Kenneth J. Hecker, Appellant,v.State of New York, Respondent.

Brief

N.Y.February 7, 2013

To be Argued by: RICHARD C. BRISTER (Time Requested: 15 Minutes) Appellate Division Docket No. CA 11-01232 State of New York Court of Claims No. 116642 Court of Appeals of the State of New York KENNETH J. HECKER, Claimant-Appellant, – against – THE STATE OF NEW YORK, Defendant-Respondent. BRIEF FOR DEFENDANT-RESPONDENT KENNEY SHELTON LIPTAK NOWAK LLP Richard C. Brister, Esq. Attorneys for Defendant-Respondent The Calumet Building 233 Franklin Street Buffalo, New York 14202 Tel.: (585) 232-1911 Fax: (585) 853-0265 Date of Completion: October 3, 2012 i TABLE OF CONTENTS TABLE OF AUTHORITIES ……………………………………………… iii CASES………………………………………………………………. iii STATUTES…………………………………………………………. v PRELIMINARY STATEMENT…………………………………………… 1 QUESTIONS PRESENTED……………………………………………….. 5 STATEMENT OF FACTS…………………………………………………. 6 POINT I 12 N.Y.C.R.R. § 23-1.7(d) DID NOT APPLY TO APPELLANT’S ACCIDENT AS A MATTER OF LAW………………………………………….. 9 POINT II THE PLACE OF THE ACCIDENT WAS A WIDE OPEN, UNENCLOSED AREA AND WAS NOT A “PASSAGEWAY” FOR THE PURPOSES OF 12 N.Y.C.R.R. § 23-1.7(d)………………….. 19 A. THE FOURTH DEPARTMENT’S RELIANCE OF HERTEL V. HUEBER- BREUER CONSTR. CO. AND OTHER CONTROLLING PRECEDENT WAS CORRECT; HECKER WAS NOT ENTITLED TO RECOVER UNDER HIS NEW YORK LABOR LAW § 241(6) CLAIM BASED ON 12 N.Y.C.R.R. § 23-1.7(D)…………………………… 19 ii B. EVEN IF THE COURT ERRED IN CONSIDERING THE MANNER IN WHICH THE SUBJECT AREA WAS USED, THE BRIDGE DECK DID NOT CONSTITUTE A PASSAGEWAY UNDER APPLICABLE LEGAL PRECEDENT……………………. 24 C. ALTHOUGH THE BRIDGE SURFACE PROVIDED ACCESS TO THE SUBTERRANEAN JOB SITE, THAT DOES NOT COMPEL THE CONCLUSION THAT THE AREA WAS A “PASSAGEWAY” FOR PURPOSES OF 12 N.Y.C.R.R. § 23-1.7(D)………………………………… 25 D. CLAIMANT-APPELLANT FELL IN A WIDE OPEN SPACE ON THE WASHINGTON STREET BRIDGE, NOT AN ENCLOSED, DEFINED SPACE, AND THEREFORE THE SUBJECT AREA IS “COMMON” AND NOT A PASSAGEWAY……………... 31 POINT III UNDER THE DISSENT’S ANALYSIS, ANYTHING COULD BE A PASSAGEWAY…………………………………….. 35 A. THE APPELLATE DIVISION HAS DISCRETION TO RULE ON ANY POINT IN THE RECORD………………………………… 37 CONCLUSION……………………………………………………………… 38 iii TABLE OF AUTHORITIES CASES Bale v. Pyron Corp., 256 A.D.2d 1128, 684 N.Y.S.2d 393 (4 th Dept. 1998) ------------------------- 19, 22, 23 Bannister v. LPCiminelli, Inc., 93 A.D.3d 1294 (4 th Dept. 2012) --------------------- 23 Belcastro v. Hewlett-Woodmere Union Free School Dist. No. 14, 286 A.D.2d 744, 746 (2d Dept. 2001) -------------------------------------------------- 15, 16 Booth v. Seven World Trade Co., L.P., 82 A.D.3d 499, 918 N.Y.S.2d 428 (1 st Dept. 2011) ---------------------------- 12, 13, 14 Cardenas v. American Ref-fuel Company of Hempstead, 244 A.D.2d 377, 664 N.Y.S.2d 453 (2d Dept. 1997) -------------------------------------- 9 Conklin v. Triborough Bridge & Tunnel Authority, 49 A.D.3d 320 (1 st Dept. 2008) --------------------------------------------------------------- 33 Constantino v. Kreisler Borg Floorman Gen. Constr. Co., 272 A.D.2d 361, 707 N.Y.S.2d 487 (2 nd Dept. 2000) ------------------------------- 31, 36 Dalanna v. City of New York, 308 A.D.2d 400, 764 N.Y.S.2d 429 (1 st Dept. 2003) -------------------------------- 32, 34 Fassett v. Wegmans Food Mkts., Inc., 66 A.D.3d 1274 (3 rd Dept. 2009) ----------------------------------------------- 28, 29, 30, 36 Gaisor v. Gregory Madison Ave., LLC, 13 A.D. 3d 58, (1 st Dept. 2004) ------------------------- 1, 2, 3, 10, 11, 12, 13, 20, 38, 39 Hecker v. State of New York, CA 11-01232, at 2 (4 th Dept. 2012) --------- 12, 19, 37 Hertel v. Hueber-Breuer Constr. Co., 24 A.D.3d 1259, 850 N.Y.S.2d 806 (4 th Dept. 2008) ----------------- 19, 20, 21, 22, 23 Misicki v. Caradonna, 12 N.Y.2d 511, 519 (2009) ---------------------------------- 37, 38 Morra v. White, 276 A.D.2d 536, 714 N.Y.S.2d 510 (2 nd Dept. 2000) ---- 26, 27, 36 iv Motyka v. Ogden Martin Sys. Of Onondaga, Ltd. Pship., 272 A.D.2d 980 (4 th Dept. 2000) --------------------------------------------------------- 32, 33 Perillo v. Pleasant View Assoc., 292 A.D.2d 773, 739 N.Y.S.2d 504 (4 th Dept. 2002) ------------------------------------ 20 Ramski v. Zappia Enterprises, Inc., 229 A.D.2d 990, 645 N.Y.S.2d 364 (4 th Dept. 1996) ------------------------------- 26, 27 Rizzuto v. L.A. Wenger Contracting Co., Inc., 91 N.Y.2d 343, 348 (1998) --- 15, 16 Ross v. Curtis Palmer Hydro-Elec. Co., 81 N.Y.2d 494 (1993) ------------------------- 9 Samiani v. New York State Electric & Gas Corp., 199 A.D.2d 796, 605 N.Y.S.2d 516 (3d Dept. 1993) -------------------------------------- 9 Smith v. Hines GS Props., Inc., 29 A.D.3d 433; 815 N.Y.S.2d 82 (1 st Dept. 2006) -------------------------- 25, 26, 31, 36 Stairs v. State St. Assoc., 206 A.D.2d 817, 818 (3 rd Dept. 1994) ---------------------- 20 Sullivan v. RGS Energy Group, Inc., 78 A.D.3d 1503, 910 N.Y.S.2d 776 (4 th Dept. 2010) ------------------------------------ 19 Vernieri v. Empire Realty Co., 219 A.D.2d 593, 631 N.Y.S.2d 378 (2d Dept. 1995) -------------------------------------- 9 Whelan v. City of New York, 270 A.D.2d 340 (2 nd Dept., 1999) ------- 28, 29, 33, 36 v STATUTES 12 N.Y.C.R.R. § 23-1.7(d) -- 2, 3, 5, 9, 10, 11, 14, 15, 16, 18, 19, 20, 22, 23, 24, 25, 26, 27, 28, 30, 31, 33, 34, 35, 36, 37, 38, 39 12 N.Y.C.R.R. § 23-1.7(e)(1) ------------------------------------------------------------- 25, 32 12 N.Y.C.R.R. § 23-9.2(a) --------------------------------------------------------------------- 38 12 N.Y.C.R.R. Part 23----------------------------------------------------------------------------- 9 New York Labor Law § 200 ----------------------------------------------------------- 8, 11, 12 New York Labor Law § 241(6) ----------------------- 1, 2, 5, 8, 9, 11, 14, 15, 23, 28, 33 1 PRELIMINARY STATEMENT On or about September 10, 2010, the Court of Claims for the State of New York (Minarik, J.) granted the motion for summary judgment of Defendant- Respondent, the State of New York (“Respondent”) and thereby dismissed the Complaint. Justice Minarik found the case of Gaisor v. Gregory Madison Ave., LLC, 13 A.D. 3d 58, (1 st Dept. 2004) to be directly on point and controlling in this instance. As Justice Minarik observed, in the Gaisor case, the plaintiff was an iron worker who had been directed to remove ice and snow from an upper floor of the building that was under construction and was exposed the elements. Id. The purpose of removing the ice and snow was so that he could get to the real work, which was more in line with his training as an iron worker. The worker slipped in the snow that he was shoveling. The Gaisor court affirmed dismissal of that action, stating that no cause of action existed under New York Labor Law § 241(6) because the snow and ice on which he slipped was the very condition in which he was charged with removing. In the instant case, Claimant Hecker was a millwright who was also required to remove snow and ice so that he could get to the real work of working on the bridge works. Both the Gaisor case and instant case are essentially identical including the fact that both contracts required that the work would be exposed to the elements and specifically called for work activity that would be consistent with 2 snow removal. (AA p. 22-23). As Justice Minarik pointed out, the contract in the instant case incorporated the standard specifications that all New York State contracts require, which was that Claimant’s employer, Hohl Industrial Services (“Hohl”), was to “furnish all labor materials, equipment, and other necessary or