Glenford Morris, Respondent,v.Pavarini Construction, et al., Appellants.BriefN.Y.January 9, 2014APL-2013-00018 Bronx County Clerk’s Index No. 23980/02 Court of Appeals STATE OF NEW YORK GLENFORD MORRIS, Plaintiff-Respondent, against PAVARINI CONSTRUCTION and VORNADO REALTY TRUST, Defendants-Appellants. >> >> BRIEF FOR PLAINTIFF-RESPONDENT HILL & MOIN LLP Attorneys for Plaintiff-Respondent 2 Wall Street, Suite 301 New York, New York 10005 212-668-6000 Of Counsel: Cheryl Eisberg Moin Date Completed: August 14, 2013 To Be Argued By: Cheryl Eisberg Moin Time Requested: 15 Minutes i TABLE OF CONTENTS TABLE OF AUTHORITIES……………………………………………………….ii PRELIMINARY STATEMENT…….…………………..…………………………1 STATEMENT OF FACTS The Occurrence…………………………………………………..……....….3 History of the Action.………………………………………………….……3 The Hearing a. Glenford Morris…………………………………………..……….6 b. Benjamin Lavon…………………………………………………..6 c. Nicholas Bellizzi……………………………………..……………8 d. Jeffrey Wojtaszek…………………………………….…………..11 Decision and Order of the Supreme Court, (Hon. Mary Ann Brigantti-Hughes), dated December 15, 2010 and entered February 10, 2011 (A4-6)……..…………12 Decision and Order of the Appellate Division, First Department, Entered September 4, 2012 (A613-21)…………………………………………….………14 POINT I THIS COURT REJECTED THE ARGUMENT THAT 12 NYCRR 23-2.2(a) MAY NOT AS A MATTER OF LAW APPLY TO UNCOMPLETED FORMS; THE UNCONTRADICTED TESTIMONY SUPPORTS THE SENSIBILITY OF APPLYING THE REGULATION AT BAR………….…………………………17 CONCLUSION……………………………………..……………………………26 ii TABLE OF AUTHORITIES CASES Amato v. State of New York, 241 A.D.2d 400 (1st Dep’t 1997), leave denied, 91 N.Y.2d 805 (1998)……………………………………………………………..….18 Kane v. Coundorous, 293 A.D.2d 309 (1st Dep’t 2002)……………………….….18 Millard v. City of Ogdensburg, 274 A.D2d 953 (4th Dep’t 2000) ……………...….5 Morris v. Pavarini Construction, 9 A.D.2d 47 (2007)………………………3, 5, 18 Mueller v. PSEG Power New York, Inc., 83 A.D.3d 1581 (3rd Dep’t 2011)…..….20 McCormick v. 257 E. Genessee LLC, 78 A.D.3d 1581 (4th Dep’t 2010)……..…. 20 Ross v. Curtis-Palmer Hydro-Electric Co., 81 N.Y.2d 494 (1993)……….….17, 18 Zimmerman v. Chemung County Performing Arts, Inc., 65 N.Y.2d 513 (1985)…17 STATUTES AND INDUSTRIAL CODE PROVISIONS 12 NYCRR 23-2.2(a)………………………………………………...…….1, passim 12 NYCRR 23-2.2(b)…………………………………………………..…19, 23, 24 Labor Law § 200……………………………………………………………………4 Labor Law § 240 (1)………………………………………………………………..4 Labor Law §241(6)………………………………………………………...1, passim LEGISLATIVE HISTORY 1969 N.Y. Legis Ann at 407-408……………………………………………..17,18 1 PRELIMINARY STATEMENT This is an action to recover damages for life-altering crush injuries to a carpenter, plaintiff Glenford Morris, who was struck by a 30 foot by 30 foot, 2500 pound back form at a construction site. At the time of the occurrence, he was doing unrelated carpentry work on an adjacent wall. This is the second time this case comes before this Court. The matter had been remanded for a framed issue hearing as to the nature of the object that struck plaintiff and as to the opinions of experts as to whether the words of Industrial Code 12 NYCRR 23-2.2(a) can sensibly be applied to anything but completed forms. The order of the Appellate Division, First Department, dated September 4, 2012 at 98 A.D.3d 841, reversed the order of the Supreme Court, New York County, (Hon. Mary Ann Brigantti-Hughes), dated December 15, 2010 and entered on February 10, 2011, that dismissed plaintiff’s claim pursuant to Labor Law §241(6) and granted summary judgment to defendants, owner Pavarini Construction and general contractor, Vornado Realty Trust following the framed 2 issue hearing (A613-21)1. The First Department not only reinstated the §241(6) claim, but further searched the record and granted summary judgment to plaintiff. Plaintiff will establish that in light of the expert and other testimony elicited at the framed issue hearing, the First Department correctly determined that the words of 12 NYCRR 23-2.2(a) can sensibly be applied to the back form that struck him. It will be shown that the experts, indeed, spoke in unanimity as to the sensibility of applying this Industrial Code regulation to upright form walls that are subject to wind loads and other worksite vibrations posing a marked danger to workers if inadequately braced during the sometime long periods that the forms stand upright, before they are ready to have liquid concrete poured into them. 1 Parenthetical references are to the Appendix. 