Glenford Morris, Respondent,v.Pavarini Construction, et al., Appellants.BriefN.Y.January 9, 2014Of Counsel: To Be Argued By: Cheryl Eisberg Moin Bronx County Clerk's Index No. 23980/02 Jltbl ~ork ~uprtmt €ourt APPELLATE DIVISION - FIRST DEPARTMENT GLENFORD MORRIS, Plaintiff-Appellant, against PAVARINI CONSTRUCTION and V ORANDO REALTY TRUST, Defendants-Respondents. BRIEF FOR PLAINTIFF-APPELLANT HILL & MOIN LLP Attorneys for Plaintiff-Appellant Two Wall Street, Suite 301 New York, New York 10005 212-668-6000 cmoin@hillmoin.com Cheryl Eisberg Moin Printed on Recycled Paper TABLE OF CONTENTS TABLE OF AUTHORITIES ............................................................... iii J>~LI~i\Ft1r STATE~~T ............................................................ 1 QUESTIO~S J>~SE~TED ................................................................ 3 STATE~m OF FACTS .................................................................. 4 The Occurrence ............................................................................... 4 History of the Action ......................................................................... 4 a. Glenford Morris ............................................................................ 7 b. Benjamin Lavon ........................................................................... 7 c. ~icholas Bellizzi ........................................................................... 9 d. Jeffrey Wojtaszek ........................................................................ 11 Decision and Order of the Supreme Court, (Hon. Mary Ann Briganti-Hughes) dated December 15, 2010 and entered February 10, 2011. ................................... 12 i\FtGU'MEm ................................................................................ Is J>Oiml ~W 1rORK COURTS HAVE CO~SISTE~TL1r HELD THAT 12 NY"CRR 23-2.2(a) AJ>J>LIES TO FORMS THAT ~ m m mCOMJ>LETE STATE AT THE TI~ OF THE ACCIDEm ............ 15 1 POINT II THE SUPREME COURT ERRED IN GRANTING SUMMARY JUDGMENT TO DEFENDANTS SINCE THE UNCONTROVERTED EVIDENCE WARRANTS A DETERMINATION THAT INDUSTRIAL CODE 12 NYCRR 23-2.2(a) CAN SENSIBLY BE APPLIED TO AN UNCOMPLETED FORM THAT IS 30 FEET BY 30 FEET, WEIGHS 2500 POUNDS AND IS SUBJECT TO WIND LOADS AND OTHER VIBRATIONS THAT WOULD COMPROMISE ITS VERTICAL POSITION IF NOT PROPERLY BRACED ................................. 23 POINT III THIS COURT SHOULD SEARCH THE RECORD AND GRANT SUMMARY JUDGMENT TO PLAINTIFF INASMUCH AS 12 NYCRR 23-2.2(a) WAS VIOLATED WHEN THE FALLING FORM DID NOT MAINTAIN POSITION AND SHAPE ........................... 26 CONCLUSION .............................................................................. 30 CERTIFICATE OF COMPLIANCE .................................................... .31 11 TABLE OF AUTHORITIES Cases: Page(s) Amato v. State ofNew York, 241 A.D.2d 400 (1st Dept. 1997), leave denied, 88 N.Y.2d 815 (1996) ...................................................... 16 Ferretti v. Gotham Contractors, Inc., 2010 WL 2984395 (Sup. Ct. New York County 201 0) .......................................................... 17, 18, 19 GHR Energy Corp. v. Stinnes Interoil, Inc., 165 A.D.2d 707 (1st Dep't 1990) ......................................................................... 26, 27 Giordano v. Forest City Ratner Companies, 43 A.D.3d 1106 (2nd Dep't 2007) .... 20 Herbert v. Bovis Lend Lease LMB, Inc., 2008 WL 4384477 (Sup. Ct. New York County 2008) ........................................................ 21 Hughes v. SolovieffRealty Co., (1st Dep't 2005) ....................................... 27 Kane v. Coundorous, 293 A.D.2d 309 (1st Dep't 2002) ........................... 15, 16 Millard v. City of Ogdensburg, 274 A.D.2d 953 (4th Dept 2000) ...................... 6 Morris v. Pavarini Constr., 8 N.Y.3d 801 (2007) ..................................... 5, 6 Mullany v. Michaels, 187 A.D.2d 405 (1st Dep't 1992) ................................ 27 Mulvihill v. Brooklyn Law School, 22 Misc. 3d 1114(A), (Sup. Ct. Kings County 2009) ........................................................ .20, 21 Parrales v. Wonder Works Construction Corp., 55 A.D.3d 579 (2nd Dep 't 2008) ............................................................................. 28 Ross v. Curtis-Palmer Hydro-Electric Co., 81 N.Y.2d 494 (1993) .............. 15, 16 Shepherd v. Blitman/Atlas Building Corp., 1997 WL 34719323 (Sup. Ct. Bronx County 1997) ............................................................. 21 111 Sutter v. York Ave. Associates ofNew York, 2009 WL 1498643 (Sup. Ct. New York County 2009) .................................................... 19, 20 Yenem Corp. v. 281 Broadway Holdings, 2012 NY Slip Op. 01096 (2012) ....... 