convenient to the successful completion of the contract and that carrying out of all the duties and obligations imposed by the contract.” Id. The contract further provided that those methods and materials included equipment and conduct consistent with “seasonal or weather conditions combined with the nature of the terrain.” Id. Therefore, with respect to Gaisor and Hecker, the employees had virtually the same titles with almost precisely the same job duties and the contractual requirements under which both Claimant’s worked, were virtually the same. It was not unusual, then, that Justice Minarik found that the Gaisor case was directly on point and controlling in this instance. (AA p. 22). The Appellate Division, Fourth Department, agreed that the sole issue before it on appeal was whether the Court properly granted the motion insofar as Defendant-Respondent sought dismissal of the New York Labor Law § 241(6) claim to the extent that it premised on the violation of 12 N.Y.C.R.R. § 23-1.7(d). (AA p. 15) The importance of this statement is that 12 N.Y.C.R.R. § 23-1.7(d) indisputably was at issue and the Appellate Division Court certainly had the 3 discretion to make any determination that the Record allows it to make regarding whether or not a violation of 12 N.Y.C.R.R. § 23-1.7(d) permits, or does not permit, the Claimant-Appellant to maintain his case. Therefore, to the extent that the Appellate Division majority and dissent agree that the lower Court erred in relying on Gaisor in determining whether snow removal was an integral part of the Claimant’s work, the Respondent again argues below that Gaisor was, and is, valid case law, and is directly on point. Irrespective of that point, however, the Respondent agrees and submits that the majority on the Appellate Division Court were correct in that they had the authority to apply 12 N.Y.C.R.R. § 23-1.7(d) to the facts of this case. Furthermore, it is respectfully submitted that the Appellate Division was correct in concluding that the Claimant- Appellant was not using the area in which he fell as a floor, passageway, or walkway at the time of his fall. Finally, the Respondent argues that the dissent, and the Appellant, essentially argue that any area, whether large or small, whether enclosed or open, as long as it is being used to access a work site, is a passageway or walkway within the meaning of the pertinent regulation. Respondent submits that this is an extremely overbroad application of 12 N.Y.C.R.R. § 23-1.7(d) and would encompass many areas (and would overturn many cases) wherein the regulation was not intended to be applied. 4 The Claimant-Appellant concedes that the Appellate Division had the power to search the Record, and the Respondent herein argues that, based on the authorities cited, and the sound reasoning of the Appellate Division majority, it is respectfully submitted that the Appellate Division’s Order affirming the Trial Court decision, and dismissing Plaintiff’s claims, was proper. 5 QUESTIONS PRESENTED 1. Was the Appellate Division correct in holding that the Defendant- Respondent established entitlement to judgment as a matter of law, dismissing Claimant’s New York Labor Law § 241(6) cause of action predicated on Defendant’s violation of 12 N.Y.C.R.R. § 23-1.7(d)? ANSWER: Yes. 2. Was the Appellate Division correct in holding that the Claimant- Appellant was not using the area in which he fell as a floor, passageway, or walkway at the time of his fall? ANSWER: Yes. 6 STATEMENT OF FACTS Appellant Kenneth J. Hecker, a millwright, was allegedly injured on December 19, 2007, when he slipped and fell in snow and ice that he was shoveling in the course of his employment with Hohl Industrial Services, Inc. (“Hohl”) (Appellant’s Appendix [hereinafter “AA”] p. 39). The State of New York, by Contract No. D259852, dated July 15, 2005, engaged Hohl to rehabilitate the Ingersoll Bridge and the Washington Street Bridge. The Washington Street lift bridge is located on Highway 36 over the Erie Canal in the Town of Ogden (AA p. 19). The rehabilitation was to be performed pursuant to the contract terms, and in accordance with the Standards and Specifications of the New York State Department of Transportation, which standards and specifications were incorporated into the contract (Respondent’s Appendix [hereinafter “RA”] pp. 53-82). Specifically, on page one of the DOT contract, it explicitly states that the rehabilitation of the Ingersoll Bridge and the Washington Street Bridge over the Erie Canal will be performed in accordance with the standards and specifications of the New York State Department of Transportation (AA p. 190). Moreover, the DOT contract contains numerous references within the document that specifically incorporate the standard specifications as part of the contract. See, for example, Article 1, which provides that 7 “the contractor shall (a) furnish all materials, appliances and tools in every kind require to construct and complete in the most substantial and workmanlike manner, the construction or improvement of the reconstruction of the project on or before the completion date of June, 30, 2007...in accordance with the standard specifications of the New York State Department of Transportation which contains the information for bidders, proposal forms, contract agreement and bonds...and, (b) do everything required by the contract and/or contract documents as defined herein.” (Emphasis Added) (AA p. 190). See also Article 2 (AA p. 191), where it specifically states that the contract shall be deemed to include the standards and specifications, and Article 6 (AA p. 192), referencing the State Finance law, “which is referred to in the standard specifications, which are specifically “made a part of this contract.” (AA p. 191). Additionally, Section 100 (RA p. 71) of the Standard Specifications, entitled General Provisions, is the pertinent section that governs most of the work performed by the State of New York. On page 26 of Section 100 (RA p. 82), the components of the contract are specifically identified as incorporated within the contract between Hecker’s employer and the State of New York, and it explicitly states that the intent of the contract documents is to include all items/aspects of the work that are necessary for the proper initiation, execution and completion of the work. The fourth item listed is standard specifications (RA p. 82). The Washington Street lift bridge project was completed in June of 2007, approximately six months before Hecker’s accident (AA p. 19). However, after 8 completion of the project, it was determined that Hohl needed to replace some defective bearings or “sheaves” in the bridge lift mechanism (AA p. 19). On the day of the accident, December 19, 2007, the general contractor, Hohl, undertook to replace the sheaves, and Hohl’s employee, Hecker, arrived at the jobsite at around 7:00 a.m. (RA pp. 89-90). On the way to the job site, and when he was pulling in to the job site, it was snowing, and over a foot of snow had accumulated on the ground and the bridge surfaces (RA p. 90). No representatives of the State were on site (RA pp. 91-92). Hecker, a millwright for Hohl, was instructed to shovel the snow from the gang boxes (where tools and supplies were kept) to the bridge surface and all four corners of the bridge (RA p. 91). The purpose of Hecker’s shoveling was to enable the workers from Hohl to get to, and ultimately through, the access doors on the bridge deck and down into the bridgeworks to perform the necessary work (AA: p. 19). After approximately 30-40 minutes of shoveling, Hecker slipped in the snow he was removing from the deck of the bridge (AA pp. 19-20). He allegedly injured his back and, subsequently, commenced his lawsuit alleging violations of New York Labor Law §§ 200 and 241(6) (AA p. 20). 