Carlo Albanese, et al.,
Respondents,
v.
The City of New York, et al.,
Appellants,
et al.,
Defendants.
2005 NY Int. 121
Plaintiff Carlos Albanese, a carpenter, was at work on a scaffold suspended from a Cross Bronx Expressway ramp over the Bruckner Expressway in the City of New York when a tractor- trailer heading east on the Bruckner struck the bottom of the scaffold. Plaintiff was thrown into the air and fell back down onto the scaffold.
As of the date of the accident, the Expressways were under construction as part of a two-year New York State-initiated project that included the comprehensive resurfacing and rehabilitation of the Cross Bronx-Bruckner Interchange, Cross Bronx Expressway, Throgs Neck Expressway-Hutchinson River Parkway resurfacing, and joint restoration and replacement of the Throgs Neck Expressway Bridge over the Cross Bronx Expressway. Through its Department of Transportation, the State contracted for the project with Defoe Corporation, general contractor, and Haks Engineering, P.C., construction manager. The City was not a signatory to the contracts; it did not participate in the selection of, or negotiation with, the contracting parties; and it did not perform any of the work. The City, however, issued work permits for the project, granting the State the authority to "enter upon and restrict the flow of traffic on the Cross Bronx/Bruckner Expressway Interchange . . . for the purpose of reconstruction, resurfacing, and highway improvement together with all work incidental thereto," subject to stipulations imposing conditions on lane closures, traffic flow, storage of materials and the like. The City reserved the right to cancel the permits at any time.
Alleging that the scaffolding was too low, plaintiff
and his wife commenced this damages action for violations of
Labor Law sections 200, 240 and 241, as well as common-law
negligence, against the City of New York, the Triborough Bridge
Supreme Court denied the City's motion for summary judgment, finding issues of fact as to all claims. A divided Appellate Division modified, holding that, as a matter of law, the City was an owner within the meaning of the Labor Law; two dissenting Justices agreed with Supreme Court that the issue was (at the least) one of fact. The Appellate Division granted leave to appeal to this Court on a certified question. We now reverse, concluding that the City was not an owner for purposes of the alleged Labor Law violations.
Labor Law §§ 240 and 241 impose absolute liability on
"[a]ll contractors and owners and their agents" for any breach of
a statutory duty to provide safety measures that proximately
cause injury ( see Labor Law § 240 [1]; Labor Law § 241).
Plaintiffs contend that the City is an owner because the accident
occurred on an arterial highway and therefore, under Highway Law
article XII-B, the City and State shared responsibility for the
work site. Further, plaintiffs argue that the City actually
functioned as an owner on the project, by reviewing plans and
specifications for the work, attending meetings, inspecting the
Nowlin v City of New York (81 2 81 [1993]) is a centerpiece of plaintiffs' argument. While an automobile accident (not a Labor Law) case, Nowlin also concerned the scope of the City's responsibility on arterial highways-_roadways running through the City that connect to State highways. Our analysis began with article XII-B of the Highway Law (Highway Law §§ 349-b through 349-f), enacted in 1944 to create a State-wide system for the use of state and federal funds in the construction and modernization of arterial highways.
As we explained in Nowlin, arterial highways by definition implicate both state and local interests, and the statute pays deference to both. It provides that the State may expend state or federal funds for the purchase, design, construction or reconstruction of arterial routes and thereby may attain ownership of them (Highway Law § 349-c [1], [5], [6]). The State, however, can proceed with construction only "after designs, plans, specifications and estimates of cost thereof have been completed and approved by the city and the commissioner of transportation, and the necessary property has been acquired" (Highway Law § 349-c [3.4]). Once state work is complete, "the commissioner of transportation shall transfer jurisdiction to the city of New York" ( id.).
The separation between City and State responsibility, however, is not absolute, even during construction. Recognition of City authority--both the power to regulate its affairs, and the obligation to maintain its property--is a theme sounded throughout the history of article XII-B ( see Nowlin, 81 NY2d at 87-88). For example, during state work, the City may itself initiate construction projects and thus take on the function of an owner (Highway Law § 349-c [3.6]); by the same token, the State may--as in Nowlin_-retain maintenance responsibilities even after transferring jurisdiction to the City.
Two related, significant facts distinguish this case
from Nowlin, where we sustained a damages award against the City
for an automobile accident on an arterial highway, the Henry
Hudson Parkway. In Nowlin, years before the accident, the State
had completed construction and transferred jurisdiction to the
City. Here, state construction was ongoing at the time of
plaintiff's injury. In Nowlin, moreover, where negligent
placement of warning signs allegedly created a traffic hazard
that caused plaintiff's injury, it was the City that had actually
planned and placed the signage on the Parkway. Here, the City
exercised no comparable function with respect to the scaffolding
that was part of the State's rehabilitation of the Cross Bronx
Expressway-Bruckner Interchange. The State was in charge of the
project, and the City had no say as to which contractor or
consultants were hired. The City did not perform any of the
Accordingly, the order of the Appellate Division, insofar as appealed from, should be reversed, with costs, the certified question answered in the negative, and the case remitted to Supreme Court for further proceedings in accordance with this Opinion.