Allison Gammons, Respondent,v.City of New York, et al., Appellants.BriefN.Y.November 17, 2014To be Argued by: DAVID L. KREMEN Time requested: 20 Minutes COURT OF APPEALS STATEOFNEwYoRK --------·-------- ALLISON GAMMONS, Plaintiff-Respondent, -against- CITY OF NEW YORK and NEW YORK CITY POLICE DEPARTMENT Of Counsel: DAVID L. KREMEN March 26, 2014 Printed on Recycled Paper Defendants-Appellants, RESPONDENT'S BRIEF OSHMAN & MIRISOLA, LLP Attorneys for Plaintiff-Respondent Allison Gammons 42 Broadway, lOth Floor New York, New York 10004 Tel. (212) 233-2100 Fax (212-964-8656 Kings County Clerk's Index No. 1901/09 TABLE OF CONTENTS TABLE OF AUTHORITIES................................................. n PRELIMINARY STATEMENT........................................................... 1 CERTIFIED QUESTION FOR APPEAL . . . ........................................... 1 STATEMENT OF FACTS.................................................................... 2 RELEVANT PROCEDURAL HISTORY............................................. 4 Proceedings in the Supreme Court .. .. .. .. . .. .. .. . . . .. . .. .. .. . .. . .. . . .. . .. . .. .. . .. 4 The Appellate Division's Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 ARGUMENT.................................................................. 8 LABOR LAW§ 27-a IS A PROPER STATUTORY PREDICATE FOR A GENERAL MUNICIPAL LAW§ 205-e CAUSE OF ACTION .. .. . . .. . .. .. .. .. .. . .. .. .. .. .. .. .. .. . .. . 8 General Municipal Law§ 205-e . . .. . .. .. .. . .. .. .. .. .. .. .. .. .. .. . .. . .. . 8 The Public Employee Safety and Health Act and OSHA . . . . . . . . . . . . 18 Labor Law 27-a(3)(a)(J) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Recognized Hazard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 CONCLUSION................................................................. 51 TABLE OF AUTHORITIES CASES Albrecht v. Baltimore & Ohio R.R. Co., 808 F.2d 329 (4th Cir.1987) .......... ............. 24 Alexander v. City of New York, 82 A.D.3d 1022 (2d Dep't 2011) ........................... 48 Atlas Roofing Co. v. OSHRC, 430 U.S. 442 (1977) ............................................ 20 Balsamo v. City ofNew York, 287 A.D.2d 22 (2001) .................................... 28-30, 34 Barrentos v. UT-Batelle, LLC, 284 F. Supp.2d 908 (S.D. Ohio 2003) ....................... 24 Barzaghi v. Maislin Transport, 115 A.D.2d 679 (2d Dep't 1985) ..................... ....... 31 Bauer v. Female Academy of Sacred Heart, 97 NY2d 445 (2002) ........................... 25 Brown v. Town of Cincinnatus, 2011 NY Slip Op 50071U, 2 (N.Y. Sup. Ct. 2011) ........................... ................................................ 48 Campbell v. City of New York, 31 AD 3d 594 (2006) ............................. . ............ 28 Capers v. Giuliani, 253 A.D.2d 630 (1st Dep't 1998), lv. denied 93 N.Y.2d 868 (1999) ............. ..... ....................................... 40-41 Capotosto v. City ofNew York, 288 A.D.2d 419 (2d Dep't 2001) ........................... 44 Casson v. City ofNew York, 269 A.D.2s 285 (1st Dep't 2000) ......................... . .... 42 Christopher v. Harbury, 536 U.S. 403 (2002) ...... ...... ........ ................. .............. 43 Comn:wnwealth of theN. Mariana Js. v Canadian Imperial Bank of Commerce, 21 N.Y.3d 55 (2013) ... .............. .. ........... .... ... . ..... . .... ..... .................. ... 37 Cusumano v . .ity ofNew York. 15 N.Y.3d 319,328 (2010) ............................. 35-36 Cruz v. Long Is. Rail Rd. Co., 22 A.D.3d 451 (2d Dep't 2005) .................... . ..... 24,31 Desmond v. City ofNew York 88 N.Y.2d 455 (1996) ......... .. ........... 13, 14, 29, 38, 39 Estate f Rosen v. Prince George's Bd. of ~ due ., 1996 U.S. App. LEXIS 4980 (4th Cir. 1996) .......... . .................................. 43 11 Farella v. City ofNew York, 2007 U.S. Dist. LEXIS 63087 (S.D.N.Y. Aug. 22, 2007) ... .... ......................... . .. . . . ...... . .. .. . . .. .. .. . 31,40-43 Fisher v. City ofNew York, 48 A.D.3d 303 (1st Dep't 2008) ... . . . . .. . ... .... . ..... . .... . ... 29 Flynn v. City ofNew York, 258 A.D.2d 129 (1st Dep't 1999) .. . ............... .. .... .... .. . . .. 16 Foulkes v. City ofNew York, 261 A.D.2d 283 (1st Dep't 1999) .. ... ............... .... ..... 42 Gade v. National Solid Wastes Management Ass'n, 505 U.S. 88 (1992) .. .... ... ... .... . .. .. 21 Galapo v. City ofNew York, 95 N.Y.2d 568 (2000) .. . .... .... .............. 14, 15, 16, 17,39 Ganci v. Port Auth. Trans-Hudson Corp., 258 A.D.2d 386 (1st Dep't 1999) ...... .... ..... 25 Giuffrida v. Citibank Corp., 100 N.Y.2d 72 (2003) .... .. .... .. ........... .. ...... .... ..... 11, 32 Gonzalez v. Iocovello, 93 N.Y.2d 539 (1999) ........................ 10, 13, 14, 32, 34-35,39 Gordon v. American Museum ofNatural History, 67 N.Y.2d 836 (1986) .... . .. .. .. ....... 48 Hartnett v. Ballston Spa, 152 A.D.2d 83 (3d Dep't 1989) ................................. 19-20 Hartnett v. New York City Transit Auth. , 86 N.Y.2d 438 (1995) ................. .. ...... .. .. 30 Irvington Moore v. Occupational Safety and Health Review Comm'n, 556 F.2d 431 (9th Cir.1977) ..... . ... .. ... ... ... . .... ..... ....... .. ... .. . .. .......... ... ..... 19 Irwin v. St. Joseph's Intercommunity Hosp., 236 A.D.2d 123 (4th Dep't 1997) ............ 21 Kelley v. HowardS. Wright Constr. Co., 90 Wash.2d 323 (Wash. 1978) ..... .. .. ......... . 24 Koll v. Manatt's Transp. Co., 253 N.W.2d 265 (Iowa 1977) .......... ... . .... . ... .... ..... .. . 24 Knighton v. Municipal Credit Union, 2009 NY Slip Op 30204U, 7 (N.Y. Sup. Ct. Jan. 12, 2009) .. ............ . ....... .. ... ..... .......... .... .... ...... .... .. .. 30 Koenig v. Action Target, Inc., 76 A.D.3d 997 (2d Dep't 2010) . .. ............ ... .... .. ....... 28 Martzloffv. j ty ofNew York, 238 A.D.2d 115 (1st Dep't 1997) .. .. .. ... .... .. ......... 41-42 Matter of Ordway, 196 N.Y. 95 (1909) ........... ... .......... .. .. ..... ...... ..... . .. .. ..... .. .... 42 McGovern v. City ofNew York, 294 A.D.2d 148 (1st Dep't 2002) ........ ...... . ........ . ... 30 Ill Minichello v. U.S. Industries, Inc., 756 F.2d 26 (6th Cir.1985) ................................ 24 Montalvo v. City of New York, 46 A.D.3d 772 (2d Dep't 2007) .......................... 16, 17 Murdoch v. Niagara Falls Bridge Commn., 81 A.D.3d 1456 (4th Dep't 2011) .............. 24 National Realty & Constr. Co. v. Occupational Safety & Health Review Com. 489 F.2d 1257, 1265 (D.C. Cir. 1973) ......................... ....... ......................... 47 Norman v. City of New York, 60 A.D.3d 830 (2d Dep't 2009) ...................... .. ........ 28 Pedraza v. Shell Oil Co., 942 F.2d 48 (1st Cir.1991) ............................................ 23 People v. Petgen, 55 N.Y.2d 529 (1982) .......................................................... 42 People v. Pymm, 76 N.Y.2d 511 (1990) .................................................. 21,26-27 Pirraglia v. CCC Realty NY Corp., 35 A.D.3d 234 (1st Dep't 2006) ....................... .. 35 Pratico v. Portland Terminal Co., 783 F.2d 255 (1st Cir.1985) ................... 19,21-25,27 Pratt & Whitney Aircraft, Div. of United Technologies Corp. v. Secretary of Labor, 649 F.2d 96, 98 (2d Cir. 1981) ................... .... .................................... 46-47 Pirraglia v. CCC Realty NY Corp., 35 A.D.3d 234 (1st Dep't 2006) ......................... . 35 Provenza v. American Export Lines, Inc., 324 F.2d 660 (4th Cir.1963), cert. denied, 376 U.S. 952 (1964) ....................................................... 25-26 Rabon v. Automatic Fasteners, Inc., 672 F.2d 1231 (5th Cir. 1982) .......................... 24 Ries v. National Railroad Passenger Corporation, 960 F.2d 1156 (3d Cir. 1992) .......... 24 Robertson v. Bmlington Northern R.R. Co., 32 F.3d 408 (9th Cir. 1994) ................... 24 Rossbach v. Rosenblum, 260 A.D. 206 (1st Dep't 1940) ....................................... 42 Santangelo v. State, 71 N.Y.2d 393 (1988) ........................................................ 9 Schiavone v. City ofNew York, 92 N.Y.2d 308 ............................................. 9, 18 Schmidt v. Magnetic Head, 97 A.D.2d 151 (2d Dep't 1983) ........................ .......... 42 Scott v. Matlack, Inc., 39 P.3d 1160 (Colo. 2002) .................. .... .................... 23,24 IV Shaw v. Baldowski, 192 Misc. 2d 635 (N.Y. Sup. Ct. 2002) ...... ...... ........ ........ .... .. 43 Startz v. Tom Martin Constr. Co., 823 F. Supp. 501 (N.D. Ill. 1993) ...... .. ................ 23 Swekel, v. City of River Rouge, 119 F.3d 1259 (6th Cir. 1997) .............. ........ ........ 42 Teal v. E.l. DuPont De Nemours And Co., 728 F.2d 799 (6th cir. 1984) .................... 24 Thomas v. Women Aware, Inc., 2005 U.S. Dist. LEXIS 14162 (W.D. Ky. 2004) ......... 24 Walsh v. City ofNew York, 2008 U.S. Dist. LEXIS 26526 (S.D.N.Y. 2008) .................. 46 Wendland v. Ridgefiled Constr. Svcs., Inc., 184 Conn. 173 (Conn. 1981) ................. . 24 Williams v. City ofNew York, 2 N.Y.3d 352 (2004) ............. .. .. 11, 13-14, 19,33-34,38 STATUTES AND CODES General Municipal Law§ 205-a ...................... ........ .......... .............. 17, 29, 32, 36 General Municipal Law § 205-e ........... . . ... . .. ......... . ......... .. . . ..... . . ........ . .... Passim General Obligations Law § 11-106 ............... ...... . .............. . ................. . .................. 17 Labor Law§ 27-a ............. ... ...... .. ....... ......... .. . .... ........... ... .. . . . . . . ... . . ...... Passim Labor Law§ 27-a(2) ... .......... ................. ... ................................................ 36 Labor Law§ 27-a(3)(a)(l) .......... .. .. ........ .. .. ... ............. 4, 6, 7, 11, 38, 45 and passim Labor Law§ 27-a(5) ....................... . . .. .. ... ... . ... .. .. ......... . . . . ..... .. . .. . ......... ..... 38 Labor Law§ 27-a(6)(a) . ......................... ... ...... ... .......... .... ..... .. . ....... . . . ... 33 37 Labor Law§ 27-a(6)(d) ....... ........... . .. ..... ........... . . . .................................... 33 Labor Law§ 27-a(7) ..... . ......................... ....... ............. .......... .. ... .. .. ...... 37, 40 Vehicle and Traffic Law§ 1104(e) ...... ......... .... .... .... . ....... .. . ...... ........... ........ 39 New York City Administrative Code§ 7-201 .............................................. 16, 35 New York City Administrative Code§ 27-127 .......... ................. ...... ............ 35, 36 New York City Administrative Code§ 27-128 ... .. .... .. . .. ............ . .. .... .. ............. . 35 v New York City Charter§ 2903 ......... .. ..... . .. . .. . . . . . .... ... . .... ... ... .. .......... . . .. . . 16, 35 29 U.S.C. § 651(b) . .. . . ............ .. . . ...... . ..... ... .. .. .. . . . ... . .. . ... . . .... ..... .. . ...... . .. . .. . 20 29 U.S.C. § 653(b)(4) .... .. . . .... . .... . . ... .... . . . ........ ... ...... . . ... . . . .. ... . ... . . ..... 19, 21, 26 33 U.S.C. Sec. 901, et seq. (1982) .. .. ... .... .. ............................... . .......... .. .. .. .. 25 29 C.F.R. 1910.23(c)(l) .. . . . . . .... . .. . . .. ..... . .... . ........ . ... . . ..... .. .... ...................... ..... ... 