Glenford Morris, Respondent,v.Pavarini Construction, et al., Appellants.BriefN.Y.January 9, 20141 April 17, 2013 Honorable Judges New York State Court of Appeals 20 Eagle Street Albany, NY 12207 Re: Glenford Morris v. Pavarini Construction APL-2013-00018 Dear Honorable Sirs: We represent the Plaintiff-Respondent Glenford Morris in the above appeal. We hereby submit our response to the written arguments of Defendants-Appellants Pavarini Construction and Vornado Realty Trust, and respectfully request an affirmance of the decision and order of the Appellate Division, First Department, entered September 4, 2012, which upon reversal, granted summary judgment to plaintiff. Contrary to defendants’ position that this appeal commands full briefing, rather than Section 500.11 review, this is the second time this case is before this Court, which is fully familiar with the particular limited factual inquiry for which it was remanded. Section 500.11 was the proper route for review. THE OCCURRENCE 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 carpentry work on an adjacent wall. 2 The facts of the accident that occurred on June 4, 2002 are recounted in this Court’s decision, 9 N.Y.3d 47 (2007), arising from the prior appeal: 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)1 HISTORY OF THE ACTION 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 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 at 30 A.D.3d 177 reversed and dismissed the Labor Law §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 at 9 1 Parenthetical references are to the Appendix submitted in the Appellate Division, First Department. 3 N.Y.3d 47 (2007), reversed the Appellate Division’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 case. While this Court 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), it found that the question of applicability of the regulation 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 sides.” (emphasis added A607-08). Even recognizing that the object that struck plaintiff was not a completed two-sided form ready for concrete, this Court specifically kept open the question of whether 12 NYCRR 23-2.2(a) applied at bar. Thus it cannot be disputed that this Court has already determined that the fact that the form was not complete did not mandate dismissal of plaintiff’s cause of action. 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) 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.D.2d 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) With this Court’s directives for further fact findings on the description of the object and the experts’ opinions on the sensibility of applying the regulation, the 4 case was remanded for further development of certain key facts. A hearing was held before the Hon. Mary Ann Brigantti-Hughes on March 15, 2010. TESTIMONY AT THE FRAMED ISSUE HEARING Despite the hearing Justice’s decision to permit only “very limited” testimony by the plaintiff with respect to describing the nature of the object that collapsed on him (A109), Mr. Morris averred that the form, adjacent to the area 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). Expert testimony was elicited establishing that concrete is poured between two forms, also known as the back and front form walls, each of which is comprised of panels (A86-87, A88). Each enormous form wall is lifted and hoisted into its vertical place with a crane (A73). The form at issue here was 30 feet tall by 30 feet wide, and weighed 2500 pounds, but such form walls can certainly be considerably larger (A73-74, A76). The form walls are themselves 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 form wall (A27-28, Q29, A32-33, A37-38). The form panels are the “building blocks” of each form wall (A38). The large back form wall, with its many metal panels, is set upright first (A37 – Exhibit C – A156-57, a photograph depicting similar upright wall forms with their component panels). The testimony of the defendants’ expert engineer, Benjamin Lavon2, did not diverge in any relevant aspect from that of plaintiff’s expert, Nicholas Bellizzi or the veteran union carpenter, Jeffrey Wojtaszek. Both experts spoke of the back wall of the form at times as a “form” and the terms “form”, “form wall”, “back wall” and “back form” were used interchangeably by those with expertise in the construction of concrete walls (A32, A33, A86, A87, A88, A90). Both plaintiff’s and defendants’ experts concurred on the enormity of the structure that fell on plaintiff and the fact that the form that fell required bracing to withstand wind loads, vibrations and other contact by humans and equipment (A30, A36, A37, A38, A39, A40, A41, A49, A50, A72, A73-74, A75, A76, A80, A81, A86-87, A88). The 2 While defendants did not submit any expert testimony supporting their original motion for summary judgment, this Court’s decision to submit this case for a further fact-finding hearing afforded defendants an opportunity to submit expert testimony in this matter. 