Marie Bradley,, et al., Appellants,v.HWA 1290 III LLC, et al., Respondents.BriefN.Y.October 10, 2018New York County Clerk’s Index No. 157576/12 New York Supreme Court APPELLATE DIVISION — FIRST DEPARTMENT MARIE BRADLEY, as Administratrix for the Estate of EDWARD BRADLEY (Deceased), and MARIE BRADLEY, Individually, Plaintiffs-Respondents, against HWA 1290 III LLC, HWA 1290 IV, LLC, HWA 1290 V LLC, and UNITED ELEVATOR CONSULTANTS SERVICE, INC., Defendants-Appellants. >> >> To Be Argued By: Brian J. Isaac BRIEF FOR PLAINTIFFS-RESPONDENTS SCHWARTZAPFEL LAWYERS, P.C. Attorneys for Plaintiffs-Respondents By: POLLACK, POLLACK, ISAAC & DE CICCO, LLP Appellate Counsel 225 Broadway, Suite 307 New York, New York 10007 212-233-8100 bji@ppid.com Of Counsel: Brian J. Isaac Kenneth J. Gorman Printed on Recycled Paper i TABLE OF CONTENTS Page TABLE OF AUTHORITIES...........................................ii PRELIMINARY STATEMENT...........................................1 STATEMENT OF THE CASE...........................................2 ARGUMENT.......................................................15 POINT I THE RECORD CLEARLY ESTABLISHED THE CAUSE OF DECEDENT’S DEATH..........................................15 POINT II PLAINTIFF’S THEORIES OF LIABILITY ARE VIABLE AND SUPPORTED BY RECORD EVIDENCE..............................17 CONCLUSION.....................................................27 PRINTING SPECIFICATIONS STATEMENT..............................28 ii TABLE OF AUTHORITIES State Cases Adlam v. Konvalinka, 291 NY 40 [1943]..........................26 Allen v. Cloutier, 44 NY2d 290 [1978]..........................24 Alvarez v. 21st Century Renovation, 66 AD3d 534 [1st Dept. 2009] ................................15 Andre v. Seem, 234 AD2d 325 [2d Dept. 1996]....................19 Auliano v. 145 E. 15 St., 129 AD3d 469 [1st Dept. 2015]........20 Barzaghi v. Maislin Transp., 115 AD2d 679 [2d Dept. 2005] ................................25 Basso v. Miller, 40 NY2d 233 [1976]............................23 Borshowski v. B. Altman, 280 AD 599 [1st Dept. 1952], affd., 306 NY 798 [1954] .......24 Bryan v. 250 Church Assoc., 60 AD3d 578 [1st Dept. 2009].......15 Caraballo v. Paris Maintenance, 2 AD3d 275 [1st Dept. 2003] .................................16 Coastal Sheet Metal v. Martin Assoc., 63 AD3d 617 [1st Dept. 2009] ................................15 Cochrane v. Owens-Corning, 219 AD2d 557 [1st Dept. 1995] ...............................20 Cohn v. Lionel Corp., 21 NY2d 559 [1968].......................20 Colt v. A&P, 209 AD2d 294 [1st Dept. 1994].....................15 Cruz v. LIRR, 22 AD3d 45` [2d Dept. 2005]......................27 Daurizio v. Merchants’ Despatch Transp. Co., 152 Misc. 716 [Sup Ct. 1934] ............................21, 22 DeMaria v. RBNB 20 Owner, LLC, 129 AD3d 623 [1st Dept. 2015] ...........................20, 23 DeParis v. Womens National Repub. Club, 148 AD3d 401 [1st Dept. 2017] ...............................16 iii Derdiarian v. Felix Contracting Corp., 51 NY2d 308 [1980] ..........................................19 Dickert v. NYC, 268 AD2d 343 [1st Dept. 2000]..................20 Dollas v. WR Grace, 225 AD2d 319 [1st Dept. 1996]..............20 Donnelly v. Treeline Cos., 13 AD3d 143 [1st Dept. 2004]........19 Gasper v. Ford, 13 NY2d 104 [1963].............................24 Gkanios v. Greek Orthodox Comm., 193 AD2d 576 [2d Dept. 1993] ................................25 Gonzalez v. NYCHA, 77 NY2d 663 [1991]..........................16 Greenidge v. HRH Constr., 279 AD2d 400 [1st Dept. 2001]........16 Griffith v. Southbridge, 248 AD2d 162 [1st Dept. 1998].........19 Hartnett v. Channel, Inc., 97 AD3d 416 [1st Dept. 2012]....25, 26 Hayes v. Riverbend Hous., 40 AD3d 500 [1st Dept. 2007].........26 Hess v. Bernheimer & Schwartz, 219 NY 415 [1916]...............24 Jacqueline S. v. NYC, 81 NY2d 288 [1993].......................25 Joachim v. AMC Multi-Cinema, 129 AD3d 433 [1st Dept. 2015].....20 Jock v. Fein, 80 NY2d 965 [1982]...............................24 Kellman v. 45 Tiemann Assoc., 87 NY2d 871 [1995]...............25 Kerby v. Montgomery Bros., 197 NY 27 [1909]....................26 Knutson v. Sand, 282 AD2d 42 [2d Dept. 2001]...................20 Koulermos v. A.O. Smith, 137 AD3d 575 [1st Dept. 2016].........15 Landry v. GMC, 210 AD2d 898 [4th Dept. 1994]...................27 Leosovich v. 180 Madison, 81 NY2d 982 [1993]...................25 McCullough v. One Bryant Park, 132 AD3d 491 [1st Dept. 2015] ............................................15 Patrolmens Benevolent v. NYC, 27 NY2d 410 [1971]...............20 iv Personius v. Mann, 20 AD3d 616 [3d Dept. 2005], affd. in rel. pt., 5 NY3d 857 [2005] ..............................26 Powers v. 31 E. 31 LLC, 24 NY2d 845 [2014].....................24 Rivera v. NYC, 212 AD2d 403 [1st Dept. 1995]...................20 Rogers v. Dorchester Assoc., 32 NY2d 553 [1973]................23 Russin v. Jackson Hts. Shopping Center, 27 NY2d 103 [1970] ..........................................24 Salgado v. PA, 105 AD3d 417 [1st Dept. 2013]...................15 Sawyer v. Dreis & Krump Mfg., 67 NY2d 328 [1986]...............25 Scurti v. NYC, 40 NY2d 433 [1976]..............................23 Sillman v. 20th Century Fox, 3 NY2d 395 [1957].................20 Simon v. Schenectady N. Congregation of Jehovah’s Witnesses, 132 AD2d 313 [3d Dept. 