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.Feb 14, 2017

To be Argued by: CHRISTOPHER SIMONE (Time Requested: 30 Minutes) APL-2015-00331 New York County Clerk’s Index No. 114853/10 Court of Appeals of the 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., THE DURST ORGANIZATION, L.P., THE DURST ORGANIZATION, INC., TISHMAN REALTY & CONSTRUCTION CO., INC., REGIONAL SCAFFOLDING & HOISTING CO., INC. and ATLANTIC HOISTING & SCAFFOLDING, LLC, Defendants. REPLY BRIEF FOR DEFENDANTS-APPELLANTS Of Counsel: CHRISTOPHER SIMONE ROBERT M. ORTIZ GERARD S. RATH SHAUB, AHMUTY, CITRIN & SPRATT LLP 1983 Marcus Avenue Lake Success, New York 11042 Tel.: (516) 488-3300 Fax: (516) 488-2324 Appellate Counsel to: FABIANI COHEN & HALL, LLP Attorneys for Defendants-Appellants 570 Lexington Avenue, 4th Floor New York, New York 10022 Tel.: (212) 644-4420 Fax: (212) 207-8182 Date Completed: September 8, 2016 i TABLE OF CONTENTS REPLY PRELIMINARY STATEMENT ....................................................... 1 REPLY POINT I THE STAIRCASE AT ISSUE WAS NOT A SAFETY DEVICE UNDER LABOR LAW § 240(1) BECAUSE IT WAS A MERE PASSAGEWAYAND NOT A TOOL PLAINTIFF USED TO PERFORM HIS WORK ................................................................................. 4 A. A Passageway Is Not A Safety Device ................................................. 4 B. Plaintiff’s Case Law Reliance Is Unavailing ........................................ 6 C. Defendants Propose A Workable Rule ............................................... 13 REPLY POINT II PLAINTIFF’S ARGUMENT ABOUT THE WETNESS OF THE STAIRCASE IS IRRELEVANT TO THE LABOR LAW § 240(1) CLAIM BECAUSE THE STAIRCASE WAS NOT A SAFETY DEVICE UNDER THE STATUTE.............................................................. 14 REPLY POINT III PLAINTIFF’S OWN ARGUMENTS CONFIRM THAT, AT THE VERY LEAST, THE COMPETING EXPERTS RAISED FACTUAL ISSUES THAT PRECLUDED GRANTING HIM SUMMARY JUDGMENT ................................................................................................. 16 REPLY POINT IV PLAINTIFF IS NOT ENTITLED TO A MODIFICATION OF THE APPELLATE DIVISION’S ORDER SO AS GRANT HIM SUMMARY JUDGMENT ON HIS LABOR LAW § 241(6) CLAIM .................................................................. 19 A. Applicable Law - Labor Law § 241(6) ............................................... 19 ii B. The Appellate Division Correctly Found Issues Of Fact As To Plaintiff’s Labor Law § 241(6) Claim ............................. 22 C. Plaintiff’s Case Law Reliance Undermines His Position ................... 25 D. The Conflicting Expert Affidavits Raised Issues Of Fact As To Whether 23-1.7(d) Was Violated And Whether The Staircase Posed a Hazardous Condition ...................................... 26 E. Plaintiff Has Not Eliminated Issues Of Fact As To Whether He Was Comparatively Negligent.................................. 27 CONCLUSION ............................................................................................. 30 iii TABLE OF AUTHORITIES Cases Allen v. Cloutier Const. Corp., 44 N.Y.2d 290 (1978) .............................................................................. 20 Arumburu v. Midtown West B, LLC, 126 A.D.3d 498 (1st Dep’t 2015) ............................................................ 15 Auriemma v. Biltmore Theatre, LLC, 82 A.D.3d 1 (1st Dep’t 2011) ............................................................. 11-13 Belcastro v. Hewlett-Woodmere Union Free School Dist. No. 14, 286 A.D.2d 744 (2d Dep’t 2001) ............................................................. 21 Blake v. Neighborhood Hous. Services of New York City, Inc., 1 N.Y.3d 280 (2003) ..................................................................... 16-17, 19 Bland v. Manocherian, 66 N.Y.2d 452 (1985) .............................................................................. 23 Booth v. Seven World Trade Co., L.P., 82 A.D.3d 499, 918 N.Y.S.2d 428 (1st Dep’t 2011) ............................... 22 Brennan v. RCP Assoc., 257 A.D.2d 389 (1st Dep’t 1999) ........................................................ 5, 10 Burton v. CW Equities, 97 A.D.3d 462 (1st Dep’t 2012) .............................................................. 11 Crimi v. Neves Assoc., 306 A.D.2d 152 (1st Dep’t 2003) ........................................................... 7-8 Dennis v. Beltrone Const. Co., Inc., 195 A.D.2d 688 (3d Dep’t 1993) ............................................................. 