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Patrick Naughton, Jr., Plaintiff-Appellant-Respondent v. the City of New York

February 23, 2012

PATRICK NAUGHTON, JR., PLAINTIFF-APPELLANT-RESPONDENT,
v.
THE CITY OF NEW YORK, DEFENDANT, PETROCELLI CONSTRUCTION, INC., DEFENDANT-RESPONDENT-APPELLANT. PETROCELLI CONSTRUCTION, INC., THIRD-PARTY PLAINTIFF- RESPONDENT-APPELLANT,
W & W GLASS SYSTEMS, INC. THIRD-PARTY DEFENDANT- RESPONDENT-RESPONDENT,
METAL SALES CO., INC., THIRD-PARTY DEFENDANT- RESPONDENT-APPELLANT.



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

Naughton v City of New York

Richter, 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 Official Reports.

Decided on February 23, 2012

Luis A. Gonzalez,P.J. David Friedman Karla Moskowitz Rolando T. Acosta Rosalyn H. Richter, JJ.

Appeals from the order of the Supreme Court, New York County (Martin Shulman, J.), entered on or about December 2, 2010, which, insofar as appealed from as limited by the briefs, denied plaintiff's motion for partial summary judgment on his Labor Law § 240(1) claim, granted the cross motions of defendant Petrocelli Construction, Inc. and third-party defendants W & W Glass Systems, Inc. and Metal Sales Co., Inc. for summary judgment dismissing plaintiff's Labor Law § 240(1) and § 241(6) claims, denied Petrocelli's cross motion for summary judgment on its common-law and contractual indemnification claims against W & W Glass Systems, and for contractual indemnification against Metal Sales, granted W & W Glass's cross motion for summary judgment dismissing Petrocelli's claims for common law and contractual indemnification against it, granted Metal Sales's cross motion for summary judgment dismissing Petrocelli's claim for contractual indemnification against it, and granted W & W Glass's cross motion for contractual indemnification against Metal Sales as to liability, and from the order of the same court and Justice, entered April 12, 2011, which granted plaintiff's motion to reargue, and, upon reargument, adhered to the prior order.

In this Labor Law action, plaintiff alleges that he was injured when he fell approximately 15 feet to the ground while unloading bundles of curtain wall panels off a flatbed truck. The panels were part of a renovation project of the Family Court building in Lower Manhattan, and were to be used for the building's facade. Defendant Petrocelli Construction, Inc. was the general construction contractor for the job. Petrocelli retained third-party defendant W & W Glass Systems, Inc. to perform all curtain wall, glass and stone work. W & W Glass, in turn, subcontracted the unloading and installation of the curtain wall panels to third-party defendant Metal Sales Co., Inc., plaintiff's employer.

On the day of the accident, six bundles of curtain wall panels arrived at the work site on a flatbed truck. Each bundle was approximately 10 feet long, 4 feet wide and 10 feet tall. Plaintiff was instructed by his supervisor to climb on top of the bundles, attach each bundle to a crane and make sure the bundles stayed apart while they were hoisted to a sidewalk bridge above. When plaintiff asked his supervisor for a ladder, he was told that a ladder was not needed, and that instead he should climb up the side of the bundles. Plaintiff explained to his supervisor that he did not like being on top of the bundles without a ladder because there was no way to "get out of there." Despite his protestations, plaintiff was not provided with a ladder.

Plaintiff then climbed to the top of one of the bundles, which was 10-11 feet above the flatbed surface and 15-16 feet above the ground. Plaintiff explained that it was necessary to work on top of the bundles so that he could attach the chokers to the corners and ensure that the bundles did not interfere with each other while being hoisted. Two of plaintiff's co-workers were standing on the street below holding tag lines attached to the bottom of the bundles to control their movement. While standing on an adjacent bundle, plaintiff rigged one of the bundles, and the crane operator began to lift the load. After the load had been lifted several feet, one of the tag lines "got slack," and the bundle began to swing toward plaintiff. According to plaintiff, he retreated as far as he could looking for an escape route, but the bundle hit him and knocked him down 15 feet to the street below.

Plaintiff brought this action alleging violations of, inter alia, Labor Law § 240(1) and § 241(6). Petrocelli commenced a third-party action against W & W Glass and Metal Sales seeking contractual and common-law indemnification, and W & W Glass asserted a cross claim against Metal Sales for contractual indemnification. The parties then filed various motions seeking summary judgment. By a decision entered on or about December 2, 2010, the motion court dismissed plaintiff's § 240(1) claim, concluding that Petrocelli was not a general contractor or agent under the Labor Law. The court also dismissed the § 241(6) claim finding that the Industrial Code provision relied upon by plaintiff was not specific enough. As for the indemnification claims, the court dismissed Petrocelli's claims for common-law and contractual indemnification against W & W Glass and for contractual indemnification against Metal Sales, and granted W & W Glass's cross motion for contractual indemnification against Metal Sales. These appeals followed.

The motion court should have granted summary judgment to plaintiff on his Labor Law § 240(1) claim. Under that section, owners, general contractors and their agents have "a non-delegable duty to provide safety devices necessary to protect workers from risks inherent in elevated work sites" (McCarthy v Turner Constr., Inc., 17 NY3d 369, 374 [2011]). To establish liability on a Labor Law § 240(1) cause of action, a plaintiff is required to show that the statute was violated and that the violation was a proximate cause of his injuries (Harris v City of New York, 83 AD3d 104, 108 [2011]).

Here, plaintiff asked his supervisor for a ladder but was told that one was not needed. He specifically explained to the supervisor that he did not like being on top of the bundles without a ladder because there was no way to get down. Plaintiff testified that when the bundle started swinging toward him, he retreated. Since there was no ladder, he had no way to get off the bundles. Thus, plaintiff has established that the absence of a ladder was a proximate cause of the accident. Since Petrocelli and third-party defendants (defendants) point to no evidence challenging or contradicting plaintiff's assertions, plaintiff should have been granted summary judgment on his § 240(1) claim (see e.g. Roman v Hudson Tel Assoc., 11 AD3d 346 [2004]).

Aside from Petrocelli's liability for failing to provide a ladder to prevent plaintiff's fall, Petrocelli is independently liable under § 240(1) for failing to provide a secure method of hoisting the bundles. In addition to "falling worker" cases, Labor Law § 240(1) applies where a plaintiff is struck by a falling object that was improperly hoisted or inadequately secured (see Runner v New York Stock Exch., Inc., 13 NY3d 599, 604). Thus, § 240(1) "was designed to prevent those types of accidents in which the . . . hoist . . . proved inadequate to shield ...


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