Glenford Morris, Respondent,v.Pavarini Construction, et al., Appellants.BriefN.Y.January 9, 2014To Be Argued By: DAVID B. FRANKLIN Bronx County Clerk’s Index No. 23980/02 New York Supreme Court APPELLATE DIVISION—FIRST DEPARTMENT GLENFORD MORRIS, Plaintiff-Appellant, —against— PAVARINI CONSTRUCTION and VORNADO REALTY TRUST, Defendants-Respondents. BRIEF OF DEFENDANTS-RESPONDENTS d Of Counsel: DAVID B. FRANKLIN, ESQ. DANIEL ZEMANN, JR., ESQ. DAVID B. FRANKLIN, ESQ. LONDON FISCHER LLP 59 Maiden Lane, 41st Floor New York, New York 10038 (212) 972-1000 dfranklin@londonfischer.com Attorneys for Defendants-Respondents REPRODUCED ON RECYCLED PAPER i TABLE OF CONTENTS TABLE OF CONTENTS................................................................................................................. i TABLE OF AUTHORITIES .......................................................................................................... ii QUESTION PRESENTED..............................................................................................................1 PRELIMINARY STATEMENT .....................................................................................................2 STATEMENT OF FACTS ..............................................................................................................4 ARGUMENT ................................................................................................................................11 I. NEW YORK COURTS HOLD THAT 12 NYCR 23-2.2(a) CAN ONLY BE SENSIBLY APPLIED TO A COMPLETED FORM................11 II. 12 NYCRR 23-2.2(a) CAN ONLY BE SENSIBLY APPLIED TO COMPLETED FORMS THAT ARE BEING USED AS A MOLD FOR CONCRETE………...15 CONCLUSION..............................................................................................................................19 ii TABLE OF AUTHORITIES CASES Ferreti v. Gotham Contractors, Inc. 2010 N.Y. Slip Op. 31883(U) (Sup. Ct. New York County 2010).....................................................................................13 Giordano v. Forest City Ratner Companies, 43 A.D.3d 1106, 842 N.Y.S.2d 552 (2d Dept. 2007) ............................................................................................12 McCormick v. 257 W. Genesee, LLC, 78 A.D.3d 1581, 913 N.Y.S.2d 435 (4th Dept. 2010) ........................................................................................3, 11, 14 McCoy v. Metropolitan Transportation Authority, 75 A.D.3d 428, 904 N.Y.S.2d 50 (1st Dept. 2010) .......................................................................14, 15 Mueller v. PSEG Power New York, Inc., 83 A.D.3d 1274, 922 N.Y.S.2d 588 (3d Dept. 2011) ......................................................3, 11, 14, 17, 18 Mulvihill v. Brooklyn Law School, 22 Misc.3d 1114(a) (Sup. Ct. Kings County 2009) ......................................................................................................13 Yellen v. Rockaway Realty Associates, L.P., 243 A.D.2d 338, 664 N.Y.S.2d 535 (1st Dept. 1997) ...........................................................................................14 STATUTES N.Y. Lab. Law § 200 (McKinney 2009)..............................................................4, 18 N.Y. Lab. Law § 240(1) (McKinney 2009) ..............................................................4 N.Y. Lab. Law § 241(6) (McKinney 2009)..................................................... passim CODES 12 NYCRR 23-2.2(a) ....................................................................................... passim 1 QUESTION PRESENTED Whether a Labor Law §241(6) claim can be sustained where the sole Industrial Code provision relied upon by a Plaintiff is inapplicable to the factual circumstances giving rise to that Plaintiff’s injury? It is respectfully submitted that the trial court correctly determined that the sole Industrial Code provision relied upon by Plaintiff does not apply to the factual circumstances giving rise to Plaintiff’s injury. This Court should affirm the trial court’s decision in all respects. 