29 Zimmerman v. Chemung County Performing Arts, Inc., 65 N.Y.2d 513 (1985) ... 15 Statutes: 12 NYCRR 23-2.2(a) ....... 2,3,5, 6, 10, 12, 15, 16, 18, 19, 20, 21, 23, 25, 26, 27, 29 12 NYCRR 23-2.2(b ) ....................................................................... 22 CPLR 3212(b) ............................................................................... 26 Labor Law § 200 ......................................................................... 4, 13 Labor Law§ 240(1) .......................................................................... 4 Labor Law§ 241(6) ........................ 1, 2, 5, 12, 13, 15, 16, 17, 23, 27, 28, 29,30 IV 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 falling 30 foot long by 30 foot wide, 2500 pound back form at a construction site. At the time of the occurrence, he was doing unrelated carpenter work on an adjacent wall. By order of the Supreme Court, Bronx County dated December 15, 2010 and entered on February 10, 2011 following a framed issue hearing before the Hon. Mary Ann Briganti-Hughes, plaintiffs claim pursuant to Labor Law §241 (6) was dismissed and summary judgment was granted to defendants, owner Pavarini Construction and general contractor, Vorando Realty Trust (A4-6)1• This framed issue hearing had been ordered by the Court of Appeals for specific fact gathering with which, plaintiff will demonstrate, the hearing Justice did not comply. Her Honor ignored the unanimous testimony presented as to the nature of the structure that fell and as to whether the words of the regulation can sensibly be applied to anything but completed forms. Without an iota of reference to the experts and other testimony, her Honor simply decided that the fact that this was an uncompleted form 1 Parenthetical references are to the Appendix. 1 resolved the issue of whether Industrial Code 12 NYCRR 23-2.2(a) applied, which was clearly contrary to the charge of the Court of Appeals. Upon review of the record, it will become apparent that both plaintiffs and defendants' experts were in unity that the Industrial Code provision could sensibly be applied to the form wall that was subject to wind loads and other worksite vibrations posing a marked danger to workers if inadequately braced. Therefore, the Supreme Court erred in granting summary judgment to the defendants. Finally, plaintiff will establish that upon this record, summary judgment should have been granted to the plaintiff pursuant to Labor Law §241(6), since the record demonstrates that the form that fell on plaintiff was not properly braced to maintain its vertical position as required by Industrial Code 12 NYCRR 23-2.2(a). 2 QUESTIONS PRESENTED 1) Whether the Supreme Court failed to follow the Court of Appeals' directives in fact gathering and further erroneously dismissed plaintiffs case without reference to an iota of the evidence recorded at the hearing upon remand? 2) Whether upon the expert and other testimony in this record with respect to the immensity of the 30 foot by 30 foot, 2500 pound form wall coupled with the dangers posed by worksite wind and other loads, there is sufficient evidence to determine that the words of Industrial Code 12 NYCRR 23-2.2(a), requiring bracing of forms, can sensibly be applied to uncompleted forms? 3) Whether on the instant record summary judgment should be granted to plaintiff based upon a violation of 12 NYCRR 23-2.2(a)? 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 the Court of Appeals: (A607) 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. 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, Vorando 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 Briganti-Hughes) dismissed plaintiffs Labor Law § § 200 and 240( 1) claims, while permitting 4 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 this Court 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). The Court of Appeals granted leave at 8 N.Y.3d 801 (2007). Upon further review of the record, the Court of Appeals, in its instructional decision, reversed this Court'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. The 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 all of one of a form's side." 2 The Court of Appeals expressly ruled that the words of this 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 (A607 -08). Even recognizing that the object that struck plaintiff was not a completed two-sided wall ready for concrete, the Court specifically kept open the question of whether 12 NYCRR 23-2.2(a) applied at bar. The 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) (A609) . It was premature for the Appellate Division to grant summary judgment on this record. 