Glenford Morris, Respondent,v.Pavarini Construction, et al., Appellants.

Brief

N.Y.January 9, 2014

LONDON FISGJHER LLF 59 MAIDEN ILANE NEW YORK, NEW YORK 10038 <212> 972-lloo WWW.LONDONFISCHER.COM FACSIMILE: (212) i72-1030 March 14, 4013 VIA FEDERAL EXPRESS Judges of the Court of Appeals New York State Court of Appeals 20 Eagle Street \ Albany, New York 12207 Re: Glenford Morris v. Pavari'i Construction et al. APL-20 13-00018 Trial Court Index No.: 23~80/02 Your Honors: CALIP"ORNIA OFFICE I PARK PLAZA, SUITE 740 IRVINE, CALIFORNIA 92614 TELEPHONE: (949) 252-01550 FACSIMILE: (949) 252·0553 Defendants-Appellants Pavarini Cons~ruction and Vomado Realty Trust ("Appellants"), submit the following written arguments in support of their position, pursuant to Rule 500.11(c) of this Court's RuJes of Practice. Appellants also adopt all arguments raised in their brief to the Alppellate Division, First Department, which has also been provided to this Court .. i Appellants respectfully request that this Court reverse the decision of the Appel~ate Division, First Department dated September 4, 2012, and reinstate the trial court's award of summary judgment to the Appellants dismissing all claims asserted ~gainst them. PRELIMINARY S~ATEMENT Plaintiff Glenford Morris ("Plaintiff 1 '), a carpenter, sustained personal injuries when one side of an uncompleted form shifted and injured his hand. A "form" is a temporary structure used in th~ construction of concrete walls and slabs, and is primarily comprised of two walls which are held together with steel and rebar ties. The purpose of an aptly-named "form" is to act as a mold to support liquid concrete while it is solidifyi~g, which accomplishes the goal of "forming" the liquid concrete into its desired solidified shape. It is only when both walls of the form have been built and secure4 together that the form is considered complete. If the ties and bracing are insufficient, the form can collapse under the I 1 I tremendous force of the concrete, which can result in catastrophic injuries to anyone in the surrounding area. That harm, and only that harm is what the Industrial Code provision on which Plaintiff relies in support of his Labor Law §241(6) claim was intended to avoid. Plaintiffs injury here was not caused by the blowout or collapse of a form. As Plaintiff concedes, his injury took place while a form was still in the process of being constructed, long before any concrete could have been poured. Specifically, at the time of Plaintiffs injury, the first of two walls of a form had been constructed, but the second wall had not yet been built. Plaintiff was injured when the lone-standing wall shifted and pinned his hand against a nearby steel beam. Plaintiff is seeking to impose statutory liability on Appellants, the owner and general contractor of the job site, under Labor Law §241(6), based upon an alleged violation of Industrial Code 12 NYCRR 23-2.2(a). This code provision, which is in a section of the Code entitled "Concrete Work," provides, in relevant part, "forms ... shall be braced or tied together so as to maintain position and shape." The requirements of this provision apply while a completed form is being used as a mold for concrete, because the purpose of this provision is to ensure that a form does not "blow out" or collapse during that time. However, Plaintiff contends that the requirements of this code provision should also be applied to injuries which occur during a different time period: when form components are still in the process of being assembled. Thus, the question before this Court is not only what the language of this code provision is intended to apply to, but more importantly, when it is sensible for the requirements of this code provision to be applied. In other words, the issue is "whether the requirement for braces or ties 'to maintain position and shape' applies to the period during which forms are being assembled (when plaintiff sustained injury) or whether application of this language is limited to the period during which concrete is actually poured and thereafter (when the form is fully assembled)."1 (See Exhibit A at p. 14, Tom, J., dissenting). Appellants respectfully request that this Court adopt the interpretation that the requirements of 12 NYCRR 23-2.2(a) can only be sensibly applied during the time period when completed forms are being used as a mold for concrete, and not during the time period when form components are still being constructed. This 1 For the Court's convenience, a copy of the First Department's September 4, 2012 opinion is annexed hereto as Exhibit "A." LONDON FISCHER LLP 2 interpretation has already been adopted by the Third and Fourth Judicial Departments of the Appellate Division . The language of the provision, the expert testimony interpreting the terms contained within the provision, and the context of this provision within the larger statutory framework makes clear that the requirements of this provision were only intended to apply to completed forms which are being used as a fully-formed mold for concrete. In addition, Appellants respectfully object to the Court's decision to proceed with Section 500.11 review, and request that this Court terminate the Section 500.11 review and proceed with full briefing and oral argument of the appeal, given the importance of the issues presented here and the split in authority between the First Department and the Third and Fourth Departments. PROCEDURAL HISTORY This case arises from an injury allegedly sustained by Plaintiff Glenford Morris ("Plaintiff') on June 4, 2002. Plaintiff commenced an action against the owner and general contractor of the job site, Vomado Realty Trust and Pavarini Construction (collectively "Appellants"), in the Supreme Court, Bronx County, in 2002. Appellants then moved for summary judgment, and on February 3, 2005, the trial court granted the portion of Appellants' motion for summary judgment seeking dismissal of Plaintiffs claims brought under Labor Law §200 on the grounds that Appellants did not direct or control the means and methods of Plaintiffs work, but declined to dismiss Plaintiffs Labor Law §241(6) claims (R. A599-604).3 Appellants appealed the trial Court's ruling to the Appellate Division, First Department. (R. A605). In an order dated June 8, 2006, the First Department reversed the trial court's ruling and dismissed Plaintiffs Labor Law §241(6) claim, holding that 12 NYCRR 23-2.2(a) could not be used by Plaintiff as a basis for a Labor Law §241(6) claim because the "form" which caused Plaintiffs injury was still in the 2 See Mueller v. PSEG Power New York, Inc., 83 A.D.3d 1274, 922 N.Y.S.2d 588 (3rd Dept. 2011); leave to appeal denied at 2012 WL 4017777(N.Y.), 2012 N.Y.Slip Op. 83811 (September 13, 2012) ("read as a whole, 12 NYCRR 23-2.2 does not require bracing or tying together of forms except at times when they are being used as a mold for pouring and curing concrete"); McCormick v. 257 W. Genesee, LLC, 78 A.D.3d 1581, 1583, 913 N.Y.S.2d 435 (4th Dept. 2010) (12 NYCRR 23-2.2 did not apply because "plaintiffs injury was not caused by an unstable form, shore or bracing during the placement of concrete") (emphasis added). 3 References to the Record on Appeal are to "(R. __)." LONDON FISCHER LLP 3 process of being created. (R A605-606). Upon application by Plaintiff, this Court granted leave to appeal at 8 N.Y.3d 801(2007). In its Order dated July 2, 2007, this Court examined the language of 12 NYCRR 23-2.2(a), and held that a portion of its language was sufficiently specific to form a basis for a Labor Law §241(6) claim, but that some of its language was not. (R. A608-609). Specifically, this Court held that the words "structurally safe" and "properly" were not sufficiently specific to form the basis of a Labor Law §241(6) claim, but that the language "forms ... shall be braced or tied together so as to maintain position and shape" did provide a "specific, positive command" which could form the basis of a Labor Law §241(6) claim. (R. A608-609). However, this Court held that it was "premature" to determine if the operative language of the provision was applicable to Plaintiffs injury, and remanded the case back to the trial court for further proceedings, explaining that "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." (R. A608-609). In accordance with this Court's instructions, a framed issue hearing was held on March 15, 2010, during which experts testified on behalf of both parties regarding the meaning of the technical terms