Richard Fabrizi, Respondent,v.1095 Avenue of the Americas, L.L.C., et al., Appellants, Verizon New York, Inc., et al., Defendants. [And Other Actions]BriefN.Y.January 9, 2014To be Argued by: DANIEL ZEMANN, JR. (Time Requested: 15 Minutes) APL-2012-00355 New York County Clerk’s Index No. 108280/08 Court of Appeals of the State of New York RICHARD FABRIZI, Plaintiff-Respondent, – against – 1095 AVENUE OF THE AMERICAS, L.L.C., J.T. MAGEN CONSTRUCTION COMPANY, INC., and DECHERT LLP, Defendants-Appellants, VERIZON NEW YORK, INC. and TISHMAN CONSTRUCTION CORPORATION, Defendants. ———————————————————————————— NY-1095 AVENUE OF THE AMERICAS, L.L.C., s/h/a 1095 AVENUE OF THE AMERICAS, L.L.C., Third-Party Plaintiff, – against – DECHERT LLP, Third-Party Defendant. ———————————————————————————— (For Continuation of Caption See Reverse Side of Cover) REPLY BRIEF FOR DEFENDANTS-APPELLANTS Of Counsel: DANIEL ZEMANN, JR. DAVID B. FRANKLIN LONDON FISCHER LLP Attorneys for Defendants-Appellants NY-1095 Avenue of the Americas, L.L.C., s/h/a 1095 Avenue of the Americas, L.L.C., J.T. Magen Construction Company, Inc., and Dechert LLP 59 Maiden Lane, 39th Floor New York, New York 10038 Tel.: (212) 972-1000 Fax: (212) 972-1030 Date of Completion: June 28, 2013 DECHERT LLP, Second Third-Party Plaintiff, – against – FOREST ELECTRIC CORP., Second Third-Party Defendant. DISCLOSURE STATEMENT PURSUANT TO 22 NYCRR 500.1([) Pursuant to 22 NYCRR 500.1(f), Defendant-Appellant NY-1095 Avenue of the Americas, LLC (incorrectly s/h/a as "1095 Avenue of the Americas, L.L.C.), states that it does not have any parents, subsidiaries or affiliates. Pursuant to 22 NYCRR 500.l(f), Defendant-Appellant J.T. Magen & Company, Inc. (incorrectly s/h/a as "J.T. Magen Construction Company, Inc."), states that it does not have any parents, subsidiaries or affiliates. Pursuant to 22 NYCRR 500.l(f), Defendant-Appellant Dechert LLP, states that it does not have any parents, subsidiaries or affiliates. Dated: New York, New York June 27,2013 David B. Franklin Attorneys for Defendants/ Appellants J.T. MAGEN CONSTRUCTION COMPANY, INC., NY-1095 AVENUE OF THE AMERICAS, L.L.C. s/h/a 1095 A VENUE OF THE AMERICAS, L.L.C. and DECHERTLLP 59 Maiden Lane, 39th Floor New York, New York 10038 (212) 972-1000 i TABLE OF CONTENTS Page TABLE OF AUTHORITIES ............................................................................... ii, iii PRELIMINARY STATEMENT ............................................................................... 1 STATEMENT OF FACTS ....................................................................................... 2 ARGUMENT ............................................................................................................ 2 POINT I THE CIRCUMSTANCES GIVING RISE TO PLAINTIFF’S INJURY ARE OUTSIDE THE AMBIT OF LABOR LAW §240(1) ............................................................................................................ 2 A. Plaintiff’s injury was not caused by the inadequacy or absence Of a protective device “of the kind” enumerated In Labor Law §240(1) ........................................................................... 2 B. The conduit which injured Plaintiff was part of the building’s Completed infrastructure as it appeared when Plaintiff began His assigned task ................................................................................... 7 C. Owners and contractors are only required to provide Protection against “foreseeable” gravity-related risks ........................ 12 POINT II PLAINTIFF’S INJURY WAS CAUSED SOLELY BY HIS MISUSE OF THE SUPPORTS OF THE CONDUIT BY DISCONNECTING THEM .................................................................... 18 POINT III ALL ISSUES ARE PROPERLY BEFORE THIS COURT .......................... 23 CONCLUSION ....................................................................................................... .26 ii TABLE OF AUTHORITIES STATE CASES Blake v. Neighborhood Housing Services of New York City, Inc., 1 N.Y.3d 280, 803 N.E.2d 757, 771 N.Y.S.2d 484 (2003) ...................................................................................... 18, 19 Boyle v. 42nd Street Development Project, Inc., 38 A.D.3d 404, 835 N.Y.S.2d 7 (1st Dept. 2007) ............................................. 11, 12 Brown v. VJB Const. Corp., 50 A.D.3d 373, 857 N.Y.S.2d 55 (1st Dept. 2008) ........................................................................... 4, 5 Chimarios v. Duhl, 152 A.D.2d 508, 543 N.Y.S.2d 681 (1st Dept. 1989) ....................................................................... 22, 23 Ewing v. ADF Const. Corp., 16 A.D.3d 1085, 793 N.Y.S.2d 306 (4th Dept. 2005) ................................................................... 5, 6 Garcia v. DPA Wallace Avenue, 955 N.Y.S.2d 320, 101 A.D.3d 415 (1st Dept. 2012) ........................................................... 7 Marin v. AP-Amsterdam 1661 Park LLC, 875 N.Y.S.2d 242, 60 A.D.3d 824 (2nd Dept. 2009) ................................................ 7, 9, 10 McLean v. 405 Webster Avenue Associate, 98 A.D.3d 1090, 951 N.Y.S.2d 185 (2d Dept. 2012) ......................................... 13, 14 Misseritti v. Mark IV Construction Co., 86 N.Y.2d 487, 657 N.E.2d 1318, 634 N.Y.S.2d 35 (1995) ............................ 2, 3, 4, 6, 7 Narducci v. Manhasset Bay, 96 N.Y.2d 259, 750 N.E.2d 1085, 727 N.Y.S.2d 37 (2001) ......................................... 2, 7, 8, 9, 10, 16 Outar v. City of New York, 286 A.D.2d 671, 730 N.Y.S.2d 138 (2d Dept. 2001); aff’d 5 N.Y.3d 731, 832 N.E.2d 1186, 799 N.Y.S.2d 770 (2005) ............................................................... 