2 PRELIMINARY STATEMENT In this personal injury action, now before this Court for a second time, this Court is again asked to determine whether Industrial Code 12 NYCRR 23-2.2(a), which provides, in pertinent part, that “forms…shall be properly braced or tied together so as to maintain position and shape,” can be sensibly applied to anything other than a completed “form.” The trial court correctly held that it can not, just as this Court did when considering the identical issue in 2006. A “form” is a temporary structure consisting of two walls which are tied together, into which liquid concrete is poured. Concrete can not be poured until both walls of the form have been built and secured together. Once a form is fully assembled, its purpose is to “form” the concrete into its desired solidified shape by serving as a mold to support the concrete while it is solidifying and gaining sufficient strength to be self-supporting. The purpose of Industrial Code 12 NYCRR 23-2.2(a), which falls under the section entitled “Concrete Work,” is to ensure that when large quantities of liquid concrete are poured into a completed form, the form maintains its position and shape as the concrete is solidifying. This serves to prevent against potential injury to workers resulting from the collapse or explosion of the form under the hydrostatic pressure of the concrete. Despite the creative characterization by counsel, the object that allegedly caused Plaintiff’s injury was not a “form,” but was instead only the back 3 wall of what would eventually become a form. The front wall of this “form” had not yet been built, and concrete was therefore not yet ready to be poured. The language of 12 NYCRR 23-2.2(a) can only be applied to completed forms, and can not be sensibly applied to a lone-standing wall such as the one which shifted and injured Plaintiff. Until the front wall of a form is built, there is nothing for the back wall to be “tied together” to; until both walls of a form are built and tied together, there is no “position and shape” to be maintained; and until the concrete is poured, there is, quite simply, nothing to form. Plaintiff’s primary contention is essentially that safety measures need to be taken to ensure that a lone back wall of a form does not topple over and injure someone. Of course such measures should be taken. But that is not the issue before this Court. Regardless of whether other requirements such as industry standards or common law tort obligations required this wall to be braced to prevent it from injuring Plaintiff, this code provision did not require it, as it only applies to completed forms which are being used as a mold for concrete. Plaintiff’s attempt to stretch the meaning of “form” to encompass the lone-standing wall which caused his injury is inconsistent with the language and purpose of 12 NYCRR 23-2.2(a), common sense, and the recent decisions of the Third and Fourth Departments, which expressly hold that 12 NYCRR 23-2.2(a) 4 does not apply until a completed form is being used as a mold for concrete.1 Plaintiff’s argument that this lone-standing wall can somehow be considered a “form” is, as colorfully described by the trial court, nothing more than “clever word play.” (R. A5-6)2. It is now time for Plaintiff’s “clever word play” to come to an end. Case law, expert testimony, and common sense all demonstrate that the language of this provision can not be sensibly applied to the lone-standing wall which caused Plaintiff’s injury. Plaintiff’s Labor Law §241(6) claims were correctly dismissed by the trial court, and this Court should affirm the trial court’s ruling in all respects. STATEMENT OF FACTS A. Procedural History of the Case 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 at the job site, Vornado Realty Trust and Pavarini Construction (collectively “Defendants”), in the Supreme Court, Bronx County, in 2002, claiming violations of Labor Law §§240(1), 241(6), and 200. (R. A212-216) Plaintiff alleged that part of the wall of an uncompleted form shifted and pinned 1 See Mueller v. PSEG Power New York, Inc., 83 A.D.3d 1274, 922 N.Y.S.2d 588 (3rd Dept. 2011); McCormick v. 257 W. Genesee, LLC, 78 A.D.3d 1581, 913 N.Y.S.2d 435 (4th Dept. 2010). 2 References to the Record on Appeal are to “(R. ____).” 