Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

James v. Alpha Painting & Construction Co., Inc.

Supreme Court of New York, First Department

July 18, 2017

Darren James, et al., Plaintiffs-Appellants,
v.
Alpha Painting & Construction Co., Inc., et al., Defendants-Respondents. Alpha Painting & Construction Co., Inc., et al., Third-Party Plaintiffs-Respondents,
v.
Brand Energy Services, LLC, Third-Party Defendant-Respondent. The Triborough Bridge & Tunnel Authority, Second Third-Party Plaintiff-Respondent,
v.
Brand Energy Services, LLC, et al., Second Third-Party Defendants-Respondents.

          Sullivan Papain Block McGrath & Cannavo P.C., New York (Brian J. Shoot of counsel), for appellants.

          Brody & 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 Authority, respondent.

          Sinnreich, Kosakoff & Messina LLP, Central Islip (Michael Stanton of counsel), for Greeman-Pederson, Inc., respondent.

          Shaub, 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.

         Order, 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, without costs.

         Plaintiffs 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" [1] involved in plaintiffs' accident from Quad Rentals, LLC (Quad), an affiliate of Alpha. GPI was the construction manager for the project [2]. The Triborough Bridge and Tunnel Authority (TBTA) is the owner of the bridge.

         On the 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.

         "Manny" 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.

         Plaintiff 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 closed lane.

         According 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 1926.21(b)(2).

         The 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.

         We now 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 process ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.