Gorayeb & Associates, P.C., New York (Mark H. Edwards of counsel), for appellant.
Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Patrick J. Lawless of counsel), for Metropolitan Transportation Authority and New York City Transit Authority, respondents.
Michael A. Cardozo, Corporation Counsel, New York (Suzanne K. Colt of counsel), for the City of New York, respondent.
Jones Morrison, LLP, Scarsdale (Clifford I. Bass of counsel), for IMS Safety Corp., respondent.
Tom, J.P., Friedman, Freedman, Feinman, JJ.
Order, Supreme Court, New York County (Michael D. Stallman, J.), entered April 5, 2012, which denied plaintiff's cross motion for partial summary judgment on his common-law negligence and Labor Law §§ 200, 240(1) and 241(6) claims against defendant IMS Safety Corp., denied plaintiff's cross motion for partial summary judgment on his § 240(1) claim against defendants Metropolitan Transportation Authority (MTA), New York City Transit Authority (NYCTA), and the City of New York, granted IMS's motion for summary judgment dismissing the complaint and any cross claims against it, and granted the motions of defendants MTA, NYCTA and the City for summary judgment dismissing the §§ 240(1), 241(6) and 200 claims as against them, affirmed, without costs.
Plaintiff brought this personal injury action after he fell into an uncovered manhole in front of 60 Lafayette Street in Manhattan in January 2005, while performing asbestos removal work below city streets as part of a City environmental project. Plaintiff was employed by third-party defendant P.A.L. Environmental Safety Corp. (PAL), the general contractor at the work site. PAL was hired by NYCTA on behalf of MTA, which leased the area of the street surrounding the manhole from the City, the site owner. By subcontract, PAL retained IMS as a safety consultant at the site. The City, MTA, and NYCTA did not contract with IMS or any other party to ensure site safety, and neither supervised nor provided any equipment for the project. A PAL supervisor directed plaintiff's work.
PAL removed asbestos during night shifts that started at about 8:00 p.m. The standard procedure for the asbestos removal work was as follows: At the beginning of each shift, PAL workers constructed a wooden enclosure covered with a plastic sheeting around the manhole to protect the surroundings from asbestos contamination. An opening in the enclosure provided access to the manhole. After the PAL workers erected the enclosure, MTA inspectors checked to see that electricity had been turned off in the manhole, and IMS monitored the below-ground air quality before workers descended. Once given permission, at least two PAL workers —- required because of the manhole cover's weight — removed the cover and placed it outside the enclosure. They then sealed the enclosure opening and descended through the manhole.
At the end of the shift, the PAL workers were directed to remove their equipment from below ground, exit the manhole, replace its cover, and dismantle the containment enclosure surrounding the manhole.
Plaintiff's accident occurred at the end of a shift, after he and two coworkers had finished working below ground and climbed out of the manhole. Instead of covering the manhole as they had been directed, plaintiff and coworkers began dismantling the containment enclosure. Plaintiff then fell into the uncovered manhole. In his deposition testimony, plaintiff acknowledged that his PAL supervisor had told him that same day to cover the manhole before breaking down the enclosure, but that he neither checked nor asked whether the manhole was open before starting work "because the supervisor is supposed to do that." The only people present at the site when the accident occurred were plaintiff, his two coworkers, and a PAL shop steward.
In June 2005, plaintiff brought this action, asserting claims against defendants for common-law negligence and violation of Labor Law §§ 200, 240(1) and 241(6). Thereafter, plaintiff discontinued his negligence and Labor Law § 200 claims against the City and plaintiff's wife discontinued her derivative claims. After discovery, the City, MTA and NYCTA, and IMS separately moved for summary judgment dismissing the complaint against them and plaintiff cross-moved for partial summary judgment against defendants as to liability for his claims.
The motion court denied plaintiff's motion for partial summary judgment and granted defendants' motions dismissing the complaint finding that plaintiff was the sole proximate cause of the accident because he did not cover the manhole before beginning to dismantle the containment enclosure.
We note at the outset that IMS, the site safety consultant, cannot be liable for the accident under plaintiff's theories because it was a subcontractor with no supervisory authority over plaintiff or his work (see Cappabianca v Skanska USA Bldg. Inc., 99 A.D.3d 139, 148 [1st Dept 2012]).
As to Labor Law § 240(1), which imposes a non-delegable duty upon owners and general contractors to provide safety devices to protect workers from elevation-related risks, liability would attach where a violation of that duty proximately caused injuries (see Blake v Neighborhood Hous. Servs. of N.Y. City, 1 N.Y.3d 280, 287 ). Conversely, where a plaintiff's own actions are the sole proximate cause of the accident or injury, no liability attaches under the statute (Cahill v Triborough Bridge & Tunnel Auth., 4 N.Y.3d 35, 39 ). Where a plaintiff has an adequate safety device ...