9 POINT I 12 N.Y.C.R.R. § 23-1.7(d) DID NOT APPLY TO APPELLANT’S ACCIDENT AS A MATTER OF LAW Under New York law, to make out a prima facie cause of action pursuant to New York Labor Law § 241(6), a plaintiff must prove through admissible, credible evidence that the defendants violated a rule or regulation of the Commission of Labor that sets forth a specific standard of conduct. See Ross v. Curtis Palmer Hydro-Elec. Co., 81 N.Y.2d 494 (1993); see also Cardenas v. American Ref-fuel Company of Hempstead, 244 A.D.2d 377, 664 N.Y.S.2d 453 (2d Dept. 1997); Samiani v. New York State Electric & Gas Corp., 199 A.D.2d 796, 605 N.Y.S.2d 516 (3d Dept. 1993). Namely, a plaintiff must plead a violation of a “concrete specification” of the Industrial Code of the State of New York. See Vernieri v. Empire Realty Co., 219 A.D.2d 593, 631 N.Y.S.2d 378 (2d Dept. 1995) (stating that New York Labor Law § 241(6) must refer to a violation of the specific standards set forth in the implementing regulations 12 N.Y.C.R.R. Part 23). The salient provision in the case at bar is 12 N.Y.C.R.R. § 23-1.7(d). That section provides, in relevant part, that no employee shall be permitted “to use a floor, passageway, walkway, scaffold, platform or other elevated working surface which is in a slippery condition” and requires removal of any “[i]ce, snow, water grease and any other foreign substance which may cause slippery footing.” 12 N.Y.C.R.R. § 23-1.7(d). The Appellate Division, Fourth Department, properly 10 concluded that said provision is inapplicable as a matter of law to the present cause of action. The Court of Claims, below, properly relied on the facts of Gaisor in holding that 12 N.Y.C.R.R. § 23-1.7(d) did not apply to the facts at bar. (AA p. 22). It is respectfully submitted that, contrary to the Appellate Division’s holding, that Gaisor is, as the Court of Claims noted, “directly on point and controlling” because the facts in that case are virtually identical to the case at bar. Gaisor involved a construction site, owned by Gregory Madison Avenue, LLC. Gaisor, supra, at 58. The general contractor, Turner Construction Company, contracted with subcontractor ADF Steel Corp. to provide structural steel work at the site. Id. ADF, in turn, contracted with subcontractor DCM Erectors, to perform all of the iron work at the site. Id. The plaintiff, Gaisor, was an ironworker for DCM. Id. DCM’s foreman directed Gaisor to remove accumulated snow and ice from an upper floor under construction, so the steelworker employees could perform their construction work, and gave him a scrapper to do so. Id. As Gaisor cleared the snow and ice with a scraper, he lost his footing and fell, suffering injuries to his back. None of the general contractors or owner’s representatives was on site. Gaisor, 13 A.D.3d at 59. In the instant case, the State owned the construction site, the Washington Street lift bridge, and it contracted with the general contractor, Hohl Industrial 11 Services, to perform rehabilitation work on the bridge including replacing defective sheaves that were installed earlier in the year. (RA pp. 89-90). Hohl’s foreman directed Hecker to remove accumulated snow from the deck over the bridgeworks, so the millwright employees could perform their construction work, and gave Hecker a shovel to do so. (AA p. 138-140). As Hecker cleared the snow with the shovel, he lost his footing and fell, suffering injuries to his back. (AA p. 20). None of the owner’s representatives were on site. (RA pp. 91-92). Based on the above, the facts of Gaisor are undoubtedly “directly on point and controlling” with the facts at bar. (AA p. 22) The court in Gaisor held that Gaisor’s New York Labor Law § 241(6) claim based on 12 N.Y.C.R.R. § 23-1.7(d) was properly dismissed since the snow on which the plaintiff slipped was the very condition he was charged with removing. Id. at 60. For the same reasons, the Gaisor court held that plaintiff’s New York Labor Law § 200 claim also failed. Id. Finally, the court held that there was no evidence that the owner was on site, exercised any supervisory control over the snow removal that Gaisor was performing, or even that it had any notice of the existence of any snow accumulation at the sight. Id. In the instant case, the Court of Claims held that Hecker’s New York Labor Law § 241(6) claim, also based on 12 N.Y.C.R.R. § 23-1.7(d), was properly dismissed since the snow on which the plaintiff slipped was the very condition he 12 was charged with removing. (AA p. 22). The lower court also held that, for the same reasons, Hecker’s New York Labor Law § 200 case also fails. (AA p. 37). Finally, the court held that there was no evidence that the owner was on the site, or that the owner had exercised any supervisory control over the snow removal that Hecker was performing, or even that it had any notice of the snow. (AA p. 33). Clearly, the facts in the Gaisor case are virtually identical to the facts in the case at bar. In sum, Gaisor was an ironworker who was asked to shovel snow. Hecker was a millwright, who was asked to shovel snow. Gaisor, working with a scraper, fell in the snow he was removing. Hecker, working with a shovel, fell in the snow he was removing. DCM Erectors, in the Gaisor case, employed steel workers to engage in construction services on site. Hohl, in the present action, employed millwrights to engage in construction services. The Appellate Division, Fourth Department, held that “even if snow removal fell within the scope of [claimant’s] responsibilities, such would only be relevant in determining comparative fault, and would not require a grant of summary judgment in defendant[’s] favor.” Hecker v. State of New York, CA 11-01232, at 2 (4 th Dept. 2012) (citing Booth v. Seven World Trade Co., L.P., 82 A.D.3d 499, 918 N.Y.S.2d 428 (1 st Dept. 2011). (AA p. 28). Appellant Hecker also relies on Booth for the proposition that Respondent should have removed snow and ice from the bridgeworks prior to allow Hecker on the bridge to perform his work, 13 notwithstanding that his work, among other things, indisputably, was to remove snow (AA p. 54). It is respectfully submitted that the Appellate Division and Claimant-Appellant misplace their reliance on Booth, and that Gaisor, not Booth controls the case at bar. The plaintiff in Booth was a construction site superintendent, employed by a non-party general contractor to renovate a 42-floor building owned by the defendants. See Booth, 918 N.Y.S.2d at 500. The top floor of the building was exposed to the elements, and was covered with approximately two or three inches of snow. Id. The superintendent sustained injuries after he tripped and fell over an object hidden by the snow. Id. The record demonstrated that the superintendent’s fall occurred nearly seven hours after the snow began. Id. Moreover, the defendants in Booth failed to make any effort to remove the snow prior to the superintendent’s walk-through. Id. at 501. In light of this, the court held there were triable issues of fact regarding whether someone within the chain of construction knew about the presence of snow or ice and negligently failed to remove it. Id. Booth is distinguishable from the case at bar for several reasons. First, the plaintiff in Booth was the construction site superintendent, not a millwright. The record evidence in this case demonstrates that