Sullivan Papain Block McGrath & Cannavo P.C., New York
(Brian J. Shoot of counsel), for appellants.
& Branch LLP, New York (Mary Ellen O'Brien of
counsel), for Alpha Painting & Construction Co., Inc. and
Quad Rentals, LLC, respondents.
Conway, Farrell, Curtin & Kelly P.C., New York (Jonathan
T. Uejio of counsel), for the Triborough Bridge & Tunnel
Sinnreich, Kosakoff & Messina LLP, Central Islip (Michael
Stanton of counsel), for Greeman-Pederson, Inc., respondent.
Ahmuty, Citrin & Spratt, LLP, New York (Robert M. Ortiz
of counsel), for Brand Energy Services, LLC, Brand Scaffold
Builders, LLC and Manuel Rendeiro, respondents.
Acosta, P.J., Tom, Richter, Manzanet-Daniels, Kahn, JJ.
Supreme Court, Bronx County (Barry Salman, J.), entered April
1, 2015, which, to the extent appealed from as limited by the
briefs, denied plaintiffs' motion for summary judgment as
to the issue of liability on the Labor Law § 241(6)
claim, and granted defendants' motions for summary
judgment dismissing the Labor Law §§ 200, 240(1),
and 241(6) and common-law negligence claims, modified, on the
law, to deny defendants' motions insofar as they sought
dismissal of plaintiffs' Labor Law § 241(6) claims,
and to remand the matter to the motion court for a
determination of the motions for summary judgment on the
indemnity and contribution claims, and otherwise affirmed,
Darren James and Balthazar Andrade were employed by Brand
Energy Services, LLC (Brand) on a project to renovate and
repaint the Bronx-Whitestone Bridge. Alpha Painting and
Construction Co., Inc. (Alpha) was the general contractor on
the project and leased the "boom truck"
involved in plaintiffs' accident from Quad Rentals, LLC
(Quad), an affiliate of Alpha. GPI was the construction
manager for the project . The Triborough Bridge and Tunnel
Authority (TBTA) is the owner of the bridge.
date of the accident, plaintiffs were dismantling a scaffold
and loading the materials onto the boom truck for transport
to the other side of the bridge. Soon after the truck took
off, the raised boom struck an overhead road sign and gantry,
causing part of the truck to swing into the air and the sign
and gantry to fall onto the bridge. Plaintiffs were thrown
from the truck onto the roadway, causing severe injuries.
Rendeiro, the operator of the boom truck on the date of the
accident, testified that he went back and forth between
Alpha's and Brand's employ, and admitted having
received no instruction from any source concerning either the
operation of the boom or the boom truck. Rendeiro testified
that he had never operated "that type of truck"
prior to the incident. Rendeiro was not licensed to drive a
commercial vehicle, nor was he licensed or certified to
operate a boom truck or a crane.
James testified that the Alpha foremen were present during
the hour or so it took to load materials onto the boom truck,
and that they repeatedly screamed at the workers to work
faster. They ordered plaintiff and the other Brand workers to
board the truck and to drive off the bridge. He testified
that Alpha wanted them to unload the truck as quickly as
possible in order to have time to return for another load.
Plaintiff Andrade testified that he boarded the truck because
he was ordered to do so by the Alpha foreman and Fernando,
the GPI safety officer. He testified that Fernando directed
traffic so that Rendeiro could pull the boom truck out of the
to the Occupational Safety and Health Administration (OSHA)
investigative report, the boom truck traveled approximately
700 feet with the boom "raise[d] up about 60
degree[s]," when the boom struck the overhead road sign
and supporting structure, causing the sign to crash down on
all lanes and injure plaintiffs. OSHA cited defendants for
driving the boom truck "with extended boom" in
violation of then existent 29 CFR 1926.550(a)(1), and having
employees operate the boom truck "without training in
the safe operation of the crane," in violation of 29 CFR
motion court granted defendants' motions for summary
judgment dismissing the complaint, and denied plaintiffs'
motion for partial summary judgment on their Labor Law §
241(6) claim. In dismissing the Labor Law section 240(1)
claim, the court concluded that the accident was outside the
scope of the statute because it occurred away from the work
site. The court reasoned that even if the Labor Law statutes
were applicable, such violations had not proximately caused
the incident with respect to any defendant. The court
dismissed the common-law negligence claim against Alpha,
reasoning that Alpha had not supervised or controlled
plaintiffs' work and did not have notice of any dangerous
condition that caused plaintiffs' injuries.
modify to deny defendants' motions for summary judgment
insofar as they sought dismissal of plaintiffs' section
241(6) claim. We find that the accident was part of the site
for purposes of the Labor Law, as the truck was in the