5 his right hand against a nearby steel beam. (R. A271-274). On February 3, 2005, the court granted Defendants’ motion for summary judgment dismissing Plaintiff’s claims brought under Labor Law §§240(1) and 200, but declined to dismiss Plaintiff’s Labor Law 241(6) claims. (R. A599-604). Defendants then appealed to this Court. (R. A605). In an order dated June 8, 2006, this Court analyzed whether 12 NYCRR 23- 2.2(a) could be used by Plaintiff as a basis for a Labor Law §241(6) claim, in light of the fact that that the “form” which struck Plaintiff had not yet been completed. (R A605-606). This Court held that it could not, and dismissed Plaintiff’s Labor Law §241(6) claim. Specifically, this Court held, “[s]ince the form at issue was still in the process of being created, 12 NYCRR 23-2.2(a) is inapplicable, and Plaintiff’s 241(6) claim predicated on that provision, fails.” (R. A606). The Court of Appeals then granted leave to appeal at 8 N.Y.3d 801(2007). In its Order dated July 2, 2007, the Court of Appeals first analyzed 12 NYCRR 23- 2.2(a) to determine whether it was sufficiently specific to serve as the basis for a Labor Law 241(6) claim. (R. A608-609). The Court explained: Thus, plaintiff here can recover only if he shows a violation of a specific regulatory requirement. The regulation he relies on is 12 NYCRR 23-2.2 (a), which says in relevant part: ‘Forms . . . shall be structurally safe and shall be properly braced or tied together so as to maintain position and shape.’ The words ‘structurally safe’ and the adverb ‘properly’ are not specific enough to be a basis for Labor Law § 241 (6) liability, but the 6 words ‘braced or tied together so as to maintain position and shape’ impose more specific requirements. Plaintiff has alleged that those requirements were violated. Defendants assert, and the Appellate Division held, that there was no violation. (R. A608-609). The Court of Appeals declined to pass judgment on whether the provision could apply to these facts, holding that it was “premature” to do so on the record before it, and remanded the case for further proceedings. (R. A609). Specifically, the court noted: 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.” (R. A609). B. Framed Issue Hearing On March 15, 2010, in accordance with the directives of the Court of Appeals, a framed issue hearing was held before the Hon. Justice Maryann Brigantti-Hughes, during which four witnesses testified regarding the meaning of the terms used in the code provision, the nature of the object that caused Plaintiff’s injury, the manner in which forms are constructed, and the safety considerations taken into account when concrete is poured into a completed form. 7 Benjamin Levon, P.E., Defendants’ expert engineer who is highly qualified in the area of concrete construction3, testified that a form is an assembly of components used to form the shape of a wall. (R. A17). A form consists of two walls which are connected with ties and spacers in the middle. (R. A28). Once all of the components of a form have been assembled, the two walls tied together, and it has been inspected to ensure that all form components will stay in place when the concrete is poured, the construction of the form has been completed, and concrete can then be poured into the form. (R. A34). Specifically, liquid concrete is poured into the completed form, which slowly strengthens and solidifies, and ultimately forms the shape of a wall. (R. A17). Mr. Levon went on to explain the safety measures necessary to ensure that the form remains stable during the placement of the concrete. Specifically, he explained the role of the two safety devices enumerated in the code provision, “braces” and “ties.” He testified that the purpose of a brace is “to hold the form in place so it won’t move and shift….during the placement of concrete.”(R. A30)(emphasis added). Mr. Levon testified that a “tie” is usually a steel rod or flat piece of steel that ties together the two vertical walls of a form. (R. A31). He explained that when liquid concrete is poured, it has a tendency to spread the two walls apart, and the ties therefore serve to hold the two walls together and allow 3 Mr. Lavon’s credentials can be found at (R. A15-A17). 