contained within the code provision. Following the framed issue hearing, the trial court held that the language of the regulation could not be sensibly applied to an uncompleted form, and granted summary judgment to Appellants dismissing Plaintiffs claims asserted against them. Plaintiff then appealed the trial court's determination to the First Department, and in an Order dated September 4, 2012, a split panel of the First Department, with Presiding Justice Peter Tom dissenting, held that 12 NYCRR 23- 2.2(a) could be applied to the facts of Plaintiffs injury, and upon a search of the record, awarded summary judgment to Plaintiff. On October 3, 2012, Appellants moved for reargument of the First Department's decision, or in the alternative, an Order granting leave to appeal to the Court of Appeals. The primary basis for Appellants' motion for reargument was that in determining that 12 NYCRR 23- 2.2(a) was applicable to the facts of Plaintiffs injury, the First Department's decision expressly relied upon the language "structurally safe" and "properly," despite this Court's explicit instructions to the contrary. LONDON FISCHER LLP 4 In an order dated January 8, 2013, the First Department granted the portion of the motion seeking leave to appeal to the Court of Appeals, and certified pursuant to Civil Practice Law and Rules ("CPLR") §5713 that "the following question of law, decisive of the correctness of its determination, has arisen, which in its opinion ought to be reviewed by the Court of Appeals: 'Was the decision and order of this Court, which reversed the order of the Supreme Court, properly made?'" This Court has jurisdiction to adjudicate this appeal in accordance with the January 8, 2013 Order of the First Department. STATEMENT OF FACTS At the time of Plaintiffs injury, he was employed as a carpenter at a job site in midtown Manhattan. Appellant Vomado Realty Trust was the owner of the job site, and Appellant Pavarini Construction was the general contractor at the job site. Plaintiff alleges that as he was working on securing a brace into an unrelated structure, a metal panel component of an uncompleted form shifted, and pinned his hand against a steel beam. At the framed issue hearing, expert testimony was adduced not only as to the meaning of the specialized terms in the code provision, but also as to when the construction elements listed in the provision are implemented during the construction process, and for what purpose they are used. The expert testimony makes clear that a "form" is an assembly of components used to mold the shape of liquid concrete. (R. A17, A90). An exhibit relied upon at the hearing, American Concrete Institute's Guide to Formwork for Concrete, succinctly defines a "form" as "a temporary structure or mold for the support of concrete while it is setting and gaining sufficient strength to be self-supporting." (R. A120). The experts for both parties concurred that a completed form is comprised of two walls: a back wall and a front wall. (R. A72-A73). The back wall is constructed first, followed by the front wall, and the two walls are then secured together. (R. A72-A73). Experts for both parties confirmed that concrete can not be poured until all form components, including the back and front walls, have been built and secured together. (R. A28, A86, A98.) The experts, and Plaintiff himself confirmed that at the time of Plaintiffs injury, only the back wall of a form had been constructed; the front wall had not yet been built. Experts for both parties further confirmed that concrete could not have been poured at the time of Plaintiffs injury, because only one wall of the form had been constructed. (R. A28, A98). LONDON FISCHER LLP 5 With respect to "ties," the experts explained that a "tie" is a steel rod used to "tie together" the two walls of a form. (R. A32). Ties are necessary to hold the vertical walls of a form in place when wet concrete is poured, in order to prevent the concrete from spreading the two walls apart. (R. A32). Plaintiffs expert confirmed that the purpose of tying the two walls of a form together is "to keep it from blowing out and to keep it straight" when a completed form is holding concrete. (R. A95). Pavarini witness Joseph Pollice testified at his deposition that the purpose of securing the two walls of a form together is to prevent against a "blowout of concrete." (R.A405). Experts for both parties concurred that a tie could not have been used to secure the wall involved in Plaintiffs injury, because the second wall of the form had not yet been constructed. (R. A32, A95). In addition, the experts confirmed that before concrete can be poured, it is a general practice to have the completed form and its supports inspected by an engineer to ensure that all form components will stay in place "during the placement of concrete." (R. A34, R. A101). Mr. Pollice testified that an engineer was retained on this site to inspect completed forms in order to ensure they were ready to withstand a concrete pour, but the engineer was not required to perform any kind of inspection while the forms were still in the process of being assembled. (R. A405). ARGUMENT POINT I THE LANGUAGE OF 12 NYCRR 23-2.2(a) CAN ONLY BE SENSIBLY APPLIED TO COMPLETED FORMS WHICH ARE SERVING AS A MOLD FOR LIQUID CONCRETE The notion that 12 NYCRR 23-2.2(a) can only be sensibly applied to completed forms which are being used as a mold for concrete is not a novel legal concept; it has been adopted by the Third and Fourth Judicial Departments of the Appellate Division4. The split decision of the First Department here, which holds otherwise, is an outlier, and the reasoning on which it was based should be rejected by this Court in favor of the sound, logical approach of the Third and Fourth Departments. 4 See Mueller v. PSEG Power New York, Inc., 83 A.D.3d 1274, 922 N.Y.S.2d 588 (3rd Dept. 2011); leave to appeal denied at 2012 WL 4017777(N.Y.), 2012 N.Y.Slip Op. 83811 (September 13, 2012) and McCormick v. 257 W Genesee, LLC, 78 A.D.3d 1581, 1583, 913 N.Y.S.2d 435 (4th Dept. 201 0). LONDON FISCHER LLP 6 A. The plain meaning of the statutory language demonstrates that it is only intended to apply to completed forms which are serving as a mold for liquid concrete The plain meaning of the statutory language "forms ... shall be braced or tied together so as to maintain position and shape," and the expert testimony defining the technical terms contained within the provision makes clear that 12 NYCRR 23- 2.2(a) was only intended to apply to completed forms which are being used as a mold for concrete, and can not be sensibly applied to components of a form which is still in the process of being constructed. As the Third Department succinctly explained in Mueller, supra, "forms only need 'to maintain position and shape' when they are being used to mold the concrete, and as a result, "the regulation applies during actual concrete work" only. Id. By its language, 12 NYCRR § 23-2.2 (a) only applies to "forms, shores, and reshores." Plaintiffs injury here simply was not caused by a "form," "shore," or "reshore"5, and for this reason alone, this Court should hold that the code provision does not apply. While there had initially been some dispute whether the individual panels of a form can be considered a "form," the expert testimony clearly establishes that a form is a structure which has two walls capable of holding concrete. The object which injured Plaintiff was only one wall of an uncompleted form, and it is undisputed that this lone wall could not have been used to shape and mold concrete. By specifying that the code provision applies only to "forms," and making no mention of the terms "form walls," "form panels" or "form components," it can be safely presumed that the drafters of the provision only intended for the provision to apply to completed forms, and not to form components. Thus, the analysis should end there. Because the object which injured Plaintiff was neither a form, shore, reshore, the requirements of the code provision can not be sensibly applied to it. Similarly, the requirement for forms to "maintain position and shape" can only be applied to completed forms which are serving as a mold for concrete, and can not apply to components of uncompleted forms which are still in the process of being assembled. A requirement to "maintain" the "position and shape" of a form necessarily entails that the form already has a relevant "position and shape" which 5 It is undisputed that shores and reshores are