millwrights, unlike construction site superintendents, are employed to do “anything and everything at a construction 14 site,” including snow removal. (RA p. 170). Since snow removal is arguably not a task assigned to construction site superintendents, it is not surprising that the Booth court imposed a duty on defendants to remove the snow prior to the superintendent’s inspection. The case at bar is further distinguishable from Booth because here, unlike the facts in Booth, someone in the chain of construction did take steps to remove the snow that allegedly caused Claimant-Appellants fall. (RA pp. 4, 6). Specifically, Hohl, the claimant’s employer, instructed the Claimant to remove the snow from the bridge. (RA pp. 4, 6). Unlike the plaintiff in Booth, who slipped while performing duties unrelated to snow removal, the Claimant here slipped during the course of his duties while he was in the process of removing the very snow that he slipped upon. (RA p. 94). Accordingly, the lower court properly dismissed Claimant’s New York Labor Law § 241(6) claim based on 12 N.Y.C.R.R. § 23-1.7(d), since the snow on which the Claimant slipped was the very condition he was charged with removing. (AA p. 22). Claimant-Appellant correctly states in his brief that “unless the Court can determine as a matter of law that a particular regulation is inapplicable, it is for the trier of fact to determine whether the equipment, operation or conduct of the work site were reasonable and adequate under the particular circumstances. See Claimant-Appellant’s brief at 14, citing Belcastro v. Hewlett-Woodmere Union 15 Free School Dist. No. 14, 286 A.D.2d 744, 746 (2d Dept. 2001). Claimant- Appellant further relies on Rizzuto v. L.A. Wenger Contracting Co., Inc., 91 N.Y.2d 343, 348 (1998) for the proposition that summary judgment is improper when the finder of fact could rationally conclude that “someone within the chain of the construction project was negligent” in failing to exercise reasonable care. Id. (citing Rizzuto). However, Claimant’s reliance on these cases is misplaced, because the record evidence in the case at bar shows that 12 N.Y.C.R.R. § 23- 1.7(d) is inapplicable as a matter of law, i.e., the Court can make that determination, for the reasons provided below. Therefore, the Claimant has failed to demonstrate that the Appellate Division erred in holding that the pertinent industrial code provision did not apply to the case at bar, and the Appellate Division’s holding should be affirmed. First, Belcastro does not apply to the instant case. The plaintiff in that case was injured when struck on the head by a piece of wood that had been thrown from the roof. Belcastro, 286 A.D.2d at 745. The plaintiff brought causes of action against the property owner, general contractor, and roofing subcontractor alleging violations of, inter alia, New York Labor Law § 241(6). Id. at 746. The plaintiff moved for summary judgment as to liability for his New York Labor Law § 241(6) cause of action. The court held that plaintiff, as the moving party, was unable to satisfy his prima facie burden as a matter of law. Id. Unlike the plaintiff in 16 Belcastro, Respondent in the present case has met its burden as a matter of law, as demonstrated by the holdings in the courts below. As such, the rule cited by Claimant-Appellant is inapplicable here. Claimant-Appellant’s reliance on Rizzuto for the proposition that summary judgment is inappropriate where a jury could conclude that someone “in the chain of construction” was negligent is similarly misplaced. In his papers, Claimant- Appellant routinely makes the claim that neither Respondent nor anyone in the chain of construction sought to remedy the condition of snow piling up on the bridge prior to plaintiff beginning his work on the day of the accident. See Claimant-Appellant’s brief at 14-16. From this, Claimant-Appellant asserts that the trier of fact could determine that Respondent or someone in the chain of construction violated 12 N.Y.C.R.R. § 23-1.7(d) by allowing the bridge decking to become slippery. Id. However, Claimant-Appellant overlooks the fact that “someone in the chain of construction” did, in fact, take steps to remedy the condition of snow piling up on the bridge. (AA p. 54). Specifically, Hohl clearly designated the Claimant to do that. (Id., and RA p. 46-47) The Claimant even acknowledged that the express purpose of the work, i.e., clearing snow, was to make the area safe to work. (AA p. 54). The record also makes clear that removing snow, as Justice Minarik opined, is within the realm of construction 17 duties that would be required of a millwright on any construction site. (AA pp. 22- 23). As noted above, Claimant-Appellant, as well as his employer Hohl, both acknowledge that the millwright performs a variable list of duties on a job site, including removing snow for whatever reason. (AA p. 170). By Claimant- Appellant’s own admission, “millwrights will do anything and everything on a job site.” (AA p. 170). This evidence makes clear that when Hohl instructed Claimant-Appellant to remove snow from the bridge, it was merely instructing Claimant-Appellant to do what is normally expected of a millwright at any construction site. (AA p. 170). Thus, Claimant-Appellant’s assertion that no one within the chain of construction designated anyone to remove the snow runs contrary to the evidence, including the Claimant’s own admission. Claimant-Appellant attempts to characterize Hecker’s efforts on the bridge on the day in question as an “innocent worker’s conservative efforts to avoid a dangerous condition.” (RA p. 39). However, this mischaracterizes the evidence and fails to acknowledge that Hecker was charged to remove the snow upon which he fell as part of his duties for his employer, pursuant to his employer’s contract with the Respondent. (RA p. 41, 91). Specifically, Claimant-Appellant was instructed to shovel snow from the gang boxes to the bridge surface and all four corners of the bridge. (RA p. 91). This task not only fell within Hecker’s job 18 description as a millwright, but was also consistent with the terms of his employer’s contract with the State of New York, which required Hohl to do all things necessary and convenient to the performance of the remediation work on the subject bridge. (AA p. 22-23). In light of the forgoing, the overwhelming record evidence in the instant case clearly demonstrates that Claimant-Appellant was not within the intended class of persons protected by 12 N.Y.C.R.R. § 23-1.7(d). Moreover, the record further establishes that Respondent did not violate that section, as the Claimant was charged with removing snow from the bridge surface as part of his duties as a millwright, and fell upon the same. Based on these facts, no jury could rationally determine that either Respondent, or someone in the chain of the construction project, violated 12 N.Y.C.R.R. § 23-1.7(d) by permitting the bridge-decking in question to become covered with ice and snow. Accordingly, the Appellate Division, Fourth Department, properly determined that 12 N.Y.C.R.R. § 23-1.7(d) is inapplicable as a matter of law to Hecker’s accident. The decision should be affirmed. 