8 the form to remain stable and maintain the same shape and position as the concrete is solidifying. (R. A31-32). He confirmed that the braces and ties are installed to ensure safety when concrete is being poured. (R. A27-28). Mr. Levon confirmed that concrete can not be poured until all form components, including a back wall and a front wall, have been installed. (R. A28). Nicholas Belizzi, a purported expert in engineering4, and Jeffrey Wojtaszek, a union carpenter, both testified on behalf of Plaintiff. Their description of the terms involved in the statutes did not differ significantly from that of Mr. Levon. Specifically, both Mr. Belizzi and Mr. Wojtaszek confirmed that a completed form consists of two separate walls, a front and a back. (R.A86, A94). The two walls are held together by a tie, which is only necessary once both walls have been constructed. (R. A94-95). They also confirmed that concrete can not be poured until both walls have been built. Mr. Belizzi also noted that as each of the two walls of a form are put up, measures should be taken to ensure the structural stability of each wall. (R. A82). However, the purpose of such bracing is not to “maintain position and shape,” but rather to make sure that the individual wall “doesn’t topple over during the period 4 Mr. Belizzi was qualified as an expert over stringent defense objection, as Mr. Bellizzi’s qualifications clearly indicated he is only an expert in roadway construction and related Traffic control issues, and not concrete construction of that type at issue in this case. Defendants were given the opportunity to voir dire Mr. Bellizzi on his qualifications, and although the Court initially granted the application to preclude Mr. Bellizzi from testifying, it later ruled that he could testify over Defendants’ objection. 9 it is standing.” (R. A75). Mr. Belizzi explained that “without that stability, without that structural support, the wall is basically not supported properly.” (R. 79-80). Both of Plaintiff’s witnesses made clear that there is a difference between bracing a wall to make sure that it doesn’t topple over, and ensuring that a completed form is sufficiently braced to maintain its position and shape when being used as a mold for concrete. (R. A83-84, 95) Mr. Belizzi testified as follows: Q: What’s the significance of concrete pouring in terms of bracing forms? A: The significance is at that point or when you are going to pour the concrete, the weight, the live load that is applied to the form increases so the bracing you may have had prior to the pouring of the concrete may not be sufficient for the pour…you have to beef up your bracing…for the concrete.” (R. A83-A84) C. Trial Court’s December 15, 2010 Order Following the framed issue hearing, Justice Brigantti-Hughes determined that in light of the expert testimony, 12 NYCRR 23-2.2(a) could not be sensibly applied to the object which caused Plaintiff’s injury, and dismissed Plaintiff’s Labor Law §241(6) claims. (R. A5-6). First, the court addressed Plaintiff’s contention that one wall of a form assembly can be considered a “form” under the provision. The court rejected this contention, explaining: 10 I am uncomfortable with that position. I believe it is clever word play. Is a quarter panel a car? A fender? A hood? All of them put together is a car but not before. (R. A5). The court reasoned that the language and purpose of the statute could not support Plaintiff’s interpretation that requirements of the provision applied to the object which injured him. The court explained: It seems the key words of the regulations are ‘…maintain position and shape.’ The shape of the form determines the shape of the wall. The shape is important and must be maintained. The wall must be of a certain size, width, height, etc. The form wall once finished doesn’t do anything but sit there till it becomes part of a form. For 241(6) purposes the ‘back form wall’ must be judged only as part of the entire form. (R. A5) Finally, the court addressed the fact that individual form walls must be braced during construction of the form, and held that this requirement does not affect the applicability of 12 NYCRR 23-2.2(a), and does not allow Plaintiff to recover against the defendants. The court noted: Should a ‘form wall’ be properly braced so it doesn’t injure workers? Of course, and so must the ground must be free of obstructions workers [sic] don’t fall. But that’s not a 241(6) violation-it’s a 200 violation. [200 and negligence claims here were dismissed; if the negligence was by the plaintiff’s employer, the Workmen’s Compensation law bars plaintiff; if the negligence was by another contractor plaintiff is barred by the statute of limitations.] 