Opinion
No. 120633.
05-28-2015
Nicholas FEDERICO and Lisa Bernardo Federico, Claimants, v. The STATE of New York, Defendant.
Sacks and Sacks, LLP, by David H. Mayer, Esq., for Claimants. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, by Mathew P. Ross, Esq. and Brian S. Gatens, Esq., for Defendant.
Sacks and Sacks, LLP, by David H. Mayer, Esq., for Claimants.
Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, by Mathew P. Ross, Esq. and Brian S. Gatens, Esq., for Defendant.
ALAN C. MARIN, J.
The defendant State of New York has moved to dismiss the claim of Nicholas Federico, who was injured while working on a project of the State's to rehabilitate the Gowanus Expressway in Brooklyn. On November 4, 2011, claimant, who was employed by El Sol Contracting and Construction Corp., was struck by an SUV while he was removing barrels that had been used to close two lanes of Hamilton Avenue. Mr. Federico's claim is based upon Labor Law sections 200 and 241.6.
The claim of Lisa Federico is derivative of her husband's; references herein to "Federico" and "claimant" will mean Nicholas Federico.
The parties have presented a substantial amount of information on this motion. There are two depositions from Mr. Federico, one of which was given in his lawsuit in Kings County, Supreme Court brought against the SUV driver and DeFoe Corp., another general contractor on the Gowanus project. The following were also deposed:
* John Elias, a Civil Engineer II with the State Department of Transportation (DOT), who was the engineer in charge of El Sol's Gowanus contract;
* Edward Nizzardini, an employee of DeFoe who was in charge of maintenance, protection and traffic control (MPT) for his employer;
* Alan Bergen, a laborer/foreman for DeFoe;
* John Kiselica, Defoe's superintendent on their Gowanus contract;
* Billy Politis, a safety consultant working for Pro–Safety Services, a company hired by El Sol, whose job was to report hazardous conditions to El Sol's superintendent; and
* John DeLuca, the driver of the SUV.
Elias explained that there were three contracts for the Gowanus Expressway. One by El Sol and one by DeFoe are relevant to this case. El Sol had a second contract that covered the lower Gowanus Expressway closer to the Verrazano Bridge, which is not of concern in our case.
In addition, each side has prepared a memorandum of law to supplement their motion papers. Defendant submitted the accident report prepared by DeFoe Corp. Claimant has also submitted: the minutes of a "project progress meeting" in DOT's on-site office on September 30, 2011; permits issued by the City of New York for lane closings; an email from DeFoe sent on the afternoon of November 3; and the affidavit of expert engineer, Nicholas Bellizzi.
Mr. Federico disputes a portion of the report, which was prepared several months after his accident.
Finally, claimant included in its opposition papers the New York State Supplement to the Manual on Uniform Traffic Control Devices and DOT's Standard Specifications.
* * *
At about 3 p.m. on November 4, 2011, claimant began to remove the barrels that were being used to close the two right-most lanes of westbound Hamilton Avenue, which was four lanes in that direction. The Gowanus Expressway is elevated over Hamilton Avenue, and the lane closures were for the purpose of protecting motorists from debris falling from the work above. The portion of Hamilton Avenue that Federico was working on ran from the Gowanus Canal west or northwest—usually described as the side of the canal leading to Manhattan and the other side as going toward the Verrazano Bridge.
Because Hamilton Avenue crosses the Gowanus Canal by means of a drawbridge that was in daily use, the items used to close lanes such as yellow barrels or arrow boards directing traffic away from the closed lanes could not be used on the bridge. In that location, Hamilton Avenue was effectively two segments—and significantly, lane closures for the segment on the Verrazano side of the drawbridge were handled by the other general contractor on the scene—DeFoe Corp. Furthermore, there was testimony that because of the rise of the drawbridge, the portion of the road on one side of the drawbridge was not visible from the other side.
The schedule for lane closings was determined on the day before. An email was sent at 3:05 p.m., November 3, from DeFoe to the DOT, El Sol, and El Sol's safety consultant (Pro–Safety) listing the lanes DeFoe planned to close the next day. The lane closings would often overlap; El Sol and DeFoe would cooperate, with one contractor "extending" the closings of the other to cover its area. When this was the done, the two contractors would let one another know when they were reopening the lanes, known as "picking up" their lane closures.
