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Supreme Court, Richmond County, New York.

Frank MARTUCCI, Plaintiff, v. TIRRO CONSTRUCTION CORPORATION, Sued Herein as Tirro Construction Co., et al., Defendants.

Tirro Construction Corporation, Third-Party Plaintiff, v. ABCOM Corp., Third-Party Defendant.

Tirro Construction Corporation, Second Third-Party Plaintiff, v. Abbcon Drywall, Inc., Second Third-Party Defendant.

Decided: April 22, 2002

Quirk & Bakalor, P.C., New York City for Staten Island Academy, defendant. Smith & Laquercia, New York City (Reed M. Podell of counsel), for Tirro Construction Corporation. Angiuli, Katkin & Gentile, Staten Island (Joelle Jensen of counsel), for plaintiff.

Defendant Staten Island Academy (hereinafter (SIA)) moves for an order granting it summary judgment dismissing plaintiff's complaint, or in the alternative moves for an order granting its cross claim for contractual and common law indemnification against defendant Tirro Construction Corporation s/h/a Tirro Construction Co. (hereinafter Tirro).   Tirro cross moves for an order granting it summary judgment dismissing plaintiff's complaint and all cross claims of SIA concerning contractual and common law indemnification.   Plaintiff cross moves for an order granting him summary judgment against both defendants on the issue of liability pursuant to Labor Law 240(1), 241-a, 241(6) and § 200.


This is a labor law action in which plaintiff, an employee of third-party defendant Abcom Corp. was injured in a building owned by defendant SIA. In March, 1995, SIA hired defendant Tirro as the general contractor to add a third story to its Science Building.   Jeffrey Perkin was the project superintendent for Tirro whose job was to coordinate the trades and oversee the construction of the third floor addition.   Tirro then hired Abcom as its subcontractor to perform drywall work.

On August 25, 1995, the day of the accident, the plaintiff had been framing interior partitions on the third floor.   In addition to installing dry wall he also served as the union shop steward.   At approximately 11:40 A.M․ after completing his morning carpentry work, he put on his other hat, that of the shop steward and began soliciting union dues from his fellow workers.   In the course of this activity he got into an argument with one Jimmy Piggot who refused to pay his dues.   One thing led to another and as the plaintiff was walking away from Mr. Piggot, Mr. Pigott, shoved the plaintiff knocking him over the edge of the platform causing him to land onto a staircase one level below.

The platform was a permanent structure which had temporary railings in place to protect the workers form falling over the edge.   However, on the day of the incident the railings were removed in order to accommodate certain construction work which had taken place.

It is plaintiff's contention that although he was pushed over the side of the open platform causing him to plunge onto the steps or stringers on the floor below, a substantial factor in causing his injuries was defendant's failure to provide safety devices such as rails or walls which would have prevented him from falling off the platform.   As a result, the plaintiff claims that the defendants are liable pursuant to Labor law Sections 240, 241(6), 241-a and 200.

The defendants' contentions are that Jimmy Pigott's intentional act of pushing plaintiff could not have been foreseen and therefore was an intervening, superceding event that broke the causal nexus.   Further, at the time of the accident, plaintiff was not engaged in an enumerated activity which entitles him to protection under the labor law.   It is undisputed that plaintiff had ceased working as a dry waller and had assumed his duties as a shop steward collecting union dues at the time of the accident.   Moreover, the platform and stairwell were permanently installed as part of the structure and the safety devices required to prevent falls from temporary elevations are not required to be installed pursuant to Labor Law § 240(1).   Plaintiff's cause of action pursuant to Labor Law § 200 and his common law causes of action should also be dismissed because defendants were not supervising or controlling plaintiff's activities as a shop steward at the time of the accident nor did they have actual or constructive notice that the railing or wall was removed from the stairway platform.

The plaintiff responds that his union activities were part and parcel of his job as a dry waller or laborer and are therefore included in the protected class of laborer as contemplated by sections 240 and 241 of the Labor Law.


Since there are no genuine issues of material fact both plaintiff and the defendants are correct in asserting that this matter should be decided by way of summary judgment since the issues involved turn upon questions of law rather than issues of fact.  (CPLR 3212);  Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 165 N.Y.S.2d 498, 144 N.E.2d 387.

