Sparendam v. Lehr Construction Corp.

Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered on or about October 4, 2004, which, inter alia, granted defendant Lehr Construction Corp.’s motion for summary judgment, granted in part and denied in part defendants BLP [389] Acquisition LLC, ATC Merger Corp., and Globix Corporation’s motion for summary judgment, and granted in part and denied in part defendants AT&T Corp. and AT&T Inc.’s cross motion for summary judgment, modified, on the law, to grant summary judgment dismissing the Labor Law § 241 (6) claim based on Industrial Code (12 NYCRR) § 23-4.2 (h) against BLP Acquisition LLC, ATC Merger Corp. and Globix Corporation and the AT&T defendants, and otherwise affirmed, without costs. The Clerk is directed to enter judgment in favor of BLP Acquisition LLC, ATC Merger Corp. and Globix Corporation and AT&T Corp. and AT&T Inc. dismissing the complaint. Plaintiff suffered a fracture of his right knee and other injuries when he was struck in the legs by an air compressor at a construction site. At the time of the accident, two trenches eight inches deep, four inches wide and separated by 12 inches had been cut into the street by the use of a rotary asphalt-cutting saw. The area between the trenches had not yet been excavated. As plaintiff and five coworkers were moving the compressor, which was being used to power a jackhammer, one of its two wheels fell into a trench, and the compressor swung around, striking plaintiff on the knees and knocking him down. Summary judgment dismissing the Labor Law § 241 (6) claims should have been granted on the ground that Industrial Code (12 NYCRR) sections cited by plaintiff as predicates for these claims are either inapplicable or insufficiently specific. Section 23-4.2 (h), which requires that any “open excavation” be effectively guarded by fence or barricade or protected by covering, is inapplicable to plaintiffs accident because, while there were kerf cuts in the road surface where plaintiff was injured, there was not yet any open excavation. Section 23-4.2 (k), which provides that “[p]ersons shall not be suffered or permitted to work in any area where they may be struck or endangered by any excavation equipment or by any material being dislodged by or falling from such equipment,” is insufficiently specific to support a Labor Law § 241 (6) claim (see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 502.-503 [1993]). The motion court properly dismissed the negligence and Labor Law § 200 claims against AT&T. There is no evidence that AT&T, which arguably had general supervisory authority over plaintiffs employer, Westmoreland, actually exercised supervisory control or had any input into how the compressor was to be moved (see Comes v New York State Elec. & Gas Corp., 82 NY2d 876 [1993]). The motion court properly dismissed the complaint against Lehr Construction Corp. on the ground that Lehr did not have [390] any authority over AT&T’s or Westmoreland’s work. It is undisputed that Lehr was in the business of renovating the interiors of buildings, that it was hired as the construction manager for the interior renovation of Globix’s building, that Lehr hired neither AT&T nor Westmoreland, and that neither Lehr nor any of its subcontractors played any role in the delivery of conduit or cables from the street into the building. Lehr’s agreement with Globix defined the project as “Basement through the 9th Floor” and provided for Lehr to hire subcontractors to do the work. Contrary to AT&T’s contention, the provisions of the agreement that called on Lehr to coordinate, supervise or inspect the work of all trade contractors plainly refer to contractors hired to perform work in the project of renovating the building’s interior from the basement through the ninth floor (cf. Walls v Turner Constr. Co., 4 NY3d 861, 864 [2005] [atypical construction manager’s “broad responsibility was both that of coordinator and overall supervisor for all the work being performed on the job site”]). Concur—Mazzarelli, J.P., Ellerin and Catterson, JJ.