1987] .....................22 Swerdlow v. WSK Properties Corp., 5 AD3d 587 [2d Dept. 2004] ..................................19 Tagle v. Jakob, 97 NY2d 165 [2001].............................23 Torres v. Industrial Container, 305 AD2d 136 [1st Dept. 2003] ...............................15 Walsh v. Supervalue, 76 AD3d 371 [2d Dept. 2010]...............26 Wellington v. Manmall LLC, 70 AD3d 401 [1st Dept. 2010] ................................16 Wiener v. Ga-Ro Die Cutting, 104 AD2d 331 [1st Dept. 1984], affd., 65 NY2d 732 [1985] ...................................20 Wistinetz v. Goldman, 154 AD 829 [2d Dept. 1913]...............23 State Statutes Code § 23-1.13(b)(iii)..........................................4 Labor Law § 200............................................passim Labor Law § 200 and § 241(6) (355-356)..........................4 Plaintiffs’ Labor Law § 241(6)......................4, 11, 12, 14 v Regulations 29 CFR 1910, 335(a)(l)(i) and 29...............................12 29 CFR 1910.132(d)(1)(a).......................................13 29 CFR 1910.132(d)(1)(a) (551-552).............................27 29 CFR 1910.335(a)(1)(i)...................................13, 27 Other Authorities 52 NY Jur. 2d Employment Relations § 268.......................21 52 NY Jur. 2d Employment Relations § 378.......................21 1 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION, FIRST DEPARTMENT --------------------------------------X Index # 157576/12 MARIE BRADLEY AS ADMINISTRATRIX FOR THE ESTATE OF ED BRADLEY, (DECEASED) AND MARIE BRADLEY, INDIVIDUALLY, RESPONDENTS’ BRIEF Plaintiffs-Respondents, -against- HWA 1290 III LLC, HWA 1290IV, LLC, HWA 1290 V LLC and UNITED ELEVATOR CONSULTANTS SERVICE, INC., Defendants-Appellants --------------------------------------X PRELIMINARY STATEMENT The plaintiffs Marie Bradley as Administratrix for the estate of Edward Bradley (deceased) and Marie Bradley, individually (hereinafter the “plaintiff”) submit this brief in response to the brief submitted by defendants-appellants HWA 1290 III LLC, HWA 1290IV, LLC, HWA 1290 V LLC and United Elevator Consultants Service, Inc. (hereinafter the “defendant[s]”) in connection with the appeal (3-4)1 they took from a decision and order of the Supreme Court, New York County (Billings, J.), as denied those branches of their motion for summary judgment seeking dismissal of plaintiffs’ Labor Law §200 and common law negligence claims. It is respectfully submitted that the decision and order regarding these claims was correct and should be affirmed. 1 Numbers in parenthesis refer to the record on appeal. 2 STATEMENT OF THE CASE The HWA 1290 defendants (“the building defendants”), owned the building located at 1290 Avenue of the Americas (the “building”) and contracted defendant United Elevator Consultants Service, Inc. (“United”) to modernize the building’s elevator system and corresponding machine rooms; the project commenced in January 2012 (7, 150). The building was 43 stories and contained 32 elevators that were divided into 4 elevator banks. Each elevator bank had a corresponding machine room (176). United drafted specifications and managed the construction project, which included inspecting elevators and the machine rooms (212-213). Defendants retained Schindler Elevator Corporation (“Schindler”) to work on the project (213). The decedent, Edward Bradley (the “decedent”) was an elevator mechanic employed by Schindler (282, 351-352). The decedent had been the building’s resident elevator mechanic for at least 5 years prior to his untimely death (393). Juan Melendez, a Schindler Elevator employee who worked as the decedent’s helper, testified that the decedent’s job was to maintain and service the elevators (148-149). Melendez testified that decedent, in his role as the building’s elevator mechanic “need[ed] two guys all the time” “for safety reasons” (149). In July 2010, United prepared a contract for defendant HWA, which stated in relevant part: 3 “contractor shall provide one dedicated mechanic and one helper to spend approximately Forty (40) hours per week, on site during the normal working hours of 8:00 a.m. to 4:30 p.m. Monday through Friday”. (215). The contract, which expired in 2013 was in effect on March 28, 2012, the date decedent was killed (215). However, Melendez was removed as the decedent’s helper and reassigned to the modernization project fulltime (150-151). Decedent was never provided with a replacement partner to work alongside him a and there were no elevator personnel available to assist the plaintiff on the day he died (151). On the date of the accident, decedent was working inside an electrical control cabinet that was located in the elevator motor room on the 9th floor of the building (348, 349, 382-391). Decedent was found dead “from electrocution in the elevator machine room . . . in front of an open electrical cabinet, which housed an elevator control panel” (7). While the record is unclear as to what activity decedent was engaged in when he was in the motor room on the 9th floor at the time of his death, it was uncontested that “decedent’s right bicep, the right side of his torso, and his chest were in contact with a transformer in the electrical cabinet and were burned from electrocution” (15). Douglas Smith, the inspector for the New York City Department of Citywide Administrative 4 