Thomas J. O'Brien, Jr., Respondent,v.Port Authority of New York and New Jersey, et al., Appellants, Silverstein Properties, Inc., et al., Defendants.

Brief

N.Y.February 14, 2017

APL-2015-00331 New York County Clerk’s Index No. 114853/10 Court of Appeals STATE OF NEW YORK THOMAS J. O’BRIEN, JR., Plaintiff-Respondent, against THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY and TISHMAN CONSTRUCTION CORPORATION OF NEW YORK, Defendants-Appellants, and SILVERSTEIN PROPERTIES, INC., LOWER MANHATTAN DEVELOPMENT CORPORATION, DURST 1 WTC CONSULTANT LLC, DURST 1 WTC DEVELOPER LLC, DURST 1 WTC LLC, THE DURST ORGANIZATION, INC., TISHMAN REALTY & CONSTRUCTION CO., INC., REGIONAL SCAFFOLDING & HOISTING CO., INC. and ATLANTIC HOISTING & SCAFFOLDING, LLC, Defendants. >> >> BRIEF FOR PLAINTIFF-RESPONDENT THE PERECMAN FIRM, P.L.L.C. Attorneys for Plaintiff-Respondent 250 West 57th Street, Suite 401 New York, New York 10107 212-977-7033 Of Counsel: David H. Perecman Peter D. Rigelhaupt Date Completed: May 31, 2016 To Be Argued By: David H. Perecman Time Requested: 30 Minutes TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES................................................................. ii PRELIMINARY STATEMENT........................................................... 1 QUESTIONS PRESENTED FOR REVIEW........................................ 10 STATEMENT OF FACTS.................................................................... 11 ARGUMENT POINT I PLAINTIFF’S FALL DOWN AN ENTIRE FLIGHT OF THE TEMPORARY TOWER SCAFFOLD, PROVIDED FOR THE PURPOSE OF ACCESSING DIFFERENT LEVELS OF THE WORKSITE, IS WITHIN THE AMBIT OF LABOR LAW §240(1)……………………………......................... 15 POINT II THE UNCONTESTED PROOF IS THAT THE STAIRS OF THE TOWER SCAFFOLD WERE WET, SLIPPERY AND FAILED TO PROVIDE PROPER PROTECTION TO PLAINTIFF, IN VIOLATION OF §240(1), THEREBY CAUSING PLAINTIFF TO SLIP AND FALL DOWN AN ENTIRE FLIGHT OF STAIRS………….............................................. 18 POINT III THE VARYING OPINIONS OF THE EXPERTS DO NOT CREATE ANY RELEVANT ISSUE OF FACT WARRANTING THE DENIAL OF SUMMARY JUDGMENT TO PLAINTIFF........... 21 (i) POINT IV THIS COURT SHOULD MODIFY THE FIRST DEPARTMENT ORDER SO AS TO GRANT SUMMARY JUDGMENT TO PLAINTIFF ON HIS LABOR LAW §241(6) CAUSE OF ACTION......... 24 CONCLUSION............................................................................................. 30 (ii) TABLE OF AUTHORITIES CASES Aramburu v. Midtown West B, LLC, 126 A.D.3d 498 (1st Dept. 2015)....................................................... 5, 19 Auriemma v. Biltmore Theatre, LLC, 82 A.D.3d 1 (1st Dept. 2011)............................................................. 17 Bajor v. 75 East End Owners Inc., 89 A.D.3d 458 (1st Dept. 2011).......................................................... 26 Burton v. CW Equities, LLC, 97 A.D.3d 462 (1st Dept. 2012).......................................................... 17 Crimi v. Neves Associates, 306 A.D.2d 152 (1st Dept. 1993)......................................................... 16 Dennis v. Beltrone Const. Co., Inc., 195 A.D.2d 688 (3d Dept. 1993)………….......................................... 19 DeSisto v. New York City Transit Authority, 151 A.D.2d 639 (2d Dept. 1989).…………......................................... 24 Gallagher v. New York Post, 14 N.Y.3d 83 (2010)............................................................................. 7 Keefe v. E&D Specialty Stands, 259 A.D.2d 994 (4th Dept. 1999)……………………………………. 16 Kozlowski v. Ripin, 60 A.D.3d 638 (2d Dept. 2009)…...................................................... 26 Matter of Liquidation of Union Indem. Ins. of New York, 89 N.Y.2d 94 (1996)…….…………………………………………… 25 (iii) McGarry v. CVP 1 LLC, 68 A.D.3d 508 (1st Dept. 2009).…....................................................... 17 Mennis v. Commet 380, Inc., 54 A.D.3d 641 (1st Dept. 2008)............................................................ 19, 20 Morris v. Pavarini Construction, 22 N.Y.3d 668 (2014)......................................................................... 29 Nicometi v. Vineyards of Fredonia, LLC, 25 N.Y.3d 90 (2015)….........…………......…..................................... 8 Nunez v. Bertelsman Property, Inc., 304 A.D.2d 487 (1st Dept. 2003)……………………….………… 15, 16 Once v. Service Center of New York, 96 A.D.3d 483 (1st Dept. 2012)…………………………………….. 28 Parrales v. Wonder Works Construction Corp., 55 A.D.3d 579 (1st Dept. 2008)………................................................ 26 Potter v. New York City Housing Development Fund, Inc., 13 A.D.3d 83 (1st Dept. 2004)............................................................. 19, 20 Reisch v. Amadori Construction Co., 273 A.D.2d 855 (4th Dept. 2000)......................................................... 19 Rizzo v. Hellman Electric Corp., 281 A.D.2d 258 (1st Dept. 2001).................................................... 16, 19, 20 Robinson v. NAB Construction Corp., 210 A.D.2d 86 (1st Dept. 1994)............................................................ 19, 20 Runner v. New York Stock Exchange, 13 N.Y.3d 599 (2009)……………………………………………... 3, 21, 22 Scholastic Inc. v. Pace Plumbing Corp., 129 A.D.3d 75 (1st Dept. 2015)............................................................. 24 (iv) Velasquez v. 795 Columbus, LLC, 103 A.D.3d 541 (1st Dept. 2013).......................................................... 28, 29 Westcott v. Shear, 161 A.D.2d 925 (3d Dept. 1990)............................................................. 17 Zimmer v. Chemung County Performing Arts, Inc., 65 N.Y.2d 513 (1985)……………………………………………… 4, 5, 21 STATUTES Labor Law §240(1)................................................................................. Passim Labor Law §241(6)................................................................................. Passim OTHER AUTHORITIES 12 NYCRR 23-1.7(d)…………………………………………………… Passim (v) 1 PRELIMINARY STATEMENT As will be demonstrated below, there is no legitimate dispute that the temporary stair tower, also referred to as a tower scaffold, is both an elevation device within the ambit of Labor Law §240(1), and a passageway within the ambit of NYCRR §23-1.7(d) and, therefore, §241(6). As a result, where, as here, it is undisputed that Plaintiff-Respondent Thomas O’Brien (“Plaintiff”) slipped and fell down a full flight of the stairs of the stair tower due to the fact that they were wet, slippery, worn, narrow, steep and lacking in adequate anti-slip protection, both Labor Law §§240(1) and 241(6) were violated. At a minimum, at least one was violated. For those reasons, it is respectfully submitted that the order of the Appellate Division, First Department (887-900)1 should be affirmed to the extent it found that §240(1) was violated, and modified so as to reinstate the trial court’s original grant of summary judgment to Plaintiff under §241(6) as against Defendants-Appellants The Port Authority of New York and New Jersey (“Port Authority”) and Tishman Construction Corporation of New York (“Tishman”).2 1 The numbers in parentheses refer to the pages in the record on appeal. 