11 (R.A5-6). Plaintiff now appeals from the trial court’s December 15, 2010 order. ARGUMENT POINT I NEW YORK COURTS HOLD THAT 12 NYCRR 23-2.2(a) CAN ONLY BE SENSIBLY APPLIED TO A COMPLETED FORM In remanding this matter to the trial court, the specific directive of the Court of Appeals was to determine “whether the words of the regulation can sensibly be applied to anything but completed forms.” (R. A608). Plaintiff has not cited a single decision from any appellate court in the State of New York which holds that the requirements of 12 NYCRR 23-2.2(a) apply to a single wall of an uncompleted form before concrete has been poured, because no such cases exist. However, the Third and Fourth Departments have both recently addressed the applicability of 12 NYCRR 23-2.2(a), and have held that the provision does not apply to anything other than completed forms being used as a mold for concrete. See Mueller v. PSEG Power New York, Inc., 83 A.D.3d 1274, 922 N.Y.S.2d 588 (3rd Dept. 2011); McCormick v. 257 W. Genesee, LLC, 78 A.D.3d 1581 (4th Dept. 2010). Curiously, these two cases were absent from Plaintiff’s brief. 12 In Mueller v. PSEG Power New York, Inc., 83 A.D.3d 1274, 922 N.Y.S.2d 588 (3rd Dept. 2011), the Third Department expressly held that the code provision does not apply, and can not form a basis for a Labor Law §241(6) claim, until concrete is being poured into a completed form. In analyzing the statutory language, the court held, “forms only need ‘to maintain position and shape’ (12 NYCRR 23-2.2[a]) when they are being used to mold the concrete…” Id. at 1276. The court went on to explain that “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.” Id. (emphasis added). Similarly, the Fourth Department has also taken the position that this provision does not apply until concrete has been poured. In McCormick v. 257 W. Genesee, LLC, 78 A.D.3d 1581, 913 N.Y.S.2d 435 (4th Dept. 2010), the Fourth Department held that 12 NYCRR 23-2.2 did not apply and could not form a basis for a Labor Law §241(6) claim, reasoning that “plaintiff’s injury was not caused by an unstable form, shore or bracing during the placement of concrete.” Id. at 1583, 437(emphasis added). The only appellate decision cited by Plaintiff on this issue is Giordano v. Forest City Ratner Companies, 43 A.D.3d 1106, 842 N.Y.S.2d 552 (2nd Dept. 2007), the holding of which was grossly misstated in Plaintiff’s brief. In Giordano, the plaintiff was injured while constructing a form, and before concrete 13 was poured. Id. at 1108, 553. The court, relying on the Court of Appeals decision in this case, declined to grant summary judgment to the defendants solely on the grounds that the defendants had not submitted any expert testimony to demonstrate that the wording of 12 NYCRR 23-2.2(a) could not be sensibly applied to anything other than completed forms. Id. at 1108, 553-554. Plaintiff’s brief fails to include the court’s reasoning in denying summary judgment, and instead disingenuously declares that, “[c]learly, 12 NYCRR 23-2.2(a) was held applicable to forms that were not complete.” (Brief of Plaintiff at p. 20). The Giordano court did not hold that NYCRR 23-2.2(a) was applicable to forms that were not yet complete; indeed, no Appellate Court in the state of New York has taken that position. The Giordano court only held that because the defendants there had not submitted expert testimony regarding the meaning of the code provisions, they had not met their prima facie burden for summary judgment. Giordano, supra at 1108, 553- 554. Rather than squarely addressing the most prominent appellate decisions on the issue, Plaintiff chose to ignore these cases, and instead apparently scavenged through a host of non-binding trial court decisions with the hope of pecking out any legal language which may tangentially support his untenable position. However, none of the cases cited by Plaintiff address the discrete issue before this Court; whether 12 NYCRR 23-2.2(a) can apply to a component of a 14 form before the form has been completed, and the holding of these cases were misstated by Plaintiff in his brief. For example, in Ferreti v. Gotham Contractors, Inc. 2010 N.Y. Slip. Op. 31883(U) (Sup.Ct. New York County 2010), the court did not, as claimed by Plaintiff, hold that 12 NYCRR 23-2.2(a) was applicable. (Brief of Plaintiff at p. 20). Instead, the court only held that there was an issue of fact precluding summary judgment; it did not make a ruling either way on whether 12 NYCRR 23-2.2(a) was applicable. In any event, Ferreti is merely a trial court opinion, which appears to have been wrongly decided, and it is not binding on this court. In Mulvihill v. Brooklyn Law School 22 Misc.3d 1114(a)(Sup. Ct. Kings