Services, who investigated decedent’s death concluded that decedent’s accident occurred at 3:30 p.m. and that he was alone when the incident occurred (296). According to the medical examiner’s report, the cause of death was “electrocution” and the manner of death was determined to be an “accident (right arm contacted electrical transformer)” (375). Numerous photographs were taken at the scene before decedent’s body was removed which clearly depicted a handheld meter and handheld light next to his body (564-566, 708-711). The plaintiffs commenced this action to recover damages for personal injuries and wrongful death by filing a supplemental summons and amended verified complaint dated January 17, 2014 (140-143). Issue was joined with service of defendants’ verified answer on April 9, 2014, which denied the material allegations of the complaint and asserted various affirmative defenses (144- 146). Plaintiffs subsequently alleged violations of Labor Law §200 and §241(6) (355-356). Plaintiffs’ Labor Law §241(6) claim was premised on violations of Industrial Code § 23-1.13(b)(iii) requiring warnings about electrical hazards and § 23-1.30, requiring adequate lighting (355-358). 5 Juan Melendez’s depositon At his examination before trial, Juan Melendez testified that the lighting conditions in the area where decedent was killed were poor: Q: When you would be there on a somewhat daily basis when you were a helper, would - can you describe what the lighting was like in the ninth-floor machine room? A: They wasn’t that good at all, Q: If you were to say whether the lighting was poor, good or excellent, what would you say? A: It was poor. * * * Q. Could that ever be a problem [the lighting] for someone working in that room? A. Yes. Q. How so? A. Well, sometimes we have to use like a little flashlight to look into what we were looking inside the cabinet, Q. Because you couldn’t see otherwise? A. Yes. (153). With regard to the transformers inside the control cabinet, Mr. Melendez stated that if you touched them it would cause the person to be electrocuted (153). More importantly, “the ninth 6 floor machine room itself in the area of the cabinets was not well lit to access that electrical equipment” (153). Mr. Melendez further testified that the micron transformers inside the control cabinet did not have covers (153). This was problematic because one could “make contact with [the transformer]” “[b]y mistake” (153). When United Elevators came and did “routine inspections” they “look[ed] in the interior of those cabinets” (154). The following colloquy took place with regard to covers for transformers: Q. To your knowledge, as somebody working in elevator mechanics for the amount of time that you have, did they make covers for transformers like that? A. Do they make covers? Q. Yes. A. Yes. Q. But for whatever reason there were no covers on the transformers in that building? A. No. Q. Was that the same in every cabinet in every machine room? A. Yes. Q. So that would include for Elevator Car No. 3 in the ninth floor machine room? A. Yes. (154). 7 Mr. Melendez stated that the poor lighting conditions also applied “to the Elevator No. 3’s cabinet in the ninth floor machine room” (154). Douglas Smith’s deposition Douglas Smith, the inspector for the New York City Department of Citywide Administrative Services, who investigated decedent’s death, testified that decedent’s body was draped over the second of three transformers in the control cabinet (280). According to Mr. Smith’s report, the decedent’s “right arm made contact with the 208 volt transformer wire and grounded another part just under his right armpit” (283). When asked what information he utilized when reaching this conclusion, Mr. Smith stated that “the medical examiner showed [him] the contact points on Mr. Bradley’s body” (283). The marks on decedent’s body were “[b]urn marks”, which were clearly depicted in the photos taken by the investigator from the medical examiner’s officer (283-284). Mr. Smith identified the photos and pointed out exactly where the burn marks were in the pictures (284). The burn marks were caused by the contact decedent’s body had with the transformer (284). Mr. Smith testified that in 1982, as part of his apprentice training to be an elevator mechanic, he was instructed to “always touch the equipment hot circuits with one hand and avoid grounding any other part of your body” when “working with live 8 electrical systems” (274, 285). “It could be from your fingertip to the palm of your hand” and one needed “to avoid grounding any part of [his or her] body including your other hand” (285). When Mr. Smith left the accident scene after conducting his investigation, he was unable to recall whether the lights were on or off in the motor room (286). When Mr. Smith returned to the motor room he was “pretty sure the lights were turned back on” and he “didn’t see a problem with the lights being an issue. The hallway lights or the motor room lights” (287). Mr. Smith identified photographs which showed “rags on top of the transformers” (282). Elevator mechanics placed the rags on electrical devices, such as transformers, to be used “as an insulator” (293). When asked to explain how this was done, Mr. Smith stated: A. Well, you create an insulator of some kind. Not that a rag is a good insulator. But you’re putting a separating