19 POINT II THE PLACE OF THE ACCIDENT WAS A WIDE OPEN, UNENCLOSED AREA AND WAS NOT A “PASSAGEWAY” FOR THE PURPOSES OF 12 N.Y.C.R.R. § 23-1.7(d) A. THE FOURTH DEPARTMENT’S RELIANCE ON HERTEL V. HUEBER-BREUER CONSTR. CO. AND OTHER CONTROLLING PRECEDENT WAS CORRECT; HECKER WAS NOT ENTITLED TO RECOVER UNDER HIS NEW YORK LABOR LAW § 241(6) CLAIM BASED ON 12 N.Y.C.R.R. § 23-1.7(d). The Appellate Division, Fourth Department, correctly decided that the wide open unenclosed deck on the side of Route 36 on the Washington Street lift bridge was not a passageway within the meaning of 12 N.Y.C.R.R. § 23-1.7(d). In reaching its decision, the majority in the Appellate Division properly focused on whether the Appellant was using the subject area as a passageway. See Hecker (citing Hertel v. Hueber-Breuer Constr. Co., 24 A.D.3d 1259, 850 N.Y.S.2d 806 (4 th Dept. 2008); Sullivan v. RGS Energy Group, Inc., 78 A.D.3d 1503, 910 N.Y.S.2d 776 (4 th Dept. 2010); Bale v. Pyron Corp., 256 A.D.2d 1128, 684 N.Y.S.2d 393 (4 th Dept. 1998)). Respondent respectfully submits that the Appellate Division’s holding is consistent with applicable legal precedent and common sense and therefore must be affirmed. The Appellate Division cited Hertel in support of its conclusion that the Washington Street Lift Bridge was not a “passageway” within the meaning of the pertinent industrial code section. (AA p. 28). There, the plaintiff slipped and fell 20 on a patch of ice on a concrete slab that was situated in an unenclosed area between two buildings under construction. Hertel, supra, at 1260. At the time of the accident, the plaintiff was unrolling a blanket to protect the slab from being covered by snow overnight. Id. The court opined that 12 N.Y.C.R.R. § 23-1.7(d) was inapplicable because the plaintiff was not using the area in which he fell as a passageway at the time of the accident. Id. Rather, the accident “occurred in a common area or open courtyard between the various buildings under construction.” Id. (citing Stairs v. State St. Assoc., 206 A.D.2d 817, 818 (3 rd Dept. 1994); Perillo v. Pleasant View Assoc., 292 A.D.2d 773, 739 N.Y.S.2d 504 (4 th Dept. 2002)). The Respondent believes that the Appellate Division selected Hertel with care because it is essentially the same situation as presented in the Gaisor case, but in reverse. Rather than removing something from the work area (as Gaisor and Hecker were doing), in Hertel, the plaintiff, was laying something down on the slab area. In either event, both the plaintiff in Hertel, the plaintiff in Gaisor, and the Claimant-Appellant in the instant case were actually performing work in the subject area when they fell. The Hertel court opined that 12 N.Y.C.R.R. § 23- 1.7(d) was inapplicable because the plaintiff was not using an area in which he fell as a passageway at the time of his fall. Rather, the plaintiff’s fall occurred in a common area or open courtyard, on an unenclosed concrete slab that was situated between the various buildings under construction. Turning to the case at bar, it is 21 without dispute that the area where Hecker fell was a bridge deck, open to the great outdoors, on the side of Highway 36, similar to the concrete slab in Hertel. Thus. the Appellate Division’s reliance on Hertel is sound. Claimant-Appellant attacks the Appellate Division’s reliance on what he refers to as “inconsequential dicta” from the Hertel opinion. See Claimant- Appellant’s brief at 30. According to the Appellant’s argument, the Hertel court did not intend to emphasize the way in which the plaintiff was using the area when he fell. Rather, Claimant-Appellant opines that the decision in Hertel was derived by the fact that the area where the plaintiff fell was a common area, and therefore not a passageway. See Claimant-Appellant’s Brief at 30. From this, Claimant- Appellant argues that the court should focus on the nature of the accident site itself, rather than the “subjective intentions or thoughts of the injured worker.” This argument fails for two reasons. First, there is nothing in Hertel to suggest that the court took the plaintiff’s “subjective intentions or thoughts” into consideration when it rendered its decision. Instead, the court simply looked at the way in which the area was being used and determined, from an objective standpoint, that the area was not being used as a passageway. See Hertel, 48 A.D.3d at 1260. Therefore, Appellant’s fear that the court’s analysis will “inject a murky element into a relatively straightforward analysis” is unfounded and without support in the case law. See Claimant-Appellant’s brief at 31. Secondly, and as 22 explained in further detail below, the roadway surface where the Claimant- Appellant fell in the present case constitute an open and common area similar to the premises at issue in Hertel. Therefore, even assuming, arguendo, that the court did not intend to consider the way in which the area was used, the Appellate Division was nevertheless correct in holding that 12 N.Y.C.R.R. § 23-1.7(d) does not apply as a matter of law. The Appellate Division also properly relied on Bale in support of its decision. In Bale, the plaintiff fell while walking from the construction site to a job trailer located outside a nearby building. Id. The plaintiff was walking close to the building in order to avoid the wind, and slipped on ice below the gutter less roof of the building. Id. The court held that 12 N.Y.C.R.R. § 23-1.7(d) did not apply because the accident occurred in an open area and not a defined walkway. Id. In his brief, Claimant-Appellant asserts that the “crucial fact in Bale was that the plaintiff chose the path.” See Claimant-Appellant’s Brief at 24 (emphasis in Claimant’s brief). He further argues that there was no defined path in Bale because the plaintiff there could have taken other routes between the construction site and the job trailer. However, a thorough review of the Court’s opinion in Bale reveals no reference, or inference, whatsoever regarding alternative routes that the plaintiff could have traversed to get to the trailer, nor does the opinion refer to the existence 23 of such routes as “crucial” to the outcome. Id. As such, Claimant-Appellant has failed to distinguish Bale from the facts of the case at bar. As demonstrated above, the precedent cited by the Appellate Division compels the conclusion that the wide open bridge surface where Claimant- Appellant fell does not constitute a passageway within the meaning of 12 N.Y.C.R.R. § 23-1.7(d). Moreover, the fact that Hecker was using the bridge deck on the side of the roadway to clear snow as part of his contractual duties, and fell on the snow he was removing, precludes a finding that the area was a passageway within the meaning of the pertinent industrial code regulation. See also Bannister v. LPCiminelli, Inc., 93 A.D.3d 1294 (4 th Dept. 2012). In Bannister, the plaintiff alleged a New York Labor Law § 241(6) cause of action based on the same Industrial Code violation as is alleged in the instant case. There, the plaintiff slipped on ice and fell while working in an open courtyard at a school renovation project. The Court concluded that the regulation did not apply where “the accident occurred in an open area and not on a defined walkway, passageway or path.” Id., citing Bale. Thus, the Fourth Department continues to define a passageway as something closer to a defined walkway, and not an open area such as the courtyard in Bannister, a concrete slab in Hertel, or a bridge deck in the instant case. As such, the Appellate Division majority opinion should be affirmed. 