“It is well established that on a motion for judgment as a matter of law, the court is not to engage in the weighing of evidence;  rather, the court's function is to determine whether ‘by no rational process could the trier of facts find for the nonmoving party.’ ”  (Jastrzebski v. North Shore School District, 223 A.D.2d 677, 678, 637 N.Y.S.2d 439 (2nd Dept.1996) affd. 88 N.Y.2d 946, 647 N.Y.S.2d 708, 670 N.E.2d 1339 (1996);  see Dolitsky v. Bay Isle Oil Co., 111 A.D.2d 366, 489 N.Y.S.2d 580;  Westchester Joint Water Works v. City of Yonkers, 155 A.D.2d 534, 547 N.Y.S.2d 392;  Dooley v. Skodnek, 138 A.D.2d 102, 529 N.Y.S.2d 569.)  “It is equally well established that the evidence must be viewed in the light most favorable to the nonmoving party and that the motion should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility [which require a trial of the action].”  (Jastrzebski, at 678, 637 N.Y.S.2d at 440;  Garnham & Han Real Estate Brokers, Inc. v. Oppenheimer, 148 A.D.2d 493, 538 N.Y.S.2d 837 (2nd Dept.1989);  see also Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 (1980);  Friedman v. Pesach, 160 A.D.2d 460, 554 N.Y.S.2d 131 (1st Dept.1990)).

Labor Law § 200 and Common Law Negligence

 “Labor Law § 200 represents a codification of the common law duty of an owner or employer to provide employees with a safe place to work.”   (Bailey v. Irish Development Corporation, 274 A.D.2d 917, 711 N.Y.S.2d 241 (3rd Dept 2000) citing Jock v. Fien, 80 N.Y.2d 965, 590 N.Y.S.2d 878, 605 N.E.2d 365;  Nowak v. Smith & Mahoney, 110 A.D.2d 288, 494 N.Y.S.2d 449).   “In order to impose liability under this statute, the plaintiff is required to demonstrate that the owner or general contractor supervised or controlled the work performed or had actual or construction notice of the unsafe condition which precipitated plaintiff's injury.”  (Bailey v. Irish Development Corporation, supra at 921, 711 N.Y.S.2d at 245 citing Murray v. South End Improvement Corp., 263 A.D.2d 577, 693 N.Y.S.2d 264).

 It is undisputed that SIA was the owner of the site and had two employees check the progress of the work on a weekly basis.   Tirro was the general contractor whose responsibility included coordinating the different trades, supervising and controlling all work to be performed.   Prior to the accident it is alleged plaintiff himself gave notice to Tirro of the unprotected stairwell which was remedied by installing a railing or wall.   At the time of the accident the protective railing or wall was removed ostensibly to permit work to be performed in the area.   The plaintiff does not provide this court with any proof as to how long the stairwell platform was left unprotected;  it may have been days or merely minutes.   Arguably Tirro's employees were on the work site and should have seen that the protective railing or wall was removed and should have taken steps to remedy it.  (See Bailey v. Irish Development Corporation, supra).

However, there is no testimony to support the allegation that SIA supervised or controlled plaintiff's activities.   Though SIA had two employees checking the work progress on a weekly basis there is no proof as to when they were on the work site last and there is no proof SIA's employees were present at the time of the accident.   SIA's two employees weekly presence at the work site to check on the progress of the work and ensure compliance with building specifications does not constitute the control or supervision necessary to establish liability under section 200 or for common-law negligence.  (Riley v. John W. Stickl Construction Co. Inc., 242 A.D.2d 936, 662 N.Y.S.2d 660 (4th Dept.1997) McCune v. Black Riv. Constructors, 225 A.D.2d 1078, 639 N.Y.S.2d 203;  Enderlin v. Hebert Indus. Insulation, 224 A.D.2d 1020, 638 N.Y.S.2d 262).

Labor Law 241-a

 Though never pled in plaintiff's complaint or bill of particulars plaintiff for the first time raises a claim under Labor Law § 241-a.  Labor Law § 241-a provides that workers “in or at elevator shaftways, watchways and stairwells of buildings in course of construction or demolition shall be protected by sound planking․laid across the opening at levels not more than two stories above and not more than one story below․” “The point of the planking is to protect the construction worker․from falling through the shaft for more than one story.”  (Nevins v. Essex Owners Corp., 259 A.D.2d 384, 687 N.Y.S.2d 114 (1st Dept 1999) ).   In sum Labor Law § 241-a requires there to be more than one story.   In the instant case there was an existing floor one story below the level from where plaintiff fell and in fact plaintiff landed upon that floor.

 Accordingly, this court finds Labor Law § 241-a does not apply where, as here, the plaintiff could only have fallen one story.  (See Riley v. John W. Stickl Construction Co. Inc., supra).