2 As the prevailing party under §240(1) at the First Department, Plaintiff did not cross-move this Court for leave to appeal the First Department’s non-final determination with respect to the §241(6) cause of action. However, pursuant to the general jurisdiction granted this Court by the New York State Constitution, Article VI, §3 to review questions of law, and the broad question certified to this Court by the First Department - “[w]as the order of the Supreme Court, as modified by this Court, properly made?” - it is respectfully submitted that this Court can review the questions of law surrounding Plaintiff’s §241(6) cause of action that the Supreme Court 2 With regard to Labor Law §240(1), despite Defendants’3 efforts to complicate and, frankly, obfuscate the issues, the tower scaffold was indeed a temporary device erected for the construction related purpose of providing a method of access to the different levels of construction activity, and was the functional equivalent of a ladder or scaffold. Indeed, even the lone Appellate Division dissenter acknowledged that the tower scaffold was a device protected by Labor Law §240(1) (891-892). Therefore, the only issue remaining for discussion regarding §240(1) is whether Plaintiff’s fall was due to a violation of the statute. Plaintiff’s uncontested proof that the tower scaffold’s stair like rungs were wet and slippery, and caused his fall, was alone sufficient to warrant the Appellate Division’s grant of summary judgment on the §240(1) cause. The fact that the stairs were also narrow, steep, worn and, critically, lacking in proper and effective anti-slip protection likewise warranted that finding despite “whatever the weather conditions may have been,” as the Appellate Division held. (890) Defendants’ expert’s contention that the tower scaffold itself met industry standards, absent it being wet, slippery and worn, is insufficient to overcome the violation of the statute based on Defendants’ permitted use of the tower scaffold while its narrow, steep and worn stairs were wet and slippery due to rain. Thus, the resolved in Plaintiff’s favor, but the First Department modified so as to deny Plaintiff summary judgment on that claim. 3 Where no distinction is necessary, the Port Authority and Tishman will be collectively referred to as Defendants. 3 difference of opinion between the experts, relied upon by the dissenting judge, does not create a fact question sufficient to deny summary judgment to Plaintiff. There is no proof in the record other than that the stairs were wet and slippery. Plaintiff provided ample evidence of that from not just himself, but from a co-worker/witness and Defendants’ own accident and investigation reports. In fact, the slippery nature of the stairs, when wet, was conceded by the witness from Defendant, Atlantic Hoisting & Scaffolding, LLC (“Atlantic”), the provider of the tower scaffold, who admitted that the stairs were steel and that “water and steel in any circumstances would become – it would be slippery” (578). He also admitted that water on steel would be “hazardous” and, critically, that conditions make the steps slippery constitute a danger (583-584, 586-587). The case law is clear that a wet and slippery elevation device that causes one to fall, regardless of where it is situated, violates §240(1). Thus, this Court should affirm that part of the order of the First Department granting Plaintiff summary judment under §240(1), as such a result is compelled by this Court’s holding in Runner v. New York Stock Exchange, 13 N.Y.3d 599, 603 (2009) that “… the single decisive question is whether plaintiff's injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential.” 4 It is significant to note that while Plaintiff’s expert, Walter Konon, supported the grant of summary judgment with his opinion that the stairs were narrower and steeper than typical stairs and slippery when wet, Defendants’ expert skirted those critcial issues, content to only opine that the stairs complied with industry standards. Here, however, it is compliance with the stricter requirements of §240(1) that matters, not industry standards. Compliance with industry standards is not a defense. Just like the §240(1) violation that arises when an unbraced and unsecured “A-frame” ladder, that compies with industry satandards, shakes and moves while the worker is on it causing the worker to fall off, so too is there a violation here regardless of whether the tower scaffold complies with industry standards. So too is it a violation of the statute when a worker falls from a ladder or scaffold that is wet or slippery due to water, ice, oil, or debris. Thus, Defendants’ expert did not overcome the opinion of Mr. Konon by simply opining that the tower scaffold complied with industry standards. Over thirty years ago in Zimmer v. Chemung County Performing Arts, Inc., 65 N.Y.2d 513, 523 (1985), this Court rejected any defense predicated upon industry standards, because under §240(1) “… liability is mandated by the statute without regard to external considerations such as rules and regulations, contracts or custom and usage.” The Court went on to explain the rationale behind precluding a defense based upon custom or industry standards, stating that: 5 To determine an owner or contractor's liability for a violation of section 240(1) by reference to whether safety devices customarily are used, and, if so, which ones give “proper protection” would allow owners and contractors to diminish their obligations under that statute and to set their own standard of care for the protection of workers at the worksite. This would clearly contravene the legislative