24 B. EVEN IF THE COURT ERRED IN CONSIDERING THE MANNER IN WHICH THE SUBJECT AREA WAS USED, THE BRIDGE DECK DID NOT CONSTITUTE A PASSAGEWAY UNDER APPLICABLE LEGAL PRECEDENT. Even assuming that the Fourth Department erred in considering how the subject area was being used at the time of the accident, it is respectfully submitted that the side of the roadway or bridge in the instant matter nonetheless fails to qualify as a “passageway” within the meaning of the pertinent New York State Industrial Code. Appellant correctly states in his brief that 12 N.Y.C.R.R. § 23-1.7(d) does not contain a definition of the term “passageway.” However, in forging an analytical structure through which he could define the term in a favorable light, Claimant-Appellant argues that a passageway (1) provides a means of access to the work site, and (2) must be defined, not common or remote. See Claimant- Appellant’s Brief at 17. The second prong of Appellant’s proposed analytical structure improperly seems to suggest that an area must be both defined and in close proximity to the worksite in order to qualify as a passageway. As demonstrated below, numerous decisions have failed to find a passageway despite the fact that the area on which the plaintiff fell provided access to the worksite. Moreover, it is respectfully submitted that the overwhelming factual evidence and applicable legal precedent clearly demonstrate that the area where Claimant- Appellant fell is, in fact, common and undefined, because the Claimant fell in a 25 wide open area of the wide open bridge, as opposed to an enclosed, defined stairwell. Thus, the bridge surface where the Claimant’s alleged injuries occurred fails to meet even the Claimant’s own definition of a “passageway.” C. ALTHOUGH THE BRIDGE SURFACE PROVIDED ACCESS TO THE SUBTERRANEAN JOB SITE, THAT DOES NOT COMPEL THE CONCLUSION THAT THE AREA WAS A “PASSAGEWAY” FOR PURPOSES OF 12 N.Y.C.R.R. § 23-1.7(d). Contrary to Claimant-Appellant’s assertions, applicable precedent demonstrates several examples where a passageway has not been found despite the fact that the subject area was used to access the worksite. Accordingly, the fact that the side of the roadway where Hecker slipped was used to access the pit doors and the stairwell leading to the subterranean work site, does not compel the conclusion that the subject area constituted a passageway. For example, in Smith v. Hines GS Props., Inc., 29 A.D.3d 433; 815 N.Y.S.2d 82 (1 st Dept. 2006), the plaintiff was walking in the open area between the materials storage trailers and the area under construction. Even though the tradesmen at the site routinely traversed this “physically defined area,” as their only access between the worksite and their equipment and materials, the court held that it was not a passageway pursuant to 12 N.Y.C.R.R. § 23-1.7(e)(1). Id. As applied, Smith is similar to the instant case wherein the Claimant-Appellant 26 admittedly was clearing off snow between the “gang boxes,” similar to the material storage trailers in Smith, and fell before he got to the construction site. A similar result was reached in Ramski v. Zappia Enterprises, Inc., 229 A.D.2d 990, 645 N.Y.S.2d 364 (4 th Dept. 1996). There, the plaintiff was injured when he slipped and fell on an ice patch at a construction site. Id. At the time of his fall, the plaintiff was carrying corrugated metal sheets from a storage area inside a building to another area inside the same building, where the sheets were to be affixed to a side wall of the building. Id. The court held that 12 N.Y.C.R.R. § 23-1.7(d) was inapplicable because the area in which the injury occurred did not qualify as a passageway. Again, Ramski demonstrates that the area between the actual work site and the area where equipment and materials were kept, is not a passageway as a matter of law. It was of no moment that the plaintiff needed to traverse the area where the accident occurred in order to get to the place where his work was to be done. Similarly, in this case, the fact that the Claimant-Appellant needed to traverse, and/or shovel snow from the roadway to get to the pit doors and then down to the subterranean worksite, does not compel the conclusion that the area where plaintiff fell was a passageway. Finally, in Morra v. White, 276 A.D.2d 536, 714 N.Y.S.2d 510 (2 nd Dept. 2000), the plaintiff was injured when he slipped and fell on snow and ice at a construction site managed by defendant construction company. Id. At the time of 27 the accident, the plaintiff was walking across an open lot to perform his duties taking water readings. Id. The court held that 12 N.Y.C.R.R. § 23-1.7(d) was inapplicable because the plaintiff slipped in an open area of the construction site and not within a defined walkway or passageway. Id. Morra further illustrates the principle that just because a party uses a specific route to access their worksite does not render that route a “passageway” as a matter of law. The plaintiff in Morra was walking in an open area of the construction site, a wide open parking lot, so that he could perform his duties taking water readings. This is similar to the instant Claimant-Appellant’s argument that the Claimant needed to access the bridge in the present case in order to get to the “real work” underneath the bridge deck. The court in Morra, similar to the court in Ramski, held that the area was not a passageway despite the fact that the plaintiff needed to traverse the subject area in order to complete the “real work” of the project. Just as the plaintiff in Morra had to make use of the parking lot, the Claimant in the present case needed to access the open bridge deck, and indeed, clear off part of it, and then go through the pit doors in order to access the subterranean work site. As the above-referenced precedent makes clear, the fact that Claimant needed to access the area where the bridge was located to get down to the place where his “real work” was performed, is not dispositive on the issue of 28 whether the wide open area of the bridge constituted a passageway under 12 N.Y.C.R.R. § 23-1.7(d). The dissenting opinion in the court below cites cases that are relied upon by the Claimant-Appellant in his brief, including Fassett v. Wegmans Food Mkts., Inc., 66 A.D.3d 1274 (3 rd Dept. 2009) and Whelan v. City of New York, 270 A.D.2d 340 (2 nd Dept., 1999). Respectfully, the dissenting justices’ and the Claimant-Appellant’s reliance on these cases is misplaced. In Whelan, the plaintiff was injured while descending an icy staircase from a construction site on the Polaski Bridge in Queens, New York. Whelan, 270 A.D.2d at 341. The only facts alluded to in that case referenced trial testimony that the staircase where the accident occurred was a “passageway to the worksite.” Id., at 344. The Appellate Division, Second Department, extended the reach of a New York Labor Law § 241(6) action to “the entire site, including passageways utilizing the provision and storage of tools in order to ensure the safety of laborers going to and from actual points of work.” Id. As such, Whelan presents a very narrow fact scenario where the court reached a very broad conclusion. In Whelan, the accident occurred on the actual icy staircase, which was adjacent to the plaintiff’s worksite. Id. Conversely, in the instant matter, the Claimant was still on the bridge surface on the side of the road, and had not yet reached the subject staircase, which would only have happened 29 after the Claimant opened the pit doors that led down into the bridgeworks. (AA p. 139). Claimant-Appellant’s references to confined spaces and monitors, etc. having nothing to with the bridge surface where the Claimant-Appellant was working and the Claimant never encountered any area that might have been designated a confined space because the Claimant never left the great outdoors on top of the bridge. (AA p. 25, 135). As noted in Claimant-Appellant’s brief, in order for Hecker to access the underground