Smith v. Hovnanian Co., Inc.

OPINION OF THE COURT Casey, J. Plaintiff was injured while he and his co-workers were delivering sheetrock to a construction site. The sheetrock was brought to the site on a flatbed truck which had an extension boom for lifting the sheetrock off the truck and maneuvering it into position to unload. While a co-worker was operating the extension boom, plaintiff’s head became pinned between the sheetrock and the wall of a building. Plaintiff commenced this action against defendant, as owner of the construction site, alleging violations of Labor Law § 240 (1) and § 241 (6). The complaint also alleged that defendant failed to provide a safe place to unload the sheetrock. Defendant commenced a third-party action against a subcontractor and plaintiff’s employer, Strober King Building Supply Corporation. Following discovery and the filing of a note of issue, plaintiff obtained an adjournment and ultimately moved to amend and supplement his bill of particulars to include the particular regulatory provisions allegedly violated with respect to his Labor Law § 241 (6) cause of action, as required by the holding in Ross v Curtis-Palmer Hydro-Elec. Co. (81 NY2d 494, 501-505). Defendant and Strober opposed the motion, and Strober cross-moved for summary judgment dismissing the complaint. Supreme Court granted the motion and denied the cross motion, resulting in this appeal by Strober. We agree with Strober that Supreme Court erred in failing to dismiss the Labor Law § 240 (1) cause of action. In Ross v Curtis-Palmer Hydro-Elec. Co. (supra, at 500-501), the Court of Appeals concluded that Labor Law § 240 (1) was designed to provide " 'exceptional protection’ ” for workers against " 'special hazards’ ”, which are "limited to such specific gravity-related accidents as falling from a height or being struck by a falling object that was improperly hoisted or inadequately secured”. Plaintiff neither fell from a height nor was he struck by a falling object. Rather, plaintiff was injured as a result of the horizontal movement of the load of sheetrock. Thus, regardless of whether the extension boom was operated so as to give proper protection to plaintiff, he has no Labor Law § 240 (1) [71] cause of action because his injury did not arise out of a "special hazard” (see, Smith v New York State Elec. & Gas Corp., 82 NY2d 781). As to plaintiffs Labor Law § 241 (6) cause of action, a recent case establishes that "a plaintiff must show that the defendant breached a regulation containing specific commands and standards as opposed to one that merely incorporates the general common-law standard of care” (Baird v Lydall, Inc., 210 AD2d 577, 578; see, Ross v Curtis-Palmer Hydro-Elec. Co., supra, at 502-503; Samiani v New York State Elec. & Gas Corp., 199 AD2d 796, 797). It was in response to this recent case law that plaintiff sought to amend and supplement his bill of particulars, and we see no basis to disturb Supreme Court’s exercise of discretion in granting plaintiffs motion (see, e.g., Smullens v Mac Vean, 200 AD2d 807. Despite the delay, there has been no showing of the type of prejudice which would require denial of plaintiffs motion (see, Smith v Industrial Leasing Corp., 124 AD2d 413). Plaintiffs reliance on 12 NYCRR 23-8.2 (c) (3) is, in our view, sufficient to sustain a Labor Law § 241 (6) cause of action. The regulation requires the use of "[a] tag or restraint line[s] * * * when rotation or swinging of any load being hoisted by a mobile crane may create a hazard”. Strober argues that plaintiffs injury was not caused by the rotation or swinging of any load. The argument is meritless. The regulation was clearly designed to protect workers from the hazards created by the horizontal movement of a load caused by a mobile crane. Plaintiff was injured when he was pinned between a wall and the load of sheetrock that was being unloaded from the truck with the extension boom. There is no claim that the truck was moving, and it is obvious that the wall did not move. Accordingly, it must have been the movement of the load of sheetrock that caused plaintiff to be pinned to the wall. The absence of vertical movement of the sheetrock is a factor in the dismissal of the Labor Law § 240 (1) cause of action, as previously discussed. It necessarily follows, therefore, that the sheetrock was moving horizontally, as a result of swinging or rotation caused by the extension boom. That such swinging or rotation posed a hazard to plaintiff can readily be inferred from the fact that the movement of the load of sheet-rock pinned him to a wall and injured him. Given the evidence in the record, the question of whether the absence of the tag or restraint lines required by the regulation was a proximate cause of plaintiffs injuries, which were sustained when he was [72] pinned to the wall by the rotation of the load of sheetrock, cannot be resolved without resort to speculation. Summary judgment dismissing plaintiffs Labor Law § 241 (6) cause of action is, therefore, inappropriate. Plaintiffs complaint alleges that the area where the sheetrock was to be unloaded was so cluttered with debris that there was no safe place to unload the sheetrock. Such an allegation is, in our view, sufficient to state a cause of action based upon a violation of the common-law safe place to work requirement (see, Labor Law § 200) despite the absence of any specific reference in the complaint to such requirement. The cross motion for summary judgment did not address plaintiffs safe place to work claim, and the record is insufficient to permit resolution as a matter of law of such issues as notice and control. We note that Supreme Court’s order contemplates the possibility of further discovery and permits Strober to renew its summary judgment motion upon completion of any additional discovery.