Buckley v. Columbia Grammar & Preparatory

44 A.D.3d 263, 841 N.Y.S.2d 249
CourtAppellate Division of the Supreme Court of the State of New York
DecidedAugust 16, 2007
StatusPublished
Cited by75 cases

This text of 44 A.D.3d 263 (Buckley v. Columbia Grammar & Preparatory) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Buckley v. Columbia Grammar & Preparatory, 44 A.D.3d 263, 841 N.Y.S.2d 249 (N.Y. Ct. App. 2007).

Opinions

[265]*265OPINION OF THE COURT

Sullivan, J.

This lawsuit arises from an accident on July 21, 2001, at Columbia Grammar and Preparatory School in Manhattan when plaintiff Scott Buckley was injured while he and a coworker were testing the operation of a car platform in the course of installing a new elevator, part of a renovation project at the school.

The injured plaintiff was an elevator mechanic’s helper employed by third-party defendant Kone Inc. Pursuant to a written purchase order, Kone had been hired by defendant Kalikow Construction, the project manager, to furnish and install a “Monospace” AC gearless traction passenger elevator designed by Kone. Under the agreement, Kone was to provide all labor, materials and supervision relating to installation. The elevator, as constructed, moved by use of a motor, cables and counterweights housed in a frame that would travel up and down the shaft. At the time of the accident, the rails, counterweight frame, counterweights and motor had been installed. Although the elevator cab itself had not yet been installed, the platform on which it would sit had been. The elevator was designed so that when the car descended, a counterweight frame with partially enclosed weights on top of it would ascend, and vice versa. The Monospace design calls for the counterweights to be notched into their frame.

According to the testimony of the injured plaintiff and Birnbaum, his coworker, at the time of the accident they were bringing the elevator platform down the shaft from the top (eighth) floor to the basement for the first time, using a hand-held control box. Plaintiff was standing in the doorway to the elevator shaft at the basement level and Birnbaum, an elevator mechanic from whom he took his instructions, was at the lobby level. As the counterweight frame was ascending, it hit a nail-like spike, apparently composed of formtie wire, protruding from the wall of the elevator shaft, which damaged the frame, thus causing five of the counterweights to fall out of the compartment housing them. One or more of these counterweights struck plaintiff on his right side.

In a pretrial deposition, Birnbaum testified that he believed the spike had been poured into the concrete. No contractor other than Kone worked in the shaft during the weeks prior to the accident. Kone was responsible for inspecting the interior of the elevator shaft before commencing its onsite work in June [266]*2662001. Kalikow’s employees walked through the site to monitor progress and safety, but did not test the elevator devices and would not use the elevator until Kone’s work was done. It is undisputed that Kalikow did not supervise or control the methods and means of Kone’s work.

Four rails inside the elevator shaft were part of the mechanical system that allowed the elevator and counterweights to go up and down, two for the counterweights and two for the elevator cab. These rails were attached to the hoistway walls by brackets. The counterweight frame assembly with the counterweights, each weighing between 50 and 75 pounds, inside the frame was undergoing its initial test at the time of the accident.

Buckley and his wife, suing derivatively, commenced this action against Columbia and Kalikow, alleging negligence and violations of Labor Law §§ 200, 240 (1) and § 241 (6). Kalikow impleaded Kone, which, under the terms of the purchase order, was obligated to indemnify Kalikow. After joinder of issue and the completion of discovery, Kalikow and Columbia separately moved for summary judgment dismissing the complaint. Plaintiffs cross-moved for partial summary judgment on liability under Labor Law § 240 (1). Supreme Court denied the cross motion and granted Kalikow’s and Columbia’s motions, holding Labor Law § 240 (1) inapplicable because the counterweights did not fall while being hoisted or secured, and their fall was not due to the absence of a statutorily enumerated safety device. It also found that the Industrial Code violations relied upon to support the section 241 (6) claim were factually inapplicable and insufficient. Finally, it determined that plaintiff had no sustainable claims for negligence or a section 200 violation against Kalikow or Columbia because of the failure to show that either of them supervised or controlled the work of either the injured plaintiff or the concrete subcontractor allegedly responsible for the protruding spike.

On appeal, plaintiffs argue that Outar v City of New York (5 NY3d 731 [2005]) warrants not only reinstatement of their Labor Law § 240 (1) claim, but summary judgment on liability with respect to that claim. They also argue that they have a valid claim under section 241 (6) based upon violations of Industrial Code (12 NYCRR) §§ 23-1.7 and 23-2.1, and that defendants are liable under Labor Law § 200 based upon their general supervision of the work site and the existence of the protruding spike in the shaftway. None of these claims has merit. Accordingly, we affirm.

[267]*267Labor Law § 240 (1),

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Bluebook (online)
44 A.D.3d 263, 841 N.Y.S.2d 249, Counsel Stack Legal Research, https://law.counselstack.com/opinion/buckley-v-columbia-grammar-preparatory-nyappdiv-2007.