11 12 NYCRR 800.3 .. .... ..... . ....... .. . ... . .. ... .. . . . .. .. . .... . .. .. .... ... . .... .. .... . ..... . . ....... . 11 OTHER AUTHORITY Dean Skelos, Introducer's Memorandum in Support, Bill Jacket, L. 1996, ch. 703 at 5 ................... .. ................. .... ......... ..... ...... 1 0 PJI 2:29 ........ . ...... .. ......... .. ............ . .............................. . .. .... ............ 25,31 Prince, Richardson on Evidence § 2-209 ........ . .. . . .... ...... .. . ......... ....... .. .. ..... . ..... 42 Chaffin, D.B. , Midoski, R., Stobbe, T., et al., An ergonomic basis for recommendations pertaining to specific sections of OSHA standard 29 CFR Part 1910 Subpart D: Walking and working surfaces. Ann Arbor, MI: University of Michigan (1978) ..................... . ... . ....... . . . . . . ... ... ... . 48 Speedguard, Garlock Safety Systems webpage, http://www.railguard.net/pages/speedguard.asp ... ................................. ......... ..... .. ..... ... .... 50 Maine Department of Labor, Occupational Fatality Report, Fall Protection, http://www.maine.gov/labor/labor _ stats/publications/face/0 107 .pdf ................ .. .. .... ... .. ... 49 MNOSHA Fatality and Serious Injury Investigation Summary Log (2006), http://www.dli.mn.gov/OSHNpdf/06_fatal_log.pdf ...... .. .... .. ..... ..... .. .. .. .. .... .. ........ .... ... .... 49 Sandia National Laboratories safety procedures webpage, http://www.sandia.gov/esh/ESHI 00.2.IS.4.html ........ ...... ...... .... .... ... .. .. .... ...... ... .. ..... .... .. .. 49 Vl PRELIMINARY STATEMENT Plaintiff-respondent, Allison Gammons, submits this brief in response to the brief of defendant-appellant City of New York ("City"). The City is appealing from that portion of the decision and order of the Appellate Division, Second Department, dated and entered July 17, 2013, which unanimously affirmed the denial of the City's motion for summary judgment dismissing plaintiffs statutory right of action under General Municipal Law§ 205-e. ( 482-494). 1 By order dated November 12, 2013, the Appellate Division granted leave to appeal to this Court on a certified question. ( 480). For the reasons set forth herein, the decision and order of the Appellate Division, Second Department should be affirmed. CERTIFIED QUESTION FOR APPEAL The Appellate Division, Second Department, certified the following question for appeal: Was so much of the opinion and order of this Court [Appellate Division, Second Department] dated July 17, 2013, as affirmed so much of the order of the Supreme Court, Kings County, dated February 25, 2011, as denied that branch of the appellants-respondents' motion which was for summary judgment dismissing the cause of action to recover damages based upon a violation of General Municipal Law § 205-e properly made. ( 480) 1 Unless otherwise indicated, numbers in parentheses denote pages in the Record on Appeal. STATEMENT OF FACTS On September 18, 2009, Allison Gammons was employed by the City of New York as a police officer. (119, 120). On that day, she was assigned to barrier truck detail and learned that she would be loading a truck with wooden barriers with officers Chapman, Antonellis, DeSimone and Pattason. (131-33, 144). Each wooden barrier was comprised of a long beam that rested on two a-frame supports. (150). For such work, she was not in uniform, but, instead, wore jeans, a shirt and sneakers. (148). She had performed this type of work in the past, (137), and knew that there were two types of flatbed trucks used for barrier detail. Despite the fact that longer trucks were available, the officers were assigned to work on a shorter truck. (358-359). While Gammons did not know the length of the flatbed, (142), she did know that the shorter trucks did not accommodate two officers standing on the flatbed with the wooden barrier because "the wood is longer than the truck's bed, so it hangs off the back." (143, 156-57, 357). She testified that "[t]he bigger trucks can accommodate the wood plus two officers." (143). The floor of the flatbed was approximately five to six feet off the ground. (140). While the sides of the flatbed were equipped with approximately three foot high metal railings, the rear of the flatbed was open and unprotected, having no railing and no tailgate. (139-40). In addition to the longer trucks being some five feet longer and, 2 therefore, able to accommodate the barriers without any portion hanging off the end, they were equipped with a tailgate. (265-66, 292-93). Upon arriving at Wythe Avenue and 14th Street in Brooklyn, New York, the location of their first assignment, the officers exited the truck with the exception of Officer DeSimone, who stayed in the truck to move it forward while the other officers loaded the flatbed with the barriers, which were found spread out along the sidewalk. (119, 145-46). To accomplish their task, Officers Gammons and Antonellis climbed onto the flatbed, while Officers Chapman and Pattason remained on the ground. Chapman and Pattason would pick the barriers up and then passed them one by one over the side railings to Gammons and Antonellis. (147-48, 151). Two persons had to be positioned on the flatbed because the wooden barriers were simply too long to be placed by one person. (272, 294, 300- 301, 360). Officer Gammons was situated by the rear end of the flatbed, while Antonellis was at the other end, behind the truck's cab. (148, 157). Gammons and Antonellis would hold the opposite ends of the beam and stack them lengthwise along the bed. (151-52). As Officer Antonellis was maneuvering a beam to stack on the truck, Officer Antonellis pushed his end of a wooden beam, which caused Officer Gammons, who was holding the other end, to fall off the back of the truck, striking the ground below. (148-49, 153, 156-60, 316). Later that day, Ms. Gammons' supervising police sergeant stated that the trucks were old and unsafe 3 and that they should have been taken out of service because other similarly situated police officers had fallen off the old barricade/barrier trucks flatbed while they were stacking police barriers which resulted in serious injuries. (274, 436). As a result of the accident, Ms. Gammons suffered serious personal injuries, including, inter alia, a fractured scapula, a bankart lesion (fracture) and a slap type 1 impingement in the right shoulder with arthroscopy, decompression, debridement and complete bursectomy, neural foramina disc protrusion at C4-5, facet arthropathy syndrome at C4-C6 and cervical radiculopathy. (56, 76-77). As of October 28, 2008, Ms. Gammons was granted a full disability retirement by the NYPD Medical Board. (24, 233). RELEVANT PROCEDURAL HISTORY Proceedings in the Supreme Court As a predicate for her GML § 205-e cause of action, Ms. Gammons alleged, inter alia, a violation of the general duty clause ofNew York Labor Law§ 27- a(3)(a)(1).2 (81). When the case was placed on the trial calendar, the City moved for summary judgment dismissing the complaint, claiming, in relevant part, that the GML § 205-e cause of action should be dismissed because Labor Law § 27- a(3)(a)(l) was not a proper statutory predicate for a General Municipal Law§ 205- e cause of action. 2 In addition to Labor Law§ 27-a(3)(a)(l), plaintiff also alleged 29 CFR 1910.23(c)(l) as a predicate for liability under GML § 205-e. ( 465). 4 Upon completion of discovery, the City moved for summary judgment, seeking to dismiss Ms. Gammons' complaint. With respect to GML § 205-e claim, the City argued that Labor Law § 27 -a is not a proper predicate for a General Municipal Law § 205-e claim because Labor Law§ 27-a creates a solely administrative enforceable standard with no private right of action. The City also argued that there was no "recognized hazard," as that term is used in Labor Law§ 27-a(3)(a)(l), sufficient to serve as a statutory predicate to the General Municipal Law § 205-e claim and that, even if there was a recognized hazard, it was neither a director nor indirect cause of the accident. (32-52). In opposition to the City's motion, plaintiff, inter alia, showed that Labor Law§ 27-a had already been held a proper predicate for GML § 205-e liability (417-423) and that a fall from an open unguarded flatbed truck is a "recognized hazard" under the general duty clause, 27-a(3)(a)(l). (423-429, 458-463). Plaintiff asked the Court to search the record and grant summary judgment against the City. (432). The Supreme Court denied that portion of defendant's motion for summary judgment dismissing plaintiff General Municipal Law § 205-e claim, finding the City's contention that Labor Law§ 27-a can never be a proper predicate "devoid of merit" as "[i]t has been expressly held that Labor Law§ 27-a may serve as a proper predicate for a cause of action alleging a violation of General Municipal 5 Law§ 205-e (see Norman, 60 AD3d at 831; Campbell, 31 AD3d 594, 595 [2006]; Balsamo v City of New York, 287 AD2d 22, 27-28 [2001])." (13). The Supreme Court further held that: ... plaintiff's allegations do not merely implicate the policies and procedures of the NYPD utilized to manage the inherent dangers in police work (compare Williams, 2 NY3d at 368). Rather, plaintiff's claim is that the flatbed truck itself was unsafe for loading the wooden barriers because it was too short and lacked a rear railing, and that defendants failed to provide her with a safe truck to ameliorate the recognized risk of falling from it due to its inadequacy for the assigned task (see Singleton v City of New York, 13 Misc3d 1173, 1177 [2006]. (14). Having found section 27-a(3)(a)(1) applicable, the Supreme Court found it unnecessary to reach the issue of section 1910.23(c)(l)'s applicability. (12, n. 1). Finally, the Supreme Court declined the invitation to grant summary judgment in favor of plaintiff, holding that "there is a material and triable issue of fact as to whether the failure by defendants to provide plaintiff with a longer truck or railings on the rear of the flatbed of the truck were substantial factors in causing plaintiff's accident regardless of whether plaintiff was caused to move backward by the conduct of a coworker." (14-15). The Appellate Division's Decision In its decision, the Appellate Division, Second Department, unanimously rejected the City's arguments, holding, inter alia, that: 6 ... the plaintiff has not asserted a cause of action to recover damages for a Labor Law§ 27-a(3)(a)(1) violation. Rather, the plaintiff has alleged that the defendants' Labor Law § 27-a(3)(a)(l) violation is a predicate for her General Municipal Law § 205-e cause of action. Section 205-e does not stand alone and must be predicated on a violation of a separate legal requirement. Further, the Court of Appeals, in addressing the various amendments to General Municipal Law § 205-e, has stated "that we should apply this provision 'expansively' so as to favor recovery by police officers whenever possible" (Williams v City of New York, 2 NY3d at 364, citing Gonzalez v Jocovello, 93 NY2d at 548; see also L 1996, ch 703 ["This act is intended to ensure once and for all that section 205-e of the general municipal law is applied by the courts in accordance with its original legislative intent to offer an umbrella of protection for police officers, who, in the course of their many and varied duties, are injured by the negligence of anyone who violates any relevant statute, ordinance, code, rule and/or regulation"]). A statute can serve as a predicate for a cause of action under General Municipal Law § 205-e when it contains "either a particularized mandate or a clear legal duty" (Gonzalez v Iocovello, 93 NY2d at 551). While Labor Law§ 27-a imposes a general duty of care, that duty is nonetheless clear, as it requires public employers to provide their employees with a work area that is free from recognized hazards that are causing or are likely to cause death or serious physical hann to its employees (see Labor Law§ 27-a[3][a][1]) .... Labor Law§ 27- a(3)(a)(1) can serve as a predicate for a section 205-e claim. (491-92). 