elements not installed until after concrete is poured. (R. A31) LONDON FISCHER LLP 7 must be maintained. Until the shape of a form is created, it is simply impossible from both a physical and metaphysical standpoint to "maintain" its shape. The requirements for "braces and ties" is also clearly directed at ensuring that completed forms are able to withstand the pressure of liquid concrete, and can not be sensibly applied to components of uncompleted forms. Indeed, it is impossible for a form to be "tied together" during the time period when Plaintiffs injury occurred, because the expert testimony is clear that "ties" can only be used when both walls of a form have been constructed, and therefore could not possibly have been used here, when only the first wall was built. Similarly, while "braces" could have been used to support the first wall of the uncompleted form, the expert testimony is clear that the standard for bracing the first wall of an uncompleted form to ensure that it remains structurally safe is different than the standard for bracing a completed form to ensure that it is strong enough to withstand the force of liquid concrete, and that additional bracing is generally added after both walls have been built. (R. A83-84, 95). Plaintiffs contention that the language of the provision can somehow be applied to the lone-standing wall which injured him is unavailing. Plaintiffs primary argument is that the form component which injured him should have been "braced" so as to "maintain" its upright "position." However, this is of true of essentially any structure imaginable, as there is an ordinary tort duty of care to ensure that any structure which is erected does not topple over and injure someone. However, that is not what the language of 12 NYCRR § 23-2.2(a) provides. Plaintiff is requesting that this Court cherry-pick only the language of the provision to fit the facts here (i.e. "bracing" and "position"), while ignoring the remaining language of the provision (i.e." form," "tied together", "position and shape"), and this underscores that the object to which this provision applies is a completed, fully constructed "form." This Court has made clear the type of selective reading advocated by Plaintiff is improper, as such an interpretation would render the remaining language of the provision superfluous. Indeed, it is a longstanding rule that "a construction rendering statutory language superfluous is to be avoided." Branford House v. Michetti, 623 N.E.2d 11, 81 N.Y.2d 681, 603 N.Y.S.2d 290 (1993); People v. Giordano, 87 N.Y.2d 441, 663 N.E.2d 588, 640 N.Y.S.2d 432 (1995). See also Rocovich v. Consolidated Edison Co. 78 N.Y.2d 509, 577 N.Y.S.2d 219, 583 N.E.2d 932 (1991) ("it is an accepted rule that all parts of a statute are intended to be given effect and that a statutory construction which renders one part meaningless should be avoided."); Matter of Albano v. Kirby, 36 N.Y.2d 526, 330 LONDON FISCHER LLP 8 N.E.2d 615, 369 N.Y.S.2d 655 (1975) ("no rule of construction, however, permits the segregation of a few words from their context and from all the rest of the section or rule for purposes of construction, and the enacting body will be presumed to have inserted every provision for some useful purpose."); Rangolan v. County of Nassau, 749 N.E.2d 178, 96 N.Y.2d 42, 725 N.Y.S.2d 611 (2001) (A construction, "resulting in the nullification of one part of the [statute] by another," is impermissible.) The interpretation proposed by Plaintiff violates these rules, and would result in the code provision being applied in a way in which it was never intended to be applied. B. 12 NYCRR § 23-2.2(a) is directed at addressing the unique danger caused by the collapse of a form under the pressure of liquid concrete The Third and Fourth Departments' conclusion that 12 NYCRR § 23-2.2 was only intended to apply to completed forms that are holding concrete is not merely a thoughtless exercise in statutory interpretation. It is clear that the drafters of the provision had good reason to tailor an Industrial Code provision towards protecting workers from the unique dangers imposed by concrete. When a form fails to maintain its position and shape while it is molding liquid concrete, it will blow out or collapse, which represents one of the most catastrophic possible events that can occur on a construction site, often resulting in the death of workers in the area. To illustrate the severe dangers presented by form collapses, included below are references to publicly documented reports of recent form collapses and their devastating results. As these examples demonstrate, the potential harm that can result from a form collapsing under the pressure of curing concrete is not merely a theoretical concern; it is a catastrophic situation whose devastating consequences occur at construction sites throughout the country. In Staskal v. Symons Corp., 2005 WI App 216, 287 Wis. 2d 511, 706 N.W.2d 311 (2005), the plaintiff was injured when an improperly braced Symons form collapsed under the weight of concrete, pinning him under the rubble of the collapsed structure for over 3 hours, and resulting in severe crush injuries to both of his legs, rendering him permanently disabled. In July of 2009, at a construction site in Tennessee, two workers were pouring concrete into a form intended to serve as a mold for 30-foot-plus concrete wall, and the form collapsed under the force of the concrete, "burying them in concrete," and resulting in injuries "consistent with LONDON FISCHER LLP 9 both being crushed and drowning," leaving one worker dead and the other in critical condition. 6 In 2008, at a construction project in downtown Manhattan, wooden forms being used to mold concrete in the construction of a high-rise building broke under the pressure of a concrete pour, resulting in the death and decapitation of a 53-year old concrete worker. 7 According to newspaper reports, the city Buildings Department representative who investigated the accident found that "the wooden forms, built to hold concrete until it hardens, did not meet 'industry standards. '"8 In June of 2011, insufficient bracing of a form led to the collapse of a recently poured wet concrete wall at a construction site in Wisconsin, which resulted in the death of one worker and serious injuries to three other workers.9 The contractor at that job site was cited by OSHA for having "willfully ignored known construction safety procedures by failing to ensure adequate bracing to support recently formed concrete walls." Id. In October of 2012, a worker engaged in the construction of a concrete retaining wall on a Kentucky highway was killed during the process of pouring concrete into a form when the form overturned under the force of the concrete.10 6 J.J. Stanbagh, Construction Worker Killed in Concrete Accident, Knoxville-News Sentinel, July 6, 2009, available at http://www.knoxnews.com/news/2009/jul/06/construction-worker-killed-in- concrete-accident/. 7 Thomas J. Lueck, Construction Worker Dies in 42-Story Fall in Soho, New York Times, January 15, 2008, available at http:/ /www.nytimes.com/2008/0 1 /15/nyregion/15scaffold.html?pagewanted= 1 & _r=O&ref=nyreg ion 8 Kerry Burke, Edgar Sandoval, and Tina Moore, Substandard Construction at Trump Soho Led to Fatal Collapse-City Sources, N.Y. Daily News, January 16,2008, available at http://www .nydailynews.com/news/substandard-construction-trump-soho-led-fatal-collapse-city-sources-article- 1.344771 9Scott Allen and Rhonda Burke, US Labor Department's OSHA Cites Lewis Construction and Cedar Falls Building Systems Following Death of Worker on Job Site, OSHA Regional News Release: U.S. Department of Labor, Office of Public Affairs, June 13, 2011,available at http://www .osha.gov/pls/oshaweb/owadisp.show _ document?p _table= NEWS_ RELEASES&p _ id=20028 . 