Appeals and cross appeal from a judgment of the Supreme Court, Oswego County (Norman W. Seiter, Jr., J.), entered April 24, 2009. The judgment, among other things, granted defendant/third-party plaintiff Barrett Paving Materials, Inc.'s motion for summary judgment in action No. 1 and denied defendant Colony Insurance Company's motion for summary judgment in action No. 2.
Timmons v Barrett Paving Materials, Inc.
Appellate Division, Fourth Department 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.
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, LINDLEY, AND MARTOCHE, JJ.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.
Plaintiffs Joseph Timmons and Jennifer Timmons (Timmmons plaintiffs) commenced action No. 1 alleging, inter alia, Labor Law violations based on injuries sustained by Joseph Timmons (Timmons) when he was struck by a metal catwalk while working on property owned by Barrett Paving Materials, Inc. (Barrett), the defendant in action No. 1. Barrett in turn commenced a third-party action against Timmons' employer, Schneider Brothers Corporation (Schneider), seeking a declaration that Schneider was obligated to defend and indemnify it in action No. 1 and that it was an additional insured under a commercial general liability policy issued to Schneider by Colony Insurance Company (Colony). Thereafter, Barrett commenced action No. 2 against Colony, the defendant in that action, seeking, inter alia, a declaration that it is an additional insured under the policy issued to Schneider.
In action No. 1, Barrett moved, inter alia, for summary judgment dismissing the Labor Law § 240 (1), § 241 (6) and § 200 claims against it, as well as the separate Labor Law § 241 (6) cause of action against it, and for judgment in the third-party action declaring that Schneider must defend and indemnify it in the Timmons action. Supreme Court granted those parts of the motion with respect to the Labor Law and, although the Timmons plaintiffs also asserted a cause of action for common-law negligence, the court, apparently sua sponte, dismissed the complaint in its entirety. We note that the Timmons plaintiffs do not contend on appeal that Barrett did not seek that relief with respect to the common-law negligence cause of action, nor do they contend that Barrett was not entitled to it. The Timmons plaintiffs thus are deemed to have abandoned any contention with respect to the alleged viability of the common-law negligence cause of action (see Ciesinski v Town of Aurora, 202 AD2d 984).
Contrary to the Timmons plaintiffs' contention, the court properly granted that part of the motion with respect to Labor Law § 240 (1). It is well settled that Labor Law § 240 (1) "was designed to prevent those types of accidents in which the scaffold, hoist, stay, ladder or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person" (Runner v New York Stock Exch., Inc., 13 NY3d 599, 604, quoting Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501). "[F]or section 240 (1) to apply, a plaintiff must show more than simply that an object fell causing injury to a worker. A plaintiff must show that the object fell, while being hoisted or secured, because of the absence or inadequacy of a safety device of the kind enumerated in the statute" (Narducci v Manhasset Bay Assoc., 96 NY2d 259, 268).
Here, the record establishes that, prior to the accident, Timmons and a co-worker had tack-welded the catwalk to a building, following which the workers noticed that the outside portion of the catwalk was slightly higher than the inside portion. Timmons' co-worker attempted to level the catwalk by pushing down on it with a manlift while Timmons, who was standing on a lower catwalk, prepared to weld a support gussett underneath the tack-welded catwalk. As a result of the pressure exerted on the catwalk by the manlift, the tack-weld on the portion of the catwalk closest to Timmons broke and that end of the catwalk fell, striking Timmons in the head and pinning him between the upper catwalk and the handrail of the lower catwalk. "Since the [catwalk] was not an object being hoisted or secured, Labor Law § 240 (1) does not apply" (id. at 269; see Bennett v SDS Holdings, 309 AD2d 1212, 1213). We thus conclude that Timmons was "exposed to the usual and ordinary dangers of a construction site, and not the extraordinary elevation risks envisioned by Labor Law § 240 (1)" (Rodriguez v Margaret Tietz Ctr. for Nursing Care, 84 NY2d 841, 843).
With respect to Labor Law § 241 (6), the court properly concluded that the Industrial Code regulations relied upon by the Timmons plaintiffs are either insufficiently specific to support such a claim or cause of action or are inapplicable to the facts of this case. 12 NYCRR 23-1.5 "sets forth only a general safety standard and is thus incapable of supporting a Labor Law § 241 (6) claim" or cause of action (McCormick v 257 W. Genesee, LLC, 78 AD3d 1581, 1583 [internal quotation marks omitted]; see Wilson v Niagara Univ., 43 AD3d 1292, 1293). In addition, 12 NYCRR 23-1.7 (a) does not apply here because there is no evidence that the area in which Timmons was working was "normally exposed to falling material or objects" within the meaning of that section (12 NYCRR 23-1.7 [a] ; see Perillo v Lehigh Constr. Group, Inc., 17 AD3d 1136, 1138). Lastly, 12 NYCRR 23-2.3 also has no application to this case because it regulates "the final placing of structural steel members" (12 NYCRR 23-2.3 [a] ), which was not the task in which Timmons was engaged at the time of his accident (see Smith v Le Frois Dev., LLC, 28 AD3d 1133, 1134). In any event, even if the upper catwalk was a "structural steel member," 12 NYCRR 23-2.3 (a) (1) "does not require that hoisting ...