County 2009), the plaintiff was injured by a falling reshore while removing parts of a form. The plaintiff’s claim primarily implicated different subsections of 12 NYCRR 23-2.2 dealing with inspection of forms after concrete has been poured and requirements for reshoring. The court did not make a ruling on whether either of the provisions applied, and instead merely found that there was an issue of fact precluding summary judgment. Id. Mulvihill is a trial court opinion from Kings County which was not even published as a reported decision, deals with a different factual scenario, and appears to have been wrongly decided. It is not binding on this Court and this Court need not, and should not follow it. In short, the Third and Fourth Departments, along with this Court in its 2006 decision in this case, have all taken the same position as the trial court that 15 12 NYCRR 23-2.2(a) only applies to completed forms which are being used as a mold for concrete. Plaintiff has not cited a single case which supports his assertion that 12 NYCRR 23-2.2(a) can be sensibly applied to the object which injured him: a lone wall of an uncompleted form. POINT II 12 NYCRR 23-2.2(a) CAN ONLY BE SENSIBLY APPLIED TO COMPLETED FORMS THAT ARE BEING USED AS A MOLD FOR CONCRETE The expert testimony adduced at the framed issue hearing confirms that 12 NYCRR 23-2.2(a) can only be sensibly applied to completed forms that are being used as a mold for concrete, and fully supports the decision of the trial court here, the holding of this Court in 2006, as well as the holdings of the Third Department in Mueller, supra, and the Fourth Department in McCormick, supra. In order to establish a Labor Law §241(6) violation, a plaintiff must first establish that a specific provision of the Industrial Code is applicable to the circumstances of the case. See Yellen v. Rockaway Realty Associates, L.P. 243 A.D.2d 338, 339, 664 N.Y.S.2d 535, 536. Here, the only provision relied upon by Plaintiff is 12 NYCRR 23-2.2(a). In McCoy v. Metropolitan Transportation Authority, 75 A.D.3d 428, 904 N.Y.S.2d 50 (1st Dept. 2010), this Court explained the proper method of analyzing whether an Industrial Code provision applies to the facts of a particular case, i.e., “whether a regulation applies will depend on how and for what purpose the 16 equipment is used, not on its label or name.” Id. at 429, 52 (emphasis added). Despite this, Plaintiff has attempted, painstakingly, to label one wall of an uncompleted form as a “form,” an effort which the trial court appropriately criticized as “clever word play.” In determining what type of object 12 NYCRR 23-2.2(a) can sensibly be applied to, the trial court properly focused on the language of the statute and the purpose served by the object in question, rather than on Plaintiff’s sleight-of-hand method of attempting to manipulate the label used to refer to the object which injured him. In doing so, the trial court correctly noted that “the key words of the regulations are ‘maintain position and shape.’ (R. A5). Though a completed form and the “form wall” which injured Plaintiff may have similar-sounding names, they do not have the same purpose. The purpose of a form is to serve as a mold for a concrete wall, and in doing so, to “form” the shape of the concrete as it solidifies and hardens. The positioning of the two walls of the form and the amount of space between them must remain constant, as it determines the ultimate shape that the liquid concrete will take once it solidifies and becomes a wall. (R. A17, A28). Accordingly, it is important for the two walls of the form be braced and tied together as the concrete is being poured in order to ensure that the form remains stable and maintains the same position and shape while the concrete is hardening. (R. A17, A28). Significantly, if the form does not 17 maintain its position and shape while the concrete is being poured, the form may collapse or explode under the hydrostatic pressure of the concrete, which can cause serious injury to workers in the area. Therefore, it is clearly sensible to apply 12 NYCRR 23-2.2(a) to a completed form to ensure that it can withstand a concrete pour. On the other hand, it makes absolutely no sense to apply the language of 12 NYCRR 23-2.2(a) to the object which injured Plaintiff. Unlike a completed form, which serves the purpose of acting as a mold for concrete, a