12, 14 iii Pichardo v. Aurora Contractors, Inc., 29 A.D.3d 879, 815 N.Y.S.2d 263 (2nd Dept. 2006) .............................................. 20, 21 Quattrocchi v. F.J. Sciame Construction Corp., 11 N.Y.3d 757, 859 N.Y.S.2d 396 (2008), aff'd 44 A.D.3d 377, 843 N.Y.S.2d 564 (1st Dept. 2007) ................................................ 12, 14 Robinson v. East Medical Ctr., LP, 6 N.Y.3d 550, 847 N.E.2d 1162, 814 N.Y.S.2d 589 (2006) .................................................... 18 Vasquez v. Urbahn Assoc. Inc., 79 A.D.3d 493, 918 N.Y.S.2d 1 (1st Dept. 2010) ....................................................................... 10, 11 Wilinski v. 334 East 92 Housing Development Fund Corp., 18 N.Y.3d 1, 935 N.Y.S.2d 551, 959 N.E.2d 488 (2011) ........ 3, 17, 18 Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 (1980) ..................................................................................... 23 STATUTES N.Y. Labor Law § 240(1) (McKinney 2009) .............................. passim 1 PRELIMINARY STATEMENT This brief is respectfully submitted by Defendants-Appellants 1095 Avenue of the Americas, LLC (“1095”), Dechert LLP (“Dechert”) and J.T. Magen Construction Company, Inc. (“Magen”) (collectively “Appellants”) in reply to the opposition brief of Plaintiff-Respondent Richard Fabrizi(“Plaintiff”), and in further support of Appellants’ request for this Court to reverse the decision of the Appellate Division, First Department in part, and issue an order granting summary judgment to Appellants dismissing all claims asserted against them. Despite Plaintiff’s arguments to the contrary, the conduit which injured him was part of the building’s completed infrastructure as it appeared when Plaintiff’s work began, and the risk of it falling onto him was a mere “general workplace hazard,” rather than a risk within the purview of Labor Law §240(1). Moreover, Plaintiff has failed to demonstrate that any protective device “of the kind prescribed by the statute” could have prevented his injury, and based upon the nature of the work Plaintiff was performing; drilling into a floor, it was not foreseeable that a protective device of the kind prescribed by the statute would be necessary. In addition, Plaintiff’s decision to dismantle the underlying structural support which had secured the conduit in place prior to drilling directly underneath it was the sole reason that the conduit was not adequately secured at the time of his accident, and the sole proximate cause of his injury. 2 For the foregoing reasons, Plaintiff has failed to demonstrate that the circumstances of his injury are within the ambit of Labor Law §240(1), and Appellants therefore respectfully request that this Court reverse the September 18, 2012 decision of the Appellate Division, First Department in part, and issue an Order dismissing Plaintiff’s Labor Law §240(1) claim in its entirety. STATEMENT OF FACTS The relevant facts and procedural history were set forth at length in Appellants’ initial brief to this Court, and will not be repeated herein, except for purposes of amplification. ARGUMENT POINT I THE CIRCUMSTANCES GIVING RISE TO PLAINTIFF’S INJURY ARE OUTSIDE THE AMBIT OF LABOR LAW §240(1) A. Plaintiff’s injury was not caused by the inadequacy or absence of a protective device “of the kind” enumerated in Labor Law §240(1) In the context of injuries caused by “falling objects,” this Court has repeatedly emphasized that in order to establish that a particular injury falls within the ambit of Labor Law §240(1), a plaintiff must demonstrate that his injury was caused by the absence or inadequacy of a device “of the kind” prescribed by the statute. See Narducci v. Manhasset Bay, 96 N.Y.2d 259, 750 N.E.2d 1085, 727 N.Y.S.2d 37 (2001); Misseritti v. Mark IV Constr. Co., 86 N.Y.2d 487, 657 N.E.2d 3 1318, 634 N.Y.S.2d 35 (1995); and Wilinski v. 334 East 92 Housing Development Fund Corp., 18 N.Y.3d 1, 935 N.Y.S.2d 551, 959 N.E.2d 488 (2011). Specifically, this Court has made clear that equipment which is installed in order to “lend support to a completed structure” is not the type of device “of the kind” required by the statute, and gravity-related injuries resulting from the failure or absence of such a device are outside the scope of Labor Law §240(1). See Misseritti, supra at 491.1 Given that the coupling here was installed for the precise purpose of lending support to the completed conduit-pencil box assembly, it is simply not a device “of the kind” required by the statute, which renders Plaintiff’s injury outside the ambit of Labor Law §240(1). Plaintiff places a heavy focus on the issue of the specific type of coupling (i.e., compression or set-screw coupling) that was used during the construction of the conduit-pencil box assembly. However, this issue is irrelevant in the context of determining whether a coupling is a device “of the kind” required by the statute. Indeed, Plaintiff concedes in both his opposition brief and his deposition testimony that set-screw coupling “served the same purpose” as compression coupling, and that couplings are made for the purpose of “installing the conduit.” (Brief of Plaintiff-Respondent at p. 5-6, R. 255).2 Given that both compression coupling and set-screw coupling are put in place for the same purpose, i.e., to lend support to the 1 See Appellants’ Brief at pp. 11-19 for a more detailed analysis of this issue. 2 All references to the Record on Appeal are to (R. ___). 