Construction Worker Struck By Sand-Filled Hopper That Fell Off Forklift Not Entitled To Summary Judgment On Labor Law Claims

Court: Supreme Court, Kings County, New York

Case: Silvano Rivera v. Fairway Equities LLC

Date: August 28, 2012

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Queens; Queens injury lawyer)

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Facts: Plaintiff Silvano Rivera seeks summary judgment under New York State's Labor Law.

He was hurt in December, 2007 when a forklift dropped a sand-filled metal hopper on him.

At the time, he was working as a mason constructing a building in the Bronx. The building was owned by defendant Fairway Equities LLC. The general contractor and construction managers were defendants Ramon Building and Construction Corp., United Homes of New York, Inc. and Monroe Funding LLC. Defendant Miron brought construction materials to the jobsite.

Miron sent a flatbed truck to the construction site loaded with two sand-filled hoppers and pallets of concrete blocks. After using a forklift to unload the bricks, Miron's driver used it to unload one of the hoppers from the truck.

Rivera's foreman wanted the sand removed from the hoppers and poured into a large plastic bag.

Rivera and two others were holding the bag. The sand did not pour from the hopper, which tipped over and fell onto Rivera.

Plaintiff's argument: New York State Labor Law Section 240(1) places absolute liability on owners and contractors when a worker is injured because they didn't give protection to workers at a construction site.

Defense argument: The hopper didn't fall from a great enough height to entitle Rivera to the protection of New York State Labor Law Section 240(1).

The Court=s holding: Given the weight of the hopper and distance it fell, Rivera is entitled to the special protection of New York State Labor Law Section 240(1). However, only general contractors owners and their agents may be held liable under New York State Labor Law Section 240(1). Plaintiff failed to show that Miron had sufficient authority over the forklift and hopper and it was his own employer that ordered the sand and bricks delivered to the site. The evidence suggests that Rivera's employer supervised the hopper's unloading. There are issues of fact as to whether Miron oversaw the unloading of the sand.

Rivera's request for partial summary judgment on the issue of liability is denied, and the case goes forward to trial.

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