point between the voltage contact, the contact with voltage on it and say your hand or your body. * * * Q. In your opinion...is that a safe insulator to use for a mechanic? A. No. (293). Mr. Smith opined that having a helper was beneficial where he or she held “a drop light, for instance, in a situation where 9 you needed to see better” (297). He identified the photograph marked B-25, which depicted a light near decedent’s corpse, and testified as follows: Q. In your experience in the elevator industry, what is the purpose of having a light like that? A So you can see the equipment. Say in the control board you may need a little bit more light or you may need a power supply from the drop light. They will go bring a light of that nature. Q In other words, if there wasn’t enough light from overhead you could have additional handheld light to further illuminate the area in which you’re working? A. Yes (297). Although Mr. Smith testified that the lighting in the machine room was up to code, when asked what was the code, he could not say whether it was “five or two” lux which was the “minimum amount required for adequate lighting (297). While Mr. Smith had a tester to ensure that the lighting was up to code he was “not sure if it was used” (297). Mr. Smith failed to record in his report whether a lighting test had been performed and had no “independent recollection of actually performing such a test” (298). The following colloquy then took place regarding the lighting: Q. I just want to make sure you understand my point here. If the lighting is okay or were sufficient from up above, why bother using an additional handheld? 10 * * * Q. If the lighting is sufficient from above or from the sources that are contained within the room structurally, in your experience in your work as an elevator mechanic, would you use an additional handheld light? A. We -- that was a daily item. It’s really hard to answer that question because even though you have adequate lighting there may be some small comer that you just want to cast more light onto. So using a flashlight or a drop light is common. It’s not something that I walk into a control room and say it’s a little dark, a little dim. That’s something that is set up almost immediately or pulled out immediately. I have a flashlight in my bag right now. I could go do an inspection. My flashlight is in my hand all the time and I am walking into rooms that have adequate lighting. Q. You said before and I want to follow up on it. We were talking about the helper. You said that in the instances where a handheld light is being used one use of the helper may be to hold the light while the mechanic is performing work. A. Yes Q. Is that, in other words, because that frees up a hand for the mechanics? A. Yes. (298). With regard to the uncovered transformer which electrocuted the decedent, Mr. Smith acknowledged that he had observed transformers which had covers, consisting of nonconductive material on the contact points (299). If the transformer’s contact point which electrocuted decedent “was covered there 11 wouldn’t be any contact points” “[w]hich would have prevented him from being electrocuted” (299). Defendants’ motion for summary judgment By notice of motion dated August 5, 2015, defendants moved for summary judgment dismissing the plaintiff’s complaint. Defendants argued that plaintiff’s Labor Law § 241(6) claim should be dismissed because he was not engaged in construction work at the time of his accident. In addition, defendants argued that plaintiff’s Labor Law § 200 and common law negligence claims should be dismissed because Douglas Smith, who investigated decedent’s death on behalf of the City did not find anything out of the ordinary in the electrical cabinet and that the lighting in the motor room was sufficient. Defendants further argued that they did not have notice of the alleged inadequate lighting or that the transformers were deficient because they exposed workers to electrocution. Finally, defendants argued that the removal of decedent’s helper, Mr. Melendez did not create hazardous working conditions for decedent (101-134). In support of their motion, defendants submitted the expert affidavit to John Halpern, a licensed professional engineer, who opined that the electrical cabinet complied with a manufacturing standard and was safe for a mechanic to troubleshoot inside the cabinet (489-496). 12 Plaintiffs’ opposition In opposition, plaintiffs argued that their Labor Law § 241(6) claim was viable as defendants were engaged in an ongoing construction project and decedent was killed in the 9th floor motor room at the time construction was taking place at that location. In addition, by depriving plaintiff of his helper, Mr. Melendez, defendants violated their contractual staffing obligations and created a safety violation which caused decedent’s fatal accident. Moreover, the failure to provide a cover on the transformer which electrocuted the decedent and the poor lighting conditions created dangerous conditions, in violation of industry practice (501-539). Plaintiffs further pointed out that OSHA performed an inspection of the premises after decedent’s death and issued a report dated October 2, 2012, finding that defendants violated 29 CFR 1910, 335(a)(l)(i) and 29 CFR 1910.132(d)(l)(a) by exposing decedent to electrical hazards (515-516). Plaintiffs submitted the expert affidavit of certified elevator inspector, Dennis Olson, who was “certified through the National Association of Elevator Safety Authorities” (550-554). Mr. Olson stated in pertinent part: 3. The photographic evidence from March 28,2012 in the #3 control cabinet, where Ed Bradley was working at the time of his death, clearly depicts exposed transformers with no safety cover... 