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De Jesus v. Metro-North Commuter Railroad

Supreme Court of New York, Second Department

March 28, 2018

Miguel A. Tamarez De Jesus, appellant,
v.
Metro-North Commuter Railroad, doing business as Metro-North Railroad, et al., respondents, et al., defendants. (Index No. 57940/13)

          Argued - November 17, 2017

         D54798 C/hu

          Napoli Shkolnik LLP (Pollack, Pollack, Isaac & DeCicco, LLP, New York, NY [Brian J. Isaac and Beth S. Gereg], of counsel), for appellant.

          Richard L. Gans, New York, NY (Jose R. Rios of counsel) for respondents.

          WILLIAM F. MASTRO, J.P. CHERYL E. CHAMBERS COLLEEN D. DUFFY FRANCESCA E. CONNOLLY, JJ.

          DECISION & ORDER

         In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Westchester County (William J. Giacomo, J.), dated April 30, 2015, as denied that branch of his motion which was for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1) insofar as asserted against the defendant Metro-North Commuter Railroad, doing business as Metro-North Railroad, and granted those branches of the cross motion of that defendant and the defendant Metropolitan Transportation Authority which were for summary judgment dismissing the causes of action alleging violations of Labor Law §§ 240(1) and 241(6) insofar as asserted against the defendant Metro-North Commuter Railroad, doing business as Metro-North Railroad.

         ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the cross motion of the defendants Metro-North Commuter Railroad, doing business as Metro-North Railroad, and Metropolitan Transportation Authority which was for summary judgment dismissing the cause of action alleging a violation of Labor Law § 241(6) insofar as asserted against the defendant Metro-North Commuter Railroad, doing business as Metro-North Railroad, and substituting therefor a provision denying that branch of the cross motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

         The plaintiff, an employee of nonparty Asplundh Tree Expert Co., commenced this action against, among others, the defendant Metro-North Commuter Railroad, doing business as Metro-North Railroad (hereinafter Metro-North), for injuries he alleged that he sustained when he was cutting and removing a tree that had fallen during Hurricane Sandy onto catenary wires situated above the railroad tracks along the New Haven Railroad Line. At the time of the accident, the plaintiff was standing on the ground and using a power saw to cut through the tree trunk when the tension in the catenary wires suddenly released, propelling the tree into the air. The tree broke in two and then fell, striking the plaintiff s leg. It is undisputed that the catenary wires could not be repaired and train service restored without first removing the tree.

         The plaintiff alleged that his injuries arose out of Metro-North's violations of Labor Law §§ 200, 240(1), and 241(6), and common-law negligence. After discovery, the plaintiff moved for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1), and Metro-North, together with the defendant Metropolitan Transportation Authority (hereinafter the MTA) cross-moved for summary judgment dismissing the complaint. The Supreme Court granted the cross motion and denied the plaintiffs motion. The plaintiff appeals, as limited by his brief, from so much of the order as denied that branch of his motion which was for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1) insofar as asserted against Metro-North and granted those branches of the cross motion which were for summary judgment dismissing the causes of action alleging violations of Labor Law §§ 240(1) and 241(6) insofar as asserted against Metro-North.

         To come within the protection of Labor Law § 240(1), the plaintiff must have been engaged in "the erection, demolition, repairing, altering [or]. . . painting of a building or structure'' (Labor Law § 240[1]; see Enos v Werlatone, Inc., 68 A.D.3d 713, 714; Wein v Amato Props., LLC, 30 A.D.3d 506, 507). The catenary wires were a structure within the meaning of the Labor Law (see Lewis-Moors v Contel of N.Y., 78 N.Y.2d 942, 943; McCoy v Kirsch, 99 A.D.3d 13, 15-16; Ackley v New York State Elec. & Gas Corp., 8 A.D.3d 941, 942). Although "tree cutting and removal, in and of themselves, are not activities subject to Labor Law § 240(1)" (Moreirav Ponzo, 131 A.D.3d 1025, 1026; see Lombardi v Stout, 80 N.Y.2d 290, 295-296; Enos v Werlatone, Inc., 68 A.D.3d at 714; Radoncic v Independence Garden Owners Corp., 67 A.D.3d 981, 982; Morales v Westchester Stone Co., Inc., 63 A.D.3d 805, 805), where, as here, the plaintiffs tree removal work constituted the first step in effectuating repairs to the catenary wires, the provisions of Labor Law § 240(1) are applicable (see Moreira v Ponzo, 131 A.D.3d at 1027).

         Although Metro-North failed to establish, prima facie, that the plaintiff was not engaged in an enumerated activity, it did establish, prima facie, that the plaintiff s injuries were "not the direct consequence of the application of the force of gravity to an object or person" (Gasques v State of New York, 15 N.Y.3d 869, 870; see Ross v Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 501). Rather, the plaintiffs injuries resulted when the tree was first propelled upward by the sudden v 80 WEA Owner, LLC, 145 A.D.3d 521, 522; Medina v City of New York, 87 A.D.3d 907, 909). In opposition, the plaintiff failed to raise a triable issue of fact. Accordingly, that branch of the cross motion which was for summary judgment dismissing the cause of action alleging a violation of Labor Law § 240(1) insofar as asserted against Metro-North was properly granted. For the same reasons, the Supreme Court properly denied that branch of the plaintiffs motion which was for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1) insofar as asserted against Metro-North.

         However, Metro-North is not entitled to summary judgment dismissing the cause of action alleging a violation of Labor Law § 241(6) insofar as asserted against it. Metro-North argues that the activity in which the plaintiff was engaged when he was injured was outside the ambit of Labor Law § 241(6). "Labor Law § 241(6) imposes a nondelegable duty of reasonable care upon owners and contractors to provide reasonable and adequate protection and safety to persons employed in, or lawfully frequenting, all areas in which construction, excavation or demolition work is being performed'' (Lopez v New York City Dept. of Envtl. Protection,123 A.D.3d 982, 983). '"[T]he courts have generally held that the scope of Labor Law § 241(6) is governed by 12 NYCRR 23-1.4(b)(13), which defines construction work expansively'" (Enos v Werlatone, Inc., 68 A.D.3d at 715, quoting Vernieri v Empire Realty Co.,219 A.D.2d 593, 595). Under that regulation, construction work consists of "[a]ll work of the types performed in the construction, erection, alteration, repair, maintenance, painting or moving of buildings or other structures" (12 NYCRR 23-1.4[b][13]). Since the plaintiff was engaged in activities ancillary to the repair of the catenary wires, the provisions of Labor Law § 241(6) are also applicable to this case. Accordingly, Metro-North failed to establish, prima facie, that Labor Law § 241(6) was inapplicable to the plaintiff's ...


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