LOVE v. NEW YORK STATE THRUWAY AUTHORITY 102193

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Supreme Court, Appellate Division, Fourth Department, New York.

Sheryl LOVE, Claimant-Appellant-Respondent, v. NEW YORK STATE THRUWAY AUTHORITY and State of New York, Defendants-Respondents-Appellants.  (Claim No. 102193.)

Decided: April 29, 2005

PRESENT:  HURLBUTT, J.P., SCUDDER, KEHOE, PINE, AND HAYES, JJ. Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria, LLP, Buffalo (John A. Collins of Counsel), for Claimant-Appellant-Respondent. Damon & Morey LLP, Buffalo (Hedwig M. Auletta of Counsel), for Defendants-Respondents-Appellants.

 Claimant commenced this Labor Law and common-law negligence action seeking to recover damages for personal injuries that she sustained in the course of her employment while sandblasting and painting a highway bridge owned by defendants.   Claimant was injured when she was struck by either a falling piece of concrete from the bridge itself or a falling metal clamp that was evidently being used to secure a tarp or a “pick” scaffolding suspended from the bridge. Regardless of whether claimant was struck by a falling piece of concrete or a falling clamp, we conclude that the Court of Claims properly granted that part of defendants' motion for summary judgment dismissing the Labor Law § 240(1) claim.  “[F]or section 240(1) to apply, a [claimant] must show more than simply that an object fell causing injury to a worker.   A [claimant] must show that the object fell, while being hoisted or secured, because of the absence or inadequacy of a safety device of the kind enumerated in the statute” (Narducci v. Manhasset Bay Assoc., 96 N.Y.2d 259, 268, 727 N.Y.S.2d 37, 750 N.E.2d 1085 [emphasis in original];  see Eberhard v. Alexander Cent. School Dist., 309 A.D.2d 1169, 765 N.Y.S.2d 289).   Here, neither the piece of concrete nor the clamp was being hoisted or secured when it fell, and thus defendants established as a matter of law that the absence or inadequacy of a necessary hoisting or securing device did not cause the object to fall (see Narducci, 96 N.Y.2d at 268-269, 727 N.Y.S.2d 37, 750 N.E.2d 1085;  Eberhard, 309 A.D.2d at 1170, 765 N.Y.S.2d 289).   We thus conclude that this case does not fall within the ambit of Labor Law § 240(1) (see Narducci, 96 N.Y.2d at 268-269, 727 N.Y.S.2d 37, 750 N.E.2d 1085;  Eberhard, 309 A.D.2d at 1170, 765 N.Y.S.2d 289;  Gampietro v. Lehrer McGovern Bovis, 303 A.D.2d 996, 997, 757 N.Y.S.2d 657;  Bradley v. San-Gra Corp., 301 A.D.2d 709, 711, 753 N.Y.S.2d 556).

 We further conclude that the court properly granted that part of defendants' motion for summary judgment dismissing the Labor Law § 200 claim.   The court's failure to rule on that part of defendants' motion seeking dismissal of the common-law negligence claim is deemed a denial of that part of the motion (see Brown v. U.S. Vanadium Corp., 198 A.D.2d 863, 864, 604 N.Y.S.2d 432), and we conclude that the court also should have granted that part of defendants' motion with respect to that claim.   We therefore modify the order accordingly.   Even assuming, arguendo, that claimant was injured by a concrete piece of the bridge that broke away and fell due to a structural defect, we conclude that defendants established as a matter of law that they lacked actual or constructive notice of any dangerous physical condition of the bridge (see Dorato v. Forest City Enters., 12 A.D.3d 1119, 1120, 785 N.Y.S.2d 626;  Bald v. Westfield Academy & Cent. School, 298 A.D.2d 881, 882, 747 N.Y.S.2d 623).   We further conclude that claimant failed to raise a triable question of fact with regard to that issue of notice (see Dorato, 12 A.D.3d at 1120, 785 N.Y.S.2d 626;  Bald, 298 A.D.2d at 882, 747 N.Y.S.2d 623;  see generally Rizzuto v. L.A. Wenger Contr. Co., 91 N.Y.2d 343, 352-353, 670 N.Y.S.2d 816, 693 N.E.2d 1068;  Lombardi v. Stout, 80 N.Y.2d 290, 295, 590 N.Y.S.2d 55, 604 N.E.2d 117).   In any event, the record establishes, and claimant concedes, that she is unable to identify the object that struck her, and thus we conclude that summary dismissal of the Labor Law § 200 and common-law negligence claims is appropriate.   Where, as here, there is more than one possible cause of a claimant's injury and the defendants are not responsible for one or more of those causes, there can be no recovery because the claimant cannot establish that the defendants' negligence caused his or her injury (see Wendt v. Jacus, 288 A.D.2d 889, 890, 732 N.Y.S.2d 770, lv. denied 98 N.Y.2d 604, 746 N.Y.S.2d 278, 773 N.E.2d 1016;  Wiwigac v. Snedaker, 282 A.D.2d 801, 803-804, 723 N.Y.S.2d 248;  see also Blanco v. Oliveri, 304 A.D.2d 599, 600, 758 N.Y.S.2d 376;  see generally Bernstein v. City of New York, 69 N.Y.2d 1020, 1021-1022, 517 N.Y.S.2d 908, 511 N.E.2d 52).

 Contrary to the contention of defendants, the court properly denied that part of their motion for summary judgment dismissing the Labor Law § 241(6) claim.   As defendants note, the statute is intended “to protect workers from industrial accidents specifically in connection with construction, demolition or excavation work” (Nagel v. D & R Realty Corp., 99 N.Y.2d 98, 102, 752 N.Y.S.2d 581, 782 N.E.2d 558).   We conclude that the three-month-long sandblasting and painting project on which claimant was employed at the time of her injury constitutes a protected “construction” activity within the meaning of the statute (§ 241[6];  see 12 NYCRR 23-1.4[b][13];  Aarons v. 401 Hotel, 12 A.D.3d 293, 294, 785 N.Y.S.2d 73;  Cornacchione v. Clark Concrete Co. [Appeal No. 2], 278 A.D.2d 800, 801, 723 N.Y.S.2d 572;  see also Zervos v. City of New York, 8 A.D.3d 477, 479-480, 779 N.Y.S.2d 106;  Blair v. Cristani, 296 A.D.2d 471, 745 N.Y.S.2d 468;  see generally Joblon v. Solow, 91 N.Y.2d 457, 466, 672 N.Y.S.2d 286, 695 N.E.2d 237).   To the extent that our decisions in Powers v. Carrols Corp., 8 A.D.3d 1061, 778 N.Y.S.2d 397 and Reger v. Harry's Harbour Place Grille [Appeal No. 2], 5 A.D.3d 1065, 773 N.Y.S.2d 689are inconsistent herewith, those decisions are no longer to be followed.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by granting that part of the motion with respect to the common-law negligence claim and dismissing that claim and as modified the order is affirmed without costs.

MEMORANDUM: