Opinion
Index No. 514168/18
12-20-2023
KLEBER ROMERO, Plaintiff v. 201 WEST 79th STREET REALTY CORP, d/b/a LUCERNE HOTEL ASSOCIATES and GRAND AMERICA ASSOCIATES LLC, Defendants. 201 WEST 79th STREET REALTY CORP, d/b/a LUCERNE HOTEL ASSOCIATES and GRAND AMERICA ASSOCIATES LLC, Third-Party Plaintiffs, v. PHOENIX SUTTON STR. INC. and PHOENIKS INC., Third-Party Defendants.
Unpublished Opinion
DECISION AND ORDER
HON. INGRID JOSEPH, JUDGE
The following e-filed papers read herein: NYSCEF Doc Nos.:
Notice of Motion/Order to Show Cause/ Petition/Cross Motion and Affidavits (Affirmations) Annexed ............................99-100. 102, 107, 136-138, 139
Opposing Affidavits r Affirmations) ................................................................................................................................123-125, 132, 158, 160
Affidavits/ Affirmations in Reply....................................................................................................................................... 155, 169
Upon the foregoing papers, plaintiff moves for an order, pursuant to CPLR 3212, granting partial summary judgment in his favor with respect to liability on his Labor Law SS 200, 240 (1) and 241 (6) causes of action as against defendants/third-party plaintiffs 201 West 79th Street Realty Corp. d/b/a Lucerne Hotel Associates ("Hotel Lucerne") and Grand America Associates LLC ("Grand America") (collectively referred to as "defendants") (motion sequence number 5). Defendants move for an order, pursuant to CPLR 3212, dismissing plaintiffs complaint (motion sequence number 6).
In this action premised on common-law negligence and violations of Labor Law 99 200, 240 (1) and 241 (6), plaintiff alleges that he suffered injuries while constructing a sidewalk bridge in front of a corner building located on West 79th Street when he slipped off the piping on which he was standing and fell to the ground below. Grand America owned the building at issue and Hotel Lucerne acted as the managing agent for the building. Hotel Lucerne contracted for third-party defendant Phoenix Sutton Str. Inc. ("Phoenix") to install a sidewalk bridge over the sidewalk surrounding the building and plaintiff was employed by Phoenix as a scaffolding assembler.
The sidewalk bridge is also referred to as a sidewalk shed.
According to plaintiffs deposition testimony, Phoenix began assembling the sidewalk bridge on January 8, 2018. On that day, plaintiff and his coworkers stood on a rolling scaffold (also referred to as a baker scaffold and a rolling tower) to perform their scaffold assembly work. However, plaintiffs supervisor Conrad (also spelled Konrad) did not bring the rolling scaffold to the job site on January 9, 2018, the date of plaintiffs accident, because he thought it took too much time to use. Thus, on January 9, 2018, Phoenix's workers only had a single fourteen-foot--tall A-frame ladder to assemble the sidewalk bridge.
If there had been another ladder at the worksite, plaintiff testified that he would have performed his pipe installation work, in the time leading up to the accident, from a ladder. Other workers, however, needed the ladder to perform their work, so plaintiff used the ladder to climb up onto piping that had already been installed to perform his work. Although he had not been specifically instructed to stand on the pipes, he had done so in the past when the rolling scaffold was not available. These pipes were approximately 14 feet above the ground, and while he was standing there installing other pipes, plaintiff was able to tie off the lifeline attached to the harness he was wearing onto one of the pipes. The pipes on which he was standing were slippery and icy because they had been covered with snow and ice where they had been stored. After plaintiff had been working in this manner for approximately three minutes, Conrad told plaintiff to come down from the sidewalk bridge. Plaintiff testified that he did not have the option of waiting for the other workers to finish using the ladder because he had to obey Conradss direction to climb down. Accordingly, plaintiff then unhooked his lifeline, which was four feet long, in order to climb down on the pipes. Upon unhooking the lifeline, plaintiff immediately slipped and fell 14 feet to the ground.
Plaintiff, in moving, has also submitted an affidavit from Oscar Donaldo ("Donaldo",, a coworker who worked with plaintiff on the date of the accident. Donaldo states that the rolling scaffold was not available on the date of the accident. Donaldo averred that, shortly before the accident, he stood on the ground handing piping to plaintiff. At that time, plaintiff was standing directly on the steel piping of the sidewalk bridge with his harness clipped onto one of the bridgess pipes. Donaldo stated that the framework for the sidewalk bridge was wet and icy and according to Donaldo, plaintiff unhooked his safety harness in order to climb down and had only descended approximately a foot when he fell to the ground.
Section 240 (1) imposes absolute liability on owners and contractors or their agents when they fail to protect workers employed on a construction site from injuries proximately caused by risks associated with falling from a height or those associated with falling objects (see Wilinski v 334 E. 92nd Housing Dev. Fund Corp., 18NY3d 1,3 [2011]; Narducci v Manhasset Bay Assoc., 96 N.Y.2d 259, 267-268 [2001]; Ross v Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 500 [1993]).
Here, there is no dispute that Grand America, as owner (see Gordan v Eastern Ry. Supply, 82 N.Y.2d 555, 559-560 [1993]), and Hotel Lucerne, as the managing agent of the property that contracted Phoenix to perform the work, (see Merino v Continental Towers Condominium, 159 A.D.3d 471, 472 [1st Dept 2018]; Ragubir v Gibralter Mgt. Co., Inc., 146 A.D.3d 563, 564-565 [1st Dept 2017]; Corona v Metropolitan 298-308 Assoc, 281 A.D.2d 447, 447-448 [2d Dept 2001]) may be held liable under section 240. It is further undisputed that plaintiffs work in erecting the sidewalk bridge is of the kind of work that is covered under section 240 (see Prats v Port Auth of N.Y. & N.J., 100 N.Y.2d 878, 881-883 [2003]; Kyle v City of New York, 268 A.D.2d 192, 197-198 [1st Dept 2000], Iv denied 97 N.Y.2d 608 [2002]), or that plaintiff was' working at an elevation for purposes of section 240 (see Davies v Simon Property Group, Inc., 174 A.D.3d 850, 853 [2d Dept 2019]; Ventimiglia v Thatch, Ripley & Co., LLC, 96 A.D.3d 1043, 1043 [2d Dept 2012]; Auriemma v Biltmore Theatre, LLC, 82 A.D.3d 1,9 [1st Dept 2011]). Plaintiff has also demonstrated his prima facie entitlement to summary judgment with respect to liability on his section 240 (1) cause of action through his deposition testimony and the affidavit of Donaldo demonstrating that plaintiff was not provided with adequate safety devices to prevent him from falling and that the absence of such devices was a proximate cause of his injuries (see Mogrovejo v JG Horn. Dev. Fund, Inc., 207 A.D.3d 457, 460 [2d Dept 2022]; Anderson v MSG Holdings, L.P., 146 A.D.3d 401, 402 [1st Dept 2017], Iv dismissed 29 N.Y.3d 1100 [2017]; Vetrano v J. Kokolakis Contr., Inc., 100 A.D.3d 984, 985-986 [2d Dept 2012]; Zender v Madison-Oneida County BOCES, 46 A.D.3d 1361, 1362 [4th Dept 2007]; Romero v John's Fruits & Vegetables, Inc., 23 A.D.3d 364, 365 [2d Dept 2005]).
