiling. The rope pulled up on the wires from inside the conduit as plaintiff stood under the conduit and pushed the bundle of wires up. When the wires reached the first turn in the conduit above plaintiff's head, the rope broke, resulting in the bundle of wires recoiling and falling back onto plaintiff, allegedly causing him to twist, fall and sustain injuries. He commenced this action against defendants alleging negligence and violations of Labor Law §§ 200, 240 (1) and § 241 (6). When defendants moved for summary judgment, Supreme Court partially granted the motion by dismissing the Labor Law § 240 (1) cause of action, but denied it as to the other causes of action. Only defendants appeal.

We turn first to defendants' contention that they should have been granted summary judgment dismissing plaintiff's Labor Law § 241 (6) cause of action. "[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact," and "the evidence produced by the movant must be viewed in the light most favorable to the nonmovant, affording the nonmovant every favorable inference" (Walton v Albany Community Dev. Agency, 279 AD2d 93, 94-95 [2001] [internal quotation marks and citations omitted]; see Sainato v City of Albany, 285 AD2d 708, 710 [2001]; Baker v International Paper Co., 226 AD2d 1007, 1008 [1996]). The pertinent provisions of the Labor Law are liberally construed to ensure safety at construction sites (see Bland v Manocherian, 66 NY2d 452, 459 [1985]). An allegation of a violation of a specific safety regulation can give rise to a viable cause of action under Labor Law § 241 (6) (see Misicki v Caradonna, 12 NY3d 511, 515 [2009]; Morris v Pavarini Constr., 9 NY3d 47, 51 [2007]; Hotaling v Corning Inc., 12 AD3d 1064, 1065 [2004]).

The allegations regarding the condition of the rope -- which had broken several times prior to the accident and was repaired with knots -- are adequate to implicate a regulation that sets forth sufficient specificity to give rise to a viable Labor Law § 241 (6) cause of action (see 12 NYCRR 23-6.2 [a] [1], [2]; see generally Morris v Pavarini Constr., 9 NY3d at 50).*fn1 Plaintiff asserted in his bill of particulars that the rope snapped under "the heavy weight and tension" and the bundled wires struck him with "great weight and force." While friction undoubtedly played a role in the rope's failure, the record reveals allegations that the danger to which plaintiff was exposed (i.e., falling wires) also had a gravity-related component. Defendants did not produce proof challenging plaintiff's characterization of the weight of the bundle of wires. Nor did they submit sufficient evidence -- expert or otherwise -- to establish as a matter of law that gravity was not a substantial contributing cause of the wires falling four feet and striking plaintiff.

The location of the wires directly above plaintiff, together with the configuration of the pulley system and the initial vertical pull of four feet, constituted adequate assertions that the wires were being hoisted when the accident occurred (see Hayden v 845 UN Ltd. Partnership, 304 AD2d 499, 500 [2003]). Since the forklift was being used as a substitute power source for hoisting and pulling materials with a rope (and not for its intended use at a job site), the general exception for forklifts (see 12 NYCRR 23-6.1 [a]) -- which are governed by other regulations (see 12 NYCRR 23-9.8) -- does not, as urged by defendants, lead to the conclusion that the hoisting regulations are totally inapplicable (cf. St. Louis v Town of N. Elba, 70 AD3d 1250, 1251 [2010]). Defendants failed to establish that they were entitled to summary judgment on the Labor Law § 241 (6) cause of action and, thus, we agree with Supreme Court's decision not to dismiss that cause of action (see Picchione v Sweet Constr. Corp., 60 AD3d 510, 512 [2009]; Giordano v Forest City Ratner Cos., 43 AD3d 1106, 1108 [2007]).

Next, we consider defendants' argument that plaintiff's Labor Law § 200 and common-law negligence causes of action should have been dismissed. In order to prevail on these claims, plaintiff "must establish that the owner or contractor both exercised supervisory control over the operation and had actual or constructive knowledge of the unsafe manner in which the work was being performed" (Lyon v Kuhn, 279 AD2d 760, 761 [2001]; see Biance v Columbia Washington Ventures, LLC, 12 AD3d 926, 927 [2004]). Here, Konover's project superintendent testified that he had been on site on the day of plaintiff's accident and he had the authority to stop the work if, in his opinion, it was not being performed in a safe manner. There also is evidence that Konover provided the forklift and pulleys being used by Demco, and that Konover's project superintendent directed Demco's workers to replace a barricade and reposition the pulleys during the operation. This evidence creates a question of fact as to whether Konover exercised the requisite supervisory control over plaintiff's work (see Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 352-353 [1998]; Detraglia v Blue Circle Cement Co., 7 AD3d 872, 874 [2004]). As for the owners, however, there is no evidence that they exercised any supervision or control over the work activity that brought about plaintiff's injury and, accordingly, the common-law negligence and Labor Law § 200 claims against them must be dismissed (see Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 877-878 [1993]; Fassett v Wegmans Food Mkts., Inc., 66 AD3d 1274, 1276 [2009]).

The remaining arguments have been considered and found to be unavailing.

Mercure, J.P., and Spain, J., concur.

Rose, J. (concurring in part and dissenting in part).

We respectfully dissent from the view that regulations meant to protect workers from the hazards of material hoisting operations should be applied to the process of installing electrical wires by fishing or pulling them through conduit. There is no evidence that the forklift, rope and pulleys employed here were actually lifting or suspending the wires that recoiled and caused plaintiff's fall.

Supreme Court correctly summarized the record regarding this issue in its discussion of the Labor Law ยง 240 (1) cause of action as follows: "Even though the forklift was on the lower floor, it was being used only to apply the force needed to pull the wires through a 90 degree angle of pipe located on the mezzanine, not raise the wires from one level to another." This finding is plainly inconsistent with the usual definition of material hoisting as the lifting or suspension of a load (see generally Hayden v 845 UN Ltd. Partnership, 304 AD2d 499, 500 [2003]; Mattison v Wilmot, 228 AD2d 991, 993 [1996], lv denied ...


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