1° Chuck Mason, Bee Spring Man Killed in Construction Accident, The Daily News(Kentucky), October 9, 2012, available at http://www.bgdailynews.com/news/local/bee-spring-man-killed- in-construction-accident/article d5719ffe-122e-11 e2-ad75-00 1 a4bcf887a.html LONDON FISCHER LLP 10 In short, the purpose of 12 NYCRR 23-2.2 is to prevent the type of catastrophic accidents described above, all of which occurred when completed forms were insufficiently braced or tied together so as to maintain their position and shape while molding concrete. It has no application to the situation at bar where the form was not yet built. POINT II THE FIRST DEPARTMENT'S OPINION IGNORES THIS COURT'S INSTRUCTIONS AND SETS FORTH AN UNWORKABLE STANDARD When this case was before this Court in 2007, this Court made clear that while the language "forms ... shall be braced or tied together so as to maintain position and shape" was sufficiently specific to form the basis of a Labor Law §241(6) claim, the requirements that forms must be "structurally safe" and "properly" braced were not sufficiently specific for the purpose of Labor Law §241(6), because such language only incorporates an ordinary tort duty of care. Despite this, the First Department ignored this clear directive, and its central holding was as follows: It defies common sense to think that the form could be structurally safe and maintain its final position and shape, if the back wall that anchors the structure is prone to falling over and collapsing because there is no requirement that it "be properly braced. " The 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. Exhibit "A" at p.11 (emphasis added). The First Department's holding is simply astonishing in its misapplication of this Court's directives. Despite this Court's clear instruction that the language "structurally safe" and "properly" could not be considered when determining whether 12 NYCRR 23-2.2(a) was violated, that is precisely what the First Department did here, and it formed the central basis of the court's reasoning. Had LONDON FISCHER LLP 11 • the First Department followed this Court's direct instructions and omitted the language "structurally safe" and "properly," it would have arrived at the same conclusion as dissenting Presiding Justice Tom and the Third and Fourth Departments. Put simply, the First Department did not interpret the statutory language that it was asked to interpret; instead, it interpreted statutory language that this Court expressly directed it not to interpret. The First Department's reliance on "the enormity of the structure, a wall, 30 feet high by 30 feet wide, weighing over 2,500 pounds, that was hoisted by workers into an upright and vertical position," is also misplaced, as that is not indicative of all form components. Indeed, Plaintiffs own expert conceded that forms( and form walls) come in all different sizes, depending on the size of the concrete structure which is going to be formed, and are put together in a variety of different ways. (R. A71- A74). Moreover, the standard adopted by the First Department, if upheld, would prove to be completely unworkable in practice, and would lead to uneven, unpredictable, and often absurd results. If, as the First Department held, the requirements of 12 NYCRR 23-2.2(a) apply during the time period when forms are still being constructed, it raises more questions than it does answers. Indeed, this standard fails to take into account the fact that during the time period when a form is being assembled, the process of installing bracing and ties remains ongoing. Thus, under the First Department's standard, would the provision apply if a worker was injured while in the process of installing a brace? Would it apply if a worker was injured while in the process of connecting a tie? Surely it would be unreasonable to impose liability on contractors who are in the process of performing the very safety measures that 12 NYCRR 23-2.2(a) requires. In contrast, the bright-line rule adopted by the dissent and by the Third and Fourth Departments is the only approach which is workable in practice. This standard is simple to apply: if an injury occurs while a form is being used as a mold for concrete, the provision applies; if a form (or its components) are not being used as a mold for concrete, the provision does not apply. This standard is consistent with the legislature's intent to protect workers from the unique dangers imposed by liquid concrete, and all injuries which occur when actual "concrete work" is taking place will be covered under this approach. Accordingly, this Court should adopt the standard set forth by the dissent and by the Third and Fourth Departments. LONDON FISCHER LLP 12 POINT III THE LANGUAGE OF COMPARABLE CODE PROVISONS FURTHER DEMONSTRATES THAT 12 NYCRR 23-2.2(a) IS ONLY INTENDED TO APPLY TO COMPLETED FORMS When determining the applicability of a statutory provision, this Court has made clear that in addition to examining the language of the provision, it is also a requirement that "inquiry should be made into "the spirit and purpose of the legislation, which requires examination of the statutory context of the provision as well as its legislative history." Nostrom v. A. W. Chesterton Co., 15 N.Y.3d 502, 940 N.E.2d 551 (2010) (internal citations omitted). The First Department did not perform this required inquiry here, and there is no reference to the "statutory context" of this provision anywhere in the First Department's decision. As the Third Department and Justice's Tom's opinions confirm, it is essential to note that 12 NYCRR 23-2.2(a) was not enacted as a free-standing, independent provision; it was instead enacted as part of a comprehensive section of the Industrial Code entitled "Concrete Work" which contains several different subsections. Subsection (a) is entitled "General Requirements." The other subsections of 12 NYCRR 23-2.2 list specific requirements for protecting workers while concrete is being poured, after concrete has been poured, and while the form is being stripped and removed from the concrete. Thus, the "Concrete Work" section includes numerous specific safety requirements to protect workers during the time period during and after concrete has been poured, but includes no specific safety requirements for the time period when forms are still in the process of being constructed. As Justice Tom succinctly explained in his dissenting opinion: Industrial Code (12 NYCRR) § 23-2.2 (b), entitled 'Inspection,' provides: 'Designated persons shall continuously inspect the stability of all forms, shores and reshores including all braces and other supports during the placing of concrete. Any unsafe condition shall be remedied immediately.' That inspection is required 'during the placing of concrete' strongly suggests that the protections provided by subdivisions (a) and (b) of section 23-2.2 are intended to apply to the structural integrity of concrete forms at such time LONDON FISCHER LLP 13 concrete is being poured. Following subdivisions include requirements for the support of newly poured concrete and the stripping of forms. Thus, section 23-2.2 addresses the need to adequately support concrete during and after its placement, and such matters as the manner in which forms are assembled and their support during assembly are not covered. Exhibit "A" at p. 10. The fact that the "Concrete Work" section as a whole only contains specific measures to be taken to prevent injuries during phases of work where concrete is involved, but contains no specific measures to protect workers during the time period when forms components are still being assembled, is strong evidence that the provision was only intended to apply during the time period when concrete has been poured. This is particularly significant in light of the fact that in other sections of the Code dealing with the construction of other types of structures, specific safety requirements directed at protecting workers who are building such structures are in fact mandated. For example, the section of the Industrial Code immediately following the "Concrete Work" section is 12 NYCRR § 23-2.3, a section which includes numerous requirements for protecting workers who are in the process of installing structural steel components. 12 NYCRR § 23-2.3( c) regulates the manner in which steel panels and structural steel members are hoisted into place, and specifically requires that "tag lines" should be used in order to "prevent uncontrolled movement of such panels or members." 