lift mechanism and perform his work, he needed to walk along the bridge, pass through the pit doors, and then climb 30 feet down a ladder. See Claimant-Appellant’s brief at 21. In order for Whelan to be on point, or at least instructive, Hecker would need to have fallen from the staircase that he would have reached after he cleared the snow off the wide open bridge deck, including the pit doors, and after he opened the pit doors and proceeded down the very well-defined staircase to the subterranean work site. However, it is undisputed that Hecker was still on the surface of the bridge and not through the pit doors and making his way down the staircase into the bridgeworks when he fell. (AA p. 19). As Hecker’s fall occurred in the common area outdoors, the Whelan case is simply not applicable. The Fassett case involves a fact scenario that is even more narrowly targeted than the Whalen case. In Fassett, the plaintiff was employed by a heavy equipment operator, which had been contracted by defendant Wegmans Food Markets to 30 replace a sidewalk outside of a Wegmans store in the City of Ithaca, Tompkins County. Fassett, 66 A.D.3d at 1275. While the plaintiff was exiting the cab of the backhoe he had been operating, he slipped on some mud that had accumulated on the backhoe’s battery cover, which served as a step to access the cab, and he injured his ankle. Id. Thus, in Fassett, the plaintiff did not fall in a wide open area such as the sidewalk or deck on the side of the Route 36 Washington Street lift bridge. The court extended the definition of “passageway” to cover the very small, very well-defined area that the plaintiff was required to use in order to access his equipment, including a piece of the equipment on which the plaintiff was standing. Accordingly, the very narrow Fassett is distinguishable on its face and any reliance thereon is wholly misplaced. In light of the forgoing, the fact that the subject area provided access to the job site does not compel the conclusion that the subject area was a passageway as a matter of law. Moreover, the cases relied upon by the Claimant-Appellant in this regard are materially distinguishable from the instant case. A review of applicable precedent clearly demonstrates that the present matter is more analogous to those instances where the courts have ruled 12 N.Y.C.R.R. § 23-1.7(d) to be inapplicable than those cases where the regulation was held to apply. As such, the Appellate Division should be affirmed. 31 D. CLAIMANT-APPELLANT FELL IN A WIDE OPEN SPACE ON THE WASHINGTON STREET BRIDGE, NOT AN ENCLOSED, DEFINED SPACE, AND THEREFORE THE SUBJECT AREA IS “COMMON” AND NOT A PASSAGEWAY. The overwhelming factual evidence in this case clearly demonstrates that the area upon which Claimant fell was a wide open area on the side of the roadway, and therefore, the court below was correct in concluding that it was not a passageway as a matter of law. (AA p. 28). The Court cited Constantino v. Kreisler Borg Floorman Gen. Constr. Co., 272 A.D.2d 361, 707 N.Y.S.2d 487 (2 nd Dept. 2000) in support of its decision. There, the plaintiff was injured when he slipped and fell on snow and ice at a construction site managed by the defendant construction company. Id. At the time of the accident, the plaintiff was walking in an open area of the site “along a path formed by the flow of men walking back and forth between where their cars were parked and the building under construction.” Id. at 362. The court held that the path was not a passageway within the meaning of 12 N.Y.C.R.R. § 23-1.7(d). Therefore, in Constantino, what appeared to be a well-defined “path” which was made by the flow of men walking back and forth between their cars and the construction site, was deemed not to be a passageway. See also Smith, supra (holding that a routinely traversed, physically defined pathway between the worksite and storage area was not a passageway as a matter of law). 32 Dalanna v. City of New York, 308 A.D.2d 400, 764 N.Y.S.2d 429 (1 st Dept. 2003) is also analogous to the case at bar. There, the plaintiff was a plumber directed to install pipes on a tank. Id. He sustained injuries when he tripped over a protruding bolt while carrying a pipe across an outdoor 50-foot long concrete slab. Id. The court held that the slab remained a common open area between the job site and the street, and therefore was not a passageway covered by 12 N.Y.C.R.R. § 23- 1.7(e)(1). Id., at 401. The court reached this conclusion even though the slab was regularly traversed in order to bring pipes to the tanks. As applied, Dalanna highlights similarities in the area between the gang-boxes and the pit doors in the present case. Similar to the slab in Dalanna, which was an open, unenclosed structure used by workers to get to the work site, the bridge deck on Highway 36 in the instant matter was a wide open, unenclosed area that was used by Hecker to get to the pit doors and then down to the subterranean work level. Clearly, the area where Claimant-Appellant fell constitutes an “open” area, given that he fell on the open area on the side of the road, rather than in the subterranean construction site where his “real work” was to be done, or even on the stairs that descended to the subterranean work site. A similar result was reached in Motyka v. Ogden Martin Sys. Of Onondaga, Ltd. Pship., 272 A.D.2d 980 (4 th Dept. 2000). There, the plaintiff slipped on snow and ice while carrying building materials across an open area of a construction site. 33 Id., at 981. The court held that 12 N.Y.C.R.R. § 23-1.7(d) did not apply because the area where the plaintiff slipped was an open area of the construction site, “not within a defined walkway or passageway.” Id. As such, the court held that the trial court erred in denying the defendant’s motion for summary judgment on the causes of action under New York Labor Law § 241(6). In an effort to give an example of what constitutes a sufficiently “defined” passageway, the Claimant-Appellant cites Conklin v. Triborough Bridge & Tunnel Authority, 49 A.D.3d 320 (1 st Dept. 2008). There, the plaintiff sustained injuries when he slipped off a muddy “chicken ladder,” consisting of two wooden planks with two-by-fours nailed across them to form a makeshift ladder. Id. The workers then placed the chicken ladder on sloped ground for use as a ramp, and it provided the sole means of access to the employer’s shanty. Id. at 321. The Appellate Division, First Department held that the chicken ladder constituted a passageway for purposes of 12 N.Y.C.R.R. § 23-1.7(d). Similar to the Whalen case, supra, in order for Conklin to apply to the facts at hand, the Claimant-Appellant would have needed to injure himself on the ladder descending down into the subterranean worksite. The ladder in Conklin is not tantamount to the wide open on the side of Highway 36 that Claimant-Appellant slipped on in the instant matter. As such, Conklin further supports Respondent’s position that the area in where Claimant-Appellant fell was not a passageway. 