4 completed conduit-pencil box assembly as part of the permanent structure of the building, the minor differences between the design of the two types of coupling is irrelevant. Just as it would not have mattered whether the wood braces at issue in Misseritti were made out of oak or pine, it does not matter here whether the inside of the coupling contained a threaded metal ring or metal screws. What is relevant is that coupling is a piece of equipment used to lend support to a completed structure, rather than a device installed to protect workers from an elevation related risk, and as a result, a coupling is simply not a device “of the kind” required by the statute. See Misseritti, supra at 491. In a clumsy attempt to nonetheless characterize the compression coupling as a device “of the kind” required by the statute, Plaintiff resorts to the argument that a coupling can technically be considered a “clamp,” which has, in other situations, been found to be a device “of the kind” required by the statute. (Brief of Plaintiff- Respondent at p. 27). In support of this unavailing argument, Plaintiff relies upon Brown v. VJB Const. Corp., 50 A.D.3d 373, 857 N.Y.S.2d 55 (1st Dept. 2008), the facts of which are readily distinguishable. In Brown, a 1,000 pound granite slab was being hoisted and put into place against the side of a building, and to ensure that the slab did not fall while it was being hoisted, it was secured to a forklift by a steel “clamp.” Id. at 374. The plaintiff there was injured when the slab slipped out 5 from the clamp while it was being hoisted and fell onto him. The court granted plaintiff summary judgment on his Labor Law §240(1) claim. Id. at 376. The facts of Brown are readily distinguishable from the facts here, because the function of the coupling here was fundamentally different than the function of the clamp in Brown. In Brown, the clamp was a classic Labor Law §240(1) device, i.e., it was implemented for the specific purpose of securing an object that was in the process of being hoisted, in order to ensure that workers were protected from the foreseeable gravity-related risk of the slab falling while it was being moved to a higher elevation. In contrast, the coupling here was not installed for the purpose of protecting Plaintiff from the gravity-related risk of a conduit falling onto him while he was drilling into the floor below it; it was put in place during the assembly of the conduit-pencil box system in order to lend support to the conduit as part of the completed telecommunications structure of the building. The risk of the conduit falling during a subsequent relocation was not even contemplated at the time the coupling was installed. Plaintiff’s reference to Ewing v. ADF Const. Corp., 16 A.D.3d 1085, 793 N.Y.S.2d 306 (4th Dept. 2005) for the proposition that a “clamp” can be a safety device under Labor Law §240(1) is also misplaced. Indeed, Ewing is not even a “falling object” case; it instead involved a worker who fell when standing on a large “C-Clamp.” Id. at 1086. The Ewing court held, “although plaintiff was 6 provided with a C-clamp that was intended to serve as a substitute for a ladder, under the circumstances of this case, that device did not provide plaintiff with proper protection as a matter of law.” Id. Thus, the “clamp” in Ewing had absolutely nothing to do with securing an object, and Plaintiff’s reliance on it is therefore clearly misplaced. Plaintiff’s final argument on this issue, which is mercifully buried in a footnote, is the assertion, with absolutely no support, that “couplings can be classified as a ‘brace,’ ‘iron’ or ‘sling’ under the statute.” (Brief of Plaintiff- Respondent at p. 28, n. 9). The reason that these arguments fail is because merely calling a particular piece of equipment a “clamp,” “brace,” “iron,” or “sling” does not suddenly transform that equipment into a device “of the kind” required by the statute. On the contrary, as this Court explained in Misseritti, supra, the label given to a particular piece of equipment is irrelevant; what matters in the context of Labor Law §240(1) is for what purpose the equipment was installed. Here, the evidence unquestionably establishes that the coupling was installed at the time the conduit- pencil box assembly was being constructed, for the purpose of lending support to the completed structure, and it therefore was not a device “of the kind” prescribed by the statute, which precludes Plaintiff from recovery under Labor Law §240(1). 7 B. The conduit which injured Plaintiff was part of the building’s completed infrastructure as it appeared when Plaintiff began his assigned task As set forth at length in Appellants’ initial brief at pp. 20-28, as a result of this Court’s holdings in Narducci and Misseritti, supra, a general principle has developed that when an injury is caused by a “falling object” which was part of the permanent building structure as it appeared when the plaintiff began his assigned task, the injury is considered to be a result of a general hazard of the workplace, rather than a risk within the ambit of Labor Law §240(1). See, e.g. Marin v. AP- Amsterdam 1661 Park LLC, 875 N.Y.S.2d 242, 60 A.D.3d 824, 825 (2nd Dept. 2009) (“the statute generally does not apply to objects that are part of a building’s permanent structure.”); Garcia v. DPA Wallace Avenue, 955 N.Y.S.2d 320, 101 A.D.3d 415, 416 (1st Dept. 2012) (“The object upon which the force of gravity was applied, the weight in the overhead room, was not material being hoisted or a load that required securing for the purpose of carrying out plaintiff's undertaking. Rather, it was part of the preexisting structure as it appeared before plaintiff's work began.”) The conduit-pencil box assembly on the 11th Floor of the building was unquestionably a completed structure, as Plaintiff has conceded that it had been completed “a hundred percent” prior to beginning his work that day (R. 266). Plaintiff