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Cann v. F.J. Scaime Construction Co. Inc.

Supreme Court, New York County

July 23, 2013

WILLIAM CANN, Plaintiff,
v.
F J. SCAIME CONSTRUCTION CO., INC., ENGINEERED DEVICES CORPORATION, and THE COOPER UNION FOR THE ADVANCEMENT OF SCIENCE AND ART, Defendants Index No. 105212/11

Unpublished Opinion

Louis B. York, J.S.C.

In this personal injury action plaintiff William Cann ("Cann"), a Century Maxim signalman, alleges that on June 5, 2008, he fell off the back of a flat-bed tractor trailer onto a safety barricade at, or near, 41 Cooper Square, New York, New York. Defendants F.J. Scaime Construction Co., Inc. ("Scaime") and the Cooper Union for the Advancement of Science and Art ("Cooper Union") now move, pursuant to Sections 200, 240(1), and 240(6) of the New York Labor Law, for summary judgment, on the grounds that 1) the tractor trailer's flat bed does not present an elevation risk within the meaning of Section 240(1); 2) plaintiffs Section 241(6) claim is invalid because it does not contain any violation of a regulation set forth by the Commissioner of Labor; and 3) defendants' activities do not support a valid cause of action under Section 200. To satisfy the requirements of Section 241(6), plaintiff has filed a cross-motion to amend his bill of particulars to include defendants' violation of Industrial Code § 23-1.29(a). For the reasons below, summary judgment is granted and the cross-motion to amend is denied.

Background

In his May 5, 2012 deposition, Cann alleges that on the morning of the day in question he was working on a flat-bed tractor trailer at 41 Cooper Square in Manhattan. While he was loading or unloading scaffolding he lost his footing and fell backwards off of the back of the truck onto a safety barricade which was positioned perpendicular to the way the truck was facing. Cann states that the truck contained no toe board, lip, gate, or anything around the perimeter to prevent workers from falling. It is undisputed that had the barricade not been located so close to the truck, Cann would have fallen approximately four feet to the ground as opposed to landing directly onto the barricade after falling approximately two feet. However, it is disputed which fall would cause greater injury. It is also disputed whether the barricade's placement provided adequate safety for the Century Maxim workers from nearby traffic or if its placement was inherently dangerous.

The other issue in this case is whether defendants had supervision over the activities that caused the injury to make them liable under Section 200. Scaime's field superintendent, John Fitzpatrick, oversees the day-to-day operations of the construction of the building. Fitzpatrick denies instructing Cann in the method and manner in which his work was performed. Defendants contend plaintiff was instructed and directly supervised only by Century Maxim supervisor, "Dominick Jr." Plaintiff argues that his work activities, and resulting injuries, were within the purview of Fitzpatrick's employment.

Discussion

Under CPLR 3212(b), a motion for summary judgment "shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party." Also, CPLR 3212(e) allows for summary judgment to be granted for some, but not all of the causes of action. These causes of action will be "severed from any remaining causes of action." CPLR § 3212(e).

1)Labor Law § 240(1)
Plaintiff does not oppose defendants' motion to dismiss the Labor Law § 240(1) cause of action. Therefore, defendants prevail on this portion of their motion.
2)Labor Law §241(6)

Under Labor Law § 241 (6) a building owner and contractor must "provide reasonable and adequate protection and safety" for workers involved in building construction, excavation or demolition, and comply with safety rules and regulations promulgated by the State Commissioner of Labor. Ross v Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 502, 601 N.Y.S.2d 49, 52 (1994). Therefore, a plaintiff must assert a specific and applicable violation of the New York Industrial Code to assert a valid Section 241(6) claim. See id.

Here, plaintiff has not stated any violation of the New York Industrial Code; therefore, defendants have moved for summary judgment. See Keller v Kruger, 39 Misc.3d 720, 732, 961 N.Y.S.2d 876, 886 (2013). In response, plaintiff has filed a cross-motion to amend his bill of particulars to include a violation of Industrial Code ยง 23-1.29(a). Plaintiff argues this is permissible because it requires no additional discovery and thus does not unfairly surprise defendants. Plaintiff also argues summary judgment should not be granted because material issues of fact exist. Defendants argue that cross-motion to amend should be denied not because it is devoid of merit, but because the facts in the case-at-hand do not ...


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