7 ARGUMENT LABOR LAW§ 27-a IS A PROPER STATUTORY PREDICATE FOR A GENERAL MUNICIPAL LAW § 205-e CAUSE OF ACTION Initially it is noted that on this appeal, the City does not argue that Labor Law§ 27-(a)(3)(1) fails to contain either a particularized mandate or a clear legal duty. The City also does not deny that the open unguarded flatbed constituted a "recognized hazard" that was "causing or likely to cause death or serious physical harm." Instead, the City limits its brief to its claim that Labor Law§ 27-(a)(3)(1) can never be cited as a predicate for liability under General Municipal Law§ 205-e because the Labor Law allegedly provides the Commissioner exclusive jurisdiction to hear and determine whether a violation of that statute occurred. General Municipal Law§ 205-e General Municipal Law § 205-e provides, in pertinent part, that: 1. In addition to any other right of action or recovery under any other provision of law, in the event any accident, causing injury, death or a disease which results in death, occurs directly or indirectly as a result of any neglect, omission, willful or culpable negligence of any person or persons in failing to comply with the requirements of any of the statutes, ordinances, rules, orders and requirements of the federal, state, county, village, town or city governments or of any and all their departments, divisions and bureaus, the person or persons guilty ... shall be liable to pay any officer, member, agent or employee of any police department injured, or whose life may be lost while in the discharge or performance at any time or place of any duty imposed by 8 the police commissioner, police chief or other superior officer of the police department, or to pay to the spouse and children, or to pay the parents, or to pay the brothers and sisters, being the surviving heirs-at-law of any deceased person thus having lost his life, a sum of money ... provided, however, that nothing in this section shall be deemed to expand or restrict any right afforded to or limitation imposed upon an employer, an employee or his or her representative by virtue of any provisions of the workers' compensation law .... 3. This section shall be deemed to provide a right of action regardless of whether the injury or death is caused by the violation of a provision which codifies a common- law duty and regardless of whether the injury or death is caused by the violation of a provision prohibiting activities or conditions which increase the dangers inherent in the work of any officer, member, agent or employee of any police department. The Legislature enacted GML § 205-e in 1989 for the express purpose of "mitigat[ing] the effect of the common law 'fireman's rule"' as applied to police officers in Santangelo v. State, 71 N.Y.2d 393 (1988). Schiavone v. City ofNew York, 92 N.Y.2d 308, 313 (1998) (quoting Mem of State Exec Dept, L 1989, ch 346, 1989 McKinney's Session Laws ofNY, at 2140). The "at any time or place" language was added to subdivision (1) in 1992. "This amendment was precipitated by a number of lower court decisions that had limited the substantive scope of General Municipal Law§ 205-e to premises-related accidents." Schiavone, supra, 92 N. Y.2d at 314 (citations omitted). "[T]he most recent amendment to the statute, which added subdivision (3) to General Municipal Law § 205-e was, in part, a direct response to the Appellate Division decision in St. Jacques v City of New 9 York (215 AD2d 75, a.ffd on different grounds 88 NY2d 920). There, the court had held that a statute which merely codifies a common-law duty cannot form the basis for a General Municipal Law§ 205-e claim (L 1996, ch 703 [replacing that holding])." Gonzalez v. Iocovello, 93 N.Y.2d 539, 549 (1999). Subdivision three also clarifies that a right of action exists regardless of whether the violated provision serving as the predicate to liability prohibits activities or conditions that increase the dangers inherent in the job. As explained by the Introducer's Memorandum in Support: the proposed amendment to Section 205-e would break no new ground nor create new precedent. Its sole purpose is to ensure the GML section 205-e ... is applied in accordance with its original legislative intent, i.e., to offer an umbrella of protection for police officers, who, in the course of their many and varied duties, are injured by the negligence of any tortfeasor who violates any statute, ordinance, code, rule, requirement and/or regulation of any state or local government or its instrumental subdivisions and departments, regardless of whether that provision adds to, diminishes, or codifies a tortfeasor's common-law duties. Dean Skelos, Introducer's Memorandum in Support, Bill Jacket, L. 1996, ch. 703 at 5. "The successive amendments, for the most part, have been in response to restrictive judicial interpretations of the statute and varying factual circumstances . The series of amendments to section 205-e, including those discussed above, "teaches us that we should apply this provision 'expansively' so as to favor 10 recovery by police officers whenever possible." Williams v. City of New York, 2 N.Y.3d 352, 364 (2004) (citation omitted). To make out a valid claim under General Municipal Law § 205-e, a plaintiff must "[1] identify the statute or ordinance with which the defendant failed to comply, [2] describe the manner in which the [officer] was injured, and [3] set forth those facts from which it may be inferred that the defendant's negligence directly or indirectly caused the harm to the [officer]." Giuffrida v. Citibank Corp., 100 N. Y.2d 72, 79 (2003) (citation omitted). Here, plaintiff identified Labor Law § 27-a(3)(a)(1) and 29 C.P.R. 1910.23(c)(1) as adopted under 12 NYCRR 800.3.3 In utter disregard ofthe applicable case law and these consistent legislative actions, the City urges this Court to limit General Municipal Law § 205-e applications by precluding all section 205-e applications that are predicated on a violation of Labor Law§ 27-a. The City claims that Labor Law§ 27-a should never be permitted to serve as a predicate for liability under GML § 205-e because provisions of the Public Employees Safety and Health Act (PESHA) do not give public employees a private right of action and may only be determined by the New York State Commissioner of Labor. The City argues that to hold otherwise would provide police officers with greater rights than available to the general public. 3 Having found section 27-a(3)(a)(l) applicable, the Supreme Court found it unnecessary to reach the issue of section 1910.23(c)(l)'s applicability. (12, n. 1). 11 The City's narrow interpretation is both mistaken and contrary to both the case law and the evident language of the statute. Contrary to the City's mistaken assertions, the private right of action derives not from Labor Law§ 27-a (although plaintiff must establish a violation ofthat section to prevail), but from General Municipal Law § 205-e, which provides police officers with fewer rights than those available to the general public. Common law barred a police officer from recovering in tort for injuries suffered in the line of duty (see Santangelo v State of New York, 71 N.Y.2d 393, 397, 521 N.E.2d 770, 526 N.Y.S.2d 812 [1988]). In 1989, the Legislature modified the common law by adding section 205-e to the General Municipal Law (L 1989, ch 346); and in 1996, the Legislature "largely abolishe[ d]" the common law by enacting section 11-106 of the General Obligations Law (see Giuffrida v Citibank Corp., 100 N.Y.2d 72, 78, 790 N.E.2d 772,760 N.Y.S.2d 397 [2003]). The latter provision allows police officers to bring tort claims for most work injuries that occur in the line of duty. Importantly, however, section 11-106 maintains the common-law bar on tort claims against "the police officer's ... employer or co-employee" (General Obligations Law§ 11-106 [1]). Thus, while a police officer can assert a common-law tort claim against the general public, liability against a fellow officer or employer can only be based on the statutory right of action in General Municipal Law § 205-e. * * * 12 Section 205-e (1) creates a statutory cause of action where a police officer is injured by another's failure "to comply with the requirements of any of the statutes, ordinances, rules, orders and requirements of the federal, state, county, village, town or city governments or of any and all their departments, divisions and bureaus". Williams, supra, 2 N.Y.3d at 363, 364 (emphasis added). Section 205-e's right of action and recovery, by its very terms, is "[i]n addition to any other right of action or recovery." GML § 205-e(1). In Desmond v. City of New York, 88 N.Y.2d 455, 464 (1996), this Court recognized that "the 1989 enactment was intended to provide police officers with an avenue of recourse 'where injury is the result of negligent non-compliance with well-developed bodies of law and regulation' which 'impose clear duties' (Mem of State Executive Dept, reprinted in 1989 McKinney's Session Laws ofNY, at 2140, 2141)." "[A] statute can serve as a predicate when it contains either a particularized mandate or a clear legal duty (see also, General Municipal Law§ 205-e [3]). Either of these objective standards can suffice, so long as the governmental standard is part of a well-developed body of law and regulation." Gonzalez, supra, 93 N.Y.2d at 551 (emphasis in original). Thus, while a police officer can establish liability against the general public under the common-law by proving negligence- a failure to act with reasonable care under the circumstances - a police officer seeking to recover against a fellow officer or employer under General Municipal Law § 205-e must establish negligent 13 noncompliance with a requirement found in a well-developed body of law and regulation that imposes clear duties," Williams, supra, 2 N.Y.3d at 364, or a particularized mandate. Gonzalez, supra, 93 N.Y.2d at 551; Desmond, supra, 88 N.Y.2d at 463, 464. The City mistakenly cites this Court's statement in Galapo v. City ofNew York, 95 N.Y.2d 568 (2000)- that section 205-e statute was not "intended to give police officers greater rights and remedies than those available to the general public" - out of context as a further basis to find Labor Law § 27 -a invalid as a predicate for liability under GML § 205-e. In doing so, the City urges a construction of section 205-e that would defeat the purpose for which the statute was enacted. Galapo was a wrongful death action arising out of the accidental shooting of