purpose of placing “ultimate responsibility for safety * * * on the owner and general contractor” (1969 NY Legis Ann, at 407). Id. at 523-524. See, also, Aramburu v. Midtown West B, LLC, 126 A.D.3d 498, 499 (1st Dept. 2015), holding that “[c]ontrary to defendants’ argument, their witnesses’ testimony that safety devices were neither used nor required to be used to perform plaintiff’s task is irrelevant to defendants’ liability pursuant to Labor Law 240(1), since the statute imposes an ‘unvarying standard’ independent of any ‘external considerations such as ... custom and usage,’” quoting Zimmer, supra. Neither expert was present on the date of the accident or otherwise viewed the actual tower scaffold involved, but rather viewed photographs of it. Plaintiff’s expert, however, was able to confirm the testimony of Plaintiff, the witness Jakub Erenc and, most significantly, Hugh Ennis, the general foreman of Atlantic, the supplier of the tower scaffold, that the steps are smooth steel and become more slippery when wet. Mr. Konon also averred to the simple fact that such tower scaffold steps are smaller, narrower and steeper than “standard indoor or outdoor stairs” or “typical” stairs, making them “more difficult to maintain safe and proper footing,” and that a worker while descending such steps will place their foot on the front-most edge of the steps when walking down. 6 Defendants’ expert fatally chose not to opine on those issues at all, saying nothing about the existence of or, more importantly, the effect of water on the steel stairs. He failed to address the critical issue of the need for anti-slip protection at the place of the steps – the front edge - where a worker places his or her foot when descending them (particularly steps that are smaller than standard steps). Instead, after viewing a similar stair tower, he simply relied on his own opinion that the tower scaffold steps here complied with industry standards for construction site stairs. The only conclusion that can be drawn from that is that even if the steps were compliant with industry standards and are typical for tower scaffold systems used on construction sites, and assuming that was relevant here, they do become slippery when wet and are smaller, steeper and narrower than standard stairs and therefore harder to negotiate. Therefore, Plaintiff’s expert’s opinion that Plaintiff fell because the narrow, small, steep stairs were wet and lacked sufficient anti-slip proptection, supports the finding that §240(1) was violated. Defendants’ expert, having failed to address those issues, does not offer any basis to conclude otherwise and deny summary judgment to Plaintiff. Defendants’ lengthy discourse on the distinctions between a §240(1) elevation device and a passageway, the supposed irrelevance of whether a §240(1) device is permanent or temporary in nature, and their suggestion that this Court 7 instead create a new “workable rule,” ignores the principles of stare decisis and represent nothing more than an attempt to fashion a way to avoid liability in this one instance. The temporary versus permanent nature of a §240(1) device is not an issue here because the tower scaffold is clearly temporary, as Defendants freely concede, and falls under the ambit of §240(1) as its purpose was to allow the workers to access the different levels of the worksite. Moreover, the legal distinction that has developed between a temporary device and a permanent structure that is being used to work from is a sound one, as it provides the rationale for the limited circumstances in which a permanent structure will come under §240(1) as opposed to a temporary device that always falls under §240(1) when it is poses a gravity- related hazard. Likewise, the fact that this temporary tower scaffold provided access to different levels of the worksite, just as a ladder or scaffold can, does not remove the device from the protection afforded by §240(1), nor does simply calling the device a passageway remove it from the scope of the statute. Defendants’ attempt to contravene clear precedent, by apparently adding a new requirement based on the claim that Plaintiff should have used another available interior staircase, is covered by a different principle of law, articulated by this Court in Gallagher v. New York Post, 14 N.Y.3d 83, 88 (2010), which allows owners and general 8 contractors to escape §240(1) liability only by presenting proof that the worker “… knew he was expected to use them [one of the other devices] but for no good reason chose not to do so, causing an accident.” Lacking that evidence, Defendants seek to cobble together a new rule of law that inures to their benefit in this case. As for the new “workable rule” Defendants have crafted, it is submitted that such a rule has long been in place; and it is that a device constructed or placed on a worksite to protect workers from elevation-related hazards or to allow workers access to different levels of a worksite (a recognized §240(1) risk) is governed by §240(1). Whether a worker on such a device is covered by §240(1) cannot depend on its use at a given second in time, as Defendants urge, and does not change moment to moment based upon whether a worker is swinging a hammer, accessing a level of the worksite, leaving the worksite or, as here, getting a raincoat so that the worker can continue working. The device must provide safety at all those times. Indeed, this Court, in a case repeatedly cited by Defendants, recently rejected the very argument that Defendants now suggest should be the new workable rule. See, Nicometi v. Vineyards of Fredonia, LLC, 25 N.Y.3d 90, 98 (2015)(“… were we to hold that [there is] a distinction between whether plaintiff was swinging a hammer tacker when he slipped or taking a step forward to retrieve a tool, such a holding would generally be illogical and inconsistent with the purpose and liberal interpretation of section 240(1) to protect workers”). 