Summary
holding that where plaintiff "fell from near the top of an A-frame, fiberglass ladder" in an elevator pit, "accident did not involve a fall into a hazardous opening"
Summary of this case from CIRA BAUTISTA VASQUEZ INDIVIDUALLY v. FCE INDUSTRIESOpinion
32163/04.
Decided August 23, 2006.
Upon the foregoing papers, plaintiff, Robert Riccio (Riccio), moves for an order, pursuant to CPLR 3212, granting partial summary judgment on liability under Labor Law § 240 (1). Defendants NHT Owners, LLC (NHT) and Mallory Management Corp. (Mallory) concurrently move for an order, also pursuant to CPLR 3212, granting them summary judgment dismissing plaintiff's complaint.
Background
This personal injury action, brought pursuant to Labor Law §§ 200, 240 (1) and241 (6), stems from an accident that occurred on August 30, 2004 between 10 and 10:30 AM in an elevator pit of a 153-unit apartment building which NHT owned and Mallory managed at 22-10 New Haven Avenue in Far Rockaway, Queens. Plaintiff, a 52 year-old elevator mechanic when injured, worked for both Vertical and New Horizons Elevator Installations, Inc., He fell from near the top of an A-frame, fiberglass ladder while he and his helper were responding for Vertical to Mallory's service contract request regarding one of the elevators that had malfunctioned over a two week period at the above building.
The court's short form order, dated June 13, 2006, granted the unopposed summary judgment motion of former defendant Vertical Elevator Co, Inc. (Vertical) and dismissed plaintiff's claims and the other defendants' cross-claims against Vertical with prejudice. A formal caption amendment in the decretal paragraph herein will now reflect Vertical's severance from the case.
Both elevator companies have maintained offices at the same address and the same person has served as president of both companies.
The accident occurred as plaintiff and his helper removed and installed an eight foot long, 3 inch wide, metal hoistway door track and two roller assemblies for the outside, stationary door, known as the hoistway door, of the building's lobby level, right side elevator. Plaintiff's helper had obtained the A-frame ladder from the building and positioned it on the elevator pit floor with the legs fully extended and the side braces, known as the "spreaders," locked in position to secure the legs. The helper had used the ladder without any problems just before plaintiff, who himself found the ladder not wobbly in any way, utilized it to finish some bolt-tightening work.
Plaintiff allegedly felt the ladder move or shake while on the second and third steps from the top as he held a ratchet wrench in his right hand and a new door track with his left hand. He started to fall back, dropped the wrench, grabbed onto the ladder and fell with it to the concrete floor approximately five feet below. The helper took plaintiff to St. John's Episcopal Hospital where records regarding his "present illness" quote him as saying "I just lost my balance."
The Parties' Positions Plaintiff's Position
Plaintiff argues that his accident resulted from performing repair work not routine maintenance and that Labor Law § 240 (1) therefore applies herein. He contends that the ladder failed to afford him proper protection and that its failure proximately caused the accident. Defendants' actual or constructive notice about the allegedly defective ladder they provided, plaintiff further contends, makes his Labor Law § 200 claim viable. Likewise, plaintiff views the alleged violation of 12 NYCRR 23-1.21, a sufficiently specific provision concerning ladders and ladderways, as also making his Labor Law § 241 (6) claim viable.
Defendants' Position
Defendants believe that plaintiff failed to alter the structure of the building and engaged in routine maintenance at the time of his accident thereby making Labor Law § 240 (1) inapplicable. They view the insufficiency of the evidence questioning the ladder's protection as offering a separate ground to defeat the Labor Law § 240 (1) cause of action in any event. These moving defendants further argue that they neither directed, supervised or controlled plaintiff's work thus making dismissal of the Labor Law § 200 claim equally appropriate. Both defendants additionally assert that Labor Law § 241 (6) fails to cover the work involved in this case, that plaintiff has abandoned all but 12 NYCRR 23-1.21 in opposing dismissal of the Labor Law § 241 (6) claim and that no evidence shows that any alleged violation of 12 NYCRR 23-1.21 proximately caused plaintiff's injury.