3 STATEMENT OF FACTS The Occurrence The facts of the accident that occurred on June 4, 2002 are recounted in the decision arising from the prior appeal before this Court: Plaintiff, a carpenter, was working on the construction of a new building in Manhattan when a large object, which he says was a “form,” fell on and injured his hand. The records shows that the word “form” can refer to several different things, but for present purposes it is a kind of mold used in the fabrication of concrete walls. Such a form is made of two metal sides with a space between them, into which liquid concrete is poured; the form is removed after the concrete has hardened. (A607) History of the Action This is the second time this case is before this Court. The action was commenced in 2002 against the owner of the premises, Vornado Realty Trust and the general contractor, Pavarini Construction (A212-16). In 2004, defendants moved for summary judgment and the Supreme Court by order dated February 3, 2005 (Hon. Mary Ann Brigantti-Hughes) dismissed 4 plaintiff’s Labor Law §§ 200 and 240(1) claims, while permitting plaintiff to move forward on the §241(6) claim based upon a violation of the Industrial Code 12 NYCRR 23-2.2(a), which states in pertinent part “Forms…shall be structurally safe and shall be properly braced and tied together so as to maintain position and shape.” (A599-604) Her Honor ruled in pertinent part, that “[w]hether the form was not fully assembled… is of no consequence.” (A603) Defendants appealed and by order dated June 8, 2006, the Appellate Division, First Department reversed and dismissed the § 241(6) claim as well, holding that the form was not completed and, therefore, did not fall within the Industrial Code provision (A605-06). This Court granted leave at 8 N.Y.3d 801 (2007). Upon further review of the record, this Court, in its instructional decision, reversed the First Department’s order and addressed the issue of whether the Industrial Code regulation requiring “forms” to be “braced or tied together so as to maintain position and shape,” was applicable in the instant case2. This Court held that the question could not be determined on the record before it – “the description is neither clear nor complete. The object was not a completed form, but was part or 2 This Court expressly ruled that the words of the Code provision “braced or tied together so as to maintain position and shape” constitute a specific regulatory requirement, violation of which is actionable under Labor Law §241(6). 5 all of one of a form’s side.” (A607-08) Even recognizing that the object that struck plaintiff was not a completed two-sided wall ready for concrete, this Court specifically kept open the question of whether 12 NYCRR 23-2.2(a) applied at bar. This Court desired an expanded inquiry, not only as to a more detailed description of the object that fell, but a rendering of the construction experts’ opinions as to the sensibility of applying the Regulation where the “wall that was to be shaped using the form would be very large- ‘like 30 feet high and maybe the same amount in length and so presumably the side of the form was, or was to be, of at least that size.’” (A608) The interpretation of the regulation is a question of law, but the meaning of the specialized terms in such a regulation is a question on which a court must sometimes hear evidence before making its determination (see Millard v. City of Ogdensburg, 274 A.D2d 953 [4th Dept 2000]). Here, a more complete record is necessary, both as to the nature of the object that caused the injury and the opinions of those experts in the construction of concrete walls as to whether the words of the regulation can sensibly be applied to anything but completed forms. (A609) The case was remanded and Hill and Moin LLP was substituted in as new counsel for plaintiff in November, 2008. 6 The Hearing A framed issue hearing was held before the Hon. Mary Ann Brigantti- Hughes on March 15, 2010. Despite the directive of this Court and over objection, the hearing judge severely curtailed the testimony of plaintiff with respect to describing the nature of the object that collapsed on him (A101–09). “If I allow him to testify, it would be very limited” (A109). a. Glenford Morris The plaintiff testified that a form, adjacent to the wall on which he was working, collapsed and fell on his arm (A110-11). His work had nothing to do with the wall that fell on him (A112). He described the enormity of this back metal wall as being a 30 foot by 30 foot structure made up of panels (A110, A111, A113). b. Benjamin Lavon While defendants did not submit any expert testimony supporting their original motion for summary judgment, the fact-finding hearing afforded the owner and general contractor an opportunity to elicit expert testimony. 