9 Defendants’ belief that the First Department decision will “have a significant negative effect on New York’s Labor Law 240(1) jurisprudence” is not only wrong, but it is based on a misguided belief that the decision “adopts a per se rule that under any circumstances” a fall from a temporary staircase “necessarily constitutes a Labor Law §240(1) violation” (Defendants’ br. at p. 3). To the contrary, the impact of the First Department decision is simply that when a §240(1) device that is worn, narrow and steep becomes wet and slippery and lacks adequate anti-slip protection, and is allowed to remain in use, and then fails to protect the worker from the gravity-related hazard of slipping and falling down an entire flight of stairs, Labor Law §240(1) will be found to have been violated. There is no issue that the stairs could have been provided with anti-slip protection, as after the accident grit tape was applied to the smooth end of the stair treads, which is the very part of the stair tread that a worker must place, and this Plaintiff did place his foot while descending. Regarding the §241(6) claim, Defendants concede that this accident involved “… a slip and fall on water from rainfall on an external staircase being used as a means of passage …” (Defendants’ br. at p. 21). That informal judicial admission satisfies all of the elements of 12 NYCRR 23-1.7(d), which mandates that slippery conditions, specifically, water, on stairs be ameliorated, and separately, that “employers shall not suffer or permit any employee to use” a 10 “passageway, walkway … which is in a slippery condition.” Tishman’s own safety guidelines have a virtually identical requirement (513). Despite that, Plaintiff was permitted to use the stairs in violation of the plain language of the regulation, and no measures were taken to ensure that “… water … which may cause slippery footing shall be removed, sanded or covered to provide safe footing” as per the mandates of § 23-1.7(d). Defendants’ admission that the steps were wet and slippery has the same legal effect on the §241(6) cause of action as it does on the §240(1) claim; it requires a finding of liability. No proof of comparative negligence was ever offered by Defendants, other than Plaintiff’s mere use of the tower scaffold that had been provided and not taken out of service, and speculative, unsupported allegations that he could have been more careful. QUESTIONS PRESENTED FOR REVIEW 1. Is Plaintiff entitled to summary judgment under Labor Law §240(1) as a result of his fall down the stairs of a temporary tower scaffold that were wet, slippery, lacked any adequate anti-slip protection, and otherwise proved inadequate to shield him from harm directly flowing from the application of the force of gravity? 11 The answer is yes, and that part of the order of the Appellate Division, First Department awarding summary judgment to Plaintiff under §240(1) should be affirmed. 2. Is Plaintiff entitled to summary judgment under Labor Law §241(6) as a result of Defendants’ violation of 12 NYCRR 23-1.7(d) in permitting Plaintiff to use a temporary tower scaffold whose stairs were wet from rain and in a slippery condition, and in failing to remove, sand or cover the slippery condition as mandated by 23-1.7(d)? The answer is yes, and that part of the order of the Appellate Division, First Department denying summary judgment to Plaintiff under §241(6) should be modified so as to grant Plaintiff summary judgment pursuant to §241(6) as the trial court did. STATEMENT OF FACTS Plaintiff’s accident occurred on July 13, 2010 at approximately 8:00 p.m. (193). On that date, Plaintiff was working for DCM Erectors at Tower 1 at the World Trade Center, as a crane operator on the tower cranes and a mechanic responsible for the maintenance and continued operation of four welding machines being used by the ironworkers and welders (180-184). Plaintiff began work at 6:00 a.m. and, had the accident not occurred, was scheduled to work until 11:00 p.m., a 12 seventeen hour work day (184, 193). It had rained on and off throughout the day (207-208), a fact confirmed by certified weather records (600-606). During construction, the workers were provided with a tower scaffold that was erected on the exterior of the building, so as to allow the workers to access the numerous floors under construction (349-358). Because the scaffold tower was situated outside, the stairs were exposed to the elements and became wet when it rained and snowed (235, 461, 629). Plaintiff’s co-worker, Jakub Erenc, averred that the stairs on which Plaintiff fell were slippery, particularly when wet, and the slippery nature of the stairs was a condition that almost everyone was aware of and was discussed among the workers (629). According to Plaintiff, the accident happened when he placed his right hand on the hand rail, which was wet, and began to descend the stairs of the tower scaffold. After he took one step down, his foot immediately slipped off the front edge, or tread, of the first step and he fell down the entire staircase (229-231, 236, 256-257). When shown a photograph of the area where the accident occurred (256- 261, 356-356A), Plaintiff circled the specific area on the first step where his foot slipped, describing it as “[r]ight on the edge of the tread” (257). Plaintiff’s account of the accident is confirmed by his employer’s C-2 report, signed by the safety manager, which states that Plaintiff was “descending stair tower during rain when foot skidded off stair tread ...” (346-348). In a separate 13 accident report completed by the employer, after documenting Plaintiff’s statement that he skidded down the stairs when getting a raincoat “to seek protection from the rain,” it is stated that “[t]he heavy rain during the evening may have been a contributing factor as to the cause of this incident,” and recommended that “[m]onitoring the flow of water during rainstorms may help to provide some protection against further incidents” (827). In addition, Tishman’s daily log for the accident date states “rain” in the section where weather is to be noted (858), and the Port Authority’s daily narrative notes “rain shower afternoon” (862). Although Tishman’s safety guidelines specifically state that all areas “shall be clean and free from debris, snow, water, equipment, materials, tools, etc. that may constitute a slipping, tripping, or other hazard” (513), the rain water on the tower scaffold was not removed or covered. Moreover, Tishman did not stop work during the rain, and in fact allowed Plaintiff and others to work while in the rain (461-462). Christopher Hart, the Port Authority’s resident engineer on the project, confirmed that work would continue in the rain (380-382), and Tishman’s site safety manager testified that he did not even