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. The case was remanded and, almost three years later, a hearing was held before the Hon. Mary Ann Briganti-Hughes on March 15, 2010. 6 Despite the directive of the Court of Appeals 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-A109). "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 (All0-11). 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 (AllO, Alii, A113). b. Benjamin Lavon 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 7 (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- AI 56-57, 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, ASO). (A38) 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 ... 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? 8 (A37) 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. c. Nicholas Bellizzi Plaintiffs 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 crane (A73). The form wall here was 30 feet tall by 30 feet wide, but form walls can certainly be larger (A73-74, A76). "[l]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). 9 (A75) 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 he period it is standing. It would be unsupported." 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). "[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." (A 79) "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) that 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 10 to withstand a horizontal load such as winds, vibrations or dump trucks backing into the wall (A 77-78)." (A80) [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. 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). d. Jeffrey Wojtaszek The union carpenter with over 30 years 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." 11 (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). (A98) 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. 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 Briganti- Hughes), dated December 15, 2010 and entered February 10, 2011 (A4- 6) Following the hearing, Justice Briganti-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 plaintiffs 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 12 testimony as to whether the words of the regulation can sensibly be applied to anything but completed forms (AS). 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 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, plaintiffs position may have merit. *** 13 (A5-6) 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. 14 POINT I NEW YORK COURTS HAVE CONSISTENTLY HELD THAT 12 NYCRR 23-2.2( a) APPLIES TO FORMS THAT ARE IN AN INCOMPLETE STATE AT THE TIME OF THE ACCIDENT Labor Law §241(6) reqmres 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 at 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.' (ld, quoting 1969 N.Y. Legis Ann at 407-408 [emphasis in original])". Kane v. Coundorous, 293 A.D.2d 15 309 (1st Dep't 2002). The statute should 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 {1 51 Dep't 1997), leave denied, 88 N.Y.2d 815 (1996). 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, supra, 81 N.Y.2d, at 503). In the matter at bar, the Court of Appeals 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, the Court felt that more information was needed to determine whether the words of the regulation could sensibly be applied to anything but completed forms. On that issue, following a framed issue hearing held almost three years after 16 the Court of Appeals decision, Justice Briganti-Hughes addressed the issue by stating, "Should a form wall be braced so that it doesn't injure workers? Of course, and so must the ground must be free of obstructions workers don't fall (sic). But that's not a 241(6) violation, it's a 200 violation." Her statement ignored the fact that the Court of Appeals had already determined in the matter at bar that the regulation requiring bracing the form that fell on plaintiff is sufficiently specific to support a Labor Law §241(6) claim (A609). In the opinion at issue in this appeal, which granted defendants' motion for summary judgment, Justice Briganti-Hughes based her decision, in part, on the fact that "(p ]laintiff 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) .... If a case held that, plaintiffs position may have merit. I didn't find one such case and from a review of the papers neither did plaintiff." However, a decision that determined this very issue was rendered after plaintiff submitted his closing argument, but before Justice Briganti-Hughes rendered her decision. In Ferretti v. Gotham Contractors, Inc., 2010 WL 2984395 (Sup. Ct. New York