a police officer by a fellow officer. The plaintiffs asserted a GML § 205-e claim based on a violation of Procedure 104-1(k) of the Police Department Patrol Guide that dealt with the use of firearms. The issue before the Court of Appeals was whether the Patrol Guide could serve as a predicate for liability under GML § 205- e. In finding that it could not, the Court explained that: Procedure 104-1(k) ofthe New York City Police Department Patrol Guide is not part of a duly-enacted body of law or regulation .... The Patrol Guide is an internal manual.. .. It is not a body of law or regulation establishing clear legal duties that 14 should serve as a basis for civil liability of municipalities .... Significantly, though some of its provisions are couched in mandatory terms, the Patrol Guide ... is intended to serve as a guide for members of the Police Department. Establishing Procedure 104-1 (k) as a foundation for monetary damage lawsuits under section 205-e, with the specter of massive civil liability, would, moreover, operate as a powerful disincentive to the adoption of internal rules, which authorize the police department to discipline officers even before conduct might become actionable by members of the general public.... As illustrated by the present case, it would additionally allow a trier of fact, using rules the Police Department itself regards merely as 'a guide,' to second-guess line-of-duty decisions on matters affecting public safety .... Permitting the recovery of damages by a police officer based on a fellow officer's violation of Procedure 104- 1(k) would, finally, be at odds with the history and purpose of General Municipal Law § 205-e. The overriding purpose behind the adoption of General Municipal Law § 205-e was to ameliorate the effect of the common-law rule that disadvantaged police officers who, unlike members of the general public, were barred from recovery for injuries resulting from risks inherent in their job. The statute, was not, however, intended to give police officers greater rights and remedies than those available to the general public, as would occur here if plaintiffs could found their damages claims on Procedure 104-1(k) .... Galapo, supra, 95 N.Y.2d at 574-576 (emphasis in original) (citations omitted). When the phrase "greater rights and remedies" is considered in context, it becomes clear that the Court of Appeals did not intend for it to have the repercussions the City describes. The point made by the Court of Appeals in Galapo was simply that allowing a police officer to recover using the Patrol Guide 15 as a predicate would enable a police officer to recover based on conduct that might be subject to police-officer discipline, but not be actionable by members of the general public. "[I]n enacting General Municipal Law § 205-e, the Legislature did not intend to upset the settled view that the violation of internal agency memoranda or manuals imposing a higher standard of care on a defendant than that imposed by law could not be the basis of liability against governmental entities. (See, Crosland v New York City Tr. Auth., 68 NY2d 165, 168-169; Rivera v New York City Tr. Auth., 77 NY2d 322, 329.)" Flynn v. City ofNew York, 258 A.D.2d 129, 138 (1st Dep't 1999). The City's interpretation ofGalapo is irreconcilable with the repeated holdings of the Court of Appeals in this regard. Consistent with the holding in Galapo, the Second Department held in Montalvo v. City ofNew York, 46 A.D.3d 772 (2d Dep't 2007), that the prior written notice requirement contained in New York City Administrative Code§ 7- 201, applies to lawsuits brought by police officers whose General Municipal Law § 205-e claim is predicated on a violation of New York City Charter§ 2903 in failing to maintain a roadway in a safe manner because "[r]elieving police officers of the prior written notice requirement ... , which otherwise applies to lawsuits brought by the general public alleging a New York City Charter § 2903 violation, would have the effect of giving them greater rights and remedies than those available to the general public." 16 Unlike the Patrol Guide, a violation of a relevant OSHA provision has always been considered evidence of negligence and the violation of a statute may even constitute negligence per se. Accordingly, liability based upon negligent noncompliance with such a provision or with the general duty clause cannot be said to give police officers greater rights and remedies than those available to the general public. On the other hand, denying officers of the right to rely upon OSHA/PESHA would be serve to deprive them of the rights and remedies available under section 205-e. As shown, the Legislature made it plainly clear, sections 205-a and 205-e are to be construed as broadly as possible. Interpreting Galapo and Montalvo in the manner advocated by the City does not comport with the statute's text or this Court's repeated admonitions that it be applied "expansively." Indeed, the City's construction of the statute is logically absurd. With the exception of suits against employers or fellow employees, General Obligations Law § 11-106 now gives police officers and firefighters the same rights as the general public. If that were all the Legislature had intended, it would have limited sections 205-a and 205-e to suits against employers and coworkers, the one circumstance in which the common-law defense regarding assumption of the risk remains viable. This, of course, is not what the Legislature did. Acceptance of the City's argument that the 17 statutes provide no greater rights than can be exercised by the public would render the statutes nullities in all cases except actions against employers or coworkers. As this Court has explained (albeit in addressing a different issue under§ 205-e): ... an expansive interpretation is consistent with the over-all goal of this legislation, as demonstrated by the Legislature through its numerous amendments to the statute. Indeed, this Court in Ruotolo II (supra, 83 NY2d, at 25 8) noted that the Legislature in enacting and amending section 205-e had expressed its remedial intent "emphatically and plainly." It would be anomalous for this Court to adopt the restrictive interpretation urged by the City when the Legislature has consistently acted to preserve police officers' rights to sue through amendments to the statute. When the Legislature's words and actions point out the correct interpretive road to follow, there is no justification for a court of law to follow another path. Schiavone, supra, 92 N.Y.2d at 317. The preclusion of PESHA - the most widely recognized set of safety regulations available to public employees - as a predicate for section 205-e liability is completely inconsistent with the intent of the section 205-e and nothing in Galapo dictates otherwise. The Public Employee Safety and Health Act and OSHA Labor Law § 27 -a, known as the Public Employee Safety and Health Act (PESHA), was enacted "to provide 18 individuals working in the public sector with the same or greater workplace protections provided to employees in the private sector under OSHA" (Hartnett v New York City Tr. Auth., 86 N.Y.2d 438, 442, 657 N.E.2d 773, 633 N.Y.S.2d 758 [1995]). In implementing standards for PESHA, New York has adopted OSHA's workplace safety standards (see 12 NYCRR 800.3). Williams, supra, 2 N.Y.3d at 367. The City claims that given PESHA's origins, a review of the history and application of the Occupational Safety and Health Act is warranted. While this proposition may be correct with respect to the interpretation of an OSHA statute enacted by New York State or the adoption of an OSHA regulation by the New York State Commissioner of Labor, it is of questionable value with regard to the City's claim that OSHA's savings clause, 29 U.S.C. § 653(b)(4), provides a basis for finding Labor Law§ 27-a invalid as a predicate for GML 205-e liability. While PESHA adopted OSHA's regulations, it never adopted OSHA's savings clause. Accordingly, the City's reliance upon§ 653(b)(4) is misplaced. In any event, as shown herein below, the City's interpretation of29 U.S.C. § 653(b)(4) and is effect on New York law involving OSHA, as opposed to PESHA, is also misplaced. OSHA and PESHA are remedial statutes and, therefore, should be "liberally construed" in favor of employees. Pratico v. Portland Terminal Co., 783 F.2d 255, 266 (1st Cir.1985); Irvington Moore v. Occupational Safety and Health Review Comm'n, 556 F.2d 431,435 (9th Cir.1977); Hartnett v. Ballston Spa, 152 A.D.2d 19 83, 86 (3d Dep't 1989) (citing McKinney's Cons Laws ofNY, Book 1, Statutes§§ 35, 321 ). OSHA was enacted "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions," 29 U.S.C. § 651(b). Congress found it necessary to act because state statutory remedies and negligence actions did not go far enough to protect workers from unsafe working conditions: After extensive investigation, Congress concluded, in 1970, that work-related deaths and injuries had become a "drastic" national problem. Finding the existing state statutory remedies as well as state common-law actions for negligence and wrongful death to be inadequate to protect the employee population fi:om death and injury due to unsafe working conditions, Congress enacted the Occupational Safety and Health Act of 1970 (OSHA or Act), 84 Stat. 1590,29 U.S.C. § 651 et seq. The Act created a new statutory duty to avoid maintaining unsafe or unhealthy working conditions, and empowers the Secretary of Labor to promulgate health and safety standards. Two new remedies were provided - permitting the Federal Government, proceeding before an administrative agency, (1) to obtain abatement orders requiring employers to correct unsafe working conditions and (2) to impose civil penalties on any employer maintaining any unsafe working condition. Each remedy exists whether or not an employee is actually injured or killed as a result of the condition, and existing state statutory and common-Jaw remedies for actual injmy and death remain unaffected. Atlas Roofing Co. v. OSHRC, 430 U.S. 442, 444-445 (1977) (footnotes omitted). 20 While OSHA is pervasive, it is not exclusive. "Federal regulation of the workplace was not intended to be all encompassing, however." Gade v. National Solid Wastes Management Ass'n, 505 U.S. 88, 96 (1992). "Rather, the OSH Act expressly contemplates that the States will continue to play a significant role in furthering the Act's overriding goal of workplace health and safety (see generally, Drummonds, The Sister Sovereign States: Preemption and the Second Twentieth Century Revolution in the Law of the American Workplace, 62 Fordham L Rev 469, 493-496, 552-555)." Irwin v. St. Joseph's Intercommunity Hosp., 236 A.D.2d 123, 126 (4th Dep't 1997). Accordingly, "[t]he Act also contains a savings clause that addresses the continued viability of State statutory and common-law duties and liabilities in light of the comprehensive Federal regulatory scheme contained in the Act." People v. Pymm, 76 N.Y.2d 511,518-519 (1990). Section 4(b)(4) provides: Nothing in this Act shall be construed to supersede or in any manner affect any workmen's compensation law or to enlarge or diminish or affect in any other manner the common law or statutory rights, duties, or liabilities of employers and employees under any law with respect to injuries, diseases, or death of employees arising out of, or in the course of, employment. 