7 The defense expert engineer did not offer a consistent definition of the term “form” and utilized the terms “form” and “wall forms” interchangeably. He testified that the form is made up of “wall forms” (A32) or “forms” (concrete would be poured “in the middle in between the forms” – A33), which themselves are comprised of “form panels” (A27, A28, A38), flat metal pieces that are two feet wide by eight feet high assembled horizontally one next to the other in order to create one face of the wall (A27-28, A29, A32-33 A37-38). The form panels are the “building blocks” of each wall form (A38). The large back wall form, with its many metal panels, is set upright first (A37) (see Exhibit C – A156-57, which depicts the upright wall forms with their component panels). The back form has to be braced to withstand wind loads, vibrations, or human physical contact and to prevent it from falling (A30, A36, A37, A39, A40, A41, A49, A50). A: These are the building blocks of the form assembly. Q: Right, the form panels get put together to make a form? A: Sure. Q: Now, when you get a group of these form panels together and it is set up right, it’s then braced, typically, correct? A: Sure.... (A38) 8 Once upright, the back form should “resist all of these construction loads.” (A40) “It is put together and it has to stay there.” (A37) A “dead man” brace could be used to secure the back form, comprised of form panels, after it has been set upright first (A38, A39, A44): Q: How does it [the back form] stay up, by use of what, typically? A: It is connected to –it is connected apparently to – it could be a brace, it could be another piece of the form, it could be connected to the structure, it all depends on the applicability. Q: But a brace is one of the things that are put-typically put up to prevent that back wall from falling; is that right? A: It could be. It could be. (A37) c. Nicholas Bellizzi Plaintiff’s expert engineer testified that concrete is poured between two forms, also known as the back and front walls (A86-87, A88). The panels of each form are assembled on the ground with rails and walers and different hardware “put together like a mosaic until you get the size and the shape you are looking for.” (A73). The form wall is then lifted and hoisted into its vertical place with a 9 crane (A73). The form wall here was 30 feet tall by 30 feet wide, but form walls can certainly be larger (A73-74, A76). “[I]t starts from the ground and it goes 30 feet up in the air and side to side.” (A75). The form wall weighs approximately 2500 pounds (A76). Each of the form walls must be braced (A72, A80, A81). Q: How is the form wall held up? A: Well, it has to be braced, in other words, it won’t stand by itself, it has to be braced, it could have strong backs but in addition to the strong back it has to be braced, bracing is so it doesn’t topple over during the period it is standing. It would be unsupported.” (A75) One of the considerations in preventing the collapse of a form wall is the wind load because when there are gusts of wind “certainly a wall of this type with this kind of wind would go down if not supported.” (A75). Furthermore, other factors at a construction site, such as vibrations, movement of construction equipment, workers climbing the wall to tighten components and the possibility of unexpected bumping against the wall add to the need for safety bracing (A76, A79- 80). 10 “[T]he only way to transmit a horizontal load in to the ground is by having a brace, the brace takes the load…and transmits it into the ground.” (A79) “Without that stability, without that structural support, the wall is basically not supported properly.” (A80) The first wall that goes up is called the back form (A80). The expert opined that Industrial Code 12 NYCRR 23-2.2(a), which requires safety bracing for form work, applies to the single 30 foot by 30 foot back form during the time of assembly, because the form would otherwise not be able to withstand a horizontal load such as winds, vibrations or dump trucks backing into the wall (A77-78). [Y]ou would have to brace it [the first form wall raised] because it could be inherently unstable at that point, all those horizontal wind blowing or potential for bumping, vibration exists immediately as soon as that wall goes up. (A80) The brace runs from the wall of the form in a diagonal down to the ground (see Exhibit C - depicting diagonal bracing - A156). When the front form is hoisted, which might be several days later, that wall will be braced separately, as well (A82). 