11 However, there are no such instructions to protect workers who are in the process of erecting formwork components anywhere in 12 NYCRR § 23-2.2. Given that other sections of the Industrial Code include specific measures directed at protecting workers who are erecting components of other types of structures, the failure to include such measures here should be considered intentional. The absence of such measures here demonstrates that the requirements of 12 NYCRR 11 See also 12 NYCRR § 23-2.3(d) (providing that workers who are erecting "lintels" must be provided with a scaffold or an approved safety belt or harness); 1 2 NYCRR § 23-2.6(a) (requiring catch platforms to be used to protect workers engaged in the construction of exterior masonry walls). LONDON FISCHER LLP 14 CONCLUSION For the foregoing reasons, and for the reasons set forth in Appellants' submissions to the Appellate Division, First Department, Appellants respectfully request that this Court reverse the decision of the First Department, and reinstate the trial court's award of summary judgment dismissing all claims asserted against them. LoNDON FISCHER LLP Respectfully submitted, By: LONDON FISCHER LLP - Daniel Zemann, Jr., Esq., Of Counsel David B. Franklin, Esq., Of Counsel Attorneys for Defendants-Appellants PA V ARINI CONSTRUCTION and VORNADO REALTY TRUST 59 Maiden Lane New York, New York 10038 (212) 972-1000 15 DISCLOSURE STATEMENT PURSUANT TO 22 NYCRR 500.1(0 Pursuant to 22 NYCRR SOO.l(t), Defendant-Appellant Pavarini Construction Co., Inc. (incorrectly s/h/a "P A V ARINI CONSTRUCTION'') and Defendant-Appellant Vornado New York RR One LLC (incorrectly s/h/a "VORNADO REALTY TRUST"), by their attorneys, London Fischer, LLP, provide as follows: Parents: None Affiliates: Defendant-Appellant Pavarini Construction Co., Inc. (incorrectly s/h/a "PA V ARINI CONSTRUCTION") Structure-Tone, Inc. Structure Tone Global Services Constructors & Associates, Inc. D& W Capital LLC D& W Capital II, LLC D& W Driscoll, LLC LF Driscoll Company, LLC Pavarini Construction Co. (SE) Inc. Pavarini McGovern, LLC Pavarini Group, Inc. Pavarini Construction Co. of Puerto Rico, Inc. Pavarini Northeast Construction Co., Inc. Pavarini Southeast Construction Co. Inc. Pavarini Interiors, Inc. Pavarini Residential Construction Co., Inc. Pavarini Realty, Inc. ST Tech Services, Inc. S&techs/Structure Tone Asia Structure Tone (UK), Inc. Structure Tone Realty, Inc. Structure-Tone Europe, Ltd. Structure Tone Equities, Inc. Structure Tone Group, Inc. Subsidiaries: None Parents None Affiliates None Subsidiaries: Defendant-Appellant Vomado New York RR One LLC (incorrectly s/h/a "VORNADO REALTY TRUST") 11 East 68th Parallel REIT LLC 11 East 68th REIT Holding LLC 11 East 68th REIT LLC 11 East 68th Street I Corp. 11 East 68th Street II Corp. 11 East 68th TRS LLC 1227/1229 Management LLC 1290 Management II, LLC 148 Spring Street, LLC 14th Street Acquisition LLC 150 East 58th Street, L.L.C. 150 Spring Street LLC 1535 Broadway LLC 1 7 40 Broadway Associates L.P. 201 East 66th Street LLC 220 S 20th Street Developer LLC 280 Park Administration LLC 280 Park Cleaning LLC 29 West 57th Street Owner LLC 305 Bleecker Street LLC 31 West 57th Street Owner LLC 330 Madison Company LLC 334 Canal Street LLC 350 North Orleans, L.L.C. 350 Park EAT LLC 375 PELLC 4 USS Member LLC 40 East 14 Realty Associates General Partnership 40 East 14 Realty Associates, L.L.C. 40 Fulton Street LLC 401 Commercial Son II LLC 401 Commercial Son, LLC 401 Commercial, L.P. 401 General Partner, L.L.C. 401 Hotel General Partner, L.L.C. 401 Hotel REIT, LLC 401 Hotel TRS, Inc. 401 Hotel, L.P. 426 Washington Street Hotel Owner LLC 426 Washington Street Office Owner LLC 426 Washington Street Owner II LLC 426 Washington Street Owner LLC 426 Washington Street Parking Owner LLC 426 Washington Street Residential Owner LLC 426 Washington Street Retail Owner LLC 480-486 Broadway, LLC 480-486 JV, LLC 488 Eighth Avenue Owner LLC 49 West 57th Street Owner LLC 527 West Kinzie LLC 555 1290 Holdings LLC 666 Fifth Administration LLC 666 Fifth Cleaning LLC 666 Fifth Management LLC 689 Fifth Avenue LLC 7 West 34th Street LLC 713-715 Sunrise LLC 715 Lexington Avenue LLC 770 Broadway Company LLC 770 Broadway Mezzanine LLC 770 Broadway Owner LLC 825 Seventh A venue Holding Corporation 825 Seventh Avenue Holding L.L.C. 85 Tenth Junior Mezz LLC 85 Tenth Senior Mezz LLC 866 U.N. Plaza Associates LLC 888 Seventh Avenue LLC 909 Third Avenue Assignee LLC 909 Third Company, L.P. 909 Third GP, LLC 968 Third, L.L.C. Ackerly Trading Corp. Alexander's, Inc. Allentown VF L.L.C. Altius Management Advisors Pvt. Ltd. Amherst II VF L.L.C. Amherst VF L.L.C. Arbor Property, L.P. Arna-Eads, Inc. Arna-Fem, Inc. Atlantic City Holding L.L.C. BDC Special Member LLC Bengal Intelligent Parks Pvt. Ltd. Bensalem Holding Company, L.L.C. Bensalem Holding Company, L.P. Bensalem VF, L.L.C. Bethlehem Holding Company, L.L.C. Bethlehem Holding Company, L.P. Bethlehem Properties Holding Company, L.L.C. Bethlehem Properties Holding Company, L.P. Bethlehem VF, L.L.C. Bethlehem VF, L.P. Bevcon Holdings LLC Bevcon I Investors LLC Bevcon I LLC Bevcon I Managers Inc. Bevcon II LLC BIP Developers Pvt. Ltd. Bordentown II VF, L.L.C. Bordentown VF, L.L.C. Boston Design Center LLC Boulevard Services Pvt. Ltd. Bowen Building, L.P. Bricktown VF L.L.C. Bricktown VF Member LLC Bridgeland Warehouses L.L.C. Brixton Holdings Limited Building Maintenance Service LLC Canadian Craft Show LTD. CESC 1101 17th Street L.L.C. CESC 1101 17th Street Limited Partnership CESC 1101 17th Street Manager L.L.C. CESC 1140 Connecticut Avenue Holding LLC CESC 1140 Connecticut Avenue L.L.C. CESC 1140 Connecticut A venue Limited Partnership CESC 1140 Connecticut Avenue Manager L.L.C. CESC 1150 17th Street L.L.C. CESC 1150 17th Street Limited Partnership CESC 1150 17th Street Manager L.L.C. CESC 1730 M Street L.L.C. CESC 1750 Pennsylvania Avenue L.L.C. CESC 2101 L Street L.L.C. CESC Commerce Executive Park L.L.C. CESC Crystal Square Four L.L.C. CESC CrystaVRosslyn L.L.C. CESC District Holdings L.L.C. CESC Downtown Member L.L.C. CESC Engineering TRS Inc. CESC Fairfax Square Manager L.L.C. CESC Gateway One L.L.C. CESC Gateway Two Limited Partnership CESC Gateway Two Manager L.L.C. CESC Gateway/Square L.L.C. CESC Gateway/Square Member L.L.C. CESC H Street L.L.C. CESC Mall L.L.C. CESC Mall Land, L.L.C. CESC One Courthouse Plaza Holdings, LLC CESC One Courthouse Plaza L.L.C. CESC One Democracy Plaza L.P. CESC One Democracy Plaza Manager LLC CESC Park Five Land L.L.C. CESC Park Five Manager L.L.C. CESC Park Four Land L.L.C. CESC Park Four Manager L.L.C. CESC Park One Land L.L.C. CESC Park One Manager L.L.C. CESC Park Three Land L.L.C. CESC Park Three Manager L.L.C. CESC Park Two L.L.C. CESC Park Two Land L.L.C. CESC Park Two Manager L.L.C. CESC Plaza Five Limited Partnership CESC Plaza Limited Partnership CESC Plaza Manager, L.L.C. CESC Plaza Parking L.L.C. CESC Realty Park Five L.L.C. CESC Realty Park Three L.L.C. CESC Reston Executive Center L.L.C. CESC Skyline LLC CESC Square L.L.C. CESC Square Land L.L.C. CESC TRS, Inc. CESC Two Courthouse Plaza Limited Partnership CESC Two Courthouse Plaza Manager, L.L.C. CESC Water Park L.L.C. Charles E. Smith Commercial Realty, L.P. Cherry Hill VF L.L.C. Cherry Hill VF Member LLC Chicopee Holding L.L.C. Cinderella Homes Pvt. Ltd. Cleveland Developer LLC Cleveland MMCC L.L.C Cleveland Operator LLC CM Medical LLC Commerce Executive Park Association of Co-Owners Conrans VF L.L.C. Conrans VF Member LLC CPTS Domestic Owner LLC CPTS Hotel Lessee LLC CPTS Hotel Lessee Mezz 1 LLC CPTS Hotel Lessee Mezz 2 LLC CPTS Hotel Lessee Mezz 3 LLC CPTS Mezz Holding LLC CPTS Mezz I LLC CPTS Mezz II LLC CPTS Parallel Owner LLC CPTS TRS LLC Cumberland Holding L.L.C. Delran VF L.L.C. Design Center Owner (D.C.), L.L.C. Dover VF L.L.C. Dover VF Member LLC DSACL.L.C. Durham Leasing II L.L.C. Durham Leasing L.L.C. East Brunswick VF L.L.C. East Brunswick VF Member LLC Eatontown Monmouth Mall (Junior Mezz) LLC Eatontown Monmouth Mall (Senior Mezz) LLC Eatontown Monmouth Mall LLC Eleven Penn Plaza LLC Everest Infrastructure Development Mauritius Limited Fairfax Square L.L.C Fairfax Square Partners Fifth Crystal Park Associates Limited Partnership First Crystal Park Associates Limited Partnership Foley Enterprises Inc. Fourth Crystal Park Associates Limited Partnership Franconia GP, L.L.C. Freeport VF L.L.C. Freeport VF Member LLC Fuller Madison LLC Gallery Market Holding Company, L.L.C. Gallery Market Holding Company, L.P. Gallery Market Properties Holding Company, L.L.C. Gallery Market Properties Holding Company, L.P. Garfield Parcel L.L.C. Geneva Associates Owner LLC Glen Bernie VF LLC Green Acres Mall, L.L.C. Guard Management Service Corp. Guilford Associates, L.L.C. H Street Building Corporation H Street JP Fashion LLC H Street Management, L.L.C. Hackensack VF L.L.C. Hackensack VF Member LLC Hanover Holding L.L.C. Hanover Industries L.L.C. Hanover Leasing L.L.C. Hanover Public Warehousing L.L.C. Hanover VF L.L.C. Hanover VF Member LLC Harridge Trading Co., Inc. HBR Annapolis Properties, L.L.C. HBR Norfolk Properties, L.L.C. HBR Properties LLC HBR Properties Roseville LLC HBR Properties, L.L.C. Henrietta Holding