Discussion
The Labor Law § 240 Claim
(a)
The Court of Appeals has explained that Labor Law § 240 (1) "imposes absolute liability on owners and contractors for any breach of the statutory duty [specified therein] that proximately causes injury" ( Abbatiello v. Lancaster Studio Associates, 3 NY3d 46, 50 [internal citation omitted]). Therefore, the Court of Appeals has coordinately recognized that "[t]he critical inquiry in determining coverage under the statute is what type of work the plaintiff was performing at the time of injury'" ( Panek v. County of Albany, 99 NY2d 452, 457 quoting Joblon v. Solow, 91 NY2d 457, 465). "Only work that involves the erection, demolition, repairing, altering or painting of a building or structure enjoys the protection of Labor Law § 240 (1)" ( Wein v. Amato Properties, LLC, 30 AD3d 506, 2006 NY Slip Op 04829 at *1 [2006] [internal quotation marks omitted]).
That provision pertinently provides that "[a]ll contractors and owners and their agents . . . in their erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed."
The Nature of the Work
Here, defendants describe the elevator work as routine maintenance under a service agreement and plaintiff categorizes his assignment as a major structural repair to the elevator's hoistway door system. However, "it is not important how the parties generally characterize the injured worker's role" ( Joblon v. Solow, 91 NY2d at 465). Instead, determining whether removal and installation of the door track and roller assemblies typifies the enumerated activities of altering or repairing a structure represents the proper approach.
This principle moots evidentiary arguments about comments/admissions by defendants' building superintendent concerning the nature of the work. It also makes the description of plaintiff's job on an unproduced work order irrelevant which, in turn, moots a spoilation issue.
(1)
The elevator, itself qualifies as a "structure," defined, "for purposes of Labor Law § 240 (1), as any production or piece of work artificially built up or composed of parts joined together in some definite manner" ( Joblon, 91 NY2d at 464 [internal citation and internal quotation marks omitted]). The definition thus covers signs ( Smith v. Shell Oil Co., 85 NY2d 1000, 1001-1002), railroad cars ( Gordon v. Eastern Ry. Supply, 82 NY2d 555, 558 n. [1993]), a telephone pole with attached hardware and cables ( Lewis-Moors v. Contel of NY, 78 NY2d 942, 943), a power screen ( Hodges v. Boland's Excavating and Topsoil, Inc., 24 AD3d 1089, 1091, lv denied 6 NY3d 710), cranes ( Cun-En Lin v. Holy Family Monuments, 18 AD3d 800, 801; Cornacchione v. Clarke Concrete, 278 AD2d 800, 801), an exhibit of windows at a trade show ( Sinzieri v. Expositions, Inc., 270 AD2d 332), a dump truck ( Spears v. State of New York, 266 AD2d 898, 899), a utility pole and cable lines ( Girty v. Niagara Mohawk Power Corp., 262 AD2d 1012, 1013), a utility van ( Moore v. Shulman, 259 AD2d 975, lv dismissed 93 NY2d 998), a locomotive ( Loesch v. Long Island R. Co., 165 App Div 753, 754) an aircraft ( Imling v. Port Authority of New York and New Jersey, 184 Misc 2d 893, 894, affd 289 AD2d 104, lv denied 97 NY2d 613) and logically also embraces an elevator.
(2)
However, the Court of Appeals has instructed that "altering within the meaning of Labor Law § 240 (1) requires making a significant physical change to the configuration of the building or structure" ( Joblon v. Solow, 91 NY2d at 465) (emphasis in original). Ensuing case law then elaborated that "constructing walls and leveling floors are at least as significant as drilling through concrete, the threshold for altering . . . identified in Joblon ( Prats v. Port Authority of New York and New Jersey, 100 NY2d 878, 882; see also Enge v. Ontario County Airport Management Co., LLC, 26 AD3d 896, 898 [altering where holes drilled in wall as part of equipping new offices with telephone lines]; Aguilar v. Henry Marine Service, Inc., 12 AD3d 542, 544 [extensively overhauling vessel constituted altering]). Here, though, installing the replacement roller assemblies and hoistway door track leave the configuration of the elevator unchanged thus making plaintiff's work something other than an alteration.
(3)
Alternatively, "the protection afforded pursuant to Labor Law § 240 (1) will extend to workers performing repairs but not maintenance of a building or structure . . . [T]he paramount issue becomes whether the item being worked on was inoperable or malfunctioning prior to the commencement of the work" ( Craft v. Clark Trading Corp., 257 AD2d 886, 887; see also Goad v. Southern Elec. Intern. Inc., 263 AD2d 654, 655 ["to constitute a repair' under Labor Law § 240 (1), there must be proof that the machine or object being worked upon was inoperable or not functioning properly"] [internal citations omitted]).