County 2010), the Court refused to dismiss plaintiffs §241(6) claim where that plaintiff was struck when a portion of the form that was improperly braced or tied fell. The Court in Ferretti was asked to 17 determine the applicability of the same provisions of the Industrial Code at issue here: 12 NYCRR 23-2.2(a), which requires that "forms, shores and reshores shall be . . . properly braced or tied together so as to maintain position and shape". In that case, the Court determined that at the time of the accident, the form in question had been dissembled, and therefore it is undisputed that the object that caused injury to plaintiff was no longer a "completed form". At the time of the accident, "nine other laborers were present stripping forms." Mr. Ferretti, himself, had already removed three forms. The form in question was eight feet high, and Mr. Ferretti had already removed the bottom part of the form that struck him from the wall, and had loosened the top part of the form. At that point, the "form," which was then only a partial, incomplete form, was being held in place by two metal straps. Even though plaintiff did not observe anything wrong with the form or the straps before the accident, he asserted a violation of 12 NYCRR 23-2.2(a) requiring the Court to determine whether that section was "applicable to the circumstances of this case." The Court held that 12 NYCRR 23-2.2(a) was applicable, even though the form in question was no longer a completed form, and the object that fell on plaintiff was just part of the form. Justice Brigantti-Hughes' decision placed heavy reliance on the fact that she found no "case law" holding that "part of a form . . . is covered by 18 241(6)." (A6). Had she found the precedent set out in Ferretti, supra, Justice Briganti-Hughes suggested that such precedent might have changed her decision. Interestingly, however, Justice Briganti-Hughes cited no precedent to support her holding that 12 NYCRR 23-2.2(a) did not apply to an incomplete form. However, even if she had been deciding a case of first impression, she should have looked to the respective burdens of proof and the purpose of the statute, in order to make her determination. Without any precedent to support defendants' position, and without having produced an expert to testify that the Industrial Code did not apply to the facts of this case, the Court failed to hold defendants to their burden of proof to establish the non-applicability of the Industrial Code. This was clear error. Moreover, Justice Briganti-Hughes failed to recognize that the Court of Appeals, in reversing the Appellate Division's dismissal of plaintiffs action, had already made a de facto determination that the fact that the form that caused Mr. Morris' accident was incomplete was not dispositive. Earlier cases have similarly held that 12 NYCRR 23-2.2(a) applies to protect workers from injuries caused by the failure to properly secure incomplete forms. For example, in Sutter v. York Ave. Associates of New York, 2009 WL 1498643 (Sup. Ct. New York County 2009), a worker was injured when by a falling "reshore" that had been used to brace concrete 19 while it cured. The defendant argued that the forms had already been removed at the time the accident occurred, and that, in fact, the accident occurred when plaintiff was clearing the wood that had previously made up the forms. Rejecting defendants' argument that 12 NYCRR 23-2.2(a) only applies during the placing of concrete, the Court favored plaintiffs argument that "[ t ]he fact that the reshore came loose and struck plaintiff is prima facie evidence that it had not been properly braced as specifically required be 23- 2.2(a)." Similarly, in Giordano v. Forest City Ratner Companies, 43 A.D.3d 1106 (2nd Dep 't 2007), the Appellate Division reversed the granting of summary judgment to a defendant. There, the plaintiff was injured when a gust of wind blew a 4 foot by 8 foot sheet of plywood into the back of his head. The plywood that struck plaintiff was part of the floor on which plaintiff was working and, allegedly, also part of the base of the form that was under construction. There, summary judgment to defendant was denied even though plaintiff "was in the process of creating the form for the concrete" when the accident occurred. Clearly, 12 NYCRR 23-2.2(a) was held applicable to forms that were not yet complete. Other courts have also applied 12 NYCRR 23-2.2(a) where the form that caused the accident was not complete. In Mulvihill v. Brooklyn Law 20 School, 22 Misc. 3d 1114(A), (Sup. Ct. Kings County, 2009), plaintiff was struck by temporary shoring used to support the concrete superstructure. At