L.L.C. HW A Holdings LLC International Biotech Park Ltd. Jersey City VF L.L.C. Jersey City VF Member LLC Juggernaut Homes Pvt. Ltd. Kanton Financial Corp. Kearny Holding VF L.L.C. Kearny Leasing VF L.L.C. Kilburn Holding Corp. Klayburn Investment Corp. L.A. Mart Properties L.L.C. Lancaster Leasing Company, L.L.C. Lancaster Leasing Company, L.P. Landthorp Enterprises L.L.C. LaSalle Hubbard L.L.C. Lawnside VF L.L.C. Lawnside VF Member LLC Lewisville TC L.L.C. Littleton Holding L.L.C. Lodi II VF L.L.C. Lodi II VF Member LLC Lodi VF L.L.C. Lodi VF Member LLC Lokeren Company Limited M 330 Associates L.P. M 393 Associates LLC Manalapan VF L.L.C. Manalapan VF Member LLC Market Square - Furniture Plaza Inc. Market Square - Furniture Plaza L.P. Market Square - Hamilton Market LP Market Square - Main Street L.P. Market Square Group LP Market Square Group Mezz L.P. Market Square Group Mezz LLC Market Square Group, Inc. Market Square II LLC Market Square L.P. Market Square Management LLC Marlton VF L.L.C. Marlton VF Member LLC Marple Holding Company, L.L.C. Marple Holding Company, L.P. Mart Franchise Center, Inc. Mart Parking II, LLC Mart Parking LLC Mart REIT, L.L.C. Mart Trade Show L.L.C. Menands VF L.L.C. Merchandise Mart Enterprises, Inc. (Canada) Merchandise Mart First Mezzanine Borrower L.L.C. Merchandise Mart Holdco L.L.C. Merchandise Mart L.L.C. Merchandise Mart Properties, Inc. Merchandise Mart Second Mezzanine Borrower L.L.C. Mesquite TC L.L.C. Texas Middletown VF L.L.C. Middletown VF Member LLC MMPI Cleveland Development L.L.C. MMPI Piers LLC MMPI Piers MTS L.L.C. MMPI Volta LLC Monmouth Mall License LLC Monmouth Mall LLC Montclair VF L.L.C. Montclair VF Member LLC Morris Plains Holding VF L.L.C. Morris Plains Holding VF Member LLC Morris Plains Leasing VF L.L.C. Morris Plains Leasing VF Member LLC MTS-HPL.P. MTS-MM L.L.C. MW Hyde Park LLC National Furniture Mart (NC) L.P. New Bridgeland Warehouse LLC New Hanover Holding LLC New Hanover Industries LLC New Hanover Leasing LLC New Hanover LLC New Hanover Member LLC New Hanover Public Warehousing LLC New Hyde Park VF L.L.C. New Jersey GL LLC New Kaempfer 1501 LLC New Kaempfer IB LLC New Kaempfer Waterfront LLC New Landthorp Enterprises LLC New TG Hanover LLC New Towmed LLC New Vomado/Saddle Brook LLC New Woodbridge II Member LLC New Woodbridge II, LLC Newington VF L.L.C. Newington VF Member LLC NFMCorp. NFM Partners L.P. Ninety Park Lender LLC Ninety Park Lender QRS, Inc. Ninety Park Manager LLC Ninety Park Property LLC North Bergen VF L.L.C. North Bergen VF Member LLC North Plainfield VF L.L.C. Office Acquisition Finance L.L.C. Office Center Owner (D.C.) L.L.C. One Penn Plaza LLC One Penn Plaza TRS, Inc. Orleans Hubbard LLC Palisades 1399 New York Avenue TIC Owner LLC Palisades 14th Street L.L.C. Paris Associates Owner LLC Park Four Member LLC Park One Member L.L.C. Patson Vornado GP LLC Patson Vornado LLC PCJ I Inc. Peak Power One LLC Penn Plaza Insurance Company, L.L.C. Philadelphia Holding Company, L.L.C. Philadelphia Holding Company, L.P. Philadelphia VF L.L.C. Philadelphia VF L.P. Pike Holding Company, L.L.C. Pike Holding Company, L.P. Pike VF L.L.C. Pike VF L.P. Powerspace & Services, Inc. Rahway Leasing L.L.C. Realty Services Trustee Company Pvt. Ltd. River House Corporation Rochester Holding L.L.C. Rochester Holding Member LLC Rockville Acquisition, LLC RTR JP Fashion LLC RTRVWLLC Shelborn Enterprises Inc. Shenandoah DC Holding, LLC SMB Administration LLC SMB Tenant Services LLC SO Hudson 555 Management, Inc. SO Hudson Westside I Corp. South Capitol, L.L.C. Springfield Member VF L.L.C. Springfield VF L.L.C. Stockdale Enterprises Inc. Stonebay Enterprises Inc. T.G. Hanover L.L.C. T53 Condominium, L.L.C. TCG Developments India Pvt. Ltd. TCG Real Estate Investment Management Company Pvt. Ltd. TCG Software Parks Pvt. Ltd. TCG Urban Infrastructure Holdings Ltd. Techna Infrastructure Pvt. Ltd. TGSIL.L.C The Armory Show Inc. The Palisades AIV Company, L.L.C. The Park Laurel Condominium The Second Rochester Holding L.L.C. The Second Rochester Holding Member LLC Thebes I LLC Third Crystal Park Associates Limited Partnership Totowa VF L.L.C. Totowa VF Member LLC Towson II VF LLC Towson VF L.L.C. Towson VF Member LLC Trees Acquisition Subsidiary, Inc. Turnersville VF L.L.C. Two Guys From Harrison Holding Company L.L.C. Two Guys From Harrison Holding Company L.P. Two Guys from Harrison N.Y. (DE), L.L.C. Two Guys From Harrison N.Y. L.L.C. Two Guys From Harrison NY Member LLC Two Guys Mass. LLC Two Guys-Connecticut Holding L.L.C. Two Penn Plaza REIT JP Fashion LLC Two Penn Plaza REIT, Inc. tnBIManagement,L.L.C. Union VF L.L.C. Union VF Member LLC Universal Building North, Inc. Universal Building, Inc. Upper Moreland Holding Company, L.L.C. Upper Moreland Holding Company, L.P. Upper Moreland VF, L.L.C. VBL Company, L.L.C. VCP 33 Maiden Lane LLC VCP COl One Park LP VCP Holdings LLC VCP IM L.L.C. VCP LP L.L.C. VCP Mezz Loan LLC VCP One Park Parallel REIT LLC VCP One Park REIT LLC VCP Parallel COl One Park LP VFC Connecticut Holding, L.L.C. VFC Massachusetts Holding, L.L.C. VFC New Jersey Holding, L.L.C. VFC Pennsylvania Holding, L.L.C. VFC Pennsylvania Holding, L.P. Virgin Sign L.L.C. VM Kushner N Member LLC VM Kushner LLC VMS Lender LLC VNKL.L.C. VNO 100 West 33rd Street LLC VNO 11 East 68th Street Holding Company LLC VNO 11 East 68th Street LLC VNO 11 East 68th Street Mezz LLC VNO 11 East 68th Street Property Owner LLC VNO 1105 State Highway 36 LLC VNO 1227 25th Street LLC VNO 1229-1231 25th Street LLC VNO 1399 GP LLC VNO 1399 Holding LLC VNO 155 Spring Street LLC VNO 1657 Broadway LLC VNO 1800 Park LLC VNO 1920 L Street LLC VNO 195 North Bedford Road LLC VNO 211-217 Columbus Avenue LLC VNO 220 S. 20th Street LLC VNO 220 S. 20th Street Member LLC VNO 2445 Springfield Avenue LLC California VNO 280 Park N Member LLC VNO 3098 Long Beach Road LLC VNO 33 West 57th Street LLC VNO 3500 US Highway 9 LLC VNO 375 Mezz LLC VNO 375 Park LLC VNO 386 West Broadway LLC VNO 386 West Broadway Member LLC VNO 387 West Broadway LLC VNO 401 Commercial Leasee LLC VNO 426 Washington Street Developer LLC VNO 426 Washington Street N LLC VNO 426 West Broadway Member, LLC VNO 426 West Broadway, LLC VNO 431 Seventh Avenue LLC VNO 435 Seventh Avenue LLC VNO 49 West 57th Street LLC VNO 510 Fifth LLC VNO 530 Broadway B/C LLC VNO 530 Broadway Mezz II LLC VNO 530 Broadway Mezz LLC VNO 530 Broadway Mezzanine I LLC VNO 535-545 5th Loan LLC VNO 5760 Broadway LLC VNO 63rd Street LLC VNO 6417 Loisdale Road LLC VNO 666 Fifth Lender LLC VNO 666 Fifth Member LLC VNO 675 Paterson Avenue LLC VNO 7000 Hadley Road LLC VNO 757 Third Avenue LLC VNO 839 New York Avenue LLC VNO 86 Lex LLC VNO 866 UN Plaza TRS L.L.C. VNO 99-01 Queens Boulevard LLC VNOACLLC VNO AP 195 N. Bedford Road LLC VNO Ashley House LLC VNO Ashley House Member LLC VNO Brick LLC VNO Broad Street LLC VNO Broome Street LLC VNO Bruckner Plaza Lender LLC VNO Bruckner Plaza LLC VNO Building Acquisition LLC VNO Capital Partners REIT LLC VNO Capital Partners TRS LLC VNO Courthouse I LLC VNO Courthouse II LLC VNO Courthouse Place Mezz LLC VNO CPPIB Member LLC VNO Crystal City Marriott, Inc. VNO Crystal City Restaurant L.L.C. VNO Crystal City TRS, Inc. VNO Douglaston Plaza, L.L.C. VNO Eatontown Seamans Plaza LLC VNO Fashion LLC VNO Fulton Street Brooklyn LLC VNO GT HOK LLC VNO GT Manager LLC VNO GT Owner LLC VNO GT Property Manager LLC VNO Harlem Park Developer LLC VNO HM Pool 1 LLC VNO HM Pool 2 LLC VNO Hotel L.L.C. VNOIF PILLC VNOIFGPLLC VNO IF II, L.L.C. VNOIFLLC VNOIFPILLC VNO IP Equity LLC VNO IP Warrant LLC VNO Island Global LLC VNO James House Member LLC VNO James House, LLC VNOJCPLLC VNO LF 50 West 57th Street Holding LLC VNO LF 50 West 57th Street JV LLC VNO LF 50 West 57th Street LLC VNO LF 50 West 57th Street Management LLC VNO LNR Holdco, L.L.C. VNO Loan Acquisition LLC VNO MBS I BAI LLC VNO MBS I BI LLC VNO MBS I CI LLC VNO MBS I DI LLC VNO MBS I GI LLC VNO MBS I JI LLC VNOMBSILLC VNO MBS I RI LLC VNO MM License LLC VNO Morris Avenue GL LLC VNO Mundy Street LLC VNO One Park LLC VNO One Park Management LLC VNO Paterson Plank Road LLC VNO Patson Geary, L.P. VNO Patson Investor LLC VNO Patson LLC VNO Patson Mt. Diablo A L.P. VNO Patson Walnut Creek L.P. VNO Pentagon City LLC VNO Pentagon Plaza LLC VNO Potomac House LLC VNO Potomac House Member LLC VNO Pune Township LLC VNO Rockville, LLC VNO Roosevelt Hotel Mezz II LLC VNO Roosevelt Hotel Mezz LLC VNORTRAP,LLC VNO Second Building Acquisition LLC VNO Shoppes on Dean LLC VNO Shops on Lake LLC VNOSMGPLLC