Fabrizi v 1095 Ave. of the Ams., L.L.C.
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 September 18, 2012
Tom, J.P., Moskowitz, Richter, Abdus-Salaam, Roman, JJ.
Order, Supreme Court, New York County (Emily Jane Goodman, J.), entered June 9, 2011, which, to the extent appealed from, denied defendants 1095 Avenue of the Americas, L.L.C. and J.T. Magen Construction Company, Inc.'s motion for summary judgment dismissing the Labor Law § 240(1) claim as against them, and granted plaintiff's motion for summary judgment on the issue of said defendants and defendant Dechert LLP's liability under § 240(1), modified, on the law, to deny plaintiff's motion, and otherwise affirmed, without costs.
Plaintiff, an electrician employed by nonparty Forest Electric Corp., was working at a job site where the general contractor was gutting and remodeling a commercial space. He was injured when he was struck in the hand by a piece of galvanized steel conduit pipe. The pipe had been attached to another piece of pipe by a compression coupling at the ceiling before it fell. At the time of the accident, plaintiff was engaged in moving a pool box (also called a pencil box), a device used to access telecommunication wires. The box was connected to a section of conduit piping running from the floor to the ceiling, as well as to a support system known as Kindorf supports. After cutting the conduit to remove the pencil box, plaintiff kneeled down to drill into the floor in order to reposition the conduit and the pencil box, when the piece of conduit that was secured to the other pipe came loose and fell upon him.
Contrary to defendants' argument, adopted by Justice Tom in his dissent (the dissent), the facts in this case are not outside the scope of Labor Law § 240(1). Plaintiff claims that he requested and should have been provided with a set screw coupling to secure the conduit pipe to the ceiling and that defendants' failure to provide this protective device was a proximate cause of his accident. Defendants assert that in light of the Kindorf support system and compression coupling that attached the conduit to the ceiling, no protective devices were called for. However, neither of these positions was demonstrated as a matter of law. Thus, summary judgment is not warranted in favor of either side.
The dissent misconstrues plaintiff's claim when it asserts that plaintiff's theory of recovery is flawed because Labor Law § 240(1) has no application to the type of component part that plaintiff claims his employer should have used to assemble the conduit system. Plaintiff does not maintain that the conduit system was assembled in an unsafe manner. Rather, plaintiff's testimony is that when directed to move the pool box, he requested a set screw coupling to secure the pipe to prevent the pipe from falling during the disassembly, and that the failure of defendants to provide this device was a proximate cause of his accident. As to the dissent's observation that it is unclear whether we adopt plaintiff's position, we find an issue of fact as to whether defendants failed to provide a protective device (Wilinski v 334 E. 92nd Hous. Dev. Fund Corp., 18 NY3d 1, 11  ["whether plaintiff's injuries were proximately caused by the lack of a safety device of the kind required by statute is an issue for a trier of fact to determine"]).*fn1
The dissent cites Narducci v Manhasset Bay Assoc. (96 NY2d 259, 268 ), which states that "for section 240(1) to apply, ". . . [a] plaintiff must show that the object fell [ ] while being hoisted or secured." However, it is clear from another portion of that decision, as well as from subsequent case law, that section 240(1) is not limited to that situation. The Narducci Court observed that "the glass that fell on plaintiff was not a material being hoisted or a load that required securing for the purposes of the undertaking at the time it fell" (emphasis added). In Quattrocchi v F.J. Sciame Constr. Corp. (11 NY3d 757, 758 ), a case where plaintiff was struck by falling planks that had been placed over open doors, the Court stated outright that " falling object' liability under Labor Law § 240(1) is not limited to cases in which the falling object is in the process of being hoisted or secured." In Wilinski (18 NY3d at 10), citing Quattrocchi, the Court held that the plaintiff was not precluded from recovery under section 240(1) "simply because he and the pipes that struck him were on the same level."
Furthermore, the dissent's analogy to Narducci is inapt. In that case, the plaintiff was injured when glass fell from a window that was not being worked on during the renovation but was part of the pre-existing building structure. In contrast, here, plaintiff's employer had been engaged in overhauling the building's electrical system, and at the time of the accident, plaintiff had been doing conduit work and installation of pool boxes. Following the completion of the work, the general contractor issued a change order, directing the relocation of the pool box. Thus, plaintiff was not injured by a part of the pre-existing structure unrelated to the work he was performing but was injured by the apparatus that had been installed by his employer and was being relocated.
The dissent also posits two different methods by which plaintiff could have performed the work that would have eliminated any possibility that the hanging conduit would fall. However, "no evidence, expert or lay, was submitted that either of these options were appropriate" (Cordeiro v TS Midtown Holdings, LLC, 87 AD3d 904, 905 ).*fn2 All concur except Roman, J. who concurs in part and dissents in part in a memorandum, and Tom, J.P. who dissents in a memorandum as follows: ROMAN, J. (concurring in part and dissenting in part)
While I agree with the majority's position that the accident here falls within the ambit of Labor Law § 240(1) and that questions of fact preclude summary judgment in favor of any of the parties on plaintiff's Labor Law § 240(1) claim, I write separately in order to address foreseeability as an element in all Labor Law § 240(1) cases, an issue whose discussion, at least in my view, is long overdue.
In cases pursuant to Labor Law § 240(1), whether an accident falls within the ambit of the statute depends on whether the task being performed at the time of an accident exposes a worker to a gravity-related risk against which an owner or contractor must guard. Consequently, an accident falls within the ambit of Labor Law § 240(1) only if it is reasonably foreseeable that in performing the task giving rise to the accident, a worker will be exposed to a ...