Labor Law § 240(1) Safety Device

 “Labor Law § 240(1) imposes a non-delegable duty upon owners and contractors to provide necessary and appropriate protection to workers employed on a construction site.”  (Bailey v. Irish Development Corporation, supra citing Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 513, 577 N.Y.S.2d 219, 583 N.E.2d 932).  “The statutory protection afforded by labor Law § 240(1) is intended to encompass only elevation-related hazards which result in injury to workers as a result of inadequate or missing safety equipment.”  (Id. citing Bland v. Manocherian, 66 N.Y.2d 452, 457-459, 497 N.Y.S.2d 880, 488 N.E.2d 810.).  Labor law § 240(1) contains a list of devices intended to protect workers from the elevated-related risks such as scaffolding, hoists, stays, ladders, slings, hangars, blocks, pulleys, braces, irons and ropes.  “The contemplated hazards are those 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., supra at 514, 577 N.Y.S.2d 219, 583 N.E.2d 932).  “It is settled that section 240(1) ‘is to be construed as liberally as may be for the accomplishment of the purpose for which it was thus framed.’ ”  (Id. at 513, 577 N.Y.S.2d 219, 583 N.E.2d 932citing Quigley v. Thatcher, 207 N.Y. 66, 68, 100 N.E. 596 and Koenig v. Patrick Constr. Corp., 298 N.Y. 313, 319, 83 N.E.2d 133).

 The case of Riley v. John W. Stickl Construction Co. Inc., supra is similar to the case at bar.   In Riley the plaintiff also stepped into an unguarded stairwell opening on the floor deck and fell one story to the floor below.   The Appellate Division held that plaintiff's fall from the first floor deck was not a fall from an elevated work site within the meaning of section 240(1).  (See also Lewis v. Corh Assocs., 227 A.D.2d 912, 643 N.Y.S.2d 442;  Mazzu v. Benderson Dev. Co., 224 A.D.2d 1009, 1010-1011, 637 N.Y.S.2d 540).   Furthermore, it is well settled that a permanent staircase is a normal appurtenance to a building and is not designed as a safety device to protect against elevated-related risk.  (Norton v. Park Plaza Owners Corporation, 263 A.D.2d 531, 694 N.Y.S.2d 411 (2nd Dept.1999);  see also Brennan v. RCP Assocs., 257 A.D.2d 389, 683 N.Y.S.2d 69;  Barrett v. Ellenville National Bank, 255 A.D.2d 473, 680 N.Y.S.2d 634 (2nd Dept.1998);  Williams v. City of Albany, 245 A.D.2d 916, 666 N.Y.S.2d 800 (3rd Dept.1997);  Sponholz v. Benderson Property Development, Inc., 266 A.D.2d 815, 697 N.Y.S.2d 432 (4th Dept.1999);  Greso v. Nichter Construction Co., Inc., 267 A.D.2d 1074, 700 N.Y.S.2d 348 (4th Dept.1999).).

“It has repeatedly been held that a stairway which is, or is intended to be, permanent-even one that has not yet been anchored or secured in its designated location (see Dombrowski v. Schwartz, 217 A.D.2d 914, 629 N.Y.S.2d 924), or completely constructed (see Ryan v. Morse Diesel, 98 A.D.2d 615, 616, 469 N.Y.S.2d 354)-cannot ‘be considered the functional equivalent of a ladder or other ‘device’ as contemplated by section 240(1)'.”  (Williams v. City of Albany, supra at 917, 666 N.Y.S.2d 800).  “Such a structure functions as a permanent passageway between two parts of the building, not as a ‘tool’ or ‘device’ that is employed for the express purpose of gaining access to an elevated worksite.”  (Id.)

Accordingly, both defendants SIA's and Tirro's motion to dismiss plaintiff's cause of action based upon labor law 240(1) is granted.

Enumerated Activity Protected Under Labor Law

 It is undisputed that the plaintiff had ceased working as a drywaller and had switched hats and was acting as a shop steward at the time of the accident.   Plaintiff was collecting union dues or assessments from a co-worker, Jimmy Piggot, when an argument erupted followed by Mr. Piggot intentionally pushing the plaintiff causing him to fall off the unprotected stairway platform.   Inasmuch as the plaintiff was not performing work on behalf of his employer at the time of the accident and was instead working on behalf of his union, the plaintiff was not engaged in the type of activity which entitled him to the protections contemplated under Labor Law § 241(6) and § 200. (See Hernandez v. Bd. of Education of the City of New York, 264 A.D.2d 709, 694 N.Y.S.2d 752 (2nd Dept.1999);  Chapman v. IBM Corporaiton, 233 A.D.2d 585, 649 N.Y.S.2d 228 (3rd Dept.1996);  Higgins v. 1790 Broadway Associates, 261 A.D.2d 223, 691 N.Y.S.2d 31 (1st Dept.1999) ).

Accordingly, the remaining Labor Law § 241(6) and § 200 causes of action are dismissed.

