James v. Alpha Painting & Constr. Co., Inc.

2017 NY Slip Op 5692, 152 A.D.3d 447, 59 N.Y.S.3d 21

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 18, 2017
• Docket: 3286 302140/10 84150/09 84016/10
• Status: Published

Opinions

Order, Supreme Court, Bronx County (Barry Salman, J.), entered April 1, 2015, which, to the extent appealed from as limited by the briefs, denied plaintiffs’ motion for summary judgment as to the issue of liability on the Labor Law § 241 (6) claim, and granted defendants’ motions for summary judgment dismissing the Labor Law §§ 200, 240 (1), and 241 (6) and common-law negligence claims, modified, on the law, to deny defendants’ motions insofar as they sought dismissal of plaintiffs’ Labor Law § 241 (6) claims, and to remand the matter to the motion court for a determination of the motions for summary judgment on the indemnity and contribution claims, and otherwise affirmed, without costs.

Plaintiffs Darren James and Balthazar Andrade were employed by Brand Energy Services, LLC (Brand) on a project to renovate and repaint the Bronx-Whitestone Bridge. Alpha Painting and Construction Co., Inc. (Alpha) was the general contractor on the project and leased the “boom truck”¹ involved in plaintiffs’ accident from Quad Rentals, LLC (Quad), an affiliate of Alpha. GPI was the construction manager for the project.² The Triborough Bridge and Tunnel Authority is the owner of the bridge.

On the date of the accident, plaintiffs were dismantling a scaffold and loading the materials onto the boom truck for transport to the other side of the bridge. Soon after the truck took off, the raised boom struck an overhead road sign and gantry, causing part of the truck to swing into the air and the sign and gantry to fall onto the bridge. Plaintiffs were thrown from the truck onto the roadway, causing severe injuries.

“Manny” Rendeiro, the operator of the boom truck on the date of the accident, testified that he went back and forth between Alpha’s and Brand’s employ, and admitted having received no instruction from any source concerning either the operation of the boom or the boom truck. Rendeiro testified that he had never operated “that type of truck” prior to the incident. Rendeiro was not licensed to drive a commercial vehicle, nor was he licensed or certified to operate a boom truck or a crane.

Plaintiff James testified that the Alpha foremen were present during the hour or so it took to load materials onto the boom truck, and that they repeatedly screamed at the workers to work faster. They ordered plaintiff and the other Brand workers to board the truck and to drive off the bridge. He testified that Alpha wanted them to unload the truck as quickly as possible in order to have time to return for another load. Plaintiff Andrade testified that he boarded the truck because he was ordered to do so by the Alpha foreman and Fernando, the GPI safety officer. He testified that Fernando directed traffic so that Rendeiro could pull the boom truck out of the closed lane.

According to the Occupational Safety and Health Administration (OSHA) investigative report, the boom truck traveled approximately 700 feet with the boom “raise [d] up about 60 degree [s],” when the boom struck the overhead road sign and supporting structure, causing the sign to crash down on all lanes and injure plaintiffs. OSHA cited defendants for driving the boom truck “with extended boom” in violation of then existent 29 CFR 1926.550 (a) (1), and having employees operate the boom truck “without training in the safe operation of the crane,” in violation of 29 CFR 1926.21 (b) (2).

The motion court granted defendants’ motions for summary judgment dismissing the complaint, and denied plaintiffs’ motion for partial summary judgment on their Labor Law § 241 (6) claim. In dismissing the Labor Law § 240 (1) claim, the court concluded that the accident was outside the scope of the statute because it occurred away from the work site. The court reasoned that even if the Labor Law statutes were applicable, such violations had not proximately caused the incident with respect to any defendant. The court dismissed the common-law negligence claim against Alpha, reasoning that Alpha had not supervised or controlled plaintiffs’ work and did not have notice of any dangerous condition that caused plaintiffs’ injuries.