Such circumstances requiring responsive action to rectify defective or damaged equipment necessitate repairs, the protected activity, as found in numerous cases such as Beehner v. Eckerd Corp. ( 3 NY3d 751, affg 307 AD2d 699). There, the Court of Appeals agreed that "plaintiff's work on the [inoperable] air conditioning unit inside defendant's [pharmacy] store constituted repair' work under Labor Law § 240 (1)" ( id. at 752).
Many other appellate determinations have found that repairing has occurred in a variety of situations ( see Fitzpatrick v. State, 25 AD3d 755, 756 [replacing light fixture on pole to restore lighting to a parking lot]; Bruce v. Fashion Square Associates, 8 AD3d 1053, 1054 [replacing transformer on building roof's HVAC unit]; Alvarez v. Long Island Fireproof Door Co., Inc., 305 AD2d 343, 343-344 [replacing electric garage door opener]; Lang v. Charles Mancuso Son, 298 AD2d 960, 961, lv denied 302 AD2d 1022 [replacing beverage supply lines at restaurant and bowling alley]; Franco v. Jemal, 280 AD2d 409 [fixing inoperative rooftop central air conditioning unit]; Craft v. Clark Trading Corp., 257 AD2d at 886-887 [fixing grocery store's malfunctioning ice cream case]; Skow v. Jones, Lang Wooton Corp., 240 AD2d 194, 194, lv denied 94 NY2d 758 [removing to repair 200-pound hot water circulating pump from ship's engine room]; Cook v. Presbyterian Homes of Western New York, Inc., 234 AD2d 906, 907 [removing and replacing defective 20-pound light fixture on 25 to 27-foot high pole in parking lot]; Shapiro v. ACG Equity Associates, L.P., 233 AD2d 857 [fixing broken door-closing mechanism]; Benfanti v. Tri-Main Development, L.P., 231 AD2d 855, 855, lv denied 652 NYS2d 460 [1996] [removing to unclog and repair drain pipe leading to building's main sewer line]; Holka v. Mt. Mercy Academy, 221 AD2d 949, lv dismissed 87 NY2d 1055 [removing to repair ventilation system's broken motor from building roof]).
(4)
Unprotected routine maintenance, on the other hand, involves component replacement or adjustment attributable to normal wear and tear in a non-construction context as held in several Court of Appeals decisions ( Chizh v. Hillside Campus Meadows Associates, LLC, 3 NY3d 664, 665 [replacing torn window screen]; Abbatiello v. Lancaster Studio Assoc., 3 NY3d at 53 [draining accumulated rainwater in cable junction box affecting tap, "a common problem," and replacing tap if thus worn]; Esposito v. New York City Indus. Dev. Agency, 1 NY3d 526, 528 [replacing worn air conditioner components upon monthly maintenance check]; Smith v. Shell Oil Co., 85 NY2d 1000, 1002 [replacing sign's burnt-out lightbulb]).
Appellate Division rulings have provided further maintenance work illustrations ( see, Wein v. Amato Properties, LLC, 2006 NY Slip Op 04828 at *2 [replacing boiler's defective safety valve]; Arevalo v. Nasdaq Stock Market, Inc., 28 AD3d 242, 243 [replacing sign's power supply box, as on at least 10 other occasions, most recently a week or two earlier]; Jones v. Village of Dannemora, 27 AD3d 844 [dredging sludge from treatment plant's lagoon where lagoon not malfunctioning or inoperable]; Bax v. Allstate Health Care Inc., 26 AD3d 861, 862 [closing roof's two smoke hatches after a false fire alarm]; Barbarito v. County of Tompkins, 22 AD2d 937, 938-940, lv denied 7 NY3d 701 [adjusting loose chain, "a very normal and ordinary procedure," on an overhead garage door]; Scaglione v. Riverbay Corp., 279 AD2d 254, 254 ["changing of an elevator cable, in the absence of proof that the elevator was inoperable, does not constitute a repair within the contemplation of Labor Law § 240 (1) and § 241 (6)"]; Jehle v. Adams Hotel, 264 AD2d 354, 355 [replacing small air conditioning components that suffered from wear and tear]; Rowlett v. Great South Bay Associates, 237 AD2d 183, 184, lv denied 90 NY2d 809 [changing electrical switch on rooftop air conditioner as part of seasonal maintenance]).