wisely refrains from arguing that the conduit-pencil box assembly was not 8 complete; instead, he argues that this Court should carve out a new exception to the general rule that the risk of part of a permanent building structure falling onto a worker is a general workplace hazard, rather than a risk within the ambit of Labor Law §240(1). Specifically, Plaintiff argues that “the conduit pipe does qualify as the type of falling object contemplated by the statute because it was an integral part of the renovation/construction work undertaken by plaintiff and his co-worker.” (Brief of Plaintiff-Respondent at p. 33). In other words, Plaintiff’s contention is that although the conduit-pencil box assembly on the 11th Floor had been completed at the time Plaintiff began his assigned task, because it was constructed by Plaintiff’s co-employee electricians on the same construction project, it is an “integral part” of the electrical work and should therefore be treated differently than other completed structures for the purpose of Labor Law §240(1). However, this Court has never adopted such an exception, and Plaintiff has not provided any cogent reason for this Court to do so. Plaintiff’s sole support for his proposed exception is based almost exclusively on one sentence of dictum in Narducci, supra. In Narducci, the plaintiff was assigned the task of removing steel window frames from a warehouse, and while sawing one of the window frames loose, a large piece of glass from an adjacent window fell and struck his arm, causing him injury. 96 N.Y.2d 259. In 9 holding that the circumstances of the plaintiff’s injury were outside the ambit of Labor Law §240(1), this Court held “[t]he glass that fell was part of the pre- existing building structure as it appeared before work began. This was not a situation where a hoisting or securing device of the kind enumerated in the statute would have been necessary or even expected.” Id. at 268. Plaintiff chooses to ignore this central holding of Narducci, and instead relies almost exclusively on the Court’s stray observation that there was no evidence that “anyone worked on that window during the renovation.” Id. at 268. Plaintiff’s argument is that this lone sentence compels the conclusion that an object can not be part of the “pre-existing building structure” for the purpose of Labor Law §240(1) if anyone else employed by Plaintiff’s employer performed work on that that structure earlier on the same construction project. However, as confirmed in Marin v. AP-Amsterdam 1661 Park LLC, 875 N.Y.S.2d 242, 244, 60 A.D.3d 824, 825 (2nd Dept. 2009), such a sweeping conclusion is wholly unfounded. In Marin, the plaintiff was injured when while installing metal brackets to affix a drain pipe to the brick exterior of a building, a metal bracket which had been previously installed near the top of the building “became dislodged and fell, striking the plaintiff's head.” Id. In awarding summary judgment to the defendant, the court first noted, expressly relying on Narducci, “the statute generally does not apply to objects that are part of a 10 building's permanent structure.” Id. Although the bracket at issue had been installed by the plaintiff’s employer in the course of the same construction project, the court nonetheless held that the bracket was in fact part of the building’s permanent structure and dismissed the plaintiff’s Labor Law §240(1) claims, reasoning as follows: The metal bracket that struck the plaintiff had been installed prior to the plaintiff's accident (albeit as part of the work the plaintiff was performing), and thus became part of the building's permanent structure. Furthermore, the accident did not occur under circumstances in which ‘a hoisting or securing device of the kind enumerated in the statute would have been necessary or even expected’ (Narducci v Manhasset Bay Assoc., 96 NY2d at 268). Accordingly, the defendants made a prima facie showing that Labor Law § 240 (1) was not applicable under the circumstances of this case, and, in opposition, the plaintiff failed to raise a triable issue of fact. Id. at 243. (emphasis added). Accordingly, as Marin demonstrates, the lone sentence in Narducci relied upon by Plaintiff is mere dicta and does not support the sweeping exception suggested by Plaintiff. This Court should adopt the common sense standard set forth by the Second Department that the only determinative factor for whether an object is part of the building’s permanent structure for the purpose of Labor Law §240(1) is whether that structure was completed at the time Plaintiff began his undertaking. This standard is consistent with the rationale underlying the general rule, which was cogently explained by the First Department in Vasquez v. Urbahn 11 Assoc. Inc., 79 A.D.3d 493, 496, 918 N.Y.S.2d 1 (1st Dept. 2010): “Since permanent structures…are normally not expected to collapse or fail, work being performed thereon, much like work performed at ground level and not involving the hoisting or securing of materials, does not usually expose a worker to a gravity- related hazard.” Thus, regardless of whether a particular structure was built a week before the accident or years before the accident, whether it was built on the same construction project or on a previous one, once a structure is complete, it is normally not expected to collapse, and therefore not expected to expose workers to an elevation- relation hazard within the ambit of §240(1). In other words, and as set forth in greater detail in Part C, infra, it is generally not foreseeable that part of a permanent structure will fall and injure someone (a risk that can not be protected against), and as a result, injuries