We now modify to deny defendants’ motions for summary judgment insofar as they sought dismissal of plaintiffs’ section 241 (6) claim. We find that the accident was part of the site for purposes of the Labor Law, as the truck was in the process of driving away and had only departed 700 feet when the accident occurred.

The motion court correctly dismissed the section 240 (1) claim. Plaintiffs were not faced with the type of elevation-related hazard contemplated by Labor Law § 240 (1) (see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [1993]. Rocovich v Consolidated Edison Co., 78 NY2d 509, 514 [1991])’ Plaintiffs’ fall was not caused by an elevation-related risk but by the motion of the truck after the boom struck the overhead road sign and gantry (see Dilluvio v City of New York 264 AD2d 115, 119 [1st Dept 2000] [section 240 (1) inapplicable where the plaintiff fell off the back of a truck while being driven to the location on the roadway where he would p\ace cones as part of lane closure process], affd 95 NY2d 928 [2000]). Further, the gantry was “not a material being hoisH or a ¡oa(j that required securing” within the meaning of ⅞⅛ statute (Narducci v Manhasset Bay Assoc., 96 NY2d 259, 268 [2001]).

The Industrial Code provisions cited as predicate^ Labor Law § 241 (6) claims are largely inapplicable-to NYCRR 23-8.5 [since repealed]; 23-9.7 [e]; 23-1.29 [a]).

At this stage, however, an issue of fact exists as to whv^ defendants violated section 23-8.2 (d) (3) of the Industrial Ce pertaining to “[m]obile crane travel,” which provides that j mobile crane, with or without load, shall not travel with l boom so high that it may bounce back over the cab”³ (1 NYCRR 23-8.2 [d] [3]; see Braun v Fischbach & Moore, 280 AD2d 506 [2d Dept 2001] [issue of fact as to whether the defendant violated the section, where the raised boom of a crane collided with a support beam, causing the crane to dislodge from the turntable and be pushed onto a flatbed car on which the plaintiff was standing]).⁴ Defendants complain that there was no evidence that the boom bounced back over the cab. However, the regulation is violated when a mobile crane has “the boom so high that it may bounce back over the cab” (id. at 507-508 [emphasis added]). Even assuming defendants are correct, the boom was high enough to strike a gantry sign. We reject the dissent’s argument that the regulation was not implicated because plaintiffs were not injured by the boom bouncing over the cab, but rather, when the boom hit the road sign. In Braun, the plaintiff was injured not by the boom bouncing over the cab per se, but by beams, grates and railroad ties that were propelled by the turret of the crane after the crane collided with a support beam and became dislodged from the turntable (id. at 507). We accordingly reinstate plaintiffs’ section 241 (6) claims as against defendants. Given the apparent conflict between the contract and the testimony about the operation of the work site, whether GPI functioned as a statutory agent with control over the injury-producing work presents an issue for the jury to resolve (see Barreto v Metropolitan Transp. Auth., 25 NY3d 426, 434 [2015]).

Defendants established prima facie that they had only general supervisory authority over plaintiffs’ work, which is insufficient to establish liability under Labor Law § 200 or common-law principles (see Hughes v Tishman Constr. Corp., 40 AD3d 305, 306-307 [1st Dept 2007]; Cahill v Triborough Bridge & Tunnel Auth., 31 AD3d 347, 350 [1st Dept 2006]; Dalanna v City of New York, 308 AD2d 400, 400 [1st Dept 2003]). In opposition, plaintiffs failed to raise an issue of fact. Concur— Acosta, P.J., Richter and Manzanet-Daniels, JJ.

1 . A “boom truck” is a flatbed truck equipped with a crane.

2 . Defendant Greenman-Pedersen, Inc. (GPI) was sued incorrectly as “Greeman-Pederson, Inc.”

3 . This argument was preserved inasmuch as plaintiffs alleged a violation of the regulation in their amended complaint. At least one defendant argued its inapplicability, prompting a response by plaintiffs.

4 . The dissent maintains that the boom truck did not qualify as a “mobile crane.” The dissent admits, however, that “mobile crane” is not formally defined in the pertinent regulation.