13 4. Defendant UNITED ELEVATOR CONSULTANTS inspected the #3 control cabinet on numerous occasions in the 2 years prior to March 28, 2012 and thus knew, or should have known, that the transformers lacked this safety cover at that time. 5. The Medical Examiner found that the cause of death was right arm contact with an uncovered transformer. My opinion, with a reasonable degree of technical certainty, is that if the transformer had a safety cover them Mr. Bradley would not have been electrocuted. 6. The Safety Code for Elevators (ASME/ANSI 17.5, Section 5.2) requires that: “Barriers shall be installed to prevent contact with live parts if inadvertent contact with bare live parts during normal service and adjustment operation is considered probable”. 7. There was no barrier or safety cover on the transformer on March 28, 2012 in the #3 control cabinet. Defendant’s expert has opined that Mr. Bradley was performing a troubleshooting procedure however there have been no records of a service call or any corresponding log book entries to corroborate his opinion. 8. Furthermore an OSHA inspection found multiple violations including: 29 CFR 1910.335(a)(1)(i) which states: “Employees working in areas where there were potential electrical hazards were not provided with electrical protective equipment that was appropriate for the specific parts of the body that needed to be protected and for the work being performed” 29 CFR 1910.132(d)(1)(a) “An assessment of the workplace where a resident/stationary mechanic worked in electrical panels rated 480 volts was not completed to determine if hazards are present or likely to be present necessitate the use of protective equipment such as but not limited to electrical voltage-rated gloves, 14 mats, covers, sleeves, face shields and insulated tools. “ (551-552, emphasis in original). Mr. Olson further opined that as it was not possible to ascertain what task decedent was engaged in at the time of his death, “the re-assignment of the helper Juan Melendez would have placed Mr. Bradley in danger if he was forced to perform a task typically reserved for two workers by himself” (553). Mr. Olson referred to Mr. Melendez’s deposition testimony wherein he testified about the poor lighting conditions in the control cabinet and stated: Poor lighting conditions would have created a safety hazard for Mr. Bradley by impairing his ability to see his work area - including the uncovered transformers. Additionally, given the fact Mr. Bradley was on his own it required him to attempt to hold an additional item (the light) while trying to perform his work creating unnecessary risk. (553). Decision and order appealed from In a well-reasoned 16-page decision and order dated February 28, 2017, the Supreme Court, New York County (Billings, J.) granted defendants’ motion to the limited extent of dismissing plaintiffs’ claims based on violations of Labor Law § 241(6) and underlying industrial code violations and plaintiff’s Labor Law §200 and common law negligence claims based on the removal of decedent’s helper because decedent could not a third- 15 party beneficiary to the contract, but otherwise denied defendants’ motion (7-22). Defendants appeal (3-4). ARGUMENT POINT I THE RECORD CLEARLY ESTABLISHED THE CAUSE OF DECEDENT’S DEATH Defendants argue that “[t]he complaint should be dismissed because it is not known, and cannot be known, how the accident that killed decedent occurred” (brief at 8). Defendants, as the moving party, cannot simply reverse the burden of proof by asserting that plaintiff could not make out a prima facie case at trial (see, Colt v. A&P, 209 AD2d 294 [1st Dept. 1994]). It is axiomatic that a moving party does not establish prima facie entitlement to judgment as a matter of law by “pointing to gaps in an opponent’s evidence” (Koulermos v. A.O. Smith, 137 AD3d 575, 576 [1st Dept. 2016]; McCullough v. One Bryant Park, 132 AD3d 491 [1st Dept. 2015]; Salgado v. PA, 105 AD3d 417 [1st Dept. 2013]; Alvarez v. 21st Century Renovation, 66 AD3d 534 [1st Dept. 2009]; Coastal Sheet Metal v. Martin Assoc., 63 AD3d 617 [1st Dept. 2009]; Torres v. Industrial Container, 305 AD2d 136 [1st Dept. 2003]). Instead, where the moving party is a defendant, it must tender evidence establishing affirmatively that it was not negligent (Bryan v. 250 Church Assoc., 60 AD3d 578 [1st Dept. 16 2009], citing Winegrad v. NYU, 64 NY2d 851, 853 [1985]; Greenidge v. HRH Constr., 279 AD2d 400 [1st Dept. 2001]). True, no evidentiary showing is needed for a claim that plaintiff failed to make (Wellington v. Manmall LLC, 70 AD3d 401 [1st Dept. 2010]), but here there is direct and circumstantial evidence setting forth a basis to determine how the accident occurred and what conditions existed at the site, even though decedent has died (see, Caraballo v. Paris Maintenance, 2 AD3d 275 [1st Dept. 2003]; see generally, Gonzalez v. NYCHA, 77 NY2d 663, 670 [1991]; DeParis v. Womens National Repub. Club, 