know if there was any procedure in place for stopping work depending upon the amount of rainfall (462-463). Use of the stair tower while it was raining or just after it had rained was thus clearly permitted, despite evidence establishing that rain would make the already slippery steel surface of the stairs even more slippery. In addition to Plaintiff’s co- 14 worker testifying as to the slipperiness of the tower scaffold stairs, Hugh Ennis of Atlantic, the entity that supplied the tower scaffolding, admitted that when wet the steel stairs become slippery and that anything that makes the stairs slippery is a hazard and a danger (577-578, 583-587). Mr. Ennis further testified that over time the stairs become worn and that the “nubs” that are on them for slip-resistance will likewise wear out (576-577). As is evident from the photographs (349-358) and attested to by Plaintiff’s expert Walter Konon, the stairs on the tower scaffold are both narrow and steep (627 at par. 13), as compared to standard stairs. Additionally, as attested to by Mr. Konon, they are made of steel and that when wet, they become slippery and have a decreased coefficient of friction, particularly here where the stairs lacked any anti- slip measures (626-627 at par. 12). Indeed, after Plaintiff’s accident, in an acknowledgement that the stairs used by Plaintiff were dangerous, friction or grit tape was placed at the front edge or nose of the stairs. Photographs depicting the stairs in question were marked by Defendants during Plaintiff’s deposition and are in the record in alphabetical order as they were marked at the deposition. Some of those pictures show the grit tape that was placed on the stairs post-accident, while others do not. At his deposition, Plaintiff identified those with grit tape (252-255, 350-350A, 352-352A, 353-353A, 355-355A) and those without it (349-349A, 351-351A, 354-354A, 356-356A). 15 Tishman’s site safety manager identified the grit tape (464-465), and Atlantic’s witness conceded that the photographs showed that something had been installed on the front of the stair treads and that it could have been grit tape (566-567). The evidence is uncontroverted that this tape was not on the stairs at the time of Plaintiff’s accident.4 Both Mr. Ennis (566-569) and Mr. Konon made clear what the purpose of grit tape is, and Mr. Konon made it clear that the purpose of it being placed at the nose of the stairs is to provide anti-slip protection where it is most required, at the place on these small narrow stairs where workers will place their foot when they walk on them, particularly when walking down (627). POINT I PLAINTIFF’S FALL DOWN AN ENTIRE FLIGHT OF THE TEMPORARY TOWER SCAFFOLD, PROVIDED FOR THE PURPOSE OF ACCESSING DIFFERENT LEVELS OF THE WORKSITE, IS WITHIN THE AMBIT OF LABOR LAW §240(1) The majority and the dissenting judge both agreed that “… the staircase in question was a safety device within the purview of section §240(1).” Plaintiff’s fall down the entire flight of the tower scaffold is no different than the situation of a worker falling down the stairs of a multi-level scaffold, a situation which is clearly protected by §240(1). Nunez v. Bertelsman Property, Inc., 304 A.D.2d 487 (1st 4 By comparing the photograph marked as exhibit G during Plaintiff’s deposition (355-355A) side by side with the photograph marked as exhibit H during Plaintiff’s deposition (356-356A), the latter photograph depicting the circle Plaintiff made delineating where on the step he slipped, it becomes clear that the edge of the step containing the grit tape is much darker than not only the surrounding area of the step (355-355A) but also much darker than the exact same area on the step as depicted without the grit tape (356-356A). 16 Dept. 2003). Nor is it any different than a plaintiff who falls down a ladder because its rungs are slippery. Rizzo v. Hellman Electric Corp., 281 A.D.2d 258 (1st Dept. 2001). Nor is it different than a Plaintiff who falls down a built-in ladder/stairs to boiler. Crimi v. Neves Associates, 306 A.D.2d 152 (1st Dept. 2003). A fall down a flight of stairs provided for or in lieu of a ladder or scaffold is also protected by §240(1). Keefe v. E&D Specialty Stands, 259 A.D.2d 994 (4th Dept. 1999). All of these situations are §240(1) protected activities just as the fall here should be, and as the Appellate Division determined. The tower scaffold here was a temporary device constructed and placed at this worksite for the purpose of providing access to the different levels of the worksite. The fact that it is more elaborate and many stories in height, due to the size of the project, does not exempt it from the reach of §240(1). The fact that the stair-like rungs resemble a staircase, although smaller and steeper than a typical staircase, also does not exempt it from the statute. Devices that are provided to allow workers to gain access to different levels of a worksite have long been recognized to come within the ambit of §240(1) and nothing here warrants a change of that long-standing rule of law. For those reasons, in conjunction with the guiding principle that Labor Law §240(1) is to be liberally interpreted for the protection of workers, Plaintiff’s fall here from the top of a flight of tower scaffold 17 stairs to the bottom is a scenario that has been and should remain protected under §240(1). Defendants’ strained effort to take this case out of the ambit of §240(1), by mixing and mismatching principles of law, should be rejected outright. While Defendants are correct that this tower scaffold is a passageway, that does not mean it is not a device covered by §240(1). Cases abound where stairs, ladders, ramps, planks and other devices served as passageways that allowed workers access between different levels of a worksite, yet those same devices were still found to be within the ambit of the statute. Burton v. CW Equities, LLC, 97 A.D.3d 462 (1st Dept. 2012)(concrete walkway); Auriemma v. Biltmore Theatre, LLC, 82 A.D.3d 1 (1st Dept. 2011)(wooden plank); McGarry v. CVP 1 LLC, 55 A.D.3d 441 (1st Dept. 2008)(makeshift staircase); Wescott v. Shear, 161 A.D.2d 925 (3d Dept. 1990)(temporary stairway). Defendants weave in and out of unrelated concepts such as temporary versus permanent devices and §240(1) devices versus passageways, in an attempt to rewrite decades of decisional law for the sole purpose of removing this accident from the ambit of the statute. However, close scrutiny confirms that both the trial court and First Department properly held that the device involved here and the activity Plaintiff was engaged in are covered by §240(1). 