Decisions of Interest
Joseph Adonis v. North American Demo & Excavation Corp.,Grant Forbell and Empire Developers Corp.; Grant Forbell and Empire Developers v. North American Contracting
Supreme Court, Kings County, Index No. 49635/02
Plaintiff, an employee of third-party defendant North American Contracting, alleged he was injured by a falling rock at a construction site. He sustained a fracture of the right tibia. We represented defendants Grant Forbell, owner of the premises, and Empire Developers, general contractor for the project. Empire had entered into a contract with North American to perform excavation, including digging the foundation, carting soil from the site, and screening and separating different types of material from the excavated dirt. Forbell and Empire did not supervise, direct or control the area where the incident allegedly occurred. We argued that Forbell and Empire had no prior notice of the alleged unsafe manner in which North American was performing work at the time of the alleged occurrence. In addition, we contended that Forbell and Empire did not supervise plaintiff's work or provide plaintiff with his tools, materials and equipment, nor did they determine the means, methods and procedures used by plaintiff to do his job. We argued that under these facts, the negligence and Labor Law Section 200 claims asserted against Forbell and Empire should be dismissed as a matter of law.
The work being performed involved the usual and ordinary danager of a construction site and did not fall within the extraordinary elevation-type risks envisioned by Labor Law Section 240(1). There was no proof that the rock fell from a height, or that it fell while being hoisted or secured because of the absence or inadequacy of a safety device of the kind enumerated in the statute. Violations of New York Industrial Code Section 23-1.7(a), which relates to "protection from overhead hazards" was also inapplicable to the facts of the instant case as "it contemplates protection against falling objects" associated with other overhead activity under different circumstances". Section 23-1(b) of the Industrial Code, which refers to disposal of debris, lacks the specificity required to support a cause of action under Labor Law Section 241(6). We further argued that none of the sections of the New York Industrial Code cited by plaintiff applied to the facts of the instant case and that plaintiff's cause of action under Labor Law Section 241-(6) should accordingly be dismissed as a matter of law.
The Court granted our motion for summary judgment, and dismissed all claims asserted against Forbell and Empire in their entirety. In dismissing the Labor Law Section 240 Claim, the Court stated that the rock which fell on plaintiff was not "a material being hoisted or a load that required securing for the purposes of the undertaking at the time it fell". With regard to the Labor Law Section 241(6) claim, the Court carefully examined and dissected the individual allegations of the corresponding claims of violations of the New York Industrial Code and OSHA standards. Most of the Industrial Code claims were dismissed as lacking specifity to support a cause of action under Labor Law Sectin 241(6) and the OSHA standard were dismissed because precedent holds that OSHA standards do not provide a basis of liability under this section of the Labor Law.