In opposing the motion, defendants argue that the ladder, harness, and lifeline provided to plaintiff constituted adequate safety devices and that plaintiffs own actions were the sole proximate cause of his accident. Defendants, however, have failed to present any evidence that plaintiff was ever instructed to tie off while ascending or descending (see Gallagher v New York Post, 14 N.Y.3d 83, 88-89 [2010]; Mushkudiani v Racanelii Constr. Group, Inc., 219 A.D.3d 613, 615 [2d Dept 2023]; Doto v Astoria Energy II, LLC, 129 A.D.3d 660, 662 [2d Dept 2015]; Murray v Arts Or. & Theater of Schenectady, Inc., 77 A.D.3d 1155, 1156-1157 [3d Dept 2010]). Defendants have also failed to refute plaintiffs testimony that the lifeline was only approximately four feet long and they have submitted no evidence that there were appropriate anchorage points to which plaintiff could have tied off his lifeline while ascending or descending (see Martinez v Kingston 541, LLC, 210 A.D.3d 556, 556-557 [1st Dept 2022]; Gomez v Trinity Ctr. LLC, 195 A.D.3d 502, 503 [1st Dept 2021]; Anderson, 146 A.D.3d at 404; Garzon v Viola, 124 A.D.3d 715, 716-717 [2d Dept 2015]). With respect to the ladder, it cannot be deemed readily available for plaintiffs use in view of plaintiff s testimony that it had been moved from where plaintiff was working and was being used by other workers at the time of the accident (see Gonzalez v DOLP 205 Props. II, LLC, 206 A.D.3d 468, 470 [1st Dept 2022]; Lojano v Soiefer Bros. Realty Corp., 187 A.D.3d 1160, 1163 [2d Dept 2020]; Pena v Jane H. Goldman residuary Trust No. I., 158 A.D.3d 565, 565 [1st Dept 2018]; DeRose v Bloomingdale 's Inc., 120 A.D.3d 41, 46-47 [1st Dept 2014]; Zender, 46 A.D.3d at 1362). Nor does plaintiffs failure to wait for the other workers to finish using the ladder constitute the sole proximate cause of the accident in view of his testimony that he started climbing down at the direction of his supervisor, who was at the job site and was undoubtedly aware that plaintiff had no ladder at the time of his request (see Finocchi v Live Nation Inc., 204 A.D.3d 1432, 1433-1434 [4th Dept 2022]; Lojano, 187 A.D.3d at 1163 ; DeRose, 120 A.D.3d at 46-47; cf. Graziano v Source Bldrs. & Consultants, LLC, 175 A.D.3d 1253, 1257-1258 [2d Dept 2019]). At the very least, the record demonstrates that plaintiffs manner of performing his work had the tacit approval of his supervisor and that plaintiff thus cannot be found to have been the sole proximate cause of his accident (see Vicki v City of Niagara Falls, 215 A.D.3d 1285, 1288 [4th Dept 2023]; Portillo v DRMBRE-85 Fee LLC, 191 A.D.3d 613, 614 [1st Dept 2021]; Zholanji v 52 Wooster Holdings, LLC, 188 A.D.3d 1300, 1302 [2d Dept 2020]; Rico-Casrro v Do & Co NY. Catering, Inc., 60 A.D.3d 749, 750-751 [2d Dept 2009]; see also Biaca-Neto v Boston Rd. II Hous. Dev. Fund Corp., 34 N.Y.3d 1166, 1167-1168 [2020]).
With respect to plaintiffs Labor Law S 241 (6) cause of action, under that section, an owner, general contractor or their agent may be held vicariously liable for injuries to a plaintiff where the plaintiff establishes that the accident was proximately caused by a violation of an Industrial Code section stating a specific positive command that is applicable to the facts of the case (Rizzuto v LA. Wenger Contr. Co., 91 N.Y.2d 343, 349-350 [1998]; Honeyman v Curiosity Works, Inc., 154 A.D.3d 820, 821 [2d Dept 2017]). Here, plaintiff, in his bill of particulars, premises his section 241 (6) cause of action on violations of Industrial Code (12 NYCRR) SS 23-1.5,2311.7 (a), (b), (d), (e) and (t), 23-1.15, 23-1.16, 23-1.17, 23-1.21, 23-1.22, 23-1.24, 23-2.6, 23-4.1 and Occupational Safety & Health Administration ("OSHA") rules. Defendants have demonstrated, prima facie, that Industrial Code (12 NYCRR) SS 23-1.7 (a), (e), (t), 23-1.15, 23-1.17, 23-1.22! 23-1.24, 23-2.6, 23-4.1 either fail to state specific standards or are inapplicable to the facts of this case (see generally Rizzuto, 91 N.Y.2d at 349-350; Dyszkiewicz v City of New York, 218 A.D.3d 546, 548 [2d Dept 2023]; Honeyman, 154 A.D.3d at 821), and plaintiff has abandoned reliance on these sections by failing to address them in his moving and opposition papers (see Debennedetto v Chetrit, 190 A.D.3d 933, 935 [2d Dept 2021]; Pita v Roosevett Union Free Sch. Dist., 156 A.D.3d 833, 835 [2d Dept 2017]).