18 POINT II THE UNCONTESTED PROOF IS THAT THE STEPS OF THE TOWER SCAFFOLD WERE WET, SLIPPERY AND FAILED TO PROVIDE PROPER PROTECTION TO PLAINTIFF, IN VIOLATION OF §240(1), THEREBY CAUSING PLAINTIFF TO SLIP AND FALL DOWN AN ENTIRE FLIGHT OF STAIRS The overwhelming proof is that the stairs of the tower scaffold were wet and slippery and that Tishman either knew that or should have known of that, and that in either event it is deemed responsible for that under §240(1). The tower scaffold was situated just outside the front of the building and the stairs of it were exposed to the elements. It was not covered or tarped in any way (235, 461). The C-2 report of Plaintiff’s employer states that Plaintiff was “descending stair tower during rain when foot skidded off stair tread ...” (346-348). A different accident report states that “heavy rain during the evening may have been a contributing factor as to the cause of this incident,” and recommended that “[m]onitoring the flow of water during rainstorms may help to provide some protection against further incidents” (827). Tishman’s daily log for the accident date states “rain” in the section where weather is to be noted (858), and the Port Authority’s daily report notes “rain shower afternoon” (862). Flying in the face of Defendants’ argument that they could not have prevented this accident (to the extent that is even relevant to a §240(1) claim) is the fact that neither Tishman nor the Port Authority, despite knowledge of the weather 19 conditions and the obvious fact, confirmed by Atlantic’s witness, that “water and steel in any circumstances would become – it would be slippery” (578), tried to stop work during the rain or otherwise barricade or rope off use of the stair tower. Instead of doing any of those things to try and prevent accidents of this type, Defendants simply argue that Plaintiff should have known to use a different, interior staircase even though they, the persons charged with the responsibility, did not see fit to do so themselves. That water and other environmental factors have, rightly so, long been a relevant consideration in §240(1) jurisprudence cannot be denied. See, Arumburu v. Midtown West B, LLC, 126 A.D.3d 498 (1st Dept. 2015); Mennis v. Commet 380, Inc., 54 A.D.3d 641 (1st Dept. 2008); Potter v. New York City Housing Development Fund Company, Inc., 13 A.D.3d 83 (1st Dept. 2004); Rizzo v. Hellman Electric Corp., 281 A.D.2d 258 (1st Dept. 2001); Reisch v. Amadori Construction Co., Inc. 273 A.D.2d 855 (4th Dept. 2000); Robinson v. Nab Construction Corp., 210 A.D.2d 86 (1st Dept. 1994); Dennis v. Beltrone Const. Co., Inc., 195 A.D.2d 688 (3d Dept. 1993). Thus, in Robinson v. Nab Construction Corp., supra, the First Department reversed the trial court and granted summary judgment to a plaintiff who slipped and fell from a scaffold-ladder that was wet due to rain, stating most importantly that: 20 If anything, the readily foreseeable occurrence of rainy conditions at an outdoor construction site highlights defendants’ negligence in failing to provide the statutorily-prescribed safety measures. 210 A.D.2d at 86-87. In Rizzo v. Hellman Electric Corp, supra, the same type of reasoning resulted in the plaintiff obtaining summary judgment on his §240(1) claim where the plaintiff “… slipped while descending the ladder” due to “… water puddles at either end of the ladder which caused the rungs to get wet and gravelly.” 281 A.D.2d at 258-259. Again, in Potter v. New York City Housing Development Fund Company, Inc., supra, a plaintiff whose “left foot slipped on a wet rung” while climbing a ladder was granted summary judgment, because: In light of plaintiffs' evidence showing that the ladder was not equipped with any safety devices, such as nonslip treads, and his assertion that he fell off the ladder while descending it, it cannot be said as a matter of law that the subject ladder provided “proper protection” as required by section 240(1). 13 A.D.3d at 84. In Mennis v. Commet 380, Inc., supra, the plaintiff was entitled to summary judgment where, while climbing on an “affixed metal hatch ladder that led to the roof of the building,” he was caused to fall “… when his hand slipped from the wet ladder…” 54 A.D.3d at 641-642. 21 Thus, it is abundantly clear that when a §240(1) device is being used within the scope of the statute and it becomes wet and slippery thereby causing a fall, the statute will be deemed to have been violated. POINT III THE VARYING OPINIONS OF THE EXPERTS DO NOT CREATE ANY RELEVANT ISSUE OF FACT WARRANTING THE DENIAL OF SUMMARY JUDGMENT TO PLAINTIFF The varying opinions of the experts and, in particular, the opinions of Defendants’ expert, David Glabe, do not create a fact issue on any point significant to the resolution of this appeal. The only issue Defendants’ expert opines upon is whether the tower scaffold was in accordance with good and accepted standards in the construction field. However, as already shown, that is not a relevant issue here because Labor Law §240(1) is self-executing and not dependent upon negligence concepts or industry standards. See, Zimmer v. Chemung County Performing Arts, Inc., supra, at 523. The issue is as this Court stated in Runner v. New York Stock Exchange, supra: Labor Law § 240(1) was designed to prevent those types of accidents in which the scaffold, hoist, stay, ladder or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person (Ross, 81 N.Y.2d at 501, 601 N.Y.S.2d 49, 618 N.E.2d 82 [emphasis in original]). In the simplest terms, there is no question here that this uncovered, smooth, metal stair tower, which the workers were permitted to use in the rain, “proved 22 inadequate …” to prevent Plaintiff from slipping down the stairs and seriously injuring himself and putting an end to his work career. Recognizing the standard articulated in Runner v. New York Stock Exchange, supra, the irrelevance of Mr. Glabe’s assertion that “industry standards do not require the application of additional anti-skid protection to the steps” (emphasis added), becomes clear. Even assuming that industry standards may not require anti-slip measures, the mandate of Labor Law §240(1) does in fact require it here because without it the safety device failed to “… shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person.” That this argument is correct is readily apparent by comparing this case to those decisions granting summary judgment to plaintiffs who fall from “A-frame” stepladders that tip and fall. The fact that the ladders are not defective, that they comply with industry standards in design and are not required by industry standards to be held or braced is of no consequence because the mandate of §240(1) is that such ladders be braced and secured, and when they tip and fall §240(1) has been violated. Just the same here, industry standard compliant or not, the narrow, steep, wet, slippery stairs of the tower scaffold that lacked anti-slip protection and were kept in use despite the rainy conditions violates § 240(1). 