148 AD3d 401 [1st Dept. 2017]). Indeed, according to the police investigative report (382- 391), the medical examiner’s report (385-381) and John Smith’s investigation, the cause of death was “electrocution” and the manner of death was determined to be an “accident (right arm contacted electrical transformer)” (375). Mr. Smith concluded that decedent’s accident occurred at 3:30 p.m., when his “right arm made contact with the 208 volt transformer wire and grounded another part just under his right armpit” (283). Mr. Smith, the medical examiner’s investigator and the police department conducted their investigations on the date of death, several hours after the incident. Mr. Smith stated that “the medical examiner showed [him] the contact points on Mr. Bradley’s body” (283). The marks on decedent’s body were “[b]urn 17 marks”, which were clearly depicted in the photos taken by the investigator from the medical examiner’s officer (283-284). Thus, it is not true, as defendants assert, that it is “impossible to determine how the fatal accident happened”. POINT II PLAINTIFF’S THEORIES OF LIABILITY ARE VIABLE AND SUPPORTED BY RECORD EVIDENCE A. Inadequate lighting Defendants’ contention that there “is no evidence in the record on which a jury could properly conclude that [they] negligently failed to provide sufficient lighting in the motor room and that this was the proximate cause of Mr. Bradley’s death” (brief at 14) is without merit. Defendants posit that because Smith testified that “the light in the motor room was up to code” (brief at 15), this theory of liability is not viable. Defendants are incorrect. While Mr. Smith stated that the lighting in the machine room was up to code, he could not recall what the minimum requirements for lighting were under the code (297). Although Mr. Smith had a tester to ensure that the lighting was up to code, he was “not sure if it was used” (297). In addition, Mr. Smith failed to record in his report whether a lighting test had been performed and he had no “independent recollection of actually performing such a test” (298). 18 Further, even if the lighting was up to code in the motor room there could be dangerous areas where the lighting was inadequate (298). This was supported by the fact that decedent was using a flashlight at the time of death, which was evidenced by the fact that it was found near his body. Moreover, Mr. Melendez’s testimony was more than sufficient to raise a triable issue of fact. Defendants take issue with Mr. Melendez’s testimony about the lighting conditions in the motor room because he was not present at the time decedent was electrocuted. He was the decedent’s helper for five years (148) and went to the motor room on a regular basis. Mr. Melendez’s five years of observing the conditions, which he worked under, was more than sufficient to establish what the lighting conditions were like at the time of decedent’s death. It should be noted that Mr. Smith, who had no independent recollection of testing the lighting conditions, failed to evaluate what the lighting conditions were like in the cabinet. Mr. Melendez testified that they had to use “a little flashlight to look into what we were looking inside the cabinet” because they were unable to “see otherwise” (153). This was especially dangerous since decedent was working near uncovered transformers, which Mr. Smith and Mr. Melendez acknowledged could kill you on contact (which was exactly what happened in this case). 19 Defendants also fail to adequately address the expert affidavit of Dennis Olson, plaintiffs’ expert certified elevator inspector, who opined that the poor lighting conditions described by Mr. Melendez “created a safety hazard for Mr. Bradley by impairing his ability to see his work area - including the uncovered transformers” (553). We respectfully submit that defendants failed to meet their initial burden of establishing that they provided adequate lighting and that the lack of said lighting was not a proximate cause of decedent’s death (see, Swerdlow v. WSK Properties Corp., 5 AD3d 587, 588 [2d Dept. 2004] [“WSK and Beneficial failed to meet their initial burden of establishing that they provided adequate lighting, that the alleged lack of adequate lighting was not a proximate cause of the accident, and that they had no notice of the alleged hazardous condition”]). Even if it could be argued that defendants met their initial burden, the testimony of Mr. Melendez and Mr. Olson’s expert opinion, which is supported by record evidence, was more than sufficient to raise a triable issue of fact with regard to plaintiff’s inadequate lighting claim (see, Donnelly v. Treeline Cos., 13 AD3d 143 [1st Dept. 2004] [The proximate cause of an accident is “quintessentially a factual issue”]; Derdiarian v. Felix Contracting Corp., 51 NY2d 308, 315 [1980]; Griffith v. Southbridge, 248 AD2d 162 [1st Dept. 1998]; Andre v. Seem, 234 20 AD2d 325 [2d Dept. 1996]; Knutson v. Sand, 282 AD2d 42 [2d Dept. 2001]). Indeed, conflicting testimony as to claims of inadequate lighting present questions of fact for the jury to resolve (Auliano v. 145 E. 15 St., 129 AD3d 469 [1st Dept. 2015]; Joachim v. AMC Multi-Cinema, 129 AD3d 433 [1st Dept. 2015]; Dickert v. NYC, 268 AD2d 343 [1st Dept. 2000]). The court must not weigh credibility on a motion for summary judgment. See, Dollas v. WR Grace, 