5 testimony was identical with respect to noting that form walls are hoisted upright and might be left in that vertical position for days (A28, A37, A73). Most significantly, both plaintiff’s and defendants’ engineering experts agreed that once upright, the back form must be braced to maintain that position (A37, A38, A39, A72, A75, A80, A81). Plaintiff’s expert opined that the Industrial Code 12 NYCRR 23-2.2(a) that requires safety bracing for form work, applies to the 30 foot by 30 foot back form that caused this accident, because without bracing the form would not be able to maintain its position or withstand a horizontal load such as winds, vibrations or dump trucks backing into the wall (A77-78). The defense expert did not opine otherwise, and was not asked about the meaning of the technical terms of the statute. The union carpenter, with over 30 years of experience in concrete form work, expressly testified that once the first form (the back form wall) is hoisted “you have to put bracing on it” (A92, A94). Since only one form is up, concrete cannot be poured, yet safety bracing is needed – and he termed such bracing as “step one.” (A92, A93). Safety bracing prevents the single form wall from falling before the pouring of concrete (A94, A98). Following the hearing, Justice Brigantti-Hughes issued a decision and order, dated December 15, 2010 and entered February 19, 2011 (A4-6) determining 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 could be deemed a form. Justice Brigantti-Hughes did not attempt to reconcile this ruling with her prior decision in this same case that “whether the form was not fully assembled … is of no consequence” (A603). Plaintiff appealed to the Appellate Division, First Department, arguing that the fact that the object that fell on plaintiff was not a completed form was not the 6 dispositive factor in this matter – otherwise this Court would have not needed to remand for a further fact-finding hearing. The First Department, in its September 4, 2012 order at 98 A.D.3d 841, reversed the Supreme Court’s decision. The 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 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 7 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. Upon motion of defendants, the First Department granted leave to appeal to this Court by order dated, January 8, 2013. ARGUMENT THIS COURT HAS PREVIOUSLY 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 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.’ (Id, quoting 1969 N.Y. Legis Ann at 407-408 [emphasis in original])”. Kane v. Coundorous, 293 A.D.2d 309 (1st Dep’t 2002). The statute should be liberally construed to effectuate its salutary purpose. 8 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, supra, 81 N.Y.2d, at 503). In the matter at bar at 9 N.Y.3d 47 (2007), this Court reviewed the subdivision 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). Fully aware that the object that fell on plaintiff was not a completed form, this Court felt that an expanded inquiry was needed to determine the nature of the object that fell on plaintiff and whether the words of the regulation could sensibly be applied to it. The additional uncontroverted testimony elicited at the hearing on remand established not only the enormity of the form that fell on plaintiff, but that the custom in the industry is to hoist such forms into a vertical position where such they may remain for several days, exposed to wind loads and human factors and at risk of falling in the absence of the required safety bracing. Defendants now argue that this Court must inject a time limitation into the Industrial Code provision 12 NYCRR 23-2.2 (a), arguing that this subdivision applies only when there is a completed form in which concrete is being poured (defendants’ submission at p.2). However, defendants’ argument is not well-founded. Where the Legislature intends to limit an owner’s obligations to a specific time, the regulation clearly sets forth that limitation. 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), at bar here, is devoid of such limiting language and the construction of the regulation must preclude any similar 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. 9 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 form. Defendants’ key argument is nothing more than an attempt to revisit this Court’s earlier decision where it acknowledged that the fact that the object that fell on plaintiff was not a completed form, by itself, did not end the inquiry. Simply seen, this Court has already determined that completion of the form was not the dispositive factor in determining whether or not the regulation was applicable. Thus, defendants’ attempted resurrection of the linguistic battle over the word “form” must fail. Defendants argue that single cases in the Third and Fourth Departments tend to support their arguments. Even a cursory look at the cases cited, however, shows that they do not support defendants’ argument. In Mueller v. PSEG Power New York, Inc., 83 A.D.3d 1274 (3rd Dep’t 2011), a crane that was removing old forms from a flat-bed truck inadvertently snagged and then dropped a form. 