29 U.S.C. § 653(b)(4). "The legislative history of§ 653(b)(4) shows that the intent of the provision was merely to ensure that OSHA was not read to create a private right of action for injured workers which would allow them to bypass the otherwise 21 exclusive remedy of workers' compensation." Pratico, supra, 783 F.2d at 266 (1st Cir.1985). As the Court in Pratico noted, this intent is evidenced in a letter from the Solicitor of Labor to the Chairman of the House Subcommittee on Labor explaining how the provision operates: Dear Mr. Chairman: This is in response to your recent request for information upon which to base a reply to Mr. James E. Bailey, Legislative Counsel, American Society of Insurance Management, Inc. In his letter, Mr. Bailey expresses concern that under proposed legislation dealing with occupational health and safety "an injured employee could claim violation of the requirements of the legislation and thus bypass the applicable state workmen's compensation benefits through an action in the Federal courts." The provisions of S.2788, the Administration's proposed Occupational Safety and Health Act of 1969 would in no way affect the present status of the law with regard to workmen's compensation legislation or private tort actions. Occupational Safety and Health Act of 1969: Hearings on H.R.843, H.R.3809, H.R.4294 and H.R.13373 before the Select Subcomm. on Education and Labor, 91 st Cong., 1st Sess., Part 2 at 1592-93 (letter of L.H. Silberman, Solicitor of Labor). See also Frohlick Crane Serv., Inc. v. Occupational Safety and Health Review Comm'n, 521 F.2d 628,631 (lOth Cir.1975) ("It would appear that by this particular provision Congress simply intended to preserve the existing private rights of an injured employee, which rights were to be unaffected by the various sections of the Act itself."). 22 Pratico, supra, 783 F.2d at 266. There is "clear consensus that Section 653(b)(4) operates to save state common law and statutory tort claims from pre-emption under OSHA." Startz v. Tom Martin Constr. Co., 823 F. Supp. 501, 506 (N.D. Ill. 1993). The savings clause was not intended prevent OSHA as defining a duty of care or being cited as evidence of negligence. "Allowing OSHA regulations to act as 'guides for the determination of standards of care,' National Marine Service, Inc. v. Gulf Oil Co., 433 F.Supp. 913, 919 (E.D.La.1977) (Rubin, J.), aff'd 608 F.2d 522 (5th Cir.l979), should not be viewed as expanding the liability of employers." Pratico, supra, 783 F.2d at 265. "If a defendant is permitted to exclude OSH Act regulations based on the defendant's proposed reading of section 65 3 (b)( 4 ), then the jury is left with fewer tools to determine the standard of care with which the defendant should have complied. Restricting the jury in this way would effectively 'diminish' the defendant's liability." Scott v. Matlack, Inc., 39 P.3d 1160, 1169 (Colo. 2002). Accordingly, while "every court faced with the issue has held that OSHA creates no private right of action," Pedraza v. Shell Oil Co., 942 F.2d 48, 52 (1st Cir.l991 ), the overwhelming majority of the courts further hold that the regulations promulgated under OSHA prescribe standards of care relevant in common law negligence actions and statutory actions, establishing evidence of negligence or 23 negligence per se. See, e.g. Pratico, supra, 783 F.2d 255 (1st Cir.1985) (holding that an OSHA violation can establish negligence per se in an action under the Federal Employer's Liability Act); see also Ries v. National Railroad Passenger Corporation, 960 F .2d 1156, 1162 (3d Cir. 1992) (violation of an OSHA regulation could be admitted as evidence of negligence); Albrecht v. Baltimore & Ohio R.R. Co., 808 F.2d 329, 332 (4th Cir.1987); Rabon v. Automatic Fasteners, Inc., 672 F.2d 1231 (5th Cir. 1982); Teal v. E.I. DuPont De Nemours And Co., 728 F.2d 799 (6th cir. 1984) (applying Tennessee law); Robertson v. Burlington Northern R.R. Co., 32 F.3d 408 (9th Cir. 1994); Scott, supra, 39 P.3d 1160 (Colo. 2002); Wendland v. Ridgefiled Constr. Svcs., Inc., 184 Conn. 173 (Conn. 1981); Koll v. Manatt's Transp. Co., 253 N.W.2d 265 (Iowa 1977); Kelley v. HowardS. Wright Constr. Co., 90 Wash.2d 323, 334-336 (Wash. 1978); but see Minichello v. U.S. Industries, Inc. , 756 F.2d 26,29 (6th Cir.1985) ("To use OSHA regulations to establish whether a product is unreasonably dangerous is ... improper.") (product liability action brought by employer against product supplier).4 The majority view has also been the law applied by the Appellate Divisions of the State ofNew York. See, e.g., Murdoch v. Niagara Falls Bridge Commn., 81 A.D.3d 1456, 1457 (4th Dep't 2011); Cruz v. Long Is. Rail Rd. Co., 22 A.D.3d 451,453 (2d Dep't 2005), 4 Thomas v. Women Aware, Inc., 2005 U.S. Dist. LEXIS 14162 (W.D. Ky. 2004) and Barrentos v. UT-Batelle, LLC, 284 F. Supp.2d 908 (S.D. Ohio 2003), both of which were also cited by the City, are controlled by 6th Circuit precedent. 24 lv denied 6 NY3d 703 (2006); Ganci v. Port Auth. Trans-Hudson Corp., 258 A.D.2d 386 (1st Dep't 1999). Also see Bauer v. Female Academy of Sacred Heart, 97 NY2d 445, 453 (2002); PJI 2:29. As the Court in Pratico, supra, 783 F.2d 255 at 265-66, noted, the Fourth Circuit was presented with a similar issue, when it decided whether a regulation promulgated under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. Sec. 901, et seq. (1982), was admissible as some evidence of negligence. In Provenza v. American Export Lines, Inc., 324 F.2d 660 (4th Cir.1963), cert. denied, 376 U.S. 952 (1964), the defendant argued that admitting the regulation was not permitted because the regulations were not intended to place additional duties on shipowners or to relieve them of duties. The Court dismissed the argument thusly: The regulation casts upon the shipowner no new duty nor does it relieve him of any pre-existing duty. Now, as before the regulation was promulgated, it is incumbent upon him to supply a seaworthy ship .... The legal duty is the same. All that the regulation does is to define how this well-established duty shall be discharged in particular circumstances by the stevedore who has undertaken to perform the shipowner's nondelegable duty .... It prescribes a standard of safety, not a new duty ... . Of what possible use would a safety regulation be if its sanction is withdrawn by suppressing knowledge of it from the triers of fact? How can it be determined whether 25 a condition complained of meets the standard of safety if the jury is kept in the dark as to what that standard is? ... A more reasonable reading and one that observes both the language and the spirit is that no new duty is to be exacted where none existed before and, equally, no existing duty is to be excused by reason of the regulation; but the regulation's requirement may be considered by the trier of fact in determining whether its nonperformance has resulted in a failure to meet a duty incumbent upon the defendant.. .. Provenza, supra, 324 F.2d at 665-66. This Court considered the issue of§ 653(b )( 4) when it held that New York State's criminal laws of general application are not preempted by OSHA. People v. Pymm, supra. In Pymm, this Court held, in relevant part, that: We do not believe that New York's general criminal laws are occupational safety and health standards as this term is used in the Act. They do not "require conditions, or the adoption or use of* * * practices, means, methods, operations, or processes." While OSHA standards are prophylactic measures that are intended to prevent workplace accidents from ever occurring (see, Whirlpool Corp. v Marshall, 445 U.S. 1, 12, supra), the criminal laws of this State are triggered only after the commission of certain acts that society as a whole deems unacceptable, wherever they may occur. State criminal prosecutions lead to the imposition of penalties that reflect society's condemnation of behavior in violation of generally accepted norms (see, People v Pymm, 151 AD2d 133, 139; Note, Getting Away With Murder: Federal OSHA Preemption of State Criminal Prosecutions for Indus trial Accidents, 1 01 Harv L Rev 535, 543). While necessarily reactive in effect, the general criminal laws of this State also serve to deter 26 conduct that society has labeled intolerable and morally repugnant, and in this way protect every citizen of the State. Because the Penal Law protects all citizens, including workers, and because it punishes as well as deters, we believe that the purposes behind its enforcement, while certainly consistent with the development and enforcement of OSHA standards, are sufficiently separate to warrant its continued viability in the Federally regulated workplace. In addition, we believe that the very existence of section 4 (b) ( 4), which preserves State common-law and statutory rights, duties and liabilities, indicates that Congress did not intend the provisions permitting retention and assumption of State jurisdiction over workplace issues to preempt the enforcement of State criminal laws. People v. Pymm, supra, 76 N.Y.2d at 521. Likewise, the private rights and remedies implicated by Ms. Gammons' GML 205-e claim against the City hardly qualify as "standards," within the meaning of section 3, since they too are more reactive than prescriptive or normative. The courts have therefore "distinguished this limitation on the uses of OSHA [to create a private right of action] from a limitation that would prevent violations of OSHA regulations from having the same consequences under already existing common law and statutory schemes as violations of any other regulatory statute. Under this view, applying the doctrine of negligence per se to violations of OSHA regulations does not create any new 'rights, duties or liabilities.'" Pratico, supra, 783 F.2d 255 at 265. 