225 AD2d 319 [1st Dept. 1996]; Cochrane v. Owens-Corning, 219 AD2d 557 [1st Dept. 1995]; Rivera v. NYC, 212 AD2d 403 [1st Dept. 1995]; Wiener v. Ga-Ro Die Cutting, 104 AD2d 331 [1st Dept. 1984], affd., 65 NY2d 732 [1985]; see, Patrolmens Benevolent v. NYC, 27 NY2d 410 [1971]; Cohn v. Lionel Corp., 21 NY2d 559 [1968]; Sillman v. 20th Century Fox, 3 NY2d 395 [1957]). Thus, the issue of whether the inadequate lighting was a proximate cause of decedent’s death is a factual issue to be determined by a jury (see, DeMaria v. RBNB 20 Owner, LLC, 129 AD3d 623 [1st Dept. 2015] [issues of fact existed as to whether inadequate illumination contributed to causation of the accident, and whether the subcontractor had actual or constructive notice of any inadequate lighting before the accident]; see also, 15 NY Prac., New York Law of Torts §12:88). 21 B. Failure to provide decedent with a helper While the trial court dismissed plaintiff’s theory of failing to provide a helper on the ground that Article 19 of the contract “expressly precludes nonparties to the contract as third-party beneficiaries” (15), there is an issue of fact to whether defendants were negligent in failing to provide plaintiff with a helper. “In order for the employer to be held liable for the injury or death of an employee, it must, of course, appear that the failure to employ a sufficient number of competent employees was the proximate cause of the injury or death” (52 NY Jur. 2d Employment Relations §378, citing, Dobson v. Bay Ridge Operating Co., 210 AD 693 [1st Dept. 1924]). “An implied obligation rests upon the master to provide other servants when the circumstances require it, sufficient in number and reasonably skillful and competent for the performance of the service so that the servant may not be exposed to unnecessary risk or peril from unskillful or incompetent workers or servants, or from a lack of a sufficient number of them” (52 NY Jur. 2d Employment Relations §268, citing, Wistinetz v. Goldman, 154 AD 829 [2d Dept. 1913]; Daurizio v. Merchants’ Despatch Transp. Co., 152 Misc. 716 [Sup Ct. 1934]). Here, Mr. Melendez testified that a helper was needed because “it was a two man job” and that two men were needed “all 22 the time” “for safety reasons” (149). Mr. Smith testified that when working in motor rooms and dealing with dangerous exposed transformers a helper was necessary to hold a handheld light which freed up the mechanic’s hands (298). Mr. Smith also testified that having a helper was beneficial where he or she held “a drop light, for instance, in a situation where you needed to see better” (297). In addition, plaintiff’s expert opined that “the re- assignment of the helper Juan Melendez would have placed Mr. Bradley in danger if he was forced to perform a task typically reserved for two workers by himself” (553). Mr. Olson referred to Mr. Melendez’s deposition testimony wherein he testified about the poor lighting conditions in the control cabinet and stated: “Poor lighting conditions would have created a safety hazard for Mr. Bradley by impairing his ability to see his work area - including the uncovered transformers” (Id). As defendants were on notice about the need for two workers, as per the contract and based on the testimony of Mr. Melendez, Mr. Smith and plaintiff’s expert, we respectfully submit that defendants’ argument is without merit (compare, Simon v. Schenectady N. Congregation of Jehovah’s Witnesses, 132 AD2d 313, 316 [3d Dept. 1987] [“Inasmuch as defendant was not on notice that plaintiff needed additional help, or that there was any other defect in the work place, defendant did not breach its 23 duty to provide plaintiff protection from reasonably foreseeable risks of injury at the work place”]; Wistinetz v. Goldman, 154 A.D. 829 [2d Dept. 1913] [“No liability was created by the failure to provide a helper until a reasonable time had elapsed within which the foreman could give the necessary direction”]; DeMaria v. RBNB 20 Owner, LLC, 129 AD3d 623, 626 [1st Dept. 2015] [“The owner defendants cannot be held liable for plaintiff’s injuries under Labor Law §200 or common-law negligence principles, since nothing in the record shows that the owner defendants created or had notice of the dangerous conditions caused by the pipe or the inadequate lighting, which allegedly caused plaintiff’s accident”]). C. Lack of safety cover over the transformer The absence of a protective cover also sets forth a cognizable theory of liability. Defendants refers to ANSI Standard A17.5, §5.2 which provides, “[b]arriers shall be installed to prevent contact with live parts if inadvertent contact with bare live parts during normal service and adjustment operation is considered probable” (brief at 23-24). The owner defendants apparently seek to shift their property maintenance responsibilities with regard to safety onto elevator experts, contrary to the case law on point (see, Rogers v. Dorchester Assoc., 32 NY2d 553 [1973]; Tagle v. Jakob, 97 NY2d 165 [2001]; Basso v. Miller, 40 NY2d 233 [1976]; Scurti v. NYC, 24 40 NY2d 433 [1976]). Owners cannot delegate the duty of safety, though they may seek indemnification from a party maintaining a specific instrumentality. Omitted from defendant’s submissions is the common law duty of landowners, codified in Labor Law §200, to provide a safe place for workers to ply their