(5)
Here, plaintiff and his helper encountered an elevator that had malfunctioned over a two-week period attributable to worn and corroded roller assemblies on a rusted and pitted door track as described by plaintiff himself. Door track replacement, a nonenumerated task in Mallory's maintenance contract, represents a major, not an ordinary item, in the view of plaintiff's elevator engineering expert and had last occurred perhaps four to five years earlier according to defendant's building superintendent. The elevator company had even sent a helper to assist plaintiff upon evaluating the problem and recognizing the need to remove and replace the old assemblies and door track. Consequently, these factors, especially the preceding two-week malfunctioning necessitating corrective action and stemming from large, unusable, non-routinely replaced components qualify plaintiff's removal, replacement and installation work herein as a statutorily protected, repair activity.
(b)
Deciding to apply Labor Law § 240 (1) simply resolves a threshold issue. The Court of Appeals in reviewing the statute's application has noted that "a defendant is not liable under Labor Law § 240 (1) where there is no evidence of violation and the proof reveals that the plaintiff's own negligence was the sole proximate cause of the accident" ( Blake v. Neighborhood Hous. Servs. of NY City, Inc., 1 NY3d 280, 290). The Appellate Division, Second Department, in turn, has recently recounted that "[t]o recover under Labor Law § 240 (1), a plaintiff must demonstrate that there was a violation of the statute and that the violation was a proximate cause of the accident . . . but a defendant cannot be held liable if the plaintiff's actions were the sole proximate cause of the accident" ( Marin v. Levin Properties, L.P., 28 AD3d 525, 525 [internal citations omitted]).
Hence, "[a] fall from a ladder, by itself, is not sufficient to impose liability under Labor Law § 240 (1)" ( Olberding v. Dixie Contr., 302 AD2d 574, 574 [internal citations omitted]). Partial summary judgment on liability only results when a plaintiff presents proof showing use of a defective or unsecured ladder ( see Williams v. Dover Home Improvements, 276 AD2d 626, 627; Avendano v. Sazerac, 248 AD2d 340, 341). Here, plaintiff has made no such showing. Instead, he acknowledged that the ladder's side braces were locked in position to secure the legs, that his helper used the ladder without any problems and made no complaint about the ladder and that he, himself found that the ladder was not wobbly in any way.
In addition, plaintiff testified at his deposition that he had inspected the pit floor, which he found as a flat, finished piece of concrete without oily, greasy, liquid or slippery substances, and noticed nothing that would obstruct him from doing his work. Consequently, "where, as here, there is no evidence that the subject ladder was actually defective or inadequately secured, there is a question of fact as to whether it provided proper protection, and whether the injured worker should have been provided with additional safety devices" ( Olberding v. Dixie Contr., 302 AD2d at 574 [internal citations omitted]).
Other Appellate Division, Second Department decisions have followed this approach where uncertainty exists about the protection a ladder affords ( see Chen v. 77 NY @ 32 St., LLC, 22 AD3d 802 [plaintiff's and defendant's summary judgment motions denied where "issue of fact exists as to whether the condition of the ladder was a proximate cause of the plaintiff's fall] [internal citations omitted]; Alesius v. Good Samaritan Hospital Medical and Dialysis Center, 6 AD3d 470, 471 [denying summary judgment proper where "(t)riable issues of fact exist as to whether the injured plaintiff . . . was provided with proper protection, and if proper protection was not supplied, whether this was a contributing cause of his fall or was the plaintiff's conduct the sole proximate cause of the accident"] [internal citations omitted]; Rice v. PCM Development Agency Co., 230 AD2d 898, 899 ["where a plaintiff is injured in a fall from a ladder, which is not otherwise shown to be defective, the issue of whether the ladder provided the plaintiff with the proper protection' required under this statute is a question of fact for the jury"] [internal citations omitted]). These same considerations warrant denying summary judgment under Labor Law § 240 (1) herein.
This analysis moots now determining whether a bona fide credibility issue also exists regarding plaintiff's claim that the ladder moved. That potential issue results from the contrasting statement in the uncertified, excerpted hospital record which quotes plaintiff as saying "I just lost my balance." Such statement, which plaintiff cannot remember making amidst receiving pain-killing medication at the hospital, appears irrelevant to diagnosis or treatment of his ailment and hence inadmissible as a business records exception to the hearsay rule ( see Williams v. Alexander, 309 NY 283, 288 [1955]; Del Toro v. Carroll, 33 AD2d 160, 165 [1969]). Nonetheless, the statement could qualify as an admission by plaintiff upon finding him as the source of the statement ( see Van Dina v. City of New York, 292 AD2d 267, 268 [2002]; Echeverria v. City of New York, 166 AD2d 409, 410 [1990]).