11 d. Jeffrey Wojtaszek The union carpenter with over 30 years of experience in concrete form work testified that concrete is poured between two forms (A89). “[T]here is a back wall and a front wall which are two forms” (A90). The back form is put up first (A90- 91). The walls can be as wide as 200 feet (A91). The form panels are assembled on the ground and then lifted into place by crane (A91). The witness explained that once the first form (the back wall) is hoisted, “you have to put bracing on it.” (A92, A94) Since only one form is up, concrete can not be poured, yet bracing is needed - this is “step one.” (A92, A93) The brace, which can be bolted or nailed, goes from the top waler down to the ground (A93). With a wall as big as 30 feet by 30 feet, braces need to be placed every 8-10 feet (A93). The safety bracing prevents the form from falling (A94). Q: Do they serve a purpose before the pouring of the concrete? A: Before concrete? Q: Before the pouring? A: Yes. Oh yes, they keep the wall straight and plumb and help keep it from tipping over. (A98) 12 Wind or other forces such as a crane striking the fall or a worker on a scaffold are a safety concern in maintaining the integrity of the wall (A97). Decision and Order of the Supreme Court, (Hon. Mary Ann Brigantti- Hughes), dated December 15, 2010 and entered February 10, 2011 (A4-6) Following the hearing, Justice Brigantti-Hughes determined that defendants had met their burden in establishing that the 12 NYCRR 23-2.2(a) does not apply to an uncompleted form and dismissed plaintiff’s claim pursuant to Labor Law §241(6). Her Honor recognized that the case had been remanded for a hearing to determine the nature of the object that caused the injury and to hear testimony as to whether the words of the regulation can sensibly be applied to anything but completed forms (A5). However, without discussing an iota of the above testimony of the experts or workers with respect to the size of the form wall, how the walls are assembled, the inherent safety risks after a wall is hoisted into place, and custom and usage on the construction site, the Court ruled that it was “uncomfortable” with the position that anything less than a completed two walled form can be deemed a form: I believe it is clever word play. Is a quarter panel a car? A fender? A hood? All of them put together is a car 13 but not before. It seems the key words of the regulations are “…maintain position and shape.” The shape of the form determines the shape of the wall. The shape is important and must be maintained. The wall must be of a certain size, width, height, etc. The form wall once finished doesn’t do any thing but sit there till it becomes part of a form. For 241(6) purposes the “back form wall” must be judged only as part of the entire form. Should a “form wall” be properly braced so it doesn’t injure workers? Of course, and so must the ground must (sic) be free of obstructions workers don’t fall. But that’s not a 241(6) violation – it’s a 200 violation…. Plaintiff does not submit any case law holding a part of the form, i.e. the wall, is alone, a form and covered by 241[6], not 200. If a case held that, plaintiff’s position may have merit. *** The last item is the assertion that since defendant did not meet their burden of production to get Summary Judgment, the case is a question of fact. That is impossible because interpretation of the regulation and the labor law is a question of law for the court, not fact for the jury. (A5-6) 14 Decision and Order of the Appellate Division, First Department, Entered September 4, 2012 (A613-21) Plaintiff appealed to the Appellate Division, First Department. On appeal, plaintiff argued that this Court had remanded the case for a hearing with full knowledge that the form wall that fell was not a completed form and additional fact finding was desired not only as to its physical size and description of the side of the form, but as to whether the words of the regulation requiring safety bracing can sensibly be applied to anything but completed forms through expert and industry testimony. The First Department, in its September 4, 2012 order at 98 A.D.3d 841, reversed the Supreme Court’s decision. The Appellate Court specifically reiterated that the purpose of the framed issue hearing was to determine whether Industrial Code 12 NYCRR 23-2.2(a) “can sensibly be applied to anything but completed forms” and upon a search of the record, granted summary judgment to plaintiff. The Appellate Division reviewed the testimony elicited at the framed issue hearing: [t]he testimony of both plaintiff’s and defendants’ experts showed that the regulation could sensibly be applied to forms as they are being constructed before they are ready