27 Adoption of the defendant's interpretation ofPESHA would, in effect, convert the statute, which was enacted to create a safe work environment for the State's public employees into a grant of immunity for employers responsible for serious injuries or deaths of employees. Surely, such a consequence was not intended by the Legislature. Labor Law 27-a(J)(a)(l) Labor Law§ 27-a(3) mandates that: a. Every employer shall: (1) furnish to each of its employees, employment and a place of employment which are free from recognized hazards that are causing or are likely to cause ... serious physical harm to its employees and which will provide reasonable and adequate protection to the lives, safety or health of its employees; and (2) comply with the safety and health standards promulgated under this section. In applying this paragraph, fundamental distinctions between private and public employment shall be recognized. Prior to the decision of the Second Department's decision in the instant case, the two courts of the Appellate Division to address the applicability of the statute both held that the general duty clause of Labor Law§ 27-a may serve as a proper predicate for a cause of action alleging a violation of General Municipal Law § 205-e. See Koenig v. Action Target, Inc. , 76 A.D.3d 997 (2d Dep't 2010); Norman v. City ofNew York, 60 A.D.3d 830, 832 (2d Dep't 2009); Campbell v. City ofNew York, 31 AD3d 594, 595 (2006); Balsamo v. City of New York, 287 28 A.D.2d 22,27-28 (2001); Fisher v. City ofNew York, 48 A.D.3d 303 (1st Dep't 2008) (concerning General Municipal Law§ 205-a).5 The plaintiff in Balsamo, supra, was injured in a motor vehicle accident when his left knee allegedly came into contact with a sharp protruding edge of an unpadded computer console that was mounted in his vehicle. Balsamo claimed that the City was liable under General Municipal Law§ 205-e predicated, inter alia, on a violation of Labor Law§ 27-a due to the City's failure to place shock absorbent padding around the computer console. Balsamo, supra, 287 A.D.2d at 23-24. In finding that Labor Law§ 27-a may serve as a proper predicate, the Second Department held as follows in pertinent part: The language set forth in Labor Law§ 27-a is not permissive, as it contains a specific mandate that public employers provide a safe workplace for its employees. * * * Therefore, inasmuch as Labor Law § 2 7 -a imposes a clear legal duty on public employers to provide a safe workplace for their employees, and " 'an expansive interpretation is consistent with the over-all goal of [General Municipal Law§ 205-e]"' (Gonzalez v Jocovello, supra, at 548, quoting Schiavone v City of New York, 92 NY2d 308, 317), we find that a violation of Labor Law § 27 -a may constitute a sufficient predicate for a claim pursuant to General Municipal Law § 205-e which is based on an allegation of a workplace safety 5 Section 205-e is modeled on section 205-a, a corollary provision applicable to firefighters. Accordingly, "wherever practical and sensible, sections 205-a and 205-e should be construed and applied in the same way." Desmond, supra, 88 N.Y.2d at 463. 29 violation (see, Sciangula v City of New York, supra). While Labor Law§ 27-a (3) (a) (1) imposes a general duty of care, General Municipal Law § 205-e provides a right of recovery for statutory, regulatory, and code violations which codify a common-law duty (see, Gonzalez v locovello, supra, at 552-553; Corbisiero v City of New York, supra, at 695). Balsamo, supra, 287 A.D.2d at 26-28. It has also been held by the lower courts that the violation of OSHA regulations adopted by PESHA may form a predicate for statutory liability. See, e.g., McGovern v. City ofNew York, 294 A.D.2d 148, 149 (1st Dep't 2002) (OSHA can serve as a predicate to a claim under General Municipal Law§ 205-a); Knighton v. Municipal Credit Union, 2009 NY Slip Op 30204U, 7 (N.Y. Sup. Ct. Jan. 12, 2009) (an OSHA violation may form the predicate for liability under Labor Law§ 740[l][c], the whistleblower statute, which provides for liability where an employer engaged in an activity, policy, or practice which violated a law, rule, or regulation that presented a substantial and specific danger to the public health or safety."). "The Legislature enacted PESHA in 1980 to provide individuals working in the public sector with the same or greater workplace protections provided to employees in the private sector under OSHA (see, Governor's Approval Mere, 1980 NY Legis Ann, at 285)." Hartnett v. New York City Transit Auth., 86 N.Y.2d 438, 442-443 (1995). Recognizing violations ofthe general duty clause 30 and PESHA regulations as predicates for section 205-e liability affords police officers the same rights and remedies available to other municipal and private employees who can cite PESHA and OSHA, respectively, as some evidence of negligence. While PESHA and OSHA may not provide a private right of action, "[i]t is beyond cavil that the violation of a rule of an administrative body constitutes 'some evidence of negligence which the jury could take into consideration with all the other evidence bearing on that subject' (Schumer v Caplin, 241 NY 346, 351; Conte v Large Scale Dev. Corp., 10 NY2d 20)." Barzaghi v. Maislin Transport, 115 A.D.2d 679, 683 (2d Dep't 1985) (discussing OSHA regulations). See also PJI 2:29; Cruz, supra, 22 A.D.3d at 454 ("an OSHA violation is properly admissible as evidence of negligence"); Parella v. City of New York, 2007 U.S. Dist. LEXIS 63087, 4-5 (S.D.N.Y. Aug. 22, 2007) ("it is undisputed that violations of PESHA may be used as evidence of negligence"). Contrary to the City's argument, there is no evidence of any legislative intent to preclude Labor Law§ 27-a as a predicate for liability under General Municipal Law § 205-e. General Municipal Law § 205-e contains no categorical exemption of Labor Law§ 27-a or PESHA and does not require that the predicate statute violated have its own private enforcement mechanism. Had the Legislature chosen to preclude PESHA specifically, or to limit the laws and regulations that may be relied upon as a predicate for section 205-e liability under General 31 Municipal Law § 205-e in any way other than as stated in the body of the statute or its legislative history, it had many opportunities to do so over the course of its frequent amendments to the statute - "all designed to benefit officers and to preserve their opportunities for redress in the courts." Gonzalez, supra, 93 N.Y.2d at 549. General Municipal Law § 205-e, as amended: ... is the culmination of years of legislative efforts generally designed to accomplish two main objectives: mitigate the harshness of the firefighter's rule by creating a cause of action where none previously existed, and encourage compliance with relevant statutes and ordinances by exposing violators to liability for injuries resulting directly or indirectly from noncompliance. Giuffrida, supra, 100 N.Y.2d at 79 (emphasis added).6 The right of action conferred by GML § 205-e is "[i]n addition to any other right of action or recovery under any other provision oflaw." GML § 205-e(l). While "encourage[ing] compliance with relevant statutes and ordinances" through compensation is one of the purposes behind General Municipal Law § 205-e, Guiffrida, supra, 100 N.Y.2d at 79, prophylactic enforcement is not a stated goal and a plaintiff seeking to recover under General Municipal Law § 205-e is not enforcing relevant statutes and ordinances. Encouraging compliance by exposing the City to liability for injuries resulting directly or indirectly from noncompliance 6 This Court made the above-quoted statement with respect to GML § 205-a, after discussing the statutory and legislative history ofboth section 205-a and 205-e. 32 is separate and distinct from enforcing compliance through an enforcement scheme that is the province of the State Labor Commissioner.7 Tort liability under section 205-e results in compensation to an injured victim, while enforcement includes, inter alia, an "order to comply" and the assessment of a "penalty" for a failure to comply with an applicable provision of section 27-a or a health standard or regulation promulgated under it (Labor Law§ 27-a(6)(a)) and an Article 78 proceeding by the Commissioner to enforce compliance. Labor Law§ 27-a(6)(d). Ms. Gammons is not seeking to enforce PESHA any more than the victim of a motor vehicle accident suing for personal injuries seeks to enforce the Vehicle and Traffic Law, the victim of a crime seeks to enforce the Penal Law or the victim of a trip and fall accident seeks to enforce the New York City Charter or the New York City Administrative Code. In Williams, supra, this Court held that "the Penal Law is a proper predicate for section 205-e liability" and that "a claim may be predicated on a violation of those Penal Law sections that prohibit specific acts." Williams, supra, 2 N.Y.3d at 365. Obviously, enforcement of the Penal Law is generally a matter within the exclusive province of this State's criminal court system. However, "a conviction is not necessary to find a violation of the Penal Law for purposes of section 205-e liability." Williams, supra, 2 N.Y.3d at 366. As this Court held, 7 Imposing tort liability and providing compensation for personal injuries resulting from noncompliance is beyond the Commissioner's grant of power. 33 making a conviction prerequisite to a section 205-e claim predicated on the Penal Law conflates the issue of which statutes may serve as predicates with the question of whether a statute has been violated in a particular case. Williams, supra, 2 N.Y.3d at 365 (emphasis added). Similarly, the City's position in the instant case- that Labor Law§ 27-a may not serve as a predicate for section 205-e liability because enforcement ofPESHA is a matter within the exclusive province of the State Labor Commissioner- "conflates the issue of which statutes may serve as predicates with the question of whether a statute has been violated in a particular case." Williams, supra, 2 N.Y.3d at 365. A finding by the commissioner of a PESHA violation is not necessary to find a violation of PESHA for purposes of 205-e liability. In Williams, this Court indicated that "[a ]rguably, under the facts in Balsamo, section 27-a applies because PESHA is designed to prevent the type of occupational injury that occurred when the officer was given an improperly equipped vehicle." Williams, supra, 2 N.Y.3d at 368. Like the officer in Balsamo, Ms. Gammons suffered an occupational injury due to a defective vehicle. The truck used to collect barriers was defective in that it was too short for workers to move around safely on the flatbed and there was no fall protection provided. The City's claim that the only permissible predicates for GML 205-e provide a private right of action independent from the General Municipal Law is belied not only by the language of the that statute, supra, but also by case law. In Gonzalez v. 34 Iocovello, 93 N.Y.2d at 552-553, aff'g Cosgriffv. Iocovello, 241 A.D.2d 382, this Court held that New York City Charter § 2903(b )(2) and Administrative Code of the City of New York § 7-201, neither of which provide a private right of action, may be relied upon as predicates for GML § 205-e liability. Cosgriff was a police officer who tripped and fell on a defective sidewalk. City Charter § 2903, entitled "Powers and duties of the commissioner," provides that the Commissioner of Transportation "shall have charge and control of the following functions relating to the construction, maintenance and repair of public roads, streets, highways, parkways, bridges and tunnels: ... (2) designing, constructing and repairing of public roads, streets, highways and parkways" (City Charter § 2903(b )(2) (emphasis supplied). Administrative Code § 7-201 recognizes potential liability for sidewalk accidents by requiring prior written notice to the City of a sidewalk defect in order to maintain an action based on such a defect. Clearly, neither of those provisions may constitute the basis for an independent private right of action. Also see, e.g., Pirraglia v. CCC Realty NY Corp., 35 A.D.3d 234 (1st Dep't 2006) (finding New York City Administrative Code§§ 27-127 and 27-128 proper predicates); Cusumano v. City ofNew York, 15 N.Y.3d 319,328 (2010) (Lippman, C.J., concurring) (concluding that Administrative Code§ 27-127, which 35 requires that buildings "be maintained in a safe condition," may constitute a proper predicate for 205-a liability). 