The Common Law Negligence and Labor Law § 200 Claims
"Labor Law § 200 codified the common-law duty of an owner or employer to provide employees with a safe place to work" ( Brown v. Brause Plaza, LLC, 19 AD3d 626, 628 [internal citation omitted]). "An implicit precondition to this duty to provide a safe place to work is that the party charged with that responsibility have the authority to control the activity bringing about the injury to enable it to avoid or correct an unsafe condition" ( Russin v. Picciano Son, 54 NY2d 311, 317). Thus, "[f]or an owner to be held liable under Labor Law § 200, plaintiff must show that the owner supervised or controlled the work, or had actual or constructive notice of the unsafe condition causing the accident ( Lioce v. Theatre Row Studios, 7 AD3d 493, 493 [internal citations omitted]; see also Pilch v. Board of Education of City of New York, 27 AD3d 711, 713).
Here, though, defendants indisputably provided the ladder that allegedly caused plaintiff's accident. Consequently, "a question of fact exists as to whether they supplied a defective ladder and were therefore negligent" ( Guzman v. Gumley-Haft, Inc., 274 AD2d 555, 556; see also Lopez v. 36-2nd J Corp., 211 AD2d 667, 668). Defendants' liability, in other words, "could be predicated upon actual or constructive notice of a dangerous condition, such as a defective ladder present on the site" ( Cruz v. Kowal Industries, Inc., 267 AD2d 271). The Appellate Division, Second Department has thus preserved a Labor Law § 200 claim where "[t]riable issues of fact exist as to whether [a defendant] created the allegedly dangerous condition which caused the injured plaintiff to fall" (Hatfield v. Bridgedale, LLC, 28 AD3d 608, 610).
Earlier Appellate Division, Second Department cases have highlighted this theme ( Pirrotta v. Eklecco, 292 AD2d 362, 364 ["(a)lthough [defendants] did not exercise supervision and control over the work at the site, a triable issue of fact exists as to whether [they] had actual and/or constructive notice of the allegedly dangerous condition which caused the injured plaintiff's injuries"] [internal citations omitted]; see also Kinsler v. Lu-Four Associates, 215 AD2d 631, 633 ["Labor Law § 200 and common-law negligence causes of action should not have been dismissed as there are questions of fact regarding each defendant's contribution to the conditions which led to the accident"] [internal citations omitted]). These factors thus equally warrant denying defendants summary judgment dismissing the Labor Law § 200 claim. The Labor Law § 241 Claim
However, no evidence shows that "spoilation of evidence may have occurred," as plaintiff suggests, regarding the ladder. Defendant Mallory's building superintendent testified at his deposition that he has retained the ladder and no proof indicates at this point that alteration of the ladder has occurred.
(a)
The Court of Appeals in examining Labor Law § 241 (6) has summarized that "section 241 (6) covers industrial accidents that occur in the context of construction, demolition and excavation" ( Nagel v. D R Realty Corp., 99 NY2d 98, 103). It has also advised that "we look to the regulations contained in the Industrial Code (12 NYCRR 23-14[b][13]) to define what constitutes construction work within the meaning of the statute" ( Joblon v. Solow, 91 NY2d at 466 [internal citations omitted]).
That provision provides that "[a]ll areas in which construction, excavation, or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places. The commissioner [of labor of the state of New York] may make rules to carry into effect the provisions of the subdivision, and the owners and contractors and their agents for such work, except owners of one and two-family dwellings who contract for but do not direct or control the work, shall comply therewith."
The Code's definition of construction work in 12 NYCRR 23-14 (b) (13) includes repairing a building and installing equipment. The court has already found that plaintiff's activity of installing a new door track and roller assemblies when the accident occurred qualifies as "repair" work under Labor Law § 240 (1). Such work similarly qualifies as "construction work" under the Industrial Code regulation and, in turn, Labor Law § 241 (6).