15 DeStefano v. Amtad New York, Inc., 269 A.D.2d 229 (1st Dep’t 2000) ............................................................ 24 iv Edwards v. C & D Unlimited, Inc., 295 A.D.2d 310 (2d Dep’t 2002) ............................................................. 29 Gallagher v. Andron Const. Corp., 21 A.D.3d 988 (2d Dep’t 2005) ........................................................... 5, 18 Keefe v. E&D Specialty Stands, Inc., 259 A.D.2d 994 (4th Dep’t 1999) ........................................................... 8-9 Lopez v. Boston Properties Inc., 41 A.D.3d 259 (1st Dep’t 2007) .............................................................. 28 McGarry v. CVP 1 LLC, 55 A.D.3d 441 (1st Dep’t 2008) .............................................................. 13 Mennis v. Commet 380, Inc., 54 A.D.3d 641 (1st Dep’t 2008) .............................................................. 14 Messina v. City of New York, 300 A.D.2d 121 (1st Dep’t 2002) ............................................................ 28 Misicki v. Caradonna, 12 N.Y.3d 511 (2009) .............................................................................. 21 Narducci v. Manhasset Bay Assoc., 96 N.Y.2d 259 (2001) .............................................................................. 17 Nicometi v. Vineyards of Fredonia, LLC, 25 N.Y.3d 90 (2015) ................................................................................ 14 Nunez v. Bertelsman Property, Inc., 304 A.D.2d 487 (1st Dep’t 2003) ........................................................... 6-7 Olson v. Pyramid Crossgates Co., 291 A.D.2d 706 (3d Dep’t 2002) ............................................................. 18 Panek v. County of Albany, 99 N.Y.2d 452 (2003) .............................................................................. 17 v Paolangeli v. Cornell Univ., 296 A.D.2d 691 (3d Dep’t 2002) ............................................................. 29 Paul v. Ryan Homes, Inc., 5 A.D.3d 58 (4th Dep’t 2004) .................................................................. 12 Penta v. Related Companies, L.P., 286 A.D.2d 674 (2d Dep’t 2001) ............................................................. 20 Potter v. NYC P’ship Hous. Dev. Fund Co., Inc., 13 A.D.3d 83 (1st Dep’t 2004) ................................................................ 14 Prichardo v. Urban Renaissance Collaboration Ltd. P’ships, 51 A.D.3d 472 (1st Dep’t 2008) .............................................................. 11 Ramirez v. Shoats, 78 A.D.3d 515 (1st Dep’t 2010) .......................................................... 5, 10 Reisch v. Amadori Const. Co., Inc., 273 A.D.2d 855 (4th Dep’t 2000) ............................................................ 15 Rizzo v. Hellman Elec. Corp., 281 A.D.2d 258 (1st Dep’t 2001) ........................................................ 7, 15 Rizzuto v. L.A. Wenger Contracting Co., Inc., 91 N.Y.2d 343 (1998) ....................................................................... passim Robinson v. NAB Const. Corp., 210 A.D.2d 86 (1st Dep’t 1994) .............................................................. 15 Ross v. Curtis-Palmer Hydro-Electric Co., 81 N.Y.2d 494 (1993) ........................................................................ 19, 21 Ryan v. Morse Diesel, Inc., 98 A.D.2d 615 (1st Dep’t 1983) .......................................................... 5, 10 vi Sacchetti v. Vasile Const. Corp., 254 A.D.2d 777 (4th Dep’t 1998) ............................................................ 29 Stewart v. Ferguson, 164 N.Y. 553 (1900) ................................................................................ 17 St. Louis v. Town of N. Elba, 16 N.Y.3d 411 (2011) .............................................................................. 26 Styer v. Walter Vita Constr., 174 A.D.2d 662 (2d Dep’t 1991) ............................................................. 18 Temes v. Columbus Ctr. LLC, 48 A.D.3d 281 (1st Dep’t 2008) .............................................................. 23 Torres v. City of New York, 127 A.D.3d 1163 (2d Dep’t 2015) ...................................................... 27-28 Velasquez v. 795 Columbus LLC, 103 A.D.3d 541 (1st Dep’t 2013) ............................................................ 25 Wescott v. Shear, 161 A.D.2d 925 (3d Dep’t 1990) ............................................... 