trades at the premises (see, Allen v. Cloutier, 44 NY2d 290 [1978]; Russin v. Jackson Hts. Shopping Center, 27 NY2d 103 [1970]), whether or not the plaintiff was performing traditional construction work (Jock v. Fein, 80 NY2d 965 [1982]; see generally, Gasper v. Ford, 13 NY2d 104 [1963]; Hess v. Bernheimer & Schwartz, 219 NY 415 [1916]; Borshowski v. B. Altman, 280 AD 599 [1st Dept. 1952], affd., 306 NY 798 [1954]). Defendants observe that ANSI §17.5 contains no explanation of what constitutes an adequate barrier or how to determine the ‘probability’ of inadvertent contact. This is another reason summary judgment had to be denied. Plaintiff was killed because the electrical line he contacted had no appropriate barrier at all. Moreover, any discrepancy or inadequacy with respect to the meaning of the regulation militates against the grant of summary judgment (see, Powers v. 31 E. 31 LLC, 24 NY2d 845 [2014], on remand, 123 AD3d 421 [1st Dept. 2014]) It is irrelevant that the standard has not been adopted by New York City and incorporated into its elevator code, since 25 compliance with industry standards is not conclusive evidence of due care (Kellman v. 45 Tiemann Assoc., 87 NY2d 871 [1995]; Leosovich v. 180 Madison, 81 NY2d 982 [1993]; Jacqueline S. v. NYC, 81 NY2d 288 [1993]). Moreover, the violation of ANSI standards constitutes “some evidence of negligence” (Sawyer v. Dreis & Krump Mfg., 67 NY2d 328 [1986]; Barzaghi v. Maislin Transp., 115 AD2d 679 [2d Dept. 2005]). The lack of notice argument fails. A party responsible for property maintenance is held to have actual or constructive notice of a danger, which is visible or would be seen upon reasonable inspection. As the trial court noted, even if Douglas Smith, an inspector for the New York City Department of Citywide Administrative Services, was a qualified expert (which was not established), he “failed to demonstrate how the electrical cabinet complied with accepted industry standards and practices”; moreover, John Halpern, defendant’s engineer, based his conclusion on “hearsay evidence that the New York City Department of Buildings found no design defects in the electrical cabinet.” This does not establish due care as a matter under the governing case law (see, Gkanios v. Greek Orthodox Comm., 193 AD2d 576 [2d Dept. 1993]). Hartnett v. Channel, Inc., 97 AD3d 416 [1st Dept. 2012], does not “control”. There, this Court held, over a dissent, that 26 plaintiff’s way of opening a box with a screwdriver – i.e., the way he worked, a matter over which the owner had no authority - was the sole proximate cause of his injury (97 AD3d at 420). Here, the defect in question existed long enough to give defendant a chance to observe and eliminate same pursuant to reasonable inspection (Adlam v. Konvalinka, 291 NY 40 [1943]; Kerby v. Montgomery Bros., 197 NY 27 [1909]). True, even a reasonable person can create a dangerous condition without realizing it, and remain ignorant of it for a while, but the situation at bar is one where a reasonable person would have known about the danger (Walsh v. Supervalue, 76 AD3d 371, 376 [2d Dept. 2010]). If the lighting in the motor room or the electrical control cabinet was defective, defendants would not be able to have the case dismissed by claiming ignorance of these conditions, based on failure to inspect its property or failure to respond to knowledge. Accordingly, there is no basis to overturn the trial court’s decision. This is why, where an owner has a duty of inspection (Personius v. Mann, 20 AD3d 616 [3d Dept. 2005], affd. in rel. pt., 5 NY3d 857 [2005]), but did not inspect, constructive notice of any defect is “imputed” to it (Hayes v. Riverbend Hous., 40 AD3d 500-1 [1st Dept. 2007]). Defendants' failure to address the OSHA violations set forth by plaintiff's expert is also fatal to their appeal. As decedent was not provided with a reasonably safe place to work, and because defendants had notice of the dangerous condition that caused his fatal accident, in violation of OSHA regulations (29 CFR 1910.335(a)(1)(i) and 29 CFR 1910.132(d)(1)(a) (551- 552), which are considered as some evidence of negligence (Cruz v. LIRR, 22 AD3d 45", 453 [2d Dept. 2005]; Landry v. GMC, 210 AD2d 898 [4th Dept. 1994]), we respectfully submit that the order should be affirmed insofar as appealed form. CONCLUSION Based on the foregoing, the order should be affirmed insofar as appealed form. Respectfully submitted, SCHWARTZAPFEL LAWYERS, PC Attorneys for Plaintiff-Respondent ./ By: Brian J. Isaac, Esq. POLLACK POLLACK ISAAC & DE CICCO Appellate Counsel 225 Broadway Suite 307 New York, New York 10007 212-233-8100 Of counsel Brian J. Isaac, Esq. Kenneth J. Gorman, Esq. 27 PRINTING SPECIFICATIONS STATEMENT I hereby certify pursuant to 22 NYCRR §600.10 that the foregoing brief was prepared on a computer. Type: A monospaced typeface was used as follows: Name of typeface: Courier New Point size: 12 Line spacing: Double The total number of words in the brief, inclusive ofWord Count: point headings and footnotes and exclusive of pages containing table of authorities, proof of service,the table of contents, printing specifications statement, or any authorized addendum containing statutes, rules, regulations, etc. is 5,759. Dated: New York, New York September 6, 2017 n' Brian J. Isaac, Esq. Appellate Counsel for Plaint!ff-Respondent 28