occurring under such circumstances are generally outside the scope of Labor Law §240(1). Plaintiff’s reliance on Boyle v. 42nd Street Development Project, Inc., 38 A.D.3d 404, 835 N.Y.S.2d 7 (1st Dept. 2007) in support of his argument for adopting an exception to the general rule is unavailing, as the facts of Boyle are readily distinguishable from the facts here. In Boyle, the plaintiff was injured when he was struck by a threaded rod which was part of a staircase that was in the process of being installed by his co-workers two stories above him. Id. In finding 12 that there was a violation of Labor Law §240(1), the court made clear that the staircase was still in the process of being installed at the time of the accident, and was therefore not yet a completed structure. Id. Clearly, the facts here are readily distinguishable, because unlike the staircase in Boyle, the conduit system here had been completed “a hundred percent” at the time Plaintiff began his assigned task. (R. 266). Accordingly, the circumstances of Plaintiff’s injury are governed by the general rule that “falling objects” which were part of a permanent building structure as it appeared at the time Plaintiff began his work are outside the ambit of Labor Law §240(1), and as a result, Appellants are entitled to summary judgment dismissing this claim. C. Owners and contractors are only required to provide protection against “foreseeable” gravity-related risks In light of the recent precedent of this Court, “falling object” liability under Labor Law §240(1) is no longer limited to situations where an object is in the process of being hoisted or secured; instead, the relevant inquiry is whether the object in question “required securing.” See Outar v. City of New York, 286 A.D.2d 671, 730 N.Y.S.2d 138 (2d Dept. 2001); aff’d 5 N.Y.3d 731, 832 N.E.2d 1186, 799 N.Y.S.2d 770 (2005); Quattrocchi v. F.J. Sciame Constr. Corp., 11 N.Y.3d 757, 859 N.Y.S.2d 396 (2008), aff’d 44 A.D.3d 377, 843 N.Y.S.2d 564 (1st Dept. 2007). Given that it is undisputed that the conduit here was not being hoisted or 13 secured, Plaintiff can only be entitled to recovery if the conduit which injured him was an object which “required securing” for the purpose of the Labor Law. As set forth at length in Appellants’ initial brief at pp. 20-28, Appellants’ contention is that this Court should adopt the standard set forth in the Roman Concurrence and in McLean v. 405 Webster Ave. Assoc., 98 A.D.3d 1090, 951 N.Y.S.2d 185 (2d Dept. 2012), in which the Second Department implemented the following standard for determining whether an object “requires securing” under Labor Law §240(1): An object needs to be secured if the nature of the work performed at the time of the accident posed a significant risk that the object would fall…[w]here a falling object is not a foreseeable risk inherent in the work, no protective device pursuant to Labor Law § 240 (1) is required. Id. at 1095. This reasoning is sound in that if there is no foreseeable risk, there is no securing required to protect against it. In opposition, Plaintiff has failed to demonstrate any viable reason why the above-referenced standard should not be adopted. Plaintiff begins his discussion of the merits of applying a foreseeability analysis with the rather dramatic accusation that Appellants “purport to establish a new framework in assessing whether an owner or contractor is liable in ‘falling object’ cases.” (Brief of Plaintiff-Respondent at p.39). However, Appellants are not seeking to establish a new framework for assessing liability in falling object cases; the new framework 14 was already established by this Court in Outar and Quattrochi, supra, in which the Court expanded the scope of “falling object” liability under Labor Law §240(1) beyond objects which are being hoisted or secured and into the realm of objects which “required securing.” The task before the litigants here and before this Court is to clarify the contours of this new statutory framework, i.e., to determine under what circumstances an object “requires securing” such that the obligation of owners and contractors to provide statutory safety devices under Labor Law §240(1) is triggered. Although Plaintiff claims that a foreseeability analysis should not be applied to address that critical question here, it is essential to note that Plaintiff concedes that a foreseeability analysis is sometimes required in determining whether a particular risk is within the scope of Labor Law §240(1). Specifically, Plaintiff acknowledges in his brief that a foreseeability requirement is in fact appropriate in the context of injuries caused by the collapse of a permanent structure such as a floor or walking surface, but that the foreseeability requirement should not be extended beyond that: This Court should decline to extend the foreseeability requirement to anything other than permanent structures like a floor or other walking surface in which the risk of injury as a result of gravitational forces is not readily apparent. (Brief of Plaintiff-Respondent at p. 44). 