5, 8, 10, 13 Statutes / Regulations Industrial Code § 23-1.7(d) .................................................................... passim Labor Law § 240(1) ............................................................................... passim Labor Law § 241(6) ............................................................................... passim 12 NYCRR 23-1.7(b)(1) ............................................................................... 29 12 NYCRR 23-1.30....................................................................................... 29 12 NYCRR § 23-6.1 (e) ................................................................................ 29 12 NYCRR § 23-6.1 (j) ................................................................................. 29 vii Other Authorities PJI 2:216A ............................................................................................... 20, 22 REPLY BRIEF FOR DEFENDANTS-APPELLANTS REPLY PRELIMINARY STATEMENT Contrary to the plaintiff’s contention, his accident does not give rise to a Labor Law § 240(1) violation because it occurred on a temporary staircase that was being used, not as a statutory safety device for his work, but simply as a passageway to obtain a personal belonging. Staircases are not statutorily enumerated safety devices. Thus, whether a staircase can constitute a safety device should depend on the nature of its use at the time of the accident, not whether it is permanent or temporary. The Appellate Division’s decision improperly adopted a per se rule that under any circumstance a temporary staircase constitutes an enumerated safety device, a fall from which necessarily gives rise to a Labor Law § 240(1) violation. Defendants’ opening brief established why the critical distinction in determining whether a stairway constitutes a safety device under Labor Law § 240(1) is whether it was used as a tool in the performance of plaintiff’s work or as a mere passageway from one place to another. Yet, in opposition, plaintiff has opted to not meaningfully address these arguments. Instead, he merely insists that the staircase was a safety device and points to the lower court and the Appellate Division’s decisions. But, as demonstrated previously, the staircase -2- here was not a safety device as it was not being utilized as a tool in the performance of plaintiff’s work, but was merely a passageway. Plaintiff seeks to avoid frank discussion about the distinctions made in the Appellate Division case law on whether a staircase is temporary or permanent, arguing that defendants’ proposed workable rule ignores principles of stare decisis (Respondent’s Brf. at 6-7). But such inconsistency between - and even within - the Departments are the very types of issues warranting review by this Court. In this case, resolution of these differences is dispositive and will establish a single state-wide rule. Plaintiff’s resort to the current disparities, therefore, certainly does not aid in that analysis. Plaintiff’s meager response to the issue concerning the competing expert opinions establishes why, at the very least, he was not entitled to summary judgment on the issue of liability. His theme distills to the basic premise that because he fell, a violation occurred, regardless of what defendants’ expert opined. Obviously, that finds no support in the jurisprudence governing Labor Law § 240(1), as accidents can happen even under the safest conditions. It is well settled that an accident alone does not establish a Labor Law § 240(1) violation or causation. If the rule were otherwise, as plaintiff represents it, then -3- defendants would be transformed into insurers of safety, which this Court has cogently observed they are not. Lastly, plaintiff asks this Court to modify so much of the Appellate Division order as found an issue of fact on his Labor Law § 241(6) claim and restore the motion court’s grant of summary judgment on that claim. This argument should be rejected. Even if rain on the steps constituted a violation of Industrial Code § 23-1.7(d), a violation alone does not establish negligence. Rather, plaintiff must still prove that the violation constituted an absence of reasonable care - which itself involves questions of notice and other issues - and causation. Moreover, the competing expert opinions raise issues of fact as to whether a violation even occurred, as this appeal demonstrates, and the record raises questions as to plaintiff’s