Opinion
9226 Index 151057/12
05-07-2019
Michael DJURIC, et al., Plaintiffs–Appellants–Respondents, v. The CITY OF NEW YORK, et al., Defendants–Respondents, Shaw Environmental & Infrastructure Engineering of New York, P.C., Defendant–Respondent–Appellant. Shaw Environmental & Infrastructure Engineering of New York, P.C., Third Party Plaintiff–Appellant, v. Bidwell Environmental, LLC, Third–Party Defendant–Respondent.
Sacks and Sacks LLP, New York (Scott N. Singer of counsel), for appellants-respondents. Ahmuty, Demers & McManus, Albertson (Glenn A. Kaminska of counsel), for appellant/respondent-appellant. Fabiani Cohen & Hall, LLP, New York (Allison A. Snyder of counsel), for The City of New York and the New York City Department of Environmental Protection, respondents. McGaw, Alventosa & Zajac, Jericho (Ross P. Masler of counsel), for Bidwell Environmental, LLC, respondent.
Sacks and Sacks LLP, New York (Scott N. Singer of counsel), for appellants-respondents.
Ahmuty, Demers & McManus, Albertson (Glenn A. Kaminska of counsel), for appellant/respondent-appellant.
Fabiani Cohen & Hall, LLP, New York (Allison A. Snyder of counsel), for The City of New York and the New York City Department of Environmental Protection, respondents.
McGaw, Alventosa & Zajac, Jericho (Ross P. Masler of counsel), for Bidwell Environmental, LLC, respondent.
Renwick, J.P., Richter, Tom, Kapnick, Kern, JJ.
Order, Supreme Court, New York County (Gerald Lebovits, J.), entered May 14, 2018, which granted the motions of defendants Shaw Environmental & Infrastructure Engineering of New York PC (Shaw), The City of New York and the New York City Department of Environmental Protection for summary judgment dismissing the complaint, denied plaintiffs' motion for partial summary judgment on their claims pursuant to Labor Law §§ 240(1) and 241(6), and granted the motion of third-party defendant Bidwell Environmental & Infrastructure Engineering of New York (Bidwell) for summary judgment dismissing Shaw's third-party complaint against Bidwell, unanimously affirmed, without costs.
The motion court correctly found that Labor Law § 240(1) was inapplicable here, because the pipe saddle that detached from an overhead ceiling pipe assembly and struck plaintiff was not an object that required securing for the purposes of the undertaking; rather it was a permanent part of the structure (see Narducci v. Manhasset Bay Assoc. , 96 N.Y.2d 259, 268–269, 727 N.Y.S.2d 37, 750 N.E.2d 1085 [2001] ; Bednarczyk v. Vornado Realty Trust , 63 A.D.3d 427, 428, 881 N.Y.S.2d 51 [1st Dept. 2009] ). Similarly, plaintiffs' Labor Law § 241(6) claim was correctly dismissed, since neither of the pleaded violations of the Industrial Code apply. 12 NYCRR 23–1.7(a)(1) is inapplicable here, because plaintiff was not injured by debris that may have been falling from a ceiling demolition, but instead, from a fixture of the building which dislodged (see Marin v. AP–Amsterdam 1661 Park LLC , 60 A.D.3d 824, 825–826, 875 N.Y.S.2d 242 [2d Dept. 2009] ). 12 NYCRR 23–3.2(b) is also inapplicable because it pertains to protecting the stability of adjacent structures, not the stability of the building or structure allegedly being demolished (see Perillo v. Lehigh Const. Group., Inc. , 17 A.D.3d 1136, 1138, 795 N.Y.S.2d 808 [4th Dept. 2005] ).
Plaintiffs' claims of common-law negligence and Labor Law § 200 were also properly dismissed. Defendants made a prima facie showing of lack of notice of any problem with pipe saddles through the testimony of the construction manager's representative who regularly walked the site and saw no evidence of the alleged condition, and the evidence that there were no complaints or prior similar incidents at the property (see Rodriguez v. Dormitory Auth. of State of N.Y. , 104 A.D.3d 529, 530, 962 N.Y.S.2d 102 [1st Dept. 2013] ). Constructive notice is also inapplicable because the defective pipe saddle was latent, such that the construction manager's representative's inspections would not have alerted it to the potential hazard of the object becoming dislodged and falling (see Lopez v. Dagan , 98 A.D.3d 436, 438–439, 949 N.Y.S.2d 671 [1st Dept. 2012], lv denied 21 N.Y.3d 855, 2013 WL 1876504 [2013] ).
Even to the extent the accident could be characterized as occurring due to the work, as opposed to the condition of the premises, construction manager Shaw cannot be held liable because it did not have authority to supervise and control the work (see Fiorentino v. Atlas Park LLC , 95 A.D.3d 424, 426, 944 N.Y.S.2d 60 [1st Dept. 2012] ).There is similarly no evidence that Bidwell had such authority, or that it was in any way negligent, and thus the third-party complaint was correctly dismissed.