8 The City claims that under Labor Law § 27 -a(2), the legislature vested the Commissioner of Labor with 'exclusive authority' to determine whether any PESHA provisions are violated." Contrary to the City's argument, Labor Law§ 27-a(2) does not vest the Commissioner of Labor with exclusive authority to "determine" whether a PESHA provision was violated, but, rather, to "enforce" PESHA' s safety and health standards. It is that power of enforcement that is granted exclusively: A safety or health standard promulgated under the provisions of this section shall apply to every public employee and the commissioner shall have exclusive authority to enforce such standard in accordance with the provisions of this chapter, notwithstanding any other safety or health standard or any other provision in this chapter or in any other general, local or special law or charter. Labor§ 27-a(2) (emphasis added). Contrary to the City's request, '"[a] court cannot by implication supply in a statute a provision which it is reasonable to suppose the Legislature intended intentionally to omit' because 'the failure of the Legislature to include a matter within the scope of an act may be construed as an indication that its exclusion was intended' (McKinney's Cons. Laws ofNY, Book 8 The majority of this Court did not reject§ 27-127 as a predicate, but merely declined to address the issue. Cusumano, supra, 15 N.Y.3d at p. 325 . 36 1, Statutes,§ 74). In other words, we cannot read into the statute that which was specifically omitted by the Legislature." Commonwealth of theN. Mariana Is. v Canadian Imperial Bank of Commerce, 21 N.Y.3d 55, 62 (20 13). The Commissioner' enforcement procedures are limited. If the commissioner finds a violation, he or she may issue ... "an order to comply" with the provision alleged to have been violated, including the time for compliance and may establish a "penalty ... for failure to correct the violation by the time fixed for compliance," including "a civil penalty of up to fifty dollars per day until the violation is corrected" or, in the case of a serious violation, "a civil penalty of up to two hundred dollars per day." Where the employer fails to timely comply, the commissioner is further empowered, in fact required, to "seek judicial enforcement of such order by commencing a proceeding pursuant to article seventy-eight of the civil practice law and rules." Labor§ 27-a(6). The Commissioner is also empowered to seek injunctive relief to restrain unsafe conditions or practices. Labor§ 27-a(7)(a). The statute expressly provides that an at risk employee may seek injunctive relief if the commission fails to do so after forty-eight hours notice. Labor§ 27-a(7)(c). Ms. Gammons seeks a remedy that is not provided administratively. Her case does not concern "enforcement" of PESHA and there is no statute or case law prohibiting a judge or jury from determining whether a provision of PESHA was 37 violated for purposes of determining liability under GML § 205-e. The Commissioner's power to "determine" a violation is no greater than its power to "inspect" a premises for a violation, despite the fact that PESHA expressly provides for inspections. Labor Law§ 27-a(5). If the City's interpretation were correct, then an officer injured by a dangerous workplace condition would be unable to obtain an inspection of the employer's premises in the course of a personal injury action because inspections are part of the Commissioner's exclusive authority. Such is obviously not the case. The City's narrow interpretation is mistaken and contrary to both the case law and the evident language of section 205-e, which mandate the conclusion arrived at by this Court; that Labor Law§ 27-a(3) may serve as a predicate for GML § 205-e liability. As shown, section 205-e(l) creates a statutory cause of action where a police officer is injured by another's failure "to comply with the requirements of any of the statutes, ordinances, rules, orders and requirements of the federal, state, county, village, town or city governments or of any and all their departments, divisions and bureaus." Williams, supra, 2 N.Y.3d at 363-64. Section 205-e's right of action and recovery, by its very terms, is "[i]n addition to any other right of action or recovery," GML § 205-e( 1 ). In Desmond, supra, 88 N.Y.2d at 464, this Court recognized that "the 1989 enactment was intended to provide police officers with an avenue of recourse 'where injury is the result of 38 negligent non-compliance with well-developed bodies of law and regulation' which 'impose clear duties ' (Mem of State Executive Dept, reprinted in 1989 McKinney's Session Laws ofNY, at 2140, 2141)." "[A] statute can serve as a predicate when it contains either a particularized mandate or a clear legal duty (see also, General Municipal Law§ 205-e [3]). Either of these objective standards can suffice, so long as the governmental standard is part of a well-developed body of law and regulation." Gonzalez, supra, 93 N.Y.2d at 551 (emphasis in original). Gammons' reliance upon a violation ofPESHA for purposes of establishing GML § 205-e liability is no less permissible than a plaintiffs reliance upon a violation of OSHA (or PESHA) to establishing evidence of negligence, which has been recognized as appropriate for decades in most jurisdictions despite a lack of an administrative determination. Furthermore, like Vehicle and Traffic Law § 11 04( e), which was held in Gonzalez, supra, 93 N.Y.2d at 548, to be a sufficient predicate for section 205-e liability, and unlike the administrative provisions held inadequate as a predicate in Galapo, supra, 95 N.Y.2d at 572, and Desmond, supra, Labor Law§ 27-a is a Legislative enactment that does not require the fact finder to "second-guess an officer's split-second weighing of choices." Cf. Gonzalez, supra, 93 N.Y.2d at 551. Accordingly, the City's claim that finding a violation of Labor Law§ 27-a in 39 a GML § 205-e case constitutes an improper passageway around PESHA's statutory scheme is misplaced and its citations in this regard are without merit. The City's reliance upon Capers v. Giuliani, 253 A.D.2d 630 (1st Dep't 1998), lv. denied 93 N.Y.2d 868 (1999) as support for its position is misplaced. In Capers, public employees sought to enjoin the City from assigning them to perform certain outdoor tasks in the absence of training, supervision, appropriate equipment and safety measures, available toilets, potable water and cleaning facilities. Injunctive relief is an administrative remedy expressly provided for under Labor Law § 27 -a(7). The plaintiffs' complaint was dismissed because they failed to utilize, let alone exhaust their administrative remedies. Unlike the situation in Capers, supra, administrative relief does not provide relief to Officer Gammons, who seeks compensation for personal injuries. The Legislature did not confer any jurisdiction upon the Commissioner, let alone exclusive jurisdiction, to administer General Municipal Law§ 205-e. Accordingly, administrative relief is futile. Similarly misplaced is the City's reliance upon the unpublished decision in Parella v. City ofNew York, 2007 LEXIS 63087 (S.D.N.Y. 2007). The Court in Parella did not dismiss a GML § 205-e claim, let alone dismiss such a claim on the grounds that such a complaint must be reviewed by the Department of Labor. 40 Furthermore, as in Capers, supra, the plaintiffs in Farella had an administrative remedy that they failed to utilize. The plaintiffs in Farella moved for summary judgment on a denial of access to courts claim, arguing that they were prevented from filing valid negligence and section 1983 claims because the City, with reckless indifference to its PESHA/OSHA record keeping obligations, failed to make, keep and disclose testing results concerning lead levels at a particular work location over a period of years. To make out a denial of access claim, the plaintiffs were required to establish that they could have had valid claims, but for the reckless indifference. While one group of plaintiffs had originally alleged a GML § 205-e violation as one of the claims it could have made but for the reckless indifference, they essentially withdrew their GML § 205-e claim. They expressly advised the court in their motion papers that their cases fell outside the ambit of GML § 205-e because GML § 205-e only covered injuries that resulted from an "accident," which is defined as "a sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious impact," and their injuries resulted from long-term exposure to lead. See Plaintiff's Joint Supplemental Memorandum of Law in Response to the Court's July 2, 2007 Specific Questions, attached as Exhibit "A " to Gammons ' September 27, 2013 Affirmation in Opposition to the City's Notice of Motion for Leave to Appeal at pp. 1-3 (citing Martzloff v. City of New York, 238 41 A.D.2d 115, 118 (1st Dep't 1997); Casson v. City ofNew York, 269 A.D.2s 285, 286 (1st Dep't 2000); Foulkes v. City ofNew York, 261 A.D.2d 283,283-84 (1st Dep 't 1999) ). 9 Solely on the basis of the case law and analysis referenced above, those plaintiffs who had alleged that a 205-e claim could have been brought but for their denial of access, affirmatively acknowledged that "their General Municipal Law§ 205-e claims will not stand." !d. at p. 7. The plaintiffs in Farella sought to base a denial of access claim on the failure to conduct and maintain records, something the plaintiffs themselves considered "unprecedented" given the fact that the failure to take mandated tests does not constitute an attempt to hide the lead exposure problems. The Court held that "Plaintiffs had an administrative remedy available to them; that plaintiffs chose not to exercise this option can hardly be grounds to claim, as they do, that defendant precluded them from pursuing their underlying negligence claims." Parella, supra, 2007 LEXIS 63087 (S.D.N.Y. 2007). As support for that holding, the Court cited Swekel, v. City of River Rouge, 119 F.3d 1259, 1263 (6th Cir. 1997) (holding that "[b]efore filing an 'access to courts' claim, a plaintiff must make some attempt to gain access to the courts; otherwise, how is this court to 9 Gammons respectfully requests that this Court take judicial notice of the Farella plaintiffs' Joint Memorandum. People v. Petgen, 55 N.Y.2d 529, 536 (1982); Matter of Ordway, 196 N.Y. 95 (1909); Rossbach v Rosenblum, 260 A.D. 206 (1st Dept. 1940); Schmidt v Magnetic Head, 97 A.D.2d 151 (2d Dept. 1983); Prince, Richardson on Evidence § 2-209. 