comparative fault. Thus, the Appellate Division correctly reversed so much of the motion court’s order that had granted him summary judgment on his Labor Law § 241(6) cause of action. -4- REPLY POINT I THE STAIRCASE AT ISSUE WAS NOT A SAFETY DEVICE UNDER LABOR LAW § 240(1) BECAUSE IT WAS A MERE PASSAGEWAY AND NOT A TOOL PLAINTIFF USED TO PERFORM HIS WORK A. A Passageway Is Not A Safety Device Defendants’ opening brief established that plaintiff’s accident did not arise from a violation of Labor Law § 240(1). Rather, the accident stemmed from a usual and ordinary danger of a construction site, i.e, a slip and fall on water from rainfall on an external staircase being used as a means of passage and not as a tool / safety device in connection with performing an assigned work-related task. Defendants also established that, contrary to the Appellate Division’s holding, the staircase at issue was not a statutory safety device simply because it was a temporary staircase. At the time of his accident, plaintiff was not using it to perform work that entailed an elevation-related risk (R: 888, 892). Thus, the staircase could not be considered the functional equivalent of a ladder or scaffold. Rather, plaintiff was utilizing the staircase merely as a passageway between two levels. The fact that the staircase was temporary should be of no moment. Instead, as some of the Appellate Divisions have held, the manner in which the -5- staircase was being used at the time of the accident should be the critical determining factor. See Gallagher v. Andron Const. Corp., 21 A.D.3d 988, 989 (2d Dep’t 2005) (“[T]he distinction of permanent versus temporary is merely one aid in determining whether the device in question was a normal appurtenance to a building or a device to protect the worker from elevation- related risks or hazards.”); Brennan v. RCP Assoc., 257 A.D.2d 389, 391 (1st Dep’t 1999) (determinative criterion not permanence of structure); Ryan v. Morse Diesel, Inc., 98 A.D.2d 615 (1st Dep’t 1983) (“The distinction is critical” where stairway not used as a tool in performance of work, but as a passageway from one place of work to another); see also Wescott v. Shear, 161 A.D.2d 925 (3d Dep’t 1990) (Harvey and Weiss, JJ., dissenting) (“Although the majority make[s] much of the fact that the stairway in question was a temporary and removable one instead of one permanently installed, we believe no distinction should be made.”); Ramirez v. Shoats, 78 A.D.3d 515 (1st Dep’t 2010) (McGuire, J., dissenting) (how staircase was being used at time of accident should determine whether it constitutes a safety device; Labor Law § 240(1) inapplicable to stairway not being used as a tool in performance of work, but merely as a passageway). -6- B. Plaintiff’s Case Law Reliance Is Unavailing In response, plaintiff never meaningfully addresses defendants’ arguments. Instead, he merely begs the question, citing the decision below finding the temporary staircase was a safety device and cases pertaining to falls on enumerated devices that led to § 240(1) liability (Respondent’s Brf. at 15- 16). But these cases are distinguishable and irrelevant because the staircase here was not an enumerated or “other” safety device. Plaintiff first relies on Nunez v. Bertelsman Property, Inc., 304 A.D.2d 487 (1st Dep’t 2003) claiming that it is “no different” from the facts here (Respondent’s Brf. at 15). In Nunez, however, the plaintiff fell down stairs connecting levels of a scaffold (an enumerated device) in the course of his actual work. Nunez was climbing the scaffold’s stairs “from one level to the next in order to clean a portion of the exterior of the building that had been missed.” See Nunez, Brf. for Plaintiff Respondent, 2003 WL 25587478 at *2, *6. Nunez is clearly distinguishable. First, as noted, Nunez involved an actual enumerated device, and an integral part of it -- the stairs, erected, so that plaintiff and his coworkers could work from it to clean the exterior of the building. Second, unlike the circumstances here, Nunez was actually working -7- on the scaffold’s staircase at the time of his accident. Thus, the scaffold stairs in Nunez were the functional equivalent of a ladder. Conversely, here, plaintiff was not tasked with any work on the staircase (which is not an enumerated safety device) and at the time of the accident was only using it as a passageway to retrieve a personal item. Next, plaintiff mistakenly relies