the time, the forms were being removed, and so were no longer complete. Defendant argued that 12 NYCRR 23-2.2(a) was inapplicable because the forms "had already served their purpose in holding the wet concrete in place until it dried sufficiently so that the forms could be removed." In determining that the Industrial Code applied to the facts of this case, the Court stated, "Clearly, the concrete forms should have remained structurally sound during the removal process until all of the wood pieces were stripped in order to protect workers that might be below." Thus, the Court held that "23-2.2 applies herein and defendants indisputably failed to secure or brace the forms as prescribed." See also, Shepherd v. Blitman/Atlas Building Corp., 1997 WL 34719323 (Sup. Ct. Bronx County 1997) (Industrial Code 23-2.2 applies even though plaintiff was in the process of removing supports for forms when the accident occurred), Herbert v. Bovis Lend Lease LMB, Inc., 2008 WL 4384477 (Sup. Ct. New York County 2008) (summary judgment granted to plaintiff, holding 12 NYCRR 23-2.2(a) applies where the bottom of a form became separated from the main body). It is beyond dispute that the Courts of New York have consistently held that 12 NYCRR 23-2.2(a) requires that forms being taken apart must 21 still be "properly braced and tied so as to maintain proper position and shape" and that an action may lie where a worker is injured where a form that is no longer complete falls while being taken apart. No rationale was suggested by Justice Briganti-Hughes as to why the Industrial Code would require forms to be properly braced while being taken apart but not while being put together, nor why defendants should not be required to provide safety bracing for a huge plywood wall, 30 feet high by 30 feet wide, weighing over 2500 pounds after being hoisted into an upright position. Finally, if her Honor's point of view is accepted, then the Regulation would only be applicable when the very last wall form is tied together, no matter how vast the building footprint. It certainly defies logic to limit the Code's directive, 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. One should take note, that where the Legislature desired to limit obligations to a certain time frame, the Regulation so states, with specificity, e.g. 12 NYCRR 23-2.2(b), which requires inspection "during the placement of concrete." 22 POINT II THE SUPREME COURT ERRED IN GRANTING SUMMARY JUDGMENT TO DEFENDANTS SINCE THE UNCONTROVERTED EVIDENCE WARRANTS A DETERMINATION THAT INDUSTRIAL CODE 12 NYCRR 23-2.2(a) CAN SENSIBLY BE APPLIED TO AN UNCOMPLETED FORM THAT IS 30 FEET BY 30 FEET, WEIGHS 2500 POUNDS AND IS SUBJECT TO WIND LOADS AND OTHER VIBRATIONS THAT WOULD COMPROMISE ITS VERTICAL POSITION IF NOT PROPERLY BRACED. The Court of Appeals reversed the earlier appellate decision that had dismissed plaintiffs Labor Law § 241 ( 6) cause of action on the basis that the form was not completed and did not fall within the purview of Industrial Code 12 NYCRR 23-2.2(a). The highest Court in this jurisdiction acknowledged that plaintiff here was engaged in the construction of a new building when a large metal structure that was either "part or all of one of a form's sides" fell on him. The Court ruled that Industrial Code 12 NYCRR 23-2.2(a), indeed, imposed specific requirements for the safety of workers to pursuant Labor Law §241 ( 6) liability (A609), but that there was insufficient factual data as to the nature of the object and expert opinion as to whether the words of the regulation can sensibly be applied to anything but complete forms (A609). The Court of Appeals, recognizing that the wall at issue was not a completed form, was particularly concerned with the nature of the structure and all that 23 entails - the size, the shape, the weight and its placement. The Court further noted that defendants had failed to submit any expert testimony on their original motion for summary judgment (A609). On remand, defendants had the opportunity to bring in their expert even though defendants elected to move for summary judgment without the support of expert testimony. Interestingly, the testimony of defendant's expert did not diverge in any relevant aspect from that of plaintiffs expert or other witnesses. Both experts spoke of the back wall of the form at times as a "form" (A32, A33). They concurred on the enormity of the structure and the fact that the form that fell must be braced to withstand wind loads, vibrations and other contact by humans and equipment (A30, A36, A37, A38, A39, A40, A41, A49, A50, A73-74, A75, A76, A86-87, A88). The testimony was identical with respect to noting that the form wall is hoisted upright and might be left in that vertical stance for days (A28, A37, A73). Most significantly, they both agreed that once upright, the back form must be braced to maintain that position (A37, A38, A39, A72, A75, A80, A81). The defense expert certainly did not opine that the regulation can not be sensibly applied to the form wall that fell on plaintiff. Indeed, he was asked no questions, whatsoever, about the meaning of the technical terms of the stature. 