lone wall of an uncompleted form does not yet have a purpose; as the trial court accurately noted, it “doesn’t do anything but sit there till it becomes part of a form.” (R. at A6). Moreover, a wall of an uncompleted form, standing alone, has no relevant position and shape to maintain. Indeed, it does not serve as the “shape” for anything; the “shape” of a lone wall is irrelevant until the second wall has been built and the two walls are tied together. Accordingly, 12 NYCRR 23-2.2(a), which requires that “forms” be “braced or tied together to maintain position and shape” can not be sensibly applied to the lone “form wall” which injured Plaintiff, as it did not yet have any relevant “position and shape” to maintain, and could not have been “tied together” to any other wall to in order to maintain such position and shape. The Court of Appeals explained in this case that an Industrial Code Provision can only form the basis for a Labor Law §241(6) claim where “the 18 regulation in question contains a ‘specific, positive command,’ and not where the regulation itself…merely incorporates “the ordinary tort duty of care” (R. at A306). The Court of Appeals explicitly held that that language of 12 NYCRR 23- 2.2(a)requiring a form to be “structurally safe” is not actionable under Labor Law §241(6). Instead, the only portion of the provision which is actionable is the “specific, positive command” which requires owners and general contractors to ensure that forms are “braced or tied together so as to maintain position and shape.” This specific, positive command applies only to completed forms which must withstand the force of a concrete pour; it does not refer to the generalized concern of a wall falling on someone due to wind, or being bumped into. See Mueller, supra. Plaintiff has focused on testimony indicating that measures should be taken to brace a back wall of a form even before the front wall is constructed. In short, Plaintiff’s argument is that because a wall must be braced to ensure that it doesn’t fall on anyone, 12 NYCRR 23-2.2(a) must therefore apply to the facts of this case. However, that is not the harm that the “specific, positive command” of 12 NYCRR 23-2.2(a) is directed to address. Instead, the specific harm sought to be prevented by this provision is completed forms giving way due to increased stress when concrete is poured into them. (R. A28). Indeed, Plaintiff’s own expert confirmed that the stress upon a form when concrete is being poured is far greater than the 19 pressure which a lone form wall may face from factors such as wind and vibrations, which is why completed forms require stronger bracing that individual form walls. (R. A83-84). This was also confirmed by the court in Mueller, supra. There, the plaintiff was injured by a completed form which had not yet been used to receive concrete. Id. at 1274, 589-590. The court held that as a result, 12 NYCRR 23-2.2[a] did not even apply to the completed form which struck Plaintiff, reasoning that, “forms only need ‘to maintain position and shape’ when they are being used to mold the concrete.” Id. at 1276, 591. Thus, while Plaintiff correctly notes that a lone wall of a form should be properly stabilized to ensure that it doesn’t fall and injure a worker, that has nothing to do with the specific command of 12 NYCRR 23-2.2(a); it merely refers to an ordinary duty of care which is outside the scope of Labor Law 241(6) and governed only by Labor Law §200. Here, it has already been determined, as a matter of law, that these Defendants are not liable to Plaintiff under Labor Law §200. (R. A5-6). CONCLUSION For the foregoing reasons, this Court should affirm the ruling of the trial court in all respects dismissing Plaintiff’s claims brought pursuant to Labor Law 241(6). 20 Dated: New York, New York March 21, 2012 LONDON FISCHER LLP By: David B. Franklin Attorneys for Defendants-Respondents PAVARINI CONSTRUCTION and VORNADO REALTY TRUST 59 Maiden Lane New York, New York 10038 (212) 972-1000 /s/ David B. Franklin PRINTING SPECIFICATIONS STATEMENT This computer generated brief was prepared using a proportionally spaced typeface. Name of typeface: Times New Roman Point size: 14 Point Line spacing: Double Spaced The total number of words in the brief, inclusive of point headings and footnotes and exclusive of pages containing the table of contents and certificate of compliance is 4,603.