on cases involving slip and falls on ladders, which, again are enumerated devices. For example, in Rizzo v. Hellman Elec. Corp., 281 A.D.2d 258 (1st Dep’t 2001), plaintiff fell from a ladder that had a wet rung. Plaintiff had to descend the ladder in order to access his work location in a crawl space underneath the building under construction. The First Department held that Labor Law § 240(1) had been violated because the ladder was insufficient to prevent his fall. Rizzo is distinguishable in that, unlike here, it involved an enumerated device that plaintiff was utilizing at the time of his accident in connection with his specific tasked work. Similarly unavailing is plaintiff’s reliance on Crimi v. Neves Assoc., 306 A.D.2d 152 (1st Dep’t 2003). In Crimi, the plaintiff was injured in a fall from a permanently affixed ladder that constituted the only means of gaining access to his elevated work site. The Appellate Division held that the permanently affixed -8- ladder was a “device” within the meaning of Labor Law § 240(1). Crimi, 306 A.D.2d at 153. Crimi has no bearing on this case as it involved an enumerated device and not a staircase that was only being used as a passageway instead of in connection with the actual work. Nor was the staircase here the only means of gaining access to the basement, as staircase “I”, a permanent concrete staircase located inside the footprint of the building, was a mere 75 feet away from the subject exterior staircase (R: 701). Plaintiff also mistakenly relies on Keefe v. E&D Specialty Stands, Inc., 259 A.D.2d 994 (4th Dep’t 1999), for the proposition that “[a] fall down a flight of stairs provided for or in lieu of a ladder or scaffold is also protected by § 240(1)” (Respondent’s Brf. at 16). First, Keefe did not involve a flight of stairs. Rather, Keefe involved a worker that was injured when he descended partially constructed bleachers (which he was constructing) and he stepped into an opening between the floorboard and an unattached riser. Second, the Fourth Department analogized the bleachers to a “temporary stairway, or the functional equivalent of a ladder”, relying on Wescott v. Shear, 161 A.D.2d 925 (3d Dep’t 1990). Unlike the situation here, in Keefe, plaintiff was injured in the actual course of his work and the bleachers were being utilized as the functional -9- equivalent of a ladder or scaffold from which he was conducting his work. Thus, Keefe is inapposite. Plaintiff argues that “[d]evices 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” (Respondent’s Brf. at 16). Of course he cites to no precedent from this Court establishing this purported “long-standing” rule. As demonstrated previously, the issue is not devices in general, but whether a staircase can constitute an “other device” under Labor Law § 240(1). The Appellate Divisions have ruled both ways depending on whether the staircase was permanent or temporary and in some cases based on how the staircase was utilized. Thus, contrary to plaintiff’s contention, defendants are not seeking to rewrite decades of decisional law “for the sole purpose of removing this accident from the ambit of the statute.” (Respondent’s Brf. at 17). Rather, this case furnishes this Court with the perfect and necessary opportunity to provide clarity to this issue, which is relevant to the involved litigants and to the State’s Labor Law § 240(1) jurisprudence as a whole. -10- Defendants submit that the Appellate Division opinions in Gallagher v. Andron Const. Corp., supra; Brennan v. RCP Assoc., supra; Ryan v. Morse Diesel, Inc., supra and the dissents in Wescott v. Shear, supra; and Ramirez v. Shoats, supra stated the correct rule: regardless of whether a staircase is temporary or permanent, the critical distinction is whether the staircase was used as a tool in the performance of plaintiff’s work - making Labor Law § 240(1) applicable - or merely as a passageway from one place of work to another - making Labor Law § 240(1) inapplicable. Applying this rule to the facts of this case, it is abundantly clear that the staircase on which plaintiff fell was not a safety device within the meaning of Labor Law § 240(1) because he was not working from it and, thus, it did not serve as a tool in his work. Rather, the staircase was merely a passageway that he used to travel from the ground level at the site to a basement level in order to retrieve his personal item. There should be no distinction between