EGIDIO v. (And a Third and Fourth-Party Action.)

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

Dominick D'EGIDIO et al., Appellants, v. FRONTIER INSURANCE COMPANY et al., Respondents. (And a Third and Fourth-Party Action.)

Decided: March 23, 2000

Before:  MERCURE, J.P., CREW III, PETERS, SPAIN and MUGGLIN, JJ. Basso & Burke LLP (John J. Basso of counsel), Poughkeepsie, for appellants. Kornfeld, Rew, Newman & Ellsworth (William S. Badura of counsel), Suffern, for Frontier Insurance Company, respondent. Donohue, Sabo, Varley & Armstrong P.C. (Andrew R. Ferguson of counsel), Albany, for Woolard Construction Company, respondent.

Appeal from an order of the Supreme Court (Bradley, J.), entered November 24, 1998 in Ulster County, which, inter alia, granted defendants' motions for summary judgment dismissing the complaint.

Plaintiff Dominick D'Egidio (hereinafter plaintiff) was injured when his leg went into a hole in a floor while working on wiring in the ceiling of a building being constructed by defendant Woolard Construction Company, the general contractor, for defendant Frontier Insurance Company (hereinafter collectively referred to as defendants).   Plaintiff was employed by third-party defendant International Telephone Contracting Inc. to wire a portion of a telecommunications system in a computer room.   In order to accommodate various mechanical systems, the permanent floor of the computer room was raised 15 to 24 inches above the subfloor.   The floor was constructed of tiles-approximately 5 inches by 12 inches in size-which could be removed and reconfigured to allow access to the piping and wiring installed in the subfloor.   Prior to the day of plaintiff's injury, the floor had been completely covered by temporary plywood or masonite.   However, on the day of the accident, plaintiff observed that the temporary floor covering had been removed and that several tile sections were missing, leaving a number of uncovered 5 by 12-inch holes.   While engaged in snaking wiring through an overhead conduit in the ceiling, plaintiff misstepped into one of the holes causing injury to his knee, ankle and back.   Plaintiff and his wife, derivatively, commenced this action alleging violations of Labor Law §§ 200, 240(1) and § 241(6).   Following discovery, defendants' motion for summary judgment dismissing the complaint was granted, prompting this appeal.   We affirm.

 Initially, we conclude that Supreme Court properly dismissed plaintiffs' claims pursuant to Labor Law §§ 200 and 241(6).   Assuming, without deciding, that defendants exercised supervisory control over the work site and had notice of the hazard (see, Comes v. New York State Elec. & Gas Corp., 82 N.Y.2d 876, 877, 609 N.Y.S.2d 168, 631 N.E.2d 110;  Armer v. General Elec. Co., 241 A.D.2d 581, 583, 659 N.Y.S.2d 916, lv. denied 90 N.Y.2d 812, 666 N.Y.S.2d 101, 688 N.E.2d 1383), plaintiff concedes that he was aware of the holes in the floor prior to the accident.   As such, no liability may attach to defendants under Labor Law § 200 (see, Gavigan v. Bunkoff Gen. Contrs., 247 A.D.2d 750, 751, 669 N.Y.S.2d 69, lv. denied 92 N.Y.2d 804, 677 N.Y.S.2d 779, 700 N.E.2d 318;  Kendle v. August Bohl Contr. Co., 242 A.D.2d 848, 850, 662 N.Y.S.2d 606;  compare, Dorr v. General Elec. Co., 235 A.D.2d 883, 885, 652 N.Y.S.2d 845).

 Likewise, in order to prevail on a claim under Labor Law § 241(6), it was incumbent upon plaintiffs to demonstrate that defendants violated a regulation containing “concrete specifications” applicable to the facts herein (Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 505, 601 N.Y.S.2d 49, 618 N.E.2d 82;  see, Francis v. Aluminum Co. of Am., 240 A.D.2d 985, 987, 659 N.Y.S.2d 903).   Plaintiff offered the affidavit of an engineer who averred that defendants, by failing to provide a shaftway covering or other protective device, violated 12 NYCRR 23-1.7(b)(1)(i).   That regulation provides that “[e]very hazardous opening into which a person may step or fall shall be guarded by a substantial cover fastened in place or by a safety railing constructed and installed in compliance with this Part (rule)”.   While the regulation, on its face, appears to be applicable here, a reading of the regulation in its entirety reveals that a “hazardous opening” must be one of significant depth and size, i.e., more than 5 by 12 inches wide and 15 to 24 inches deep, as existed here (see, 12 NYCRR 23-1.7[b][1] [iii] ).   Accordingly, this claim was also properly dismissed (see, Francis v. Aluminum Co. of Am., supra, at 987, 659 N.Y.S.2d 903;  De Long v. State St. Assocs., 211 A.D.2d 891, 893, 621 N.Y.S.2d 172).

 Addressing plaintiffs' Labor Law § 240(1) claim, we agree with Supreme Court's conclusion that, as a matter of law, the accident at issue was not the result of an elevation-related hazard contemplated by that statute.   It is well settled that “[t]he extraordinary protections of Labor Law § 240(1) extend only to a narrow class of special hazards, and do ‘not encompass any and all perils that may be connected in some tangential way with the effects of gravity’ ” (Nieves v. Five Boro Air Conditioning & Refrig. Corp., 93 N.Y.2d 914, 915-916, 690 N.Y.S.2d 852, 712 N.E.2d 1219, quoting Ross v. Curtis-Palmer Hydro-Elec. Co., supra, at 501, 601 N.Y.S.2d 49, 618 N.E.2d 82 [emphasis in original];  see, Misseritti v. Mark IV Constr. Co., 86 N.Y.2d 487, 490, 634 N.Y.S.2d 35, 657 N.E.2d 1318).

