SOG v. H-T Steel Erectors, Inc., Third-Party Defendant-Respondent. (1997)

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, Suffolk County (Doyle, J.), entered May 3, 1996, as denied his motion for partial summary judgment on the issue of liability under Labor Law § 240(1) insofar as asserted against the defendants Wen-Mar Construction Management Company, Inc., and D & A Enterprises, Inc.

ORDERED that the order is reversed insofar as appealed from, on the law, with one bill of costs payable by the respondents appearing separately and filing separate briefs, and the plaintiff's motion for partial summary judgment on the issue of liability under Labor Law § 240(1) insofar as asserted against the defendants Wen-Mar Construction Management Company, Inc., and D & A Enterprises, Inc., is granted.

The plaintiff, John Sog, a steelworker in the employ of the third-party defendant H-T Steel Erectors, Inc. (hereinafter H-T), was struck by a falling steel joist while working on the construction of a one-story addition to a building in Hauppauge.   The building was owned by the defendant D & A Enterprises, Inc. (hereinafter D & A), which contracted with the defendant Wen-Mar Construction Management Company, Inc. (hereinafter Wen-Mar), to erect the structural steel frame for the addition.   Wen-Mar in turn subcontracted with H-T to erect the steel frame.

Sog moved for partial summary judgment against D & A and Wen-Mar pursuant to Labor Law § 240(1).   The Supreme Court denied the plaintiff's motion on the ground that there was no evidence that he was working at an elevated level at the time of the accident.   We reverse.

While it is true that the safety devices required under Labor Law § 240(1) “predominantly concern those used on elevated work sites” (Misseritti v. Mark IV Constr. Co., 86 N.Y.2d 487, 491, 634 N.Y.S.2d 35, 657 N.E.2d 1318), the purpose of the statute is to protect workers from occupational hazards “related to the effects of gravity where protective devices are called for either because of a difference between the elevation level of the required work and a lower level or a difference between the elevation level where the worker is positioned and the higher level of the materials or load being hoisted or secured” (Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 514, 577 N.Y.S.2d 219, 583 N.E.2d 932;  see also, Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 501, 601 N.Y.S.2d 49, 618 N.E.2d 82).

 In support of his motion for partial summary judgment, the plaintiff submitted evidence that he was working at ground level, using a steel cable to “plumb”, or straighten, the vertical support columns when a steel joist fell from the structure and struck him.   Although there is conflicting evidence in the record as to whether the plaintiff was struck by a tie joist or a bar joist, a report submitted by the plaintiff's expert indicated that both types of steel joists should not be released from hoisting ropes until they are securely fastened in place.   The expert concluded that “stays, hangers, ropes or other devices” should have been used to prevent unsecured joists from falling to the ground.

The defendants did not present any evidence to rebut the plaintiff's claim that they failed to provide the safety devices contemplated by Labor Law § 240(1).   Moreover, an employee of H-T stated in his deposition testimony that it was a bar joist which fell and that bar joists placed on top of the building prior to the accident were not fastened in any way.   Since the unrebutted evidence established a breach of the statutory duty and that the breach was a proximate cause of the plaintiff's injury, the plaintiff's motion should have been granted (see, Zimmer v. Chemung County Performing Arts, 65 N.Y.2d 513, 493 N.Y.S.2d 102, 482 N.E.2d 898;  Sherman v. Babylon Recycling Ctr., 218 A.D.2d 631, 631 N.Y.S.2d 25).

 Contrary to Wen-Mar's contention, it was a statutory agent of D & A under Labor Law § 240(1) since it had the authority to supervise and control the work giving rise to the plaintiff's injuries (see, Russin v. Louis N. Picciano & Son, 54 N.Y.2d 311, 318, 445 N.Y.S.2d 127, 429 N.E.2d 805;  McGlynn v. Brooklyn Hosp.-Caledonian Hosp., 209 A.D.2d 486, 619 N.Y.S.2d 54).

MEMORANDUM BY THE COURT.