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. At bar, however, the form wall was in its full upright position, and, according to all experts on both sides, required bracing. The Fourth Department decision in McCormick v. 257 W. Genesee LLC, 78 A.D.3d 1581 (4th Dep’t 2010) is also inapposite. There, plaintiff tripped and fell on a protruding pin that had been stored on a wooden form, and so the accident had nothing to do with a form that failed to maintain position and shape. Therefore, no new standard has been adopted in the Third and Fourth Departments, and the cases cited simply do not address the issues at bar. The crux of this Court’s exploration was the sensibility of applying the regulation to anything but completed forms. At the time of this Court’s 2007 decision, the record needed further development. Without the expert testimony, this Court had no way to know that incomplete forms were customarily raised to upright positions well in advance of the pouring of concrete and, thus, required bracing to maintain that position. This Court was not seeking to define the term “form”, since it already knew that the object that fell on plaintiff was not a concrete-ready form. Instead, this Court sought a further description of the object that fell on plaintiff in order to determine whether it makes sense to require safety bracing. 10 The answer to this inquiry became apparent at the framed issue hearing where the testimony presented by all parties supported 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 after the very last piece of wall form is tied together, no matter how vast the building footprint. The danger posed to workers is profound 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 crucial point of questioning during oral argument in the First Department. 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’ submission at p. 8). Furthermore, defendants argue that the “First Department’s holding was “simply astonishing in its misapplication of this Court’s directives” in using the term “structurally safe” and “properly” in its opinion (defendants’ submission at p. 11). A review of 12 NYCRR 23-3.3(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 appropriate this inaccurate excerpt from the regulation in their submission at p. 8 ¶ 2. Here, there was no proof of any bracing, so that the inclusion of the word “properly,” by this Court was merely superfluous and does not have any significance since the lack of bracing violated the Code provision. All of the witnesses, including two experts and a veteran worker agreed that an upright form, standing alone, requires safety bracing (defense expert Lavon testified that a “dead man brace” would 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 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 [A92, A93, A94, A98]). 11 The testimony is contradictory to Justice Tom’s dissent, wherein he mistakenly referred to the 12 NYCRR 23-2.2(b), the inspection provision, in attempting to construe the parameters of subdivision (a). Subdivision (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 assuming that subdivision (a) requirement of bracing was likewise limited to the time that concrete is being poured, even though the legislature could have, but chose not to include that limitation. The subdivisions of 12 NYCRR 23-2.2 envision specific acts of heightened vigilance - continuous inspections during the time concrete is being poured under subdivision (b), and safety bracing without time limitations 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 the position of a 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 the opinion rendered by the First Department 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. The Appellate Division 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 involves their inapposite argument that serious accidents can also occur when forms fail while concrete is being poured. Such argument begs the question: the fact that forms can also fail while concrete is being poured, does not speak to the primary issue before this Court, to wit, that devastating accidents will happen when huge form walls lack safety bracing and fall on unsuspecting construction workers. The object of the Labor Law and this Industrial Code provision is to place ultimate responsibility for safety practices at construction sites on owners and general contractors. Plaintiff made a prima facie showing of entitlement to judgment 12 as a matter of law on his Labor Law §241(6) claim, in that the cited provision of the Industrial Code applies to this case and was violated, causing the accident. CONCLUSION It is respectfully requested that the decision and order of the Appellate Division, First Department be affirmed in its entirety. Dated: New York, New York April 15, 2013 _____________________________________ CHERYL EISBERG MOIN Hill & Moin LLP 2 Wall Street, Suite 301 New York, New York 10005 (212) 668-6000 13