utilizing this staircase, which though temporary was to be at the site for years, and the permanent staircase that plaintiff could have used a mere 75-feet away. Lastly, plaintiff argues that the fact that the staircase was a passageway does not mean it was not a device covered under Labor Law § 240(1). -11- (Respondent’s Brf. at 17). But, the cases he relies upon for this proposition have no relevance to the instant factual scenario. For example, Burton v. CW Equities, 97 A.D.3d 462 (1st Dep’t 2012) is misplaced. Though the decision references the fall having been from a walkway providing access to the rear yard under construction, the lower court filings indicate that the fall was from an elevated work location/catwalk to a location some 15 feet below the catwalk. See Plaintiff’s Aff. In Opposition, 2010 WL 8727769 at ¶¶ 3, 14. Clearly, the catwalk in Burton was the functional equivalent of a scaffold, an enumerated device. Alternatively, the fall in Burton was equivalent to a fall between levels at a construction site from an unguarded opening, which does constitute a violation of Labor Law § 240(1). See e.g. Prichardo v. Urban Renaissance Collaboration Ltd. P’ships, 51 A.D.3d 472 (1st Dep’t 2008) (fall through large hole in floor several stories deep entitled plaintiff to summary judgment under Labor Law § 240[1]). Burton, however, has no bearing on the issue in this case, i.e., the circumstances under which a staircase can constitute a safety device for purposes of Labor Law § 240(1). Auriemma v. Biltmore Theatre, LLC, 82 A.D.3d 1 (1st Dep’t 2011) is also distinguishable on multiple grounds. First, Auriemma was on his way to -12- unlock tools and set up equipment for his work during the day, whereas plaintiff’s trip to the basement here to retrieve his personal item was not necessary for his work. His argument that his raincoat was necessary is belied by the record. While it had been “raining on and off throughout the day” (R: 208), plaintiff had not been wearing his rain jacket the entire day while he worked (R: 211). Thus, he clearly did not need his rain jacket to complete his assigned task because to stay dry he would go inside the shanty “to get out of the rain” (R: 211). In addition, the plank in Auriemma provided the “only route” to the mechanical room, 82 A.D.3d at 5, and served as the functional equivalent of a ladder, an enumerated safety device, for plaintiff to utilize in obtaining his equipment for his work. Here, by contrast, plaintiff could have chosen another, interior, staircase that provided such access -- staircase “I” a mere 75 feet away (R: 701). Furthermore, as noted in defendants’ opening brief, the Fourth Department in Paul v. Ryan Homes, Inc., 5 A.D.3d 58 (4th Dep’t 2004) (Piggot, J.) previously analyzed the circumstances used to determine whether a plank would constitute a safety device. Where the plank had been used as a passageway or stairway, Labor Law § 240(1) was found inapplicable, but where -13- it was used as the functional equivalent of a ladder, Labor Law § 240(1) applied. Id. Thus, the plank in Auriemma fits into the latter category given the manner it was being used, whereas, here, the staircase belongs in the former category, making Labor Law § 240(1) is inapplicable. Lastly, as explained in defendants’ opening brief (at 33-36), McGarry v. CVP 1 LLC, 55 A.D.3d 441 (1st Dep’t 2008) and Wescott v. Shear, 161 A.D.2d 925 (3d Dep’t 1990) are irrelevant, distinguishable and/or should not be followed. Both fail to consider the critical issue of how the staircase was being used at the time of the accident. C. Defendants Propose A Workable Rule Clarity is sorely needed in setting forth the criteria to be applied in determining whether a staircase can constitute an “other device” under Labor Law § 240(1). Defendants submit that the workable rule propounded in their opening brief (at p. 37-41), which focuses not on whether a staircase is temporary or permanent, but instead on how it was used at the time of the accident, should be the critical and determinative issue as to whether the staircase was a safety device under Labor Law § 240(1). Contrary to plaintiff’s contention, this rule does not seek to isolate the moment of injury to such a -14- minute degree, i.e., between hammer strokes (see Nicometi v. Vineyards of Fredonia, LLC, 25 N.Y.3d 90 (2015)), but instead the overall intended function of the staircase at the time of the accident. REPLY