15 However, Plaintiff provides no rationale for arbitrarily limiting a foreseeability analysis to injuries resulting from the collapse of a “permanent structure like a floor.” In fact, the rationale for a foreseeability requirement in that context demonstrates why a foreseeability requirement is appropriate in all cases involving falling object liability under Labor Law §240(1). As cogently explained by Justice Roman in his concurrence: Absent a foreseeability requirement, then, we leave owners and contractors with no reasonable way to determine when the statute applies and therefore when they are required to provide the safety devices enumerated therein. After all, an accident cannot trigger the extraordinary protections of Labor Law § 240 (1) merely because it is gravity-related. Otherwise, virtually every accident would fall within the purview of Labor Law § 240 (1), and defendants would never be able to forecast when safety devices are required. (R. 905-906) (internal citations omitted). Plaintiff fails to provide any reason for limiting this reasoning only to structures such as floors and walking surfaces, and not to other permanent building structures, such as the conduit-pencil box assembly here. Plaintiff’s primary argument against applying a foreseeability analysis here is that “it is enough that given the inherently dangerous conditions of work sites, it is foreseeable that an owner or contractor’s failure to provide safety devices to workers, as here, may create an injury.” (Brief of Plaintiff-Respondent at p. 40). However, this Court has made clear that the inherently dangerous conditions of construction sites is not, 16 by itself, sufficient to render an accident within the ambit of Labor Law §240(1) protection. In Narducci, this Court held: The glass that fell was part of the pre-existing building structure as it appeared before work began. This was not a situation where a hoisting or securing device of the kind enumerated in the statute would have been necessary or even expected. Furthermore, while the risk of falling glass is assuredly greater at a warehouse whose windows have been damaged in a fire, that is not the type of risk that Labor Law § 240 (1) was intended to address. This was clearly a general hazard of the workplace, not one contemplated to be subject to Labor Law § 240 (1). Narducci, supra at 268. In other words, the reality that construction sites are “inherently dangerous” is not enough, by itself to require that protection be provided from the risk of falling objects. If it was, owners and contractors would become insurers of the job site, and every object that fell on a work site would fall within the scope of Labor Law §240(1). It is for this reason that owners and contractors should only be required to provide safety devices required by the statute if “it was reasonably foreseeable at the outset that the task assigned to a worker exposed him/her to a gravity-related hazard, so that he/she should have been provided with one or more of the safety devices required by the statute.” (R. 905-906, Roman, J., Concurring). Here, contrary to Plaintiff’s contention, the task in which he was engaged at the time of his injury, i.e., drilling into the floor, simply did not present a 17 foreseeable risk of a gravity-related injury, i.e., the conduit falling, such that devices “of the kind” required by the statute should have been implemented. Indeed, Plaintiff has conceded that a compression coupling is strong enough to hold the weight of a conduit of this size, (R. 271), and that prior to drilling, he grabbed the conduit with his hand and it was “solid as a rock.” (R. 273). Moreover, Plaintiff explicitly stated that he did not think that the act of drilling in the floor would have any effect on the conduit. (R. 272). Thus, Appellants simply had no reason to foresee that the act of drilling into the floor would put Plaintiff at risk of a gravity-related injury, and therefore had no duty to provide Plaintiff with a device “of the kind” required by the statute. Moreover, it is important to note that Plaintiff does not contend that any device “of the kind” required by the statute could have been used when he was assigned the task of relocating the pencil box in order to protect him from the risk of the conduit falling on him. Unlike in Wilinski, supra, where the plaintiff requested that “ropes” or “blocks,” be provided in order to prevent pipes from falling while the demolition of nearby walls was being performed, Plaintiff does not allege that any device of the kind required by the statute should have been used here. Instead, he merely contends that at the time the conduit-pencil box assembly was constructed, different equipment, i.e., set-screw coupling, should have been installed to protect him from the risk of the conduit falling onto him while 18 relocating the drill. However, Appellants had no reason to do so at the time the coupling was installed, because at that time, the task of drilling new support holes for Kindorf support had not yet even been contemplated, let alone assigned to Plaintiff. Accordingly, because the task of drilling into the floor did not present a foreseeable risk of the conduit falling at the time the task was assigned, the risk of the conduit falling was merely a general hazard of the workplace, rather than a risk within the ambit of Labor Law §240(1). POINT II PLAINTIFF’S INJURY WAS CAUSED SOLELY BY HIS MISUSE OF THE SUPPORTS OF THE CONDUIT BY DISCONNECTING THEM Contrary to Plaintiff’s assertions, the record establishes that his injury was caused solely by his negligent conduct in dismantling the underlying structural support for the conduit before beginning to drill into the floor directly underneath it. It is well-settled that “[w]here a plaintiff's actions [are] the sole proximate cause of his injuries. . . liability under Labor Law § 240 (1) [does] not attach." Robinson v. East Med. Ctr., LP, 6 N.Y.3d 550, 554, 847 N.E.2d 1162, 814 N.Y.S.2d 589 (2006). “[I]f the Plaintiff is solely to blame for the injury, it necessarily means that there has been no statutory violation.” Blake v. 19 Neighborhood Hous. Servs. of New York City, Inc., 1 N.Y.3d 280, 290, 803 N.E.2d 757, 771 N.Y.S.2d 484 (2003). As set forth in detail in Appellants’ Brief at pp. 28-32, when Plaintiff