VNOSMLLC VNOSMOHLLC VNO SMOH TRS LLC VNO South Capitol LLC VNO Surplus 2006 LLC VNO T -Hotel Loan LLC VNO TRU 20th Street South LLC VNO TRU 25 112 Road LLC VNO TRU Alewife Brook Pkwy. LLC VNO TRU Allstate Road LLC VNO TRU Baltimore Park L.P. VNO TRU Beckley Road LLC VNO TRU Bellis Fair Pkwy, LLC VNO TRU CA LLC VNO TRU Callahan Drive L.P. VNO TRU Cherry Avenue L.P. VNO TRU Coral Way LLC VNO TRU Dale Mabry LLC VNO TRU Eastman Avenue LLC VNO TRU Erie Blvd. LLC VNO TRU Frederica Street LLC VNO TRU Geary Street L.P. VNO TRU Georgia Avenue LLC VNO TRU Hickory Hollow L.P. VNO TRU Hilltop Drive L.P. VNO TRU Jericho Turnpike LLC VNO TRU Kennedy Road LLC VNO TRU Lafayette Street LLC VNO TRU Leesburg Pike LLC VNO TRU Mall Drive L.P. VNO TRU MICH L.P. VNO TRU Military Road L.P. VNO TRU Olive Avenue L.P. VNO TRU PA LLC VNO TRU Princeton Road LLC VNO TRU Rand Road LLC VNO TRU Riverdale Road LLC VNO TRU Rolling Meadows Drive LLC VNO TRU Route 50 LLC VNO TRU Sam Rittenburg Blvd. LLC VNO TRU South Wadsworth Avenue LLC VNO TRU Torrence Avenue LLC VNO TRU TX LLC VNO TRU University Drive LLC VNO TRU West Sunrise Hwy. LLC VNOVELLC VNO Wayne License LLC VNO Wayne Towne Center Holding LLC VNO Wayne Towne CenterLLC VNO-MM Mezzanine Lender LLC Vornado- KC License L.L.C. Vornado I Charles E. Smith L.P. Vornado I Charles E. Smith Management L.L.C. Vornado 1399 LLC Vornado 1540 Broadway LLC Vornado 1726 M Street LLC Vornado 17 40 Broadway LLC Vornado 17th Street Holdings LP Vornado 17th Street LLC Vornado 20 Broad Acquisition LLC Vornado 220 Central Park South II LLC Vornado 220 Central Park South LLC Vornado 25W14 LLC Vornado 280 Park Mezz LLC Vornado 3040 M Street LLC Vornado 330 W 34 MezzLLC Vornado 330 West 34th Street L.L.C. Vornado 40 East 66th Street LLC Vornado 40 East 66th Street Member LLC Vornado 40 East 66th Street TRS LLC Vornado 401 Commercial LLC Vornado 44 7 South Broadway LLC Vornado 601 Madison Avenue, L.L.C. Vornado 620 Sixth Avenue L.L.C. Vornado 640 Fifth Avenue L.L.C. Vornado 677 Madison LLC Vornado 692 Broadway, L.L.C. Vornado 800 17th Street, LLC Vornado 90 Park Avenue L.L.C. Vornado 90 Park Member L.L.C. Vornado 90 Park QRS, Inc. Vornado Acquisition Co. LLC Vornado Asset Protection Trust Grantee (TRS) L.L.C. Vornado Auto L.L.C. Vornado B&B L.L.C. Vornado BAP LLC Vomado Bergen East LLC Vomado Bergen Mall License II LLC Vomado Bergen Mall License LLC Vomado Bergen Mall LLC Vomado Bevcon I LLC Vomado Beverly Connection LLC Vomado Beverly LLC Vomado Bowen GP LLC Vomado Bowen II LLC Vomado Bowen, LLC Vomado Broadway Mall LLC Vomado Burnside Plaza LLC Vomado Caguas GP, Inc. Vomado Caguas Holding, L.P. Vomado Caguas Holding, LLC Vomado Caguas L.L.C. Vomado Caguas L.P. Vomado Capital Partners Parallel GP LLC Vomado Capital Partners Parallel LP Vomado Capital Partners Parallel REIT LLC Vomado Capital Partners, G.P. LLC Vomado Capital Partners, L.P. Vomado Catalinas GP, Inc. Vomado Catalinas Holding, L.P. Vomado Catalinas Holding, LLC Vomado Catalinas L.L.C. Vomado Catalinas L.P. Vomado CCA Gainesville, L.L.C. Vomado CESCR Gen-Par, LLC Vomado Cogen Holdings LLC Vomado Communications, LLC Vomado Condominium Management LLC Vomado Crystal City L.L.C. Vomado Crystal Park Loan, L.L.C. Vomado DC Holding LLC Vomado DP LLC Vomado Dune LLC Vomado EF Borrower LLC Vomado Eleven Penn Plaza LLC Vomado Everest Lender, L.L.C. Vomado Everest, L.L.C. Vomado Farley LLC Vomado Finance GP II L.L.C. Vomado Finance GP L.L.C. Vomado Finance II L.P. Vomado Finance L.P. Vomado Finance SPE, Inc. Vomado Forest Plaza L.L.C. Vomado Forest Plaza Member L.L.C. Vomado Fort Lee L.L.C. Vomado Fortress LLC Vomado Georgetown Park LLC Vomado Green Acres Acquisition L.L.C. Vomado Green Acres L.L.C. Vomado Green Acres Funding L.L.C. Vomado Green Acres Holdings L.L.C. Vomado Green Acres SPE Managing Member, Inc. Vomado Gun Hill Road LLC Vomado Harlem Park LLC Vomado Hinjewadi Township Private Limited Vomado HP B Note Holder LLC Vomado IB Holdings LLC Vomado India Lender LLC Vomado India Retail LLC Vomado India Retail Management LLC Vomado Investment Corp. Vomado Investments L.L.C. Vomado KMS Holdings LLC Vomado Lending Corp. Vomado Lending L.L.C. Vomado Lodi Delaware Member, LLC Vomado Lodi Delaware, LLC Vomado Lodi L.L.C. Vomado LXP, L.L.C. Vomado M 330 L.L.C. Vomado M 393 L.L.C. Vomado Management Corp. Vomado Manhattan House Mortgage LLC Vomado Mauritius Advisors LLC Vomado Mauritius II LLC Vomado Maywood License LLC Vomado Monmouth Mall, L.L.C. Vomado Montehiedra Acquisition L.P. Vomado Montehiedra Acquisition LLC Vomado Montehiedra Holding II L.P. Vomado Montehiedra Holding L.P. Vomado Montehiedra Holding LLC Vomado Montehiedra Inc. Vomado Montehiedra Lender LLC Vomado Montehiedra OP L.P. Vomado Montehiedra OP LLC Vomado Montehiedra Out Parcel LLC Vomado New York RR One L.L.C. Vomado Newkirk Advisory LLC Vomado Newkirk L.L.C. Vomado NK Loan L.L.C. Vomado North Bergen Tonnelle Plaza LLC Vomado Office Inc. Vomado Office Management LLC Vomado Paramus License LLC Vomado PC LLC Vomado Property Advisor LLC Vomado Realty L.L.C. Vomado Realty, L.P. Vomado Records 2006, L.L.C. Vomado Retail Finance Manager LLC Vomado Retail Management LLC Vomado Retail Manager LLC Vomado Rockaway L.L.C. Vomado Rockville, LLC Vomado Rosslyn LLC Vomado RTR DC LLC Vomado RTR Urban Development LLC Vomado RTR Urban Development TMP LLC Vomado RTR, Inc. Vomado San Jose LLC Vomado Savanna LLC Vomado Savanna SM LLC Vomado SB 1 L.P. Vomado SB 10 L.P. Vornado SB 11 L.P. Vornado SB 12 L.P. Vornado SB 14 L.P. Vornado SB 17 L.P. Vornado SB 19 L.P. Vornado SB 2 L.P. Vornado SB 21 L.P. Vornado SB 22 L.P. Vornado SB 24 L.P. Vornado SB 25 L.P. Vornado SB 3 L.P. Vornado SB 4 L.P. Vornado SB 5 L.P. Vornado SB 7 L.P. Vornado SB 8 L.P. Vornado SB 9 L.P. Vornado SB LLC Vornado SC Properties II LLC Vornado SC Properties LLC Vornado Sheffield Mezz Loan LLC Vornado Shenandoah Holdings LLC Vornado Sign LLC Vornado South Hills, LLC Vornado Springfield Mall LLC Vornado Springfield Mall Manager LLC Vornado Square Mile LLC Vornado Suffolk LLC Vornado Sun LLC Vornado Thompson LLC Vornado Title L.L.C. Vornado TOA-Baja II LLC Vornado TOA-Baja LLC Vornado Toys Bridge LLC Vornado Truck LLC Vornado TSQ LLC Vornado Two Penn Plaza L.L.C. Vornado Two Penn Property L.L.C. Vornado W amer Acquisition LLC Vornado Warner GP LLC Vornado Warner Holdings LP Vomado Warner LLC Vomado Waterfront Holdings LLC Vomado West Babylon LLC Vomado Westbury Retail II LLC Vomado Westbury Retail LLC VRT Development Rights LLC VRT Massachusetts Holding L.L.C. VRT New Jersey Holding L.L.C. VSPS ILLC VSPSLLC W amer Investments, L.P. Washington CESC TRS, Inc. Washington Design Center L.L.C. Washington Design Center Subsidiary L.L.C. Washington Mart SPE LLC Washington Mart TRS, Inc. Washington Office Center L.L.C. Watchung VF L.L.C. Watchung VF Member LLC Waterbury VF L.L.C. Waterbury VF Member LLC Wayne VF L.L.C. Wells Kinzie L.L.C. West 57th Street Holding LLC West 57th Street JV LLC West 57th Street Management LLC West Coast Industrial Products LLC West End 25 Developer LLC Woodbridge VF Member LLC Woodbridge VF, L.L.C. WPV San Jose LLC WREC Acquisition LLC WREC Columbus Ave LLC WREC Hyde Park LLC WREC Lido LLC WREC Lido Venture LLC WREC Quadrille LLC WREC San Pasqua! LLC York Holding Company, L.L.C. York Holding Company, L.P. York VF L.L.C. EXHIBIT A {N03S8373.1 ) Tom, J.P., Andrias, Saxe, Moskowitz, Acosta, JJ. 7814 Glenford Morris, Plaintiff-Appellant, -against- Pavarini Construction, et al., Defendants-Respondents. Index 23980/02 Hill & Moin LLP, New York (Cheryl R. Eisberg Moin of counsel), for appellant. London Fischer LLP, New York (David B. Franklin of counsel), for respondents. Order, Supreme Court, Bronx County (Mary Ann Brigantti- Hughes, J.), entered on or about February 10, 2011, which granted defendants' motion for summary judgment dismissing plaintiff's Labor Law§ 241(6) claim, predicated on a violation of 12 NYCRR 23-2.2(a), reversed, on the law, without costs, and upon a search of the record, summary judgment granted to plaintiff. Plaintiff was working as a carpenter on the construction of a new building in Manhattan when the back wall of a "form" fell on and injured his hand. In this instance, a "form" refers.to a mold used in the fabrication of concrete walls. The form is made of two metal walls with a space between them, into which liquid concrete is poured. Workers remove the form after the concrete hardens. In an order entered July 2, 2007, the Court of Appeals 9 directed the motion court to hold a hearing to determine if the