Plaintiff does address Industrial Code (12 NYCRR) SS 23-1.5, 23-1.7 (b) (1), 23-1.7 (d), 23-1.16 and 23-1.21 (b) (4) (i). Nevertheless, section 23-1.5 (a), (b), (c) (1), and (2) are not specific enough to support a section 241 (6) cause of action (see Carrillo v Circle Manor Apts., 131 A.D.3d 662, 663 [2d Dept 2015], Iv denied 27 N.Y.3d 906 [2016]), and section 23-1.5 (c) (3), which applies to defective equipment (see Canty v 133 E. 79th St., LLC, 167 A.D.3d 548, 549 [1st Dept 2018]), is inapplicable to the facts herein. Section 23-1.7 (b) (1) is inapplicable because the elevation differential at issue does not involve a dangerous opening within the meaning of that section (see Ramirez v Metropolitan Tramp. Auth, 106 A.D.3d 799,801 [2d Dept 2013]; see also Lazo v New York State Thruway Auth. , 204 A.D.3d 774, 777 [2d Dept 2022]) and section 23-1.21 (b) (4) (i) is inapplicable because the ladder and/or the sidewalk bridge piping at issue were not being used as a regular means of access between floors or levels under that section (see Amantia v Barden & Robeson Corp., 38 A.D.3d 1167, 1169 [2d Dept 2007]). In his moving and opposition papers, Plaintiff, in a conclusory fashion, states that defendants violated OSHA rules without citing to any specific rule or regulation. Nonetheless, violations of OSHA regulations do not provide a basis for liability under Labor Law S 241 (6) (see Alberto v DiSano Demolition Co., Inc., 194 A.D.3d 607,608 [1st Dept 2021]; Wetter v Northvllle Indus. Corp., 185 A.D.3d 874, 876 [2d Dept 2020], Iv denied 35 N.Y.3d 918 [2020]).
Defendants, however, have failed to demonstrate, prima facie, that Industrial Code (12 NYCRR) SS 23-1.7 (d) and 23-1.16 are inapplicable or were not violated here. Under Section 23-1.7 (d), which addresses slipping hazards, an owner or general contractor need not possess actual or constructive notice of a slippery condition to be held liable under section 23-1.7 (d). Nevertheless,, the evidence must still demonstrate that, "someone within the chain of the construction project was negligent in not exercising reasonable care, or acting within a reasonable time, to prevent or remediate the hazard, and that [a] plaintiffs slipping, falling[,] and subsequent injury proximately resulted from such negligence" (Rizzuto, 91 N.Y.2d at 351; see Dyszkiewicz, 218 A.D.3d at 550; Bocanegra v Chest Realty Corp., 169 A.D.3d 750, 751-752 [2d Dept 2019])' This entity in the "chain" of the project may include plaintiffs own employer (see Lois v Flintlock Constr. Servs., LLC, 137 A.D.3d 446, 447 [1st Dept 2016]). Here, plaintiffs deposition testimony that he believes that Conrad would have been aware that the piping was icy because the piping on the truck had been covered in snow as the result of an earlier snow storm, that he observed the ice when he got up on the piping, and that he fell because he slipped off of the piping demonstrates the existence of factual issues as to whether a violation of section 23-1.7 (d) was a proximate cause of plaintiff s injuries (see Bocanegra, 169 A.D.3d at 751-752; Lois, 137 A.D.3d at 447; Booth v Seven World Trade Co., L.P., 82 A.D.3d 499, 501-502 [1st Dept 2011]; cf. Dyszkiewicz, 218AD3at 550).