More specifically, the provision defines "construction work" as "[a]ll work of the types performed in the construction, erection, alteration, repair, maintenance, painting or moving of buildings or other structures, whether or not such work is performed in proximate relation to a specific building or other structure and includes, by way of illustration but not by way of limitation, the work of hoisting, land clearing, earth moving, grading, excavating, trenching, pipe and conduit laying, road and bridge construction, concreting, cleaning of the exterior surfaces including windows of any building or other structure under construction, equipment installation and the structural installation of wood, metal, glass, plastic, masonry and other building materials in any form or for any purpose."
(b)
The Court of Appeals just last year further recounted that Labor Law § 241 (6) "creates a cause of action against owners and contractors, making them vicariously liable for the negligence of others whom they did not supervise, where and only where, a specific, positive command ( Ross [ v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494] at 503) or a concrete specification ( Rizzuto v. L.A. Wenger Contr. Co., 91 NY2d 343, 350) of a regulation promulgated by the Commissioner [of Labor] pursuant to the statute has been violated" ( Tolfer v. Long Island R.R., 4 NY3d 399, 409 [internal quotation marks omitted]). Hence, "[t]o prevail under Labor Law § 241 (6), a plaintiff must establish the violation of an Industrial Code provision which sets forth a specific standard of conduct" ( Saleh v. Saratoga Condominium, 10 AD3d 645, 645-646 [internal citations omitted]).
In addition, "to support a cause of action pursuant to Labor Law § 241 (6), a plaintiff must demonstrate that his or her injuries were proximately caused by a violation of an Industrial Code regulation that is applicable to the circumstances of the accident" ( Biafora v. City of New York, 27 AD3d 506, 508). Here, though, defendant made a prima facie showing (1) indicating that plaintiff either relied upon a general safety standard or one reiterating a generalized common-law principle or (2) demonstrating that those cited provisions containing the requisite concrete specificity are inapplicable in this case ( Walker v. Ekleco Co., 304 AD2d 752, 752). Plaintiff, except in one instance, has failed to meaningfully oppose this aspect of the motion, let alone raise a triable factual issue.
(c)
More specifically, plaintiff initially cited nine different Industrial Code regulations (with fives subdivisions) in his verified bill of particulars allegedly supporting the Labor Law § 241 (6) claim. His opposition to the motion, though, highlights only 12 NYCRR 23-1.17 as arguably allowing jury consideration of a purported Labor Law § 241 (6) violation.
Plaintiff cited Industrial Code §§ 23-1.5, 1.7, 1.15, 1.16, 1.16 (a), 1.16 (b), 1.16 (c), 1.17, 1.21 (a), 1.21 (b), 5.1, 5.2 and 5.3. He also claims a violation of an OSHA regulation, § 1926.501, and contends that such an alleged violation, while not a basis for liability under Labor Law § 241 (6), could constitute some evidence of negligence and thus a violation of Labor Law § 200. However, "[w]hile a violation of OSHA regulations provides evidence of negligence . . . OSHA governs employee/employer relationships . . . Since [defendants were] not an employer of [plaintiff] . . . the OSHA regulations do not provide a specific, statutory duty, a violation of which would result in [defendants'] liability" ( Khan v. Bangla Motor and Body Shop, Inc., 27 AD3d 526, 528-529 [2006]).
One of the cited regulations, 12 NYCRR 23-1.5, fails to contain the requisite concrete specificity. The Appellate Division, Second Department in fact declared in Maday v. Gabe's Contracting, LLC ( 20 AD3d 513, 513) that "12 NYCRR 23-1.5 (c) (1) is an insufficient basis upon which to predicate Labor Law § 241 (6) liability" [internal citations omitted]. That appellate court's earlier ruling in Sparkes v. Berger ( 11 AD3d 601, 602) had explained that "12 NYCRR 23-1.5 merely establishes a general safety standard that does not give rise to the nondelegable duty imposed by Labor Law § 241 (6)" [internal citations omitted]. The Appellate Division, First Department had likewise noted that "12 NYCRR 23-1.5 (a) and (c) (1) require reasonable and adequate' protection and that machinery be in good repair' and safe.' Such generic directives are insufficient as predicates for § 241 liability" ( Hawkins v. City of New York, 275 AD2d 634, 535 [2000] [internal citations omitted]). The Appellate Division, Third Department had similarly stated in Creamer v. Amsterdam High School ( 241 AD2d 589, 591) that "[a]s to plaintiffs' reliance upon 12 NYCRR 23-1.5 to support a claim under Labor Law § 241 (6), we have repeatedly found such regulation to merely restate . . . the common-law duty to provide a safe working environment" (internal citations and internal quotation marks omitted); see also, Gordineer v. County of Orange ( 205 AD2d 584, 584 [determining that 12 NYCRR 23-1.2 (c), and 12 NYCRR 23-1.5 (a) provided no predicate for Labor Law § 241 (6) liability as they "are only a finding of fact and a general provision of the Industrial Code, respectively"]); Narrow v. Crane-Hogan Structural Systems, Inc. ( 202 AD2d 841, 842 [finding that "12 NYCRR 23-1.2(e), 23-1.5 (a) and subpart 23-6, relate to general safety standards and are not concrete specifications sufficient to impose a duty on defendant"]).