24 By the very intent of the Court of Appeals, summary judgment could only be granted in the event that it does not "make sense" for the form wall to require bracing. Therefore on remand, the hearing judge was duty bound to follow the directives from our highest tribunal. The Court of Appeals was not seeking to define the term "form", since it already knew that this was not a completed form, but sought a further description of the object that fell on plaintiff, in order to determine whether it "makes sense" to require its safety bracing. Justice Briganti-Hughes erred on several levels. First, despite the Court of Appeals' order to further explore the description of the object that fell on plaintiff, the Justice only permitted limited questioning of the plaintiff and only after vigorous challenge by plaintiffs counsel (Al 03-1 05). Second, Her Honor's decision disregarded the highest Court's directive to determine whether 12 NYCRR 23-2.2(a) "can sensibly be applied" notwithstanding its full cognizance that "[t]he object was not a completed form." Instead of discussing the experts' and other witnesses' testimony, all of which support a finding that the Code provision can sensibly be applied to a 30 foot by 30 foot, 2500 pound back form, she injected her personal opinion, which was against the weight of the evidence. Ignoring the Court of 25 Appeals' guidance and instructions, Justice Briganti-Hughes halted any further inquiry into the specific questions with which she was charged. Finally, her commentary that "[t]he form wall once finished doesn't do any thing but sit there till it becomes part of a form" (AS), in fact, punctuates the critical need for stability of incomplete forms. Form walls once hoisted, are in the most vulnerable position, exposed to the elements, including wind loads and construction site vibrations. Such was the testimony of both plaintiffs' and defendants' experts. In sum, it becomes apparent that the Justice ignored the rulings and directives of the Court of Appeals and made her determination that the question was resolved by the fact that the form was incomplete, despite the clear directive of the Court of Appeals to the contrary. POINT III THIS COURT SHOULD SEARCH THE RECORD AND GRANT SUMMARY JUDGMENT TO PLAINTIFF INASMUCH AS 12 NYCRR 23-2.2(a) WAS VIOLATED WHEN THE FALLING FORM DID NOT MAINTAIN POSITION AND SHAPE. It is well settled law that a motion for summary judgment empowers a court to search the record and grant judgment where appropriate, irrespective of who made the application. CPLR 3212(b ). GHR Energy Corp. v. Stinnes 26 Interoil, Inc., 165 A.D.2d 707 (1st Dep't 1990). The Appellate Division may even search the record on appeal and award expedited judgment to the non- moving party. Hughes v. Solovieff Realty Co., (1st Dep't 2005) Mullany v. Michaels, 187 A.D.2d 405 (1st Dep 't 1992). Here, the plaintiff should have been granted summary judgment on plaintiffs cause of action pursuant to Labor Law §241(6) predicated on the specific violation of 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." A review of the record confirms that the very section of the Industrial Code that plaintiff claims was violated, was applicable, and should have formed the basis for judgment in plaintiffs favor as a matter of law. It is respectfully suggested that both experts made the case that the subject Industrial Code regulation could sensibly be applied to the back form of such immense proportion, since it is "step one" that the wall be braced to keep the position once it has been hoisted (A92). Both experts concurred as to the need for safety bracing to maintain a vertical position of the form subject to the dangers of the construction site, including wind, vibrations, equipment contact and other jostling. 