23 Although Defendants claim that Mr. Glabe’s opinions should be accorded more weight because “[s]ignificantly, Glabe actually inspected an exemplar staircase of the same design as the one involved here” (Defendants’ br. at p. 10), in point of fact at the time of Glabe’s first affidavit submitted in connection with these motions, sworn to October 16, 2012, no such inspection had been made (829- 836). In his second affidavit sworn to January 7, 2013 (674-683), Glabe references a recent inspection “of the same make and model staircase as that used by the plaintiff at the time of the alleged accident” (677 at par. 7), yet he does not address the only two relevant issues, those being the age and condition of the staircase he inspected as compared to the actual stair tower involved here, that Plaintiff’s expert described through the use of photographs as showing obvious signs of longstanding use and wear and tear (627), and whether he examined it under the same wet conditions that existed when Plaintiff fell. Mr. Glabe did not provide any photographs of the staircase he examined so they could be compared with those photographs taken shortly after the accident and, most glaringly, he fails to set forth whether he let the staircase he examined sit out in the rain all day and then tried to walk down it at 8:00 p.m. Undoubtedly, had he successfully done so it surely would have been mentioned, so his failure to say it means one of two things – that he tried to descend the staircase under similar conditions but fell, or that he chose not to try because he felt it was dangerous to do so. In fact, Mr. Glabe did 24 not even set forth the make and model of either the staircase he examined or the tower scaffold actually involved, even though he claims they are the same. Any claim by Defendants that Plaintiff’s expert could not render an opinion based on his review of the photographs that are part of the record and were taken shortly after the accident is without merit. See, Scholastic Inc. v. Pace Plumbing Corp., 129 A.D.3d 75 (1st Dept. 2015); DeSisto v. New York City Transit Authority, 151 A.D.2d 639 (2d Dept. 1989). POINT IV THIS COURT SHOULD MODIFY THE FIRST DEPARTMENT ORDER SO AS TO GRANT SUMMARY JUDGMENT TO PLAINTIFF ON HIS LABOR LAW §241(6) CAUSE OF ACTION, AS THE TRIAL COURT DID The trial court was correct in granting summary judgment to Plaintiff pursuant to Labor Law §241(6), predicated upon a violation of 12 NYCRR 23- 1.7(d). Defendants admit that the tower scaffold (stair tower) is a passageway, and there is little dispute that Plaintiff was suffered and permitted to use the passageway, in violation of the terms of the regulation, while it was “in a slippery condition.” There is also no question that the regulation was further violated in that “water … which may cause slippery footing” … was not “… removed, sanded or covered to provide safe footing. Therefore, the only conclusion that can be drawn is that the requirements of the regulation were not met and that §241(6) was violated. 25 Indeed, as already noted, Defendants’ informal judicial admission that this accident involved “… a slip and fall on water from rainfall on an external staircase being used as a means of passage …” (Defendants’ br. at p. 21), provides evidence of the facts admitted, which facts essentially establish a violation here of 23-1.7(d). See, Matter of Liquidation of Union Indem. Ins. of New York, 89 N.Y.2d 94, 103 (1996), where this Court stated “… it is irrelevant that the admissions were made in part by counsel … and that they were contained in affidavits or briefs.” That the stairs were wet cannot be disputed. That was established not just by Plaintiff’s testimony, but by the employer’s C-2 report stating that Plaintiff was “descending stair tower during rain when foot skidded off stair tread causing Mr. O’Brien to fall” (347), and the employer’s separate accident report stating that “heavy rain during the evening may have been a contributing factor as to the cause of this incident (827). Among the proof that the stairs were slippery was the testimony of Plaintiff’s co-worker and that of Atlantic’s witness, who admitted that “water and steel in any circumstances would become – it would be slippery (578). By its very terms, the drafters of the regulation, entitled “[s]lipping hazards,” recognized that water was a condition that caused slipping. Moreover, the regulation mandates not just that workers be stopped from using “a floor, passageway, walkway, scaffold, platform or other elevated working surface which is in a slippery condition,” but additionally, and separately, that the water “be 26 removed, sanded or covered to provide safe footing.” There can be no dispute that was not done here. In addition to 23-1.7(d) requiring that the water condition be ameliorated, so too did Tishman’s own safety guidelines (513). Yet, despite that, Plaintiff, in direct contravention of the specific terms of the regulation, was both “suffered “ and “permitted” to “use” the wet and slippery stairs while they were “in a slippery condition.” The assertion that the trial court was incorrect in granting summary judgment to Plaintiff because his comparative fault is somehow at issue ignores the fact that in opposing Plaintiff’s motion before the trial court, Defendants proffered no evidence whatsoever of any comparative fault on the part of Plaintiff, which it had to do in order for the issue to be left for the jury to consider. Parrales v. Wonder Works Construction