Proximate Cause

 The concept of proximate cause “stems from policy considerations that serve to place manageable limits upon the liability that flows from negligent conduct.”  (Derdiarian v. Felix Contracting Corp, 51 N.Y.2d 308, 314, 434 N.Y.S.2d 166, 414 N.E.2d 666 (1980);  see also Palsgraf v. Long Island R.R. Co., 249 N.Y. 511, 164 N.E. 564 (1928).  “The issue of whether a defendant's negligence was the proximate cause of an accident is separate and distinct from the negligent determination.   A defendant may act negligently without that negligence constituting a proximate cause of the accident.”  (Ohdan v. City of New York, 268 A.D.2d 86, 706 N.Y.S.2d 419 (1st Dept.2000);  see Price v. New York City Housing Auth., 92 N.Y.2d 553, 684 N.Y.S.2d 143, 706 N.E.2d 1167).  “In order to find that defendant's negligence was a proximate cause of the harm cause to plaintiff, the jury must find that the negligence was a substantial factor in bringing about the injury.”   (Ohdan v. The City of New York, supra;  1A PJI 2:70).  “There may be one, or more than one, substantial factor.”  Id.;  1A PJI 2:71).

 “Plaintiffs need not positively exclude every other possible cause of the accident.   Rather, the proof must render those other causes sufficiently ‘remote’ or ‘technical’ to enable the jury to reach its verdict based not upon speculation, but upon the logical inferences to be drawn from the evidence.”  (Gayle v. City of New York, 92 N.Y.2d 936, 937, 680 N.Y.S.2d 900, 703 N.E.2d 758 (1998);  See Schneider v. Kings Highway Hosp. Ctr., 67 N.Y.2d 743, 744, 500 N.Y.S.2d 95, 490 N.E.2d 1221;  Rendinaro v. City of New York, 254 A.D.2d 342, 679 N.Y.S.2d 72 (2nd Dept.1998) ).  “A plaintiff need only prove that it was ‘more likely.’ ”  (Gayle v. City of New York, supra, citing Schneider v. Kings Highway Hosp. Ctr., supra at 745, 500 N.Y.S.2d 95, 490 N.E.2d 1221.)

  “Where the acts of a third party intervene between the defendant's conduct and the plaintiff's injury, the causal connection is not automatically severed.   In such a case, liability turns upon whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant's negligence.”  (Derdiarian v. Felix Contracting Corp., supra at 315, 434 N.Y.S.2d 166, 414 N.E.2d 666;  citing Parvi v. City of Kingston, 41 N.Y.2d 553, 394 N.Y.S.2d 161, 362 N.E.2d 960;  Restatement, Torts 2d §§ 443, 449;  Prosser, Law of Torts, § 44).

 “If the intervening act is extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from the defendant's conduct, it may well be a superseding act which breaks the causal nexus.”  (Derdiarian v. Felix Contracting Corp., supra.)

 It is plaintiff's burden to prove that a violation of a Labor Law statute was the proximate cause of plaintiff's injury before liability is imposed.  (See Bailey v. Irish Development Corporation, supra at 244;  Bland v. Manocherian, 66 N.Y.2d 452, 497 N.Y.S.2d 880, 488 N.E.2d 810).   In view of the undisputed facts that plaintiff was intentionally pushed by a co-worker this court finds that the plaintiff's accident was not caused by a defective or missing safety device.   This court cannot envision any device listed in Labor Law § 240(1) which would be intended to guard against this type of incident.  (See Bailey v. Irish Development Corporation, supra).   Even assuming the defendants were negligent in violating Industrial Code Sections 12 N.Y.C.R.R. 23-2.7 and 12 N.Y.C. R.R.23-1.7(b)(1)(i) which require defendants to erect safety railings, it cannot reasonably be inferred, based on the evidence set forth, that such a failure to install such railings was a proximate cause of the plaintiff's accident.  (See Rodriguez v. Gutierrez, 217 A.D.2d 692, 630 N.Y.S.2d 531 (2nd Dept.1995);  Rendinaro v. City of New York, supra;  Atkinson v. County of Oneida, 59 N.Y.2d 840, 464 N.Y.S.2d 747, 451 N.E.2d 494;  Tomassi v. Town of Union, 46 N.Y.2d 91, 412 N.Y.S.2d 842, 385 N.E.2d 581;  Matter of Fasano v. State of New York, 113 A.D.2d 885, 493 N.Y.S.2d 805).

Accordingly, this court finds as a matter of law the plaintiff has failed to prove the defendants' negligence in failing to erect and maintain the safety railings was a proximate cause of plaintiff's accident.

Accordingly, plaintiff's motion for summary judgment is denied, and the defendants SIA's and Tirro Construction's motions for summary judgment dismissing the complaint are granted in its entirety.


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