Industrial Code (12 NYCRR) ~ 23-1 7 (d) provides that, "[employers shall not suffer or permit any employee to use a floor passageway walkway scaffold platform or other elevated working surface which is in a slippery condition ice snow water grease and any other foreign substance which may cause slippery footing shall be removed sanded or covered to provide safe footing."
With respect to Industrial Code (12 NYCRR) S 23-1.16 (b), which addresses the proper use, instruction, maintenance and measurements for safety belts, harnesses, tail lines and life lines, defendants have failed to meet there prima facie showing because they have presented no evidentiary proof demonstrating that plaintiff had a proper location to tie off the tail line to his harness when he was climbing down the sidewalk bridge supports (see Anderson, 146 A.D.3d at 405; see also Yaucan v Hawthorne Village, LLC, 155 A.D.3d 924, 926-927 [2d Dept 2017]).
Industrial Code (12 NYCRR) S 23-1.16 (b), provides that, "Every approved safety belt or harness provided or furnished to an employee for his personal safety shall be used by such employee in the performance of his work whenever required by this Part (rule) and whenever so directed by his employer. At all times during use such approved safety belt or harness shall be properly attached either to a securely anchored tail line, directly to a securely anchored hanging lifeline or to a tail line attached to a securely anchored hanging lifeline. Such attachments shall be so arranged that if the user should fall such fall shall not exceed five feet" (emphasis added).
Plaintiff, however, has also failed to demonstrate the absence of factual issues with respect to whether Industrial Code (12 NYCRR) SS 23-1.7 (d) and 23-1.16 (b) were violated. Notably, plaintiff, in his deposition testimony, conceded that he did not notice the ice on the pipe pieces until he was working on them and there is thus a reasonable view of the evidence that plaintiffs supervisor may not have been aware that the pipe pieces were icy at the time plaintiff slipped. Accordingly, plaintiff has failed to demonstrate as a matter of law that someone in the chain of the project had notice of the ice conditions as required to demonstrate a violation of section 23-1.7 (d) (see Dyszkiewicz, 218 AD3 at 550; cf. Thompson v 1241 PVR, LLC, 104 A.D.3d 1298,1298-1299 [4th Dept 2013]). With respect to section 23-1.16 (b), that section, although it sets standards for harnesses, tail lines and lifelines, "does not specify when such safety devices are required" (Partridge v Waterloo Cent. School Dist., 12 A.D.3d 1054, 1056 [4th Dept 2004]; see Thompson v Sithe/independence, LLC, 107 A.D.3d 1385, 1387-1388 [4th Dept 2013]), and plaintiff has failed to identify an Industrial Code rule requiring plaintiff to tie off the harness he was wearing under the circumstances here or that his employer required its workers to tie off under the circumstances like those here.
Therefore, defendants are entitled to summary judgment dismissing the Labor Law S 241 (6) cause of action to the extent that it is premised on violations of Industrial Code (12 NYCRR) SS 23-1.52 23-7.7 (a), (b), (e) and (t), 23-1.15, 23-1.17, 23-1.21, 23-1.22, 23-1.24, 23-2.6, 23-4.1 and OSHA rules, but the portion of their motion addressing the section 241 (6) cause of action is denied with respect to Industrial Code (12 NYCRR) SS 23-1.7 (d) and 23-1.16. In addition, the portion of plaintiff s motion addressed to Labor Law S 241 (6) must be denied.