to have liquid poured into them. Both experts referred to the metal wall that fell on plaintiff as a “form.” They 15 concurred on the enormity of the structure, a wall, 30 feet high by 30 feet wide, weighing over 2500 pounds, that was hoisted by workers into an upright and vertical position. The experts agreed that the form must be braced to withstand wind loads, vibrations and contact by humans and equipment and that a form wall, once hoisted upright, might be left in that vertical stance for days. Most significantly, they both agreed that once upright, the back form wall must be braced to maintain that position. (emphasis added) 98 A.D.3d at 842. In heeding the directive of this Court to determine whether the regulation could sensibly be applied to this structure, the First Department explained that [t]he experts all agreed that once upright, the back form wall must be braced to maintain that position. Indeed, that the back wall fell on plaintiff indicates that it did not maintain its position and could not have ultimately maintained its shape, making it clear that it was not “properly braced” as required by the regulation. Moreover, it defies logic to limit the Code’s directive where the danger posed to workers from these forms is so great, given that they are often hoisted to upright position without adequate safety bracing and may remain standing for days prior to completion. 98 A.D.3d at 842. Justice Tom in his dissent opined that the regulation “applies only to completed forms and has no application in this case where only one wall of a form was erected when it fell on plaintiff.” 98 A.D.3d at 843. 16 Upon motion of defendants, the First Department granted leave to appeal to this Court by order dated, January 8, 2013 (A622-23). 17 POINT I THIS COURT REJECTED THE ARGUMENT THAT 12 NYCRR 23- 2.2(a) MAY NOT AS A MATTER OF LAW APPLY TO UNCOMPLETED FORMS; THE UNCONTRADICTED TESTIMONY SUPPORTS THE SENSIBILITY OF APPLYING THE REGULATION AT BAR Labor Law §241(6) requires owners and contractors to “provide reasonable and adequate protection and safety for workers and to comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor.” Ross v. Curtis-Palmer Hydro-Electric Co., 81 N.Y.2d 494, 502 (1993). The duty on owners and contractors pursuant to Labor Law §241(6) is non- delegable, and a plaintiff need not show that defendants exercised supervision or control over his worksite in order to establish his right of recovery. Ross v. Curtis- Palmer Hydro-Electric Co., supra. In order to protect workers who are not usually in a position to shield themselves from harm (Zimmerman v. Chemung County Performing Arts, Inc., 65 N.Y.2d 513 (1985), the history of the statute “‘clearly manifests the legislative intent to place the “ultimate responsibility for safety practices at building construction jobs where such responsibility actually belongs, on the owner and general contractor.’ (Id, quoting 1969 N.Y. Legis Ann at 407- 18 408 [emphasis in original])”. Kane v. Coundorous, 293 A.D.2d 309 (1st Dep’t 2002). The statute must be liberally construed to effectuate its salutary purpose. Claimants must cite specific violations of the Industrial Code regulations for section 241(6) to apply. See, Amato v. State of New York, 241 A.D.2d 400 (1st Dep’t 1997), leave denied, 91 N.Y.2d 805 (1998). The worker must allege the owner or contractor violated a rule or regulation of the Commissioner of the Department of Labor that sets forth a specific standard of conduct, as opposed to a general reiteration of the common law. Labor Law §241(6) has been recognized as being a “hybrid, since it reiterates the general common-law standard of care and then contemplates the establishment of specific detailed rules through the Labor Commissioner’s rule making authority.” Ross v Curtis-Palmer Hydro-Electric Co, supra, 81 N.Y.2d, at 503). In the matter at bar at 9 N.Y.3d 47 (2007), this Court reviewed the provision of the Industrial Code at issue here, and determined that the portion of Industrial Code §23-2.2(a) that requires forms to be “braced or tied together so as to maintain position and shape” is sufficiently specific so as to form the basis of liability pursuant to Labor Law §241(6) (A609). However, this Court felt that an expanded inquiry was needed to determine the nature of the object that fell and whether the words of the regulation could sensibly be applied to anything but completed forms. 