They would often share the equipment, more typically the four-foot high yellow barrels, which could be left by the side of the road. In his deposition, Edward Nizzardini of DeFoe stated that he had Federico's cell phone number and they would speak every day to coordinate lane closings (Mr. Nizzardini may have been on vacation on November 4 with Alan Bergen filling in).
Claimant was directly advised that DeFoe would be working through 6 p.m. on November 4 to take care of an emergency "red flag" condition. But as it happened, DeFoe picked up earlier that day, in fact before El Sol did, leaving claimant exposed to lanes "live" with regular New York City traffic. Claimant was moving the barrels to the side of the road so they could be easily used again.
Claimant was moving back and forth with the barrels and testified that he was struck by Mr. DeLuca's vehicle in the middle of lane 3, which was the second lane from the right. DeLuca in his deposition of June 17, 2013 testified that his SUV and the claimant were in the same lane, which he also thought was second from the right. He stated that since he did not have a line of sight over the drawbridge, he first saw Federico when his SUV was so close that they could not avoid contact. According to DeLuca, when the police came to the scene, he was not issued a ticket.
Section 241.6 of the Labor Law
It is not in dispute that the State of New York is the owner of the site for purposes of Labor Law section 241.6. No issue has been raised as to who bears responsibility for the Gowanus Expressway, an arterial highway under Article 12–B of the Highway Law; see for example, Albanese v. City of New York, 5 NY3d 217 (2005). Obviously, the work on Hamilton Avenue below is an integral part of the Gowanus reconstruction project (see Gonnerman v. Huddleston, 78 AD3d 993 [2d Dept 2010] ).
What defendant argues is that claimant has failed to cite any rule of the Commissioner of Labor that can serve as a predicate for a violation of section 241.6 (Ross v. Curtis–Palmer Hydro–Elec. Co ., 81 N.Y.2d 494 [1993] ). Claimant relies upon section 23–1.29 of the Commissioner's rules, subdivision (a) of which provides that where construction is exposed to traffic, the "work area shall be so fenced or barricaded as to direct such public vehicular traffic away from such area, or such traffic shall be controlled by designated persons."
Section 23–1.29 (more precisely, 12 NYCRR 23–1.29 ), with subdivisions (a) and (b), is the only provision relied upon by claimant in his memorandum of law.
The State contends that section 23–1.29 does not cover what happened here because this provision envisions that the employee is behind or within the protection of the fencing or barricading, but here Federico was taking down the barricades. Defendant added that claimant walked into a traffic lane his own employer had closed, citing Delaney v. City of New York, 78 AD3d 540 (2010), in which the First Department found section 23–1.29 inapplicable to an ironworker who having entered a lane that was closed to traffic, was hit by a pickup truck. Delaney is distinguishable because the truck was owned and operated by plaintiff's employer; it was not part of "public vehicular traffic."
At the appellate level, Delaney was more focused on Labor Law section 200.
There is a basis in the record for the fact that the work of El Sol and DeFoe regarding lane closings overlapped in the Hamilton Avenue drawbridge vicinity, and Defoe picked up its lanes well before it was scheduled to do so, without informing any employee of El Sol. This left Federico both exposed to public traffic and unaware that he was so exposed while he was picking up El Sol's lanes. Moreover, the record can support the proposition that had DeFoe's lanes stayed closed until the scheduled time, traffic would have been directed away from claimant per 23–1.29. In sum, Federico's section 241.6 cause of action stands.
Section 200 of the Labor Law
Section 200 is the codification of the common law duty of an owner or contractor to provide a safe site for construction work (Rizzuto v. L.A. Wenger Contr. Co., 91 N.Y.2d 343[1998] ). The section covers two categories of action, depending upon whether injury results from: 1) a dangerous or defective premises condition of which defendant had notice; or 2) the manner in which the work was performed where defendant directed, supervised or controlled the work.
While the first category has been interpreted fairly expansively, it is not implicated in this case. However, the defendant had sufficient control over the way the work was performed to support a claim under section 200.
