Cappabianca v. Skanska USA Building Inc.

99 A.D.3d 139, 950 N.Y.2d 35
CourtAppellate Division of the Supreme Court of the State of New York
DecidedAugust 14, 2012
StatusPublished
Cited by205 cases

This text of 99 A.D.3d 139 (Cappabianca v. Skanska USA Building Inc.) 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
Cappabianca v. Skanska USA Building Inc., 99 A.D.3d 139, 950 N.Y.2d 35 (N.Y. Ct. App. 2012).

Opinions

OPINION OF THE COURT

Freedman, J.

Plaintiff John Cappabianca seeks to recover for injuries he sustained in July 2005 when his foot became stuck, causing him to fall off the pallet on which he was standing while cutting bricks with an electric saw at the construction site for a New York City school. He asserted claims against all defendants under Labor Law §§ 200 (1), 240 (1) and 241 (6), as well as a claim sounding in common-law negligence. Plaintiff now appeals from the May 2010 order of the motion court which, among other things, granted defendants’ motions for summary judgment on his claims and denied his cross motion for partial [142]*142summary judgment as to liability with respect to his causes of action. He also appeals from the resulting June 2010 judgment dismissing the complaint.

For the reasons set forth below, we affirm the motion court’s dismissal of the Labor Law § 200 claim, the related negligence claim, and the Labor Law § 240 (1) claim. We reinstate plaintiffs Labor Law § 241 (6) claim as against some defendants, insofar as the claim is based on certain provisions of the Industrial Code (12 NYCRR 23-1.1 et seq.), but affirm the court’s denial of plaintiffs motion for partial summary judgment on liability.

The following summarizes the record in the light most favorable to plaintiff. Defendant New York City School Construction Authority owned the work site and defendant Skanska USA Building Inc. acted as the project’s general contractor. Skanska USA Building subcontracted with plaintiffs employer, nonparty Job Opportunities for Women (Job Opportunities), to perform masonry work, and engaged defendant Safety and Quality Plus, Inc. (Safety) as a consultant to inspect the project, report safety deficiencies to the general contractor, and conduct safety meetings.

Cappabianca worked at the job site from March 2005 through the date of his accident on July 29, 2005. He was supervised by and reported directly to Job Opportunities foremen; none of the defendants supervised him or otherwise controlled his work, and none had the authority to do so. Job Opportunities furnished Cappabianca with the tools and equipment he used on the job.

Cappabianca’s work consisted of cutting bricks with Job Opportunities’ stationary wet saw. Located on the school’s unfinished third floor, the saw and its stand sat on a wooden pallet that lay on the concrete floor. The pallet was anywhere from 4 to 12 inches high. While operating the saw, Cappabianca stood on an adjacent pallet of the same height to enable him to operate its foot pedal, arm lever, and cut-off switch. The pallets’ surfaces were composed of slats positioned about three to six inches apart. A Skanska manager who observed the arrangement of the saw and the pallets testified that it was the Job Opportunities’ “construction standard.”

While in use, a wet saw sprays water on bricks being cut to cool and lubricate the bricks and the cutting blade and reduce dust and flying particles. According to Cappabianca, the saw malfunctioned in that its hood area sprayed water “all over,” including onto the floor, instead of directing the water into an [143]*143attached tray as it was designed to do. The water from the saw accumulated on the floor underneath his pallet and made it slippery, and the pallet shifted horizontally in a circular arc of about six inches when he picked up bricks or put them down. Cappabianca states that he complained about the water to Job Opportunities and Skanska personnel. Contrary to the dissent’s contention, Cappabianca singled out the defective saw as the source of the water on the floor, and there is no evidence that the water, which accumulated directly around the saw, had any other source. The rainwater to which the dissent refers is mentioned in a witness’s records from one month before the accident. Those records do not specify where the water was, and they indicate that laborers were addressing the problem by sweeping up the rainwater. The same witness did not remember seeing any water at the location of the accident.

Cappabianca described his accident as follows: after he had cut a brick, he turned to put it on an adjacent pallet. The pallet upon which he stood shifted on the slippery floor as he turned, causing him to lose his footing. His left foot got caught between pallet slats and he fell to the floor and injured bis knee.

In March 2006, plaintiff commenced this action against School Construction Authority and four other governmental entities

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Bluebook (online)
99 A.D.3d 139, 950 N.Y.2d 35, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cappabianca-v-skanska-usa-building-inc-nyappdiv-2012.