42 assess whether such access was in fact 'effective' and 'meaningful"') and Christopher v. Harbury, 536 U.S. 403, 415, n.10 (2002) (citing Swekel for the proposition that "[s]ome Courts of Appeals have held that an actual attempt to sue is a prerequisite to any such claim"). Farella, supra, 2007 LEXIS 63087 (S.D.N.Y. 2007). While the City in the instant case cites Parrella, supra, for the proposition that a complaint must first be filed to the Department of Labor, that statement was only made in the context of the aforesaid finding that there was an administrative remedy to the failure to conduct testing, which the plaintiffs in that case failed to exhaust. The City's citation to another unpublished decision, Estate of Rosen v. Prince George's Bd. ofEduc., 1996 U.S. App. LEXIS 4980 (4th Cir. 1996), is also misplaced. There, the plaintiff attempted to bring a section 1983 action based on an OSHA violation. While the court noted that OSHA does not create a private right, the case was dismissed because "[s]ection 1983 may not be used as a substitute for state tort law" and because the plaintiffs exclusive remedy was workers' compensation. I d. In Shaw v. Baldowski, 192 Misc. 2d 635, 640 (N.Y. Sup. Ct. 2002), the City's next cited case, the plaintiff could not utilize a violation of a collective bargaining agreement's safety requirement to circumvent PESHA's enforcement scheme because the collective bargaining agreement's grievance procedure 43 expressly required that "[a]lleged violations which would be reviewable through other procedures provided by law, rule or regulation shall not be processed through this procedure." Finally, in Capotosto v. City ofNew York, 288 A.D.2d 419 (2d Dep't 2001), another case relied upon by the City, the Appellate Division held that officers could not use a violation of the Penal Law violation as a predicate for GML § 205- e liability where the Penal Law violation was based on a Patrol Guide violation because the Patrol guide is not part of a well developed body of law. As stated earlier, no such concern is present in Ms. Gammons' case. Although the City essentially concedes that violations of OSHA/PESHA regulations which are not reviewed administratively are nonetheless admissible as evidence of negligence, it denies that the use of such violations is relevant to the issue of such regulations' validity as GML § 205-e predicates. The City's position is wrong. The City' s entire argument is based on its assertion that the courts have no jurisdiction to determine whether an OSHA or PESHA provision was violated. If that were the case, then they could not be relied upon as evidence of negligence in court. Contrary to the City's position, courts and juries routinely determine whether such violations have occurred. 44 The City is simply in error in claiming that PESHA was intended to be so all encompassing that it precludes allegations of violations in common law negligence and statutory actions brought under GML § 205-e. Recognized Hazard On appeal, the City does not deny the existence of a "recognized hazard" and, in fact, does not brief the issue. However, the certified question to this Court is whether the Appellate Division's decision was correctly made and that decision was based, in part, on a review of the issue. Accordingly, the issue is briefed herein by the plaintiff. Initially, it is noted that the City's argument below on the issue of "recognized hazard" was limited. It mistakenly claimed that plaintiffs sole theory was that the truck was too short, which concerned the "use" of the truck and that the term "recognized hazard" in Labor Law§ 27-a(3)(a)(l) only concerns "physical and environmental hazards in the workplace" as opposed to the "practice" or "use" to which the truck was put. ( 47-50). The City's argument ignored the fact that "General Municipal Law§ 205-e(3) expressly provides for a right of action 'regardless of whether the injury ... is caused by the violation of a provision prohibiting activities or conditions .... "' As it does in its Statement of Facts to this Court, the City ignored the fact that the truck that was not equipped with a back railing or gate and the fact that plaintiff pleaded, inter alia, that the 45 City provided a truck that was not in a safe condition and that the City failed to provide barricades (railings) (56, 64, 81). To prove a violation of the general duty clause, one must establish: ( 1) that the employer failed to render its workplace free of a hazard which was (2) recognized and (3) causing or likely to cause death or serious physical harm. Pratt & Whitney Aircraft, Div. of United Technologies Corp. v. Secretary of Labor, 649 F .2d 96, 98 (2d Cir. 1981) (citations omitted). While federal precedent interpreting OSHA is "not binding" in construing PESHA, "it is reasonable to consider this federal case law because, as the Court acknowledged in Hartnett, PESHA is 'based' on OSHA." 86 N.Y.2d at 442." Walsh v. City ofNew York, 2008 U.S. Dist. LEXIS 26526 (S.D.N.Y. 2008). Furthermore, since PESHA was enacted to provide "the same or greater workplace protections" as provided under OSHA, Hartnett, supra, 86 N.Y.2d at 442-443, any interpretation ofPESHA's general duty clause should be at least as favorable to workers as the interpretation given OSHA's essentially identical clause. The definition of the term "recognized hazard" in Pratt & Whitney, supra, is objective. "[T]o 'constitute a recognized hazard, the dangerous potential of a condition or activity must actually be known either to the particular employer or generally in the industry."' Pratt & Whitney, supra, 649 F.2d at 100 (emphasis added). "An activity may be a 'recognized hazard' even if the defendant employer 46 is ignorant of the activity's existence or its potential for harm." National Realty & Constr. Co. v. Occupational Safety & Health Review Com., 489 F.2d 1257, 1265 (D.C. Cir. 1973). A recognized hazard is a condition that is known to be hazardous, and is known not necessarily by each and every individual employer but is known taking into account the standard of knowledge in the industry. In other words, whether or not a hazard is 'recognized' is a matter for objective determination; it does not depend on whether the particular employer is aware of it. Pratt & Whitney, supra, 649 F .2d at 100 (emphasis added; citations omitted). The "standard of knowledge in the industry" does not require knowledge of the hazard among the general employee population or even among supervisors, although such knowledge would suffice to establish knowledge. "The standard would be the common knowledge of safety experts who are familiar with the circumstances of the industry or activity in question." National Realty, supra, 489 F.2d at 1265. Here, no railing was provided on the rear of the flatbed to prevent falling. Railings were only located on the sides and the flatbed was approximately five to six feet above the roadway. (139-140). As noted above, the City never made any attempt to establish that it was unaware of the hazard of falling from a non-moving flatbed truck and never attempted to establish that the hazard was not within the common knowledge of safety experts who are familiar with the activity of loading material onto a flatbed truck. Nor could it have made such a showing. The City 47 had to have actual and constructive knowledge of the condition, having created it. The City provided plaintiffs barrier detail with a flatbed that was shorter than the saw horses that were to be placed on it and that was not equipped with rear fall protection and it directed plaintiff and her detail to work from the flatbed under such conditions. Thus, the conditions were "visible and apparent and ... exist[ ed] for a sufficient length of time" to give rise to constructive notice." Gordon v. American Museum ofNatural History, 67 N.Y.2d 836, 837 (1986). 10 It cannot be seriously disputed that falling from a height is a recognized hazard or that falling from a nonmoving vehicle in particular is a recognized hazard. As to falls from heights in general, there has been reference to the likelihood of injury from falls starting at elevations as low as four feet. Chaffin, D.B., Midoski, R., Stobbe, T., et al., An ergonomic basis for recommendations pertaining to specific sections of OSHA standard 29 CFR Part 1910 Subpart D: Walking and working surfaces. Ann Arbor, MI: University of Michigan (1978). As to trucks, "the risk of falling from the open bed of pickup truck ... [is] open and obvious." Brown. v. Town of Cincinnatus, 2011 NY Slip Op 50071 U, 2 (N.Y. Sup. Ct. 2011). Additionally, the U.S. Department of Labor performed a Survey of 10 "'[I]t is not necessary for the plaintiffto prove such notice as would be required under a common-law theory of negligence.' Rather, the plaintiff must only establish that 'the circumstances surrounding the violation indicate that it was a result of neglect, omission, willful or culpable negligence on the defendant's part."' Alexander v. City ofNew York, 82 A.D.3d 1022, 1024 (2d Dep 't 2011 ). 48 Occupational Injuries and Illnesses in 2007 and estimated that there are in excess of 11,000 lost work days per year from falls from nonmoving vehicles. (458). Evidence that falls from flatbed trucks is a "recognized hazard" comes from several sources. The Maine Department of Labor has recognized the applicability of the general duty clause to prevent falls in any industry where a worker is exposed to a risk of falling four or more feet from non-moving flatbed trucks. http://www .maine.gov /labor/labor stats/pu b lications/face/0 1 07 .pdf. Similarly, Minnesota's Occupational Safety and Health Administration issued a "Serious citation" under its general duty clause for failure to provide adequate safeguards to ensure that an employee was protected from falling where, on May 18, 2006, a worker lost his balance and fell from a flatbed truck while setting traffic cones. http://www.dli.mn.gov/OSHA/pdf/06 fatal log.pdf. (459-460). At the federal level, the Sandia National Laboratories safety procedures expressly cites the general duty clause when stating the requirement that fall protection be used when exposed to the hazard of working near the edges of open-sided flatbed trucks. http://www.sandia.gov/esh!ESH100.2.IS.4.html. Contrary to the City's assertion, the risk noted was not being struck by a following vehicle, but from falling. ( 460). Nor can it reasonably be denied that railings are contemplated as a means of providing reasonable and adequate protection to employees working on flatbed trucks. In fact, it is undisputed that the City's newer longer flatbed trucks, which 49 could have been provided, were equipped with an enclosure on the rear of the flatbed. (266). Moreover, fall protection systems have been designed and sold specifically for use on flatbed trucks, and are advertised as being OSHA compliant. See, e.g., http:/ /www.railguard.net/pages/speedguard.asp. ( 461-462). Here, plaintiff swore in an affidavit in support of her application for leave to serve a late notice of claim that on the day of her accident, her supervising sergeant told her that "there had been several similar accidents in the past" and "that these old trucks should not have been used for stacking barriers/barricades because they were dangerous." He admitted that "it was too difficult to maintain one's feet while stacking barriers/barricades on these trucks." ( 436). At her deposition, Officer Gammons repeated some of the sergeant's statement to her on the day of the accident and she also provided the details of her understanding of specific prior incidents of people falling off the back of the barrier trucks. (256-257, 274). It was established that the new trucks were longer and provided a safe or safer place to work with the long wooden barriers and that there was little room to maneuver with the shorter trucks. Under the circumstances, there can be no doubt that the condition constituted a recognized hazard under Labor Law§ 27-a(3)(a)(l). 50 Dated: CONCLUSION THE ORDER APPEALED FROM SHOULD BE AFFIRMED, WITH COSTS, AND THE ACTION SHOULD BE REMANDED FOR FURTHER PROCEEDINGS New York, New York March 26, 2014 Respectfully submitted, OSHMAN & MIRISOLA, LLP Attorney for Plaintiff-Respondent Allison Gammons By: David L. Kremen 51