(d)
Plaintiff's other cited provisions, except one, while already judicially approved as containing the requisite concrete specificity, fail to apply in this case. Here, too, "plaintiff was not using a life net at the time he fell ( 12 NYCRR 23-1.17) . . . [and his] accident did not involve a fall into a hazardous opening ( 12 NYCRR 23-1.7 [b] [1]); a faulty safety belt or lack of a safety belt ( 12 NYCRR 23-1.16 [b] [c]" ( Bennion v. Goodyear Tire Rubber Co., 229 AD2d 1003, mot to dismiss appeal denied 91 NY2d 952, appeal withdrawn 91 NY2d 1004). The accident also involved no scaffold, covered by 12 NYCRR 23-5.1, 5.2 and 5.3, and Sections 23-5.1 (f) lacks the necessary specificity to support a Labor Law § 241 (6) cause of action in any event ( see Fisher v. WNY Bus Parts, Inc., 12 AD3d 1138, 1140 and Moutray v. Baron, 244 AD2d 618, 619, lv denied 91 NY2d 808 [Appellate Division, Fourth Department and Third Department, respectively, find 23-5.1 (f) a general safety standard that provides no basis for liability]).
"Because there was no safety railing and plaintiff was not provided with a safety belt, harness, tail line or lifeline, neither [Section 23-1.15, entitled Safety railing' nor Section 23-1.16, entitled Safety belts, harnesses, tail lines and lifelines'] is applicable here" ( Partridge v. Waterloo Central School District, 12 AD3d 1054, 1056 [internal citation omitted]; see also D'Acunti v. New York City School Construction Authority, 300 AD2d 107, 108).
(e)
However, 12 NYCRR 23-1.21(a) and (b), entitled ladders and ladderways, present specific standards that could support a Labor Law § 241 (6) claim, as defendants acknowledge. Here, a jury question already exists whether the ladder provided proper protection for purposes of Labor Law § 240 (1). Likewise, plaintiff's testimony about the ladder's movement creates triable factual issues whether the ladder violated the footnoted provisions, 12 NYCRR 23-1.21 (b) (1) and 23-1.21 (b) (3) (iv), and proximately caused his accident ( see De Oliveira v. Little John's Moving Inc., 289 AD2d 108, 109).
Plaintiff cites, for example, 23-1.21 (b) (1) which provides that "[e]very ladder shall be capable of sustaining without breakage, dislodgement or loosening of any component at least four times the maximum load intended to be placed thereon. In addition, 23-1.21 (b) (3) (iv) provides that "[a]ll ladders shall be maintained in good condition. A ladder shall not be used if any of the following conditions exist: (iv) [i]f it has any flaw or defect of material that may cause ladder failure."
Accordingly, it is
ORDERED that plaintiff's motion for partial summary judgment on liability is denied; and it is further
ORDERED that defendants' summary judgment motion to dismiss plaintiff's complaint regarding the Labor Law § 240 (1), the common-law negligence and Labor Law § 200 claims is denied; and it is further
ORDERED that defendants' summary judgment motion to dismiss plaintiff's complaint regarding the Labor Law § 241 (6) claim is granted only to the extent of dismissing the Labor Law § 241 (6) claims predicated upon 12 NYCRR 23-1.5, 1.7, 1.15, 1.16, 1.16 (a), 1.16 (b), 1.16 (c), 1.17, 5.1, 5.2 and 5.3 and denied regarding the Labor Law § 241 (6) claim predicated upon 12 NYCRR 23-1.21(a) and (b); and it is further
ORDERED that, in view of the dismissal of plaintiff's claims and defendants' cross-claims against former defendant Vertical, the complaint is severed accordingly, and the caption is amended to read as follows.
This constitutes the decision and order of this court.