34 The above-mentioned cases make clear, as a matter of law, that the area where Claimant-Appellant fell was not a passageway within the meaning of 12 N.Y.C.R.R. § 23-1.7(d). Just as the path in Constantino was not a passageway, despite being well defined, and despite the fact that it was used by employees to move to and from the worksite, the place where Claimant-Appellant fell in the instant action lies out in the open and was used in order to get from the street down into the bridgeworks where the work was to be done. Similarly, just as the concrete slab in Dalanna “remained a common, open area between the job site and the street” and thus was not a passageway, the bridge deck on Highway 36 in the present case also remained an open area between Highway 36 and the job site below. See Dalanna, 308 A.D.2d at 401. In light of the applicable legal precedent, there is simply no reasonable interpretation of the evidence whereby it can be concluded that the wide open unenclosed bridge deck on Highway 36 leading to the pit doors constituted a passageway within the ambit of the pertinent industrial code regulation. Therefore, it is respectfully submitted that the Appellate Division, Fourth Department, correctly held that the unenclosed, wide-open bridge deck where the Claimant- Appellant allegedly fell in the instant matter does not constitute a passageway for purposes of 12 N.Y.C.R.R. § 23-1.7(d). 35 POINT III UNDER THE DISSENT’S ANALYSIS, ANYTHING COULD BE A PASSAGEWAY The dissent in the opinion below essentially argues that any area, whether large or small, whether enclosed or open, as long as it is being used to access a worksite, is a passageway or walkway within the meaning of the regulation. Respondent argues that this is an extremely overbroad application of 12 N.Y.C.R.R. § 23-1.7(d), and would encompass many areas where the statute was not meant to be applied. The dissent concluded that “[i]nasmuch as the pit door was located on the sidewalk and was the only way to access the underground worksite . . . [Claimant- Appellant] was using a passageway or walkway within the meaning of the regulation.” (AA p. 16). Initially, Respondent would note that the conclusion is inaccurate as the record indicates there is another set of pit doors to permit access. (AA p. 139). Thus, any assertion or reliance by Claimant-Appellant, or the dissent, that the open area where the Claimant-Appellant fell was the sole means of access to the subterranean work site is inaccurate on its face. Moreover, to the extent that any opinion by the dissent, or any argument by the Appellant, was based on the foundation that the pit doors near the area where Plaintiff was shoveling was the sole means of access to the subterranean work site, that opinion or argument should be disregarded. 36 In support of its conclusion, the dissent cites Fassett and Whalen. As explained in great detail supra, both of these cases are inapposite to the instant matter. Moreover, the mere fact that the pit door provided access to the worksite is also insufficient, in and of itself, to render the door a passage way within the meaning of the pertinent regulation. To hold otherwise would effectively reverse decisions cited herein, and in all departments, where the courts have held 12 N.Y.C.R.R. § 23-1.7(d) inapplicable despite the fact that the plaintiff fell in an area that was used to access the worksite. Constantino provides an example, where the plaintiff fell on a well-defined path providing access to his worksite. Id. Similarly, in Morra, the plaintiff was injured in a parking lot that needed to be crossed to get to the plaintiff’s work. In both Constantino and Morra, 12 N.Y.C.R.R. § 23-1.7(d) was held inapplicable despite the fact that the plaintiffs were using the area where they fell in order to get to their work site. Constantino, 272 A.D.2d at 362; Morra, 276 A.D.2d at 536. Smith illustrates this principle even further. The plaintiff in that case fell in an area which provided the only access between the worksite and the employees’ equipment and materials. The aforementioned cases make clear that simply because Claimant-Appellant needed to go through the pit doors – indeed, after he left the wide-open bridge surface – in order to access the subterranean job site, 37 neither the bridge deck nor the doors automatically constitute a passageway as a matter of law. In light of the forgoing, it is respectfully submitted that the majority justices in the Appellate Division, Fourth Department, correctly held that 12 N.Y.C.R.R. § 23-1.7(d) is inapplicable to the case at bar as a matter of law. Moreover, the dissenting justices, and the Claimant-Appellant, propose an overly broad rule whereby any area, be it enclosed or open, large or small, would qualify as a passageway as long as it was being used to access the worksite. As demonstrated above, such a ruling would run afoul of applicable legal precedent and common sense. Therefore, the majority decision should be upheld. A. THE APPELLATE DIVISION HAS DISCRETION TO RULE ON ANY POINT IN THE RECORD. The respondent would also highlight the dissent’s argument disagreeing with the majority’s position that they could affirm the lower court’s decision on other grounds. The dissent asserted that the court is “not in the business of blindsiding litigants” and noted that the Fourth Department should not have addressed the issue of whether 12 N.Y.C.R.R. § 23-1.7(d) applied to the facts at hand because it was not raised in the court below. Hecker v. State of New York, CA 11-01232, at 2 (4 th Dept. 2012) (citing Misicki v. Caradonna, 12 N.Y.2d 511, 519 (2009)). 38 The Misicki case cited by the dissent does not apply. In Misicki, the court specifically highlighted that one of the litigants “never so much as hinted, much less claimed before us, that 12 N.Y.C.R.R. § 23-9.2(a) is inapplicable to the grinder involved in the Plaintiff’s accident.” Id. In the instant case, however, it has always been the Defendants-Respondent’s contention that 12 N.Y.C.R.R. § 23- 1.7(d) does not apply. While the Defendant-Respondent made the argument in the lower court that it did not apply based on the ruling in the Gaisor case, the Appellate Division simply searched the record as it is permitted to do, and also held that the area in which the Plaintiff-Appellant fell did not constitute a passageway for purposes of 12 N.Y.C.R.R. § 23-1.7(d). Accordingly, there is nothing about the majority’s holding that would tend to “blindside” the litigants in the instant matter. As such, the majority correctly determined that it had authority to search the record, and decide the case based on the relevant regulation that was and has always been at issue. The majority’s decision should be affirmed. CONCLUSION Respondent posits that it is right and proper to apply case law that is “directly on point and controlling,” as Judge Minarik observed in the Court of Claims below, particularly when the facts are virtually identical. Therefore, it is Respondent’s position that this honorable court also has discretion, and authority, 39 to look into the record and find that the Gaisor case precludes application of 12 N.Y.C.R.R. § 23-1.7(d). Moreover, it is undisputed that the Plaintiff fell on the surface of the Washington Street lift bridge on the side of the Route 36 in a wide-open area. The Appellate Division, Fourth Department rationally supported its conclusion that the Washington Street Lift Bridge was not a “passageway” within the meaning of the pertinent industrial code section. In response, the dissent, and Claimant-Appellant, rely on very narrow fact scenarios with very broad and expansive rulings that would upset decades of precedent. Specifically, under the Claimant-Appellant’s analysis, any area, whether large or small, whether enclosed or open, as long as it is being used to access a worksite, is a passageway or walkway within the meaning of the regulation. Dated: October 3, 2012 KENNEY, SHELTON, LIPTAK & NOWAK, L.L.P ______________________________________ Richard C. Brister, Esq. Attorneys for Defendant-Respondent 233 Franklin Street Buffalo, New York 14202 Telephone: (716) 853-3801