19 The additional uncontroverted testimony elicited at the hearing on remand established not only the enormity of the form that fell, but that the custom and practice in the industry is to hoist the form wall into an upright position, where it may remain for days exposed to wind loads and human factors and, as such, therefore at risk of falling in the absence of safety bracing. Defendants now attempt to inject a time constraint on the Industrial Code provision 12 NYCRR 23-2.2 (a), (only when there is a completed form which is serving as a mold for liquid concrete – defendants’ brief at p. 13) where there is none. Where the Legislature intended to limit obligations to a certain time frame, the regulation specifically lays out that time frame. For example, the very next subdivision of the Industrial Code, 12 NYCRR 23-2.2 (b) (the “inspection” provision) requires continuous inspection “during the placement of concrete.” Subdivision (a) (the “general requirements” provision) is devoid of such language and the construction of the regulation must preclude any such time limitations. Moreover, the confluence of expert and industry opinion (in which this Court noted it was particularly interested) in this record essentially leaves no other sensible interpretation as to the applicability of the regulation. Moreover, this Court, in refusing to affirm the grant of summary judgment in 2007, was aware that the structure that fell on plaintiff was not a completed 20 form. Defendants’ key argument is nothing more than an attempt to revisit this Court’s earlier decision where it determined that an uncompleted form would not summarily be exempt from the parameters of the regulation. Simply seen, completion of the form was not a dispositive factor in determining whether or not the regulation was applicable. Thus defendants’ resurrected linguistic battle over the word “form” must fail. Defendants assert that the Third and Fourth Departments have already adopted their interpretation (defendants’ brief at 12-13). The cases cited, however, are readily distinguishable from the instant facts. In Mueller v. PSEG Power New York, Inc., 83 A.D.3d 1581 (3rd Dep’t 2011), the accident occurred after the forms had been removed from their vertical position and were stacked for storage on the ground at the same elevation as plaintiff. A crane cable inadvertently snagged the form. At bar, however, the form wall was in its full upright position being set up to receive concrete, and thus required bracing. The Fourth Department in McCormick v. 257 E. Genessee LLC, 78 A.D.3d 1581 (4th Dep’t 2010) is also inapposite. There, plaintiff tripped and fell on a protruding pin that workers had stored on a wooden form, the injury having nothing to do with maintaining position and shape of the structure. 21 Therefore, there is no new standard adopted in the Third and Fourth Departments, the rulings therein being applicable only to the unique facts in those cases. The crux of this Court’s exploration was the sensibility of applying the regulation to forms that were not yet concrete-ready. This Court was not seeking to define the term “form”, since it already knew that the object that fell on plaintiff was not a completed form. Rather this Court sought a further description of this object in order to determine whether it would make sense to require safety bracing of the object that fell. The answer to this inquiry became apparent at the framed issue hearing where the testimony presented by all parties supports a finding that the Code provision can sensibly be applied to a 30 foot by 30 foot, 2500 pound back form. Based upon the expert and other testimony, it certainly defies logic to apply the regulation only when the very last wall form is tied together, no matter how vast the building footprint, particularly where the danger posed to workers is so great when mammoth forms, though technically incomplete, are hoisted to upright positions without adequate safety bracing and often remain standing for a number of days. This was a point of questioning during oral argument in the First Department. 22 Defendants seek adoption of Justice Tom’s impression that because it is impossible to have the back wall of a form “tied together,” the regulation is intended to apply only to completed forms (defendants’ brief at 17). Furthermore, defendants allege that the First Department’s ignored this Court’s instructions in using the term “structurally safe” and “properly” in its opinion (defendants’ brief at 22). A review of 12 NYCRR 23-2.2(a) belies the defense position because the subdivision speaks to bracing or ties. In her decision, Justice Brigantti-Hughes erroneously misquoted the exact wording of the regulation in a critical way – “Forms…shall be structurally safe and shall be properly braced and tied together so as to maintain position and shape” (emphasis