27 Furthermore, the structure that fell on plaintiff was a full back form, 30 feet by 30 feet and weighing over a ton. Previously, the form had been lifted to an upright position. Upon a review of the record it becomes apparent that the evidence adduced at the hearing established that the words of the Industrial Code requiring safety bracing of forms could be "sensibly applied" to the form that fell and crushed plaintiffs hand. There has never been a denial that the form that fell on plaintiff did not maintain position and shape. Indeed, by the very fact that the wall fell, it is evident that the form was inadequately braced to maintain its position as required by the regulation. In the absence of any explanation as to how a properly braced form could fall, this Court should rule as a matter of law that defendants breached their statutory non-delegable duty. See, Parrales v. Wonder Works Construction Corp., 55 A.D.3d 579 (2nd Dep't 2008) (summary judgment granted to plaintiff on Labor Law §241(6) cause of action based upon Industrial Code violations where defendant did not meet its burden of raising a triable issue of fact). Just this week, the Court of Appeals granted summary judgment to a plaintiff who established that defendants violated a municipal ordinance regarding the requirements for safe building excavations. The Court rejected the Appellate Division's holding that violation of a municipal ordinance was 28 only "some evidence of negligence" and determined that "[ t ]o hold that a violation of the provision is only 'evidence of negligence' would thus defeat the legislation's basic goal". Yenem Corp. v. 281 Broadway Holdings, 2012 NY Slip Op. 01096 (2012). The Court was persuaded by the fact that the "primary object" of the ordinance was ''to cast upon the party making an excavation on his land ... the risk of injury." Similarly, here there is no doubt that the primary object of the Labor Law and the Industrial Code provision at issue is to place ultimate responsibility for safety practices at construction sites on the owner and general contractor. Therefore, the violation of 12 NYCRR 23-2.2(a), evidenced by a falling form that did not "maintain position and shape," firmly warrants the granting of summary judgment to plaintiff, especially since the defendants did not offer any contrary explanation for the falling form. In sum, 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. 29 CONCLUSION The order from which plaintiff appeals should be reversed and summary judgment granted to plaintiff. In the alternative, defendant's motion for summary judgment should be denied and plaintiffs claim pursuant to Labor Law § 241 ( 6) reinstated. Date: February 17, 2012 Respectfully submitted, HILL & MOIN LLP Attorney for Plaintiff-Appellant 2 Wall Street- Suite 301 New York, New York 10005 (212)668-6000 30 CERTIFICATE OF COMPLIANCE I hereby certify pursuant to 22 NYCRR § 600.10 that the foregoing brief was prepared on a computer. Type: A proportionally spaced typeface was used as follows: Name of typeface: Times New Roman Point Size: 14 Line Spacing: Double Word Count: The total number of words in the brief, inclusive of point headings and footnotes and exclusive of pages containing the table of contents, table of authorities, proof of service, certificate of compliance, or any authorized addendum containing statutes, rules, regulations, etc. is 6,096. Dated: New York, New York February 17, 2012 By:~~--7-----~~- CHERYU EISBER MOIN HILL & MOIN, LLP 2 Wall Street, Suite 301 New York, New York 10005 (212) 668-6000 31 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX GLENFORD MORRIS, Plaintiff-Appellant, -against- P A V ARINI CONSTRUCTION and YO RANDO REALTY TRUST, Defendants-Respondents. Appeal taken from: Supreme Court County: Bronx INDEX NO. 23980/2002 CIVIL APPEAL PRE-ARGUMENT STATEMENT Judge: Hon. May Ann Brigantti-Hughes Date of entry ofthe order: February 10,2011 Additional appeal: No Related action/proceeding: No Counsel For Plaintiff-Appellant HILL & MOIN LLP 2 Wall Street, Suite 301 New York, New York 1 0005 (212) 668-6000 For Defendants-Respondents LONDON FISCHER, LLP 59 Maiden Lane New York, New York 10038 (212) 972-1000 Nature and Object The nature of the action is to recover money damages for personal injury. Method of Disposition Order of the Supreme Court, Bronx County, entered February 10, 2011. Description and Results The Supreme Court granted summary judgment to defendants, Pavarini Construction and Vorando Realty Trust, dismissing plaintiff's Labor Law §241 ( 6) claim against defendants, Pavarini Construction and Vorando Realty Trust. Issues to be raised on appeal I. Whether summary judgment was properly granted to defendants Pavarini Constructi on and Vorando Realty Trust? 2. Whether the Supreme Court erred in dismissing plaintiff's Labor La w §241 (6) claim against Pavarini Construction and Vorando Realty Trust? Dated: New York, New York / \ \ March 7, 2011 PRINTINGHOUSE PRESS, LTD 10 EAST 391" STREET, NEW YORK, NY 10016 (212) 719-0990 Printed on Recycled Paper