words of the regulation at issue here, Industrial Code (12 NYCRR) § .23-2.2(a), "can sensibly be applied to anything but completed forms" (9 NY3d 47, 51 [2007]). This regulation requires that forms used on construction sites "be properly braced or tied together so as to maintain position and shape" (12 NYCRR 23- 2.2 [a] ) . At the framed issue hearing, the 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 concrete 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. The operative language of§ 23-2.2(a) is that forms shall be "braced or tied . . . so as to maintain [their] position and 10 shape." The erection of the back form wall is essentially the first step in this process. It defies common sense to think that the form could be structurally safe and maintain its final position and shape, if the back wall that anchors the structure is prone to falling over and collapsing because there is no requirement that it "be properly braced." The 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 positions without adequate safety bracing and may remain standing for days prior to completion. Defendants' and the dissent's argument that 12 NYCRR 23- 2.2(a) applies only to completed forms is unavailing. Their interpretation of the expert's testimony at the hearing lacks support in the record. Moreover, the cases defendants cite in support of this argument are distinguishable. In Mueller v PSEG Power N.Y., Inc. (83 AD3d 1274 (2011]), the plaintiff's accident occurred after workers had removed the forms from their vertical position and 11 stacked them for disassembly and storage on the ground at the same elevation as the plaintiff. The plaintiff was injured when a crane cable inadvertently snagged, lifting and then dropping the forms to the ground, where they fell against the plaintiff's leg (83 AD3d at 1274) . The Mueller court held that 12 NYCRR 23- 2.2(a) did not apply to the forms, where, at the time of the plaintiff's accident, they were in the process of being stored (83 AD3d at 1275-1276) . Here, the form wall at issue was not being stored. Rather, workers had set up the back wall in its full upright position to receive concrete. In McCormick v 257 W. Genesee, LLC (78 AD3d 1581 [2010]), the plaintiff tripped and fell on a protruding pin workers had stored on a form at the site. Thus, unlike the back wall at issue here, that plaintiff's injury was unrelated to the stability of the structure (id. at 1582-1583) . All concur except Tom, J.P. who dissents in a memorandum as follows: 12 TOM, J.P. (dissenting) The Court of Appeals remanded this matter to the motion court for a framed issue hearing to determine whether the words of regulation 12 NYCRR 23-2.2(a) "can sensibly be applied to anything but completed forms" (9 NY3d 47, 51 [2007]). After the hearing, I find that section 23-2.2{a) 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. The provisions of Industrial Code (12 NYCRR) § 23-2.2 are limited in application to completed forms and to ongoing and completed concrete pours. Thus, section 23-2.2(a) can only be read to apply to fully-assembled concrete forms. Section 23-2.2 is entitled "Concrete Work." The provision at issue, subdivision {a), entitled "General requirements," states as follows: "Forms, shores and reshores shall be structurally safe and shall be properly braced or tied together so as to maintain position and shape." As defined in the Guide to Formwork for Concrete (defendant's exhibit A) and by defendant's expert, shores are horizontal supports used to bear the dead load of the form and concrete when a floor is poured, while reshores are used to support the poured floor as it cures - before the concrete acquires its full strength - including any load caused by shores or reshores supporting the floors above. Thus, these terms are 13 not immediately related to the question before us. The Court of Appeals has already ruled that the phrase "structurally safe" and the term "properly" are too vague to afford a basis for recovery under Labor Law§ 241(6), and while the remainder of 12 NYCRR 23-2.2(a) -"braced or tied together so as to maintain position and shape" - is suitably specific (9 NY3d at 50), there remains the question of whether that language "can sensibly be applied to anything but completed forms" (id. at 51) . The issue is whether the requirement for braces or ties "to maintain position and shape" applies to the period during which forms are being assembled (when plaintiff sustained injury) or whether application of this language is limited to the period during wh.ich concrete is actually poured and thereafter (when the form is fully assembled) . The regulation indicates the latter interpretation is correct. Industrial Code (12 NYCRR) § 23-2.2(b), entitled "Inspection," provides: "Designated persons shall continuously inspect the stability of all forms, shores and reshores including all braces and other supports during the placing of concrete. Any unsafe condition shall be remedied immediately." That inspection is required "during the placing of concrete" strongly suggests that the protections provided by subdivisions (a) and (b) of § 23-2.2 are intended to apply to the structural integrity 14 of concrete forms at such time concrete is being poured. Following subdivisions include requirements for the support of newly poured concrete and the stripping of forms. Thus, section 23-2.2 addresses the need to adequately support concrete during and after its placement, and such matters as the manner in which forms are assembled and their support during assembly are not covered. The expert testimony is consistent with this interpretation. Asked to define the term "form," plaintiff's expert responded: "A form is an assembly of all kinds of components, form panels, wailer [sic] tie[s] and other components, connections, that are put together by the contractor to form the shape of a wall, and make sure that it is they are safe during the placement of the concrete until the concrete changes it's [sic] strength, increases the strength and changes from being a liquid to solid." An exhibit submitted by defendant, the American Concrete Institute's Guide to Formwork for Concrete, contains a more concise definition: "A temporary structure or mold for the support of concrete while it is setting and gaining sufficient strength to be self-supporting." Defendant's expert also defined the term "tie," stating: "A tie in our particular case is usually a steel rod, about a quarter of an inch diameter that ties together two vertical wall panels and the reason you have a tie is . . . the wet concrete has a tendency to spread the forms, so 15 they introduce ties to tie the vertical panels together to hold them in place." Here, only one side of the form was erected when the accident occurred. Thus, the application of a tie would be irrelevant under the facts of this case. That the focus of Industrial Code (12 NYCRR) § 23-2.2(a) is the structural integrity of the form during the placement of concrete is evident from its language, particularly the provision that the position and shape of the form be maintained by ensuring that it is "braced or tied together." While a requirement to brace a form could be extended to include the support of the single vertical wall panel that fell and injured plaintiff, the alternative to utilize ties to accomplish the same purpose can only be applied to a pair of such panels. Likewise, the requirement to maintain the position of a form could apply to a single vertical panel, but the additional requirement that the shape of the form be maintained clearly anticipates the need to provide sufficient support to withstand the considerable force exerted by wet concrete. Only two panels could provide such support. The testimony of plaintiff's own expert supports this interpretation. Indeed, he explained that ties were placed between the walls of a form "to keep it from blowing out and [to] keep it straight." The majority attaches undue significance to the experts' 16 opinions concerning the construction of forms. Their testimony was solicited to obtain "the meaning of specialized terms" used in the regulation; the interpretation of the regulation remains a matter of law for the courts (9 NY3d at 51) . That an expert may opine that forms should be braced during assembly to resist wind loads has no bearing on whether the regulation at issue requires as much. Accordingly, the order should be affirmed and the complaint dismissed. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: SEPTEMBER 4, 2012 17