first approached the completed conduit system on the date of the accident, the conduit was firmly secured in place by a comprehensive system of structural support. It was secured vertically and laterally by Kindorf support. It was secured to the pencil box at its bottom by a metal connector, and was connected at its top to another conduit by compression coupling. (R. 255; 465-466). This comprehensive system of structural support was in place at the time Plaintiff began his work, and would have protected Plaintiff from the risk of the conduit falling onto him while he drilled into the concrete floor. The only reason why Plaintiff was not protected from the conduit is because he disengaged the conduit from its support prior to drilling into the floor, leaving it secured only by compression coupling at its top. In Plaintiff’s opposition, he first attempts to excuse his inexplicable dismantling of the bottom safety support for the conduit prior to drilling directly underneath it by disingenuously asserting that he was purportedly acting at the direction of his supervisor at the time of his accident. (Brief of Plaintiff- Respondent at p. 49-50). There is absolutely no factual or legal support for this argument. While it is undisputed that Plaintiff was assigned to perform the general task of drilling new support holes and repositioning the pencil box, there is 20 no evidence in the record that Plaintiff was ever directed to perform this task in the unsafe manner that he chose, to wit, dismantling the bottom support for the conduit prior to drilling directly underneath it. Although Plaintiff is correct to note that where a worker is acting at the direction of his supervisor, his actions can not be considered the sole proximate cause of his injury, that is simply not what happened here. The primary case relied upon by Plaintiff in support of his argument is Pichardo v. Aurora Contractors, Inc., 29 A.D.3d 879, 815 N.Y.S.2d 263 (2nd Dept. 2006), which is readily distinguishable from the facts here. In Pichardo, the plaintiff assisted his supervisor in disassembling an extension ladder into two sections. After assisting his supervisor in taking the ladder apart, the plaintiff was instructed to use the bottom section of the disassembled ladder to install overhead waterproofing material. The bottom section of the disassembled ladder did not have non-skid material at its top, and as a result, the ladder slipped off the wall while the plaintiff was using it and caused him to fall. Id. The court determined that despite Plaintiff’s misuse of the ladder, he was still entitled to recover under Labor Law §240(1), because he had been directed by his supervisor to disassemble and use the unsafe section of the ladder, and therefore “the manner in which he performed his work on the date of the accident was consistent with his supervisor’s instructions.” Id. at 881. (emphasis added). 21 In Pichardo, the plaintiff’s supervisor directed him to perform work in an unsafe manner; specifically, taking apart a ladder and using the section of the ladder which no longer had safety protection at its top. Here, unlike in Pichardo, there is no evidence in the record that Plaintiff was directed to perform his assigned task in the unsafe manner he chose. Specifically, there is no evidence in the record that the plaintiff was ever directed to dismantle the bottom support for the conduit before drilling into the concrete floor directly underneath it, and all evidence indicates that Plaintiff’s decision to perform his work in such an unsafe manner was his decision alone. Plaintiff further argues that his injury could not have been caused solely by his negligence because the failure to use set-screw coupling during the installation of the conduit-pencil box assembly was purportedly also a cause of his injury. In support of this argument, Plaintiff repeatedly references a purported “sworn statement” of his partner on the job, Thomas DeAngelis, followed by a citation to page 349 of the Record on Appeal. (Brief of Plaintiff-Respondent at pp. 10, 52- 53). However, the purported “sworn statement” of Mr. DeAngelis is not located at page 349 or anywhere else in the Record on Appeal, was never submitted to the nisi prius court, and has never been verified or authenticated. To be clear, page 349 of the record does not contain a sworn statement from Mr. DeAngelis, it is instead a page from Plaintiff’s deposition transcript. Prior to Plaintiff’s 22 deposition, a purported handwritten statement from Mr. DeAngelis was exchanged with all parties. However, Plaintiff did not include or even reference this purported statement in his cross-motion for summary judgment, and did not take the deposition of Mr. DeAngelis. Moreover, when questioned at his deposition, Plaintiff was unable to authenticate the document, and testified that he had never seen the statement and that he was not familiar with Mr. DeAngelis’ signature. (R. 349). Although the statement was never marked as an Exhibit at the deposition, a portion of the purported statement was then read to Plaintiff, and he testified that he had never heard it before. (R. 349). Moreover, when directly questioned regarding the veracity of Mr. DeAngelis’ supposed contention that they were “told by the engineer to use the compression coupling when the rest of the project was using set screw coupling,” (Brief of Plaintiff-Respondent at p.52-53), Plaintiff was unable to substantiate this contention, and testified as follows: Q: Were you aware that different jobs and other locations, they may have been using set screw couplings? A: I wasn’t aware. Q: When Mr. DeAngelis references the engineer, do you have any idea who