In Martinez v. City of New York, 73 AD3d 993, 997–998 [2d Dept 2010] ), the court found the following to be a dangerous condition under section 200 : an elevated valve wheel on a gas recovery pipe with no chain mechanism that would have allowed it to be operated from the ground.
The issue was not some mundane situation in which the owner questioned the contractor's method of performing a standard construction task. This job site exemplified a situation when control by the State of New York would logically come into play: the work of two general contractors overlapped with respect to the closing, or failing to close, traffic lanes on a dangerous stretch of road, on which a drawbridge apparently blocks the employees of one contractor from seeing what the other contractor has done.
The State had an engineer in charge (EIC) on site every day; in fact, there was an EIC for the El Sol contract and one for DeFoe. John Elias, as of his deposition of December 4, 2013, was a Civil Engineer II and had been employed by the Department of Transportation for 26 years. He was the engineer in charge of the project for which El Sol was the general contractor (contract D–260688). The EIC for the Defoe job was Roberto Rodriguez. As the engineer in charge, Mr. Elias' job was "to supervise my inspectors, and make sure that the project is built in accordance with the standard specifications, contract plans and proposals" [def aff support, exh E, p. 10].
Elias testified in his deposition that there were times when El–Sol and Defoe needed to close the same lane (s) so that one of the contractors "piggybacked off these lane closures" [id., p. 50]. He stated that an inspector supervised by him would monitor the El Sol lane closures; on November 4, 2011, that was Michael Reznik.
Elias testified that when he performed his walk-throughs of the project, if he saw an El Sol worker doing their job in an unsafe manner he had the authority to direct them to stop doing so. This exchange followed regarding protecting workers while controlling traffic (MPT):
"Q. During the course of your walk-throughs, if you saw an area that you thought did not have enough MPT protection in place for the workers, what, if anything, would you do about that?
A. I would ask them to correct it." [Id., pp 56–57].
A permit from the City of New York was required to close lanes of traffic, and the engineer indicated that: "The permit allows the contractors to coordinate their work activities so that there wouldn't be any conflict" if two contractors needed to close the same lane [id., p. 35]. Elias testified that there was no DOT person specifically assigned to coordinate issues between the El Sol and DeFoe contracts but "during meetings we would advise them to coordinate their work" [id., p. 52].
In Rizzuto, the Court of Appeals dealt with whether coordinating multiple parties constituted control for the purposes of section 200. The case involved the rehabilitation of a bus depot run by the New York City Transit Authority, during which time the facility remained fully operational. Plaintiff, employed by a subcontractor, was in the midst of replacing a submersible pump in the fuel station area and was working 10 to 12 feet from a Transit Authority employee who was pressure testing an underground tank for leakage. Diesel fuel suddenly erupted from the tank spraying the area, and Mr. Rizzuto slipped on it and was injured. Rizzuto sued the general contractor, L.A. Wenger Company.
The Court of Appeals reversed the lower courts below, holding that a triable issue of fact existed with respect to the applicability of section 200 :
"[Did defendant have] control over the methods of the subcontractors and other worksite employees in the sense that the defendant had the ability to coordinate the work activity of its subcontractors and the Transit Authority, had the capacity to exclude the Transit Authority from working in the fuel station area of the depot, or had the authority to direct either its subcontractors or the Transit Authority to not engage in an operation while another potentially hazardous activity, i.e., pressure-testing an underground fuel tank, was taking place within the immediate area [citations omitted]"? [91 N.Y.2d at 353 ].
Their analysis obtains here; this Court also finds that there is a triable issue of fact on the applicability of section 200 to the claim of Nicholas Federico. * * *
In view of the foregoing, and having reviewed the parties' submissions, motion No. M–86061 is denied.
The Court reviewed the following: from defendant—a Notice of Motion and Affirmation in Support (with exhibits A through G), a Reply Affirmation in Further Support of Summary Judgment (with exhibit H, John Elias' deposition errata sheet), and a Memorandum of Law; from claimants—an Affirmation in Opposition to State of New York's Motion for Summary Judgment (with exhibits 1 through 12), and a Memorandum of Law.
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