Initially, we note that this is not an instance where the surface on which plaintiff was working when he was injured was temporary in nature or was the “functional equivalent of a scaffold” (Craft v. Clark Trading Corp., 257 A.D.2d 886, 888, 684 N.Y.S.2d 48;  see, Tomlins v. Siltone Bldg. Co., 267 A.D.2d 947, 699 N.Y.S.2d 854, 855).   The record reveals that the floor on which plaintiff was standing to perform the ceiling work was the permanent floor and, as such, it did not function as a scaffold above the subfloor (see, Avelino v. 26 Railroad Ave., 252 A.D.2d 912, 676 N.Y.S.2d 342;  compare, Keefe v. E & D Specialty Stands, 259 A.D.2d 994, 688 N.Y.S.2d 865, lv. dismissed 93 N.Y.2d 999, 695 N.Y.S.2d 744, 717 N.E.2d 1081).

 Moreover, we cannot conclude that the floor on which plaintiff was required to stand constituted an elevated work site requiring the use of the protective devices enumerated in Labor Law § 240(1).   The fact that levels or floors may exist below the work surface does not, by itself, compel the conclusion that the work surface is an elevated one under this statute (see, e.g., Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 577 N.Y.S.2d 219, 583 N.E.2d 932;  Barrett v. Ellenville Natl. Bank, 255 A.D.2d 473, 680 N.Y.S.2d 634;  Avelino v. 26 Railroad Ave., supra ).   Rather, a work site is “elevated” within the meaning of the statute where the required work itself must be performed at an elevation, i.e., at the upper elevation differential, such that one of the devices enumerated in the statute will safely allow the worker to perform the task (see, Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 500-501, 601 N.Y.S.2d 49, 618 N.E.2d 82, supra;  Amo v. Little Rapids Corp., 268 A.D.2d 712, 714-715, 701 N.Y.S.2d 517, 520).   Here, plaintiff's work site was the nonelevated permanent floor and there is no evidence in the record indicating that plaintiff's work in proximity to the floor openings warranted the use of the type of safety devices contemplated by Labor Law § 240(1) (compare, Limauro v. City of New York Dept. of Envtl. Protection, 202 A.D.2d 170, 608 N.Y.S.2d 196).

 Inasmuch as plaintiff's work site was not elevated within the meaning of the statute, we conclude that plaintiff's misstep into the hole in the floor was analogous to the facts in Rocovich v. Consolidated Edison Co., supra, at 514-515, 577 N.Y.S.2d 219, 583 N.E.2d 932.   In that case, while removing and repairing insulation in a recessed area of a roof, the plaintiff's foot slipped into a 12-inch deep trough adjacent to where he was working.   In dismissing the plaintiff's Labor Law § 240(1) claim, the Court of Appeals noted that “it is difficult to imagine how plaintiff's proximity to the 12-inch trough could have entailed an elevation-related risk which called for any of the protective devices of the types listed in section 240(1)” (id., at 514-515, 577 N.Y.S.2d 219, 583 N.E.2d 932).   The conclusion that mere proximity to an elevation differential, alone, is insufficient to trigger the protection of Labor Law § 240(1) is well supported by Rocovich and its progeny (see, id.;  Barrett v. Ellenville Natl. Bank, supra;  Bradshaw v. National Structures, 249 A.D.2d 921, 672 N.Y.S.2d 173;  Duke v. Eastman Kodak Co., 248 A.D.2d 990, 991, 669 N.Y.S.2d 991;  cf., Somerville v. Usdan, 255 A.D.2d 500, 683 N.Y.S.2d 268;  Ozzimo v. H.E.S. Inc., 249 A.D.2d 912, 914, 672 N.Y.S.2d 197).

We are not persuaded by the majority's conclusion in Carpio v. Tishman Constr. Corp. of N.Y., 240 A.D.2d 234, 658 N.Y.S.2d 919, that Labor Law § 240(1) applied to a plaintiff who, while painting a ceiling, was injured when he backed into a 10 to 15-inch wide and 3-foot deep hole in a concrete floor.   In our view, ruling that an elevation differential exists on such facts would render owners and contractors liable for virtually any fall by a construction worker into a hole of any measurable elevation, regardless of its location at the work site, a holding which we believe is plainly at odds with the decision in Rocovich v. Consolidated Edison Co. (supra ).

Accordingly, we find that plaintiff's injuries did not result from a “special” elevation-related hazard as required by Labor Law § 240(1) but, rather, resulted from “the type of peril a construction worker usually encounters on the job site” (Misseritti v. Mark IV Constr. Co., 86 N.Y.2d 487, 491, 634 N.Y.S.2d 35, 657 N.E.2d 1318, supra;  see, Sutfin v. Ithaca Coll., 240 A.D.2d 989, 990, 659 N.Y.S.2d 555).   Accordingly, Supreme Court properly awarded defendants summary judgment dismissing the complaint.

ORDERED that the order is affirmed, without costs.

SPAIN, J.

MERCURE, J.P., CREW III, PETERS and MUGGLIN, JJ., concur.

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