he is talking about? A: No, I don’t. (R. at 349-350). It is well-settled that an appellate court “is limited to a review of facts and information contained in the record and that which may be judicially noticed.” Chimarios v. Duhl, 152 A.D.2d 508, 543 N.Y.S.2d 681 (1st Dept. 1989). Appellate 23 courts may not consider statements and documents which are dehors the record. Id. Mr. DeAngelis’s purported statement is simply not part of the record, and therefore can not be considered by this Court. Moreover, the only reference to this statement actually contained in the record on appeal is an attorney’s reference to the statement at a deposition, which is obviously inadmissible hearsay, as it is an unsubstantiated out-of-court statement being offered for the truth of what it asserts. It is well-settled that a party opposing a motion for summary judgment must “produce evidentiary proof in admissible form” sufficient to raise an issue of fact. Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595 (1980). Here, Plaintiff has not only failed to submit this purported statement in “admissible form,” he has failed to submit it in any form. In short, Plaintiff has failed to provide sufficient evidence in admissible form to refute the argument that his negligent decision to disengage the underlying support for the conduit was the sole reason that it conduit became unsecure, the sole reason that an elevation-related risk was created, and the sole proximate cause of his injury. POINT III ALL ISSUES ARE PROPERLY BEFORE THIS COURT In Point II of Plaintiff’s brief, Plaintiff resorts to a common refrain of litigants who are on the losing side of the merits on appeal: a claim that the Court 24 should be precluded for reaching the merits due to a technical exception. Specifically, Plaintiff claims that the argument regarding the role of foreseeability and the argument regarding whether Plaintiff’s conduct constitutes the sole proximate cause of his injuries is not preserved for this Court’s review. However, as set forth in greater detail in Appellants Brief at pp. 33-36, Plaintiff’s contention is unavailing, as both of these arguments are clearly preserved for this Court’s review. With respect to the role of a foreseeability analysis, it is essential to note that “foreseeability” is not, in itself, a separate issue before this Court. The primary issue before the motion court, before the First Department, and before the Court here is whether the conduit was an object which “required securing” for the purpose of the Labor Law. Appellants argued before the motion court and the Appellate Division that the facts here are outside the ambit of Labor Law §240(1) because the conduit which injured Plaintiff was part of the permanent building structure, and therefore did not “require securing” for the purpose of the Labor Law. (R. 882). That the risk of injury was not foreseeable is not a separate argument, it is simply the reason why injuries caused by objects which are part of the permanent building structure are generally outside the ambit of Labor Law §240(1), i.e., because it is generally not foreseeable that parts of the permanent building structure will fall and injure someone. 25 Thus, in addressing the role of foreseeability, Appellants are not raising a new, unpreserved issue, but are instead merely explaining the conceptual underpinnings for the rule which Appellants have always contended requires dismissal of Plaintiff’s claims. With respect to the issue whether Plaintiff’s conduct in removing the underlying support for the conduit prior to drilling directly underneath it was the sole proximate cause of his injury, Appellants argued before the motion court that the elevation-related risk was one “which Plaintiff himself created” (R. 882), and explicitly argued that the actions Plaintiff took immediately prior to the conduit falling were negligent. (R. 39). Accordingly, the issue of whether Plaintiff’s conduct was caused by a violation of the Labor Law or by his own negligent creation of an elevation-related risk was presented to the trial court, and Plaintiff had a full opportunity to address this issue. In fact, Plaintiff explicitly argued below that any negligence on the part of the Plaintiff could not serve as a defense to his Labor Law §240(1) claims. (R. 521) Although Plaintiff may have made a strategic decision in the motion court not to focus on the role of his conduct in causing his injury during the proceedings before the motion court, the issue of Plaintiff’s negligent conduct in removing the underlying support for the conduit prior to drilling was clearly raised before the motion court below, and Plaintiff had 26 a full opportunity to address it. As a result, the issue of the extent to which Plaintiff’s injury was caused by his own negligence is clearly preserved for review. Accordingly, all issues are properly preserved for this Court’s review, and contrary to Plaintiff’s contentions, this Court is permitted to address all issues presently before it. CONCLUSION Wherefore, for the foregoing reasons, Appellants respectfully request that this Court reverse the Order of the First Department in part and issue an Order granting summary judgment to Appellants dismissing Plaintiff’s Labor Law §240(1) claim in its entirety, together with such other, further, and different relief as this Court deems just and proper. Dated: New York, New York June 28, 2013 ONDONFISC David B. Franklin Attorneys for Defendants/ Appellants J.T. MAGEN CONSTRUCTION COMPANY, INC., NY -1095 A VENUE OF THE AMERICAS, L.L.C. s/h/a 1095 AVENUE OF THE AMERICAS, L.L.C. and DECHERTLLP 59 Maiden Lane, 39th Floor New York, New York 10038 (212) 972-1000 27