added) (A5). The correct wording in actuality is “braced or tied” (emphasis added). Defendants likewise appropriated this inaccurate excerpt from the regulation in the Appellate Division and in their letter submission to this Court at p. 8 ¶ 2. Here, there was no proof of any bracing, so that the inclusion of the word “properly,” by that Court was merely superfluous and did not have any significance since the lack of bracing violated the Code provision. All of the witnesses, including two experts and a veteran construction worker agreed that a back form, standing alone should have safety bracing 23 (defense expert Lavon testified that a “dead man brace” could prevent the wall from falling [A37, A38, A39, A44]); (plaintiff’s expert Bellizzi averred that 12 NYCRR 23-2.2 (a) requires safety bracing for a back form during the time of assembly so that it will maintain its upright position and not topple over [A75, A77. A78, A80]); (Carpenter Wojtaszek, with a lifetime of experience in the industry, attested to the fact that safety bracing is needed every 8-10 feet on a single form to maintain the upright position before the concrete is poured [A92, A93, A94, A98]). The testimony is contradictory to Justice Tom’s dissent, wherein he mistakenly referred to 12 NYCRR 23-2.2(b), the inspection provision, in attempting to construe the parameters of subdivision (a). Subdivison (b) mandates continuous inspections “during the placing of concrete.” Ignoring the absence of any such wording delineating a specific time frame for the duty of safety bracing to maintain position and shape in subdivision (a), Justice Tom took the leap of inferring that subdivision (a) was likewise limited to the time that concrete is being poured, even though the legislature could have, but chose not to exempt owners and general contractors from the bracing requirement at other times. The subdivisions of 12 NYCRR 23-2.2 envision time specific acts of heightened vigilance - continuous inspections during the time concrete is being poured under 24 subdivision (b), and safety bracing at all times when a wall form is upright under subdivision (a). Here, there was not a single word of recorded testimony to support defendants’ position that safety bracing was not required to maintain a wall form in an upright position, nor was there proof that any safety bracing for this subject form had been provided. Therefore, defendants’ argument regarding the use of the word “proper” or “structurally safe” in this Court’s opinion is nothing but a red herring, since plaintiff established a violation of the specific regulatory requirement that the form must be braced. The experts provided the link between the regulatory requirement of subdivision (a) and application to this enormous back form, which is sensibly included within its parameters, and governed by its specific, positive command to provide safety bracing to maintain its position and shape. This Court was not addressing the ordinary tort duty of care but firmly spoke only to the Industrial Code’s regulation. A major part of defendants’ submission revolves around their argument that serious accidents can occur while concrete is being poured, injecting newspaper and other irrelevant articles that were not submitted at the hearing, and are de hors the record (defendants’ brief at 20-21). This argument, 25 however, does not speak to the primary focal point before this Court, to wit, that devastating accidents can happen when huge form walls fall due to a lack of safety bracing. This Court remanded the case to hear what the industry experts had to say about the sensibility of applying the safety bracing regulatory requirement to the massive form wall. They have spoken in unity, as the First Department correctly observed. The primary object of the Labor Law and this Industrial Code provision is to place ultimate responsibility for safety practices at construction sites on the owner and general contractor. Plaintiff made a prima facie showing that he was entitled to judgment as a matter of law on his Labor Law §241(6) claim, inasmuch as the cited provision of the Industrial Code was applicable to this case, the section was violated and there was a causal connection between the violation of the regulation and the accident. 26 CONCLUSION It is respectfully requested that the decision and order of the Appellate Division, First Department be affirmed in its entirety. Dated: New York, NY August 13, 2013 _______________________ CHERYL EISBERG MOIN Hill & Moin LLP Attorneys for Plaintiff-Respondent Glenford Morris 2 Wall Street, Suite 301 New York, New York 10005 (212) 668-6000