With respect to plaintiffs common-law negligence and Labor Law S 200 causes of action, it is undisputed that the accident occurred because of Phoenix's means and methods of performing the work in erecting the sidewalk bridge rather than as the result of a dangerous property condition (see Poulin v Ultimate Homes, Inc., 166 A.D.3d 667,671-673 [2d Dept 2018]; Melendez v 778 Park Ave. Bldg. Corp., 153 A.D.3d 700, 702 [2d Dept 2017], Iv denied 31 N.Y.3d 909 [2018]). Where the plaintiffs injuries arise from the manner in which the work is performed, "there is no liability under the common law or Labor Law S 200 unless the owner or general contractor exercised supervision or control over the work performed" (Carranza v JCL Homes, Inc., 210 A.D.3d 858, 860 [2d Dept 2022], quoting Cun-En Lin v Holy Family Monuments, 18 A.D.3d 800, 801 [2d Dept 2005]; see Barreto v Metropolitan Transp. Auth, 25 NY3d 426, 435 [2015]; Valencia v Glinski, 219 A.D.3d 541, 545 [2d Dept 2023]). Moreover, under a methods and manner of work theory of liability, "no liability will attach to the owner solely because it may have had notice of the allegedly unsafe manner in which work was performed" (Dennis v City of New York, 304 A.D.2d 611, 612 [2d Dept 2003]; see Comes v New York State Elec. & Gas Corp., 82 N.Y.2d 876,888 [1993]; Cody v State of New York, 82 A.D.3d 925,927 [2d Dept 2011]).
Here, plaintiffs deposition testimony in effect provided that he received directions regarding the performance of his work exclusively from Phoenix's supervisors and that he had no contact with any of defendants' representative.. Additionally, defendants have demonstrated, prima facie, that they did not supervise or control the work at issue (see Wilson v Bergan Constr. Corp., 219 A.D.3d 1380, 1383 [2d Dept 2023]; Kefaloukis v Mayer, 197 A.D.3d 470, 471 [2d Dept 2021]; Lopez v Edge 11211, LLC, 150 A.D.3d 1214, 1215-1216 [2d Dept 2017]). Contrary to plaintiffs contention,, defendants' general supervisory authority over the injury-producing work is insufficient to demonstrate supervision and control for purposes of liability under the common law and Labor Law S 200 (see Wilson, 219 A.D.3d at 1383; Murphy v 80 Pine, LLC, 208 A.D.3d 492,495 [2d Dept 2022]; Poulin, 166 A.D.3d at 670-673; Goldfien v County of Suffolk, 157 A.D.3d 937, 938 [2d Dept 2018]; Messina v City of New York, 147 A.D.3d 748, 749-750 [2d Dept 2017]). Plaintiff, who has presented no evidence demonstrating that defendants exercised more than general supervisory control over the work, has failed to show the existence of a factual issue warranting denial of defendants' motion with respect to the common-law negligence and Labor Law ~ 200 causes of action and defendants are thus entitled to dismissal of those causes of action. For these reasons, the portion of plaintiff s motion requesting partial summary judgment in his favor with respect to the common-law negligence and Labor Law ~ 200 causes of action must also be denied.
Plaintiff, in essence, argues that defendants may be held liable under a standard akin to that for a statutory agent under Labor Law§§ 240 (1) and 241 (6) (see Santos v Condo 124 LLC, 161 A.D.3d 650,653 [1st Dept 2018]). While the authority to act as statutory agency is a necessary element of liability under Labor Law § 200, it is clear from the case law addressing liability for a common-law negligence and Labor Law §· 200 causes of action cited above, that a defendant must have greater involvement in the injury producing work to be held liable under a means and methods theory of liability (see Santos, 161 A.D.3d at 656).
Accordingly, it is hereby
ORDERED, that Plaintiffs motion (motion sequence number 5) is granted to the extent that he is granted partial summary judgment with respect to liability on his Labor Law ~ 240 (1) cause of action. Plaintiffs motion is otherwise denied; and it is further
ORDERED, that Defendants' motion (motion sequence number 6) is granted only to the extent that plaintiffs common-law negligence and Labor Law ~ 200 causes of action are dismissed and plaintiffs Labor Law ~ 241 (6) cause of action is dismissed to the extent that it is premised on violations of Industrial Code (12 NYCRR) §§ 23-1.5, 23-7.7 (a), (b), (e) and (t), 23-1.15, 23-1.17, 23-1.21, 23-1.22, 23-1.24, 23-2.6, 23-4.1 and Occupational Safety & Health Administration (OSHA) rules. Defendants' motion is otherwise denied.
This constitutes the decision and order of the court.