Corp., 55 A.D.3d 579 (1st Dept. 2008). Absent such proof courts have, like the trial court correctly did here, routinely granted summary judgment to plaintiffs in the face of a plain violation of the specific terms of an applicable regulation. See, Bajor v. 75 East End Owners Inc., 89 A.D.3d 458 (1st Dept. 2011); Kozlowski v. Ripin, 60 A.D.3d 638 (2d Dept. 2009). In fact, in Defendants’ forty page affirmation in opposition before the trial court (631-671), outside of making a general statement that there are “questions of comparative fault” (633 at par. 6), their entire comparative fault argument appears to be contained in a single paragraph in which it is set forth that Plaintiff used the 27 staircase knowing it was slippery, and that he could have used a different staircase that Defendants claim was located seventy-five feet away (670 at par. 17).5 In Defendants’ brief before the First Department they expanded the argument to assert that Plaintiff did not “look down at where he was walking.” (Brief for Defendants-Appellants-Cross-Respondents at p. 35). However, in response to the only direct question in that regard that Plaintiff was asked - “[b]efore you descended the steps or started to descend the steps just before the accident, did you actually look down [at] the steps?” - Plaintiff answered yes (264). Additionally, as shown, Plaintiff knew precisely the area of the tower scaffold step on which his foot slipped (260). Beyond that, there is absolutely nothing whatsoever about a slippery water condition or wetness that Defendants can point to as being distinctive, particularly at 8:00 p.m. when the accident happened, such that Plaintiff’s comparative fault could be implicated for having stepped in it and having placed his hand on it as he grabbed the handrail before beginning his descent. More importantly, Plaintiff simply cannot be charged with comparative fault for using the offending tower scaffold when Defendants failed to take it out of service. Despite their non-delegable duty under §241(6), the mandate of 23-1.7(d), 5 The word “appears” is used because in that same paragraph that is referenced, the phrase “comparative fault” is not actually used, nor is any similar phrase. 28 and Tishman’s own safety guidelines requiring that all areas be free from water and other conditions that might constitute a slipping hazard, Defendants seek to charge Plaintiff with comparative fault for using the very tower scaffold that they did not, under the same conditions, see fit to either take out of service, remove the water from, or advise the workers or put up a sign advising the workers not to use those stairs but instead use the interior staircase that was seventy-five away. Indeed, such an argument has been rejected before. For example, in Once v. Service Center of New York, 96 A.D.3d 483 (1st Dept. 2012), a case involving a power saw with no guard, the jury found the plaintiff 70% at fault for the happening of the accident. The trial court, on post-trial motions, felt that 15% was the appropriate figure, but on appeal the First Department found that the plaintiff’s comparative fault was not implicated at all because there was “no evidence that plaintiff misused the saw, which he had been directed to use.” While it may be true that it can be left to a jury to determine whether a violation of a regulation was negligence, where the regulation was clearly violated and no measures were taken to prevent against the danger or to comply with the regulation, as is the case here, the issue of Defendants’ negligence can and should be decided as a matter of law, exactly as the trial court did here. The First Department reached such a result in Velasquez v. 795 Columbus LLC, 103 A.D.3d 541, 542 (1st Dept. 2013), when it searched the record and 29 granted summary judgment to the plaintiff on his Labor Law §241(6) cause of action, finding that 12 NYCRR 23-1.7(d) was violated because: … the floor became covered with mud and water due to a water main break and rain. As the mud was not part of the floor and not an integral part of plaintiff’s work, it constituted a ‘foreign substance’ that caused slippery footing ( see Conklin v. Triborough Bridge & Tunnel Auth., 49 AD3d 320 [1st Dept 2008]; Cottone v. Dormitory Auth. of State of N.Y., 225 A.D.2d 1032 [4th Dept 1996]). Further, plaintiff’s testimony that his foreman instructed him to work on the day of the accident, despite the presence of a muddy and wet condition, established negligence for which defendants may be held vicariously liable ( see Rizzuto v. L.A. Wenger Contr. Co., 91 N.Y.2d 343, 350 [1998] ), and defendants failed to raise a triable issue of fact in opposition. The deposition testimony of Tishman Construction’s general superintendent that there was no hazardous slippery condition is conclusory. Nor did defendants submit any evidence that plaintiff was contributorily negligent (see id.; Ross v. Curtis–Palmer Hydro– Elec. Co., 81 N.Y.2d 494, 502 n 4 [1993]). Subsequently, in Morris v. Pavarini Constr., 22 N.Y.3d 668 (2014), this Court recognized the propriety of granting summary judgment to a plaintiff under §241(6) when it held that the appellate court “did not abuse its discretion as a matter of law by granting summary judgment to plaintiff.” It is respectfully submitted that the facts here establish a clear violation of 23-1.7(d), which is a specific regulation and a clear predicate for imposing liability pursuant to §241(6). The trial court recognized Plaintiff’s entitlement to summary judgment, and therefore the certified question of law that the First Department has asked this Court to review - specifically “[w]as the order of the Supreme Court, as 30 modified by this [c]ourt, properly made?” – should be answered in the negative with respect to the §241(6) cause of action. CONCLUSION For the reasons set forth, it is respectfully submitted that the order of the Appellate Division, First Department should be affirmed to the extent it found that §240(1) was violated, and modified so as to reinstate the trial court’s original grant of summary judgment to Plaintiff under §241(6) as against Defendants. Completed: May 31, 2016 Respectfully submitted, The Perecman Firm, P.L.L.C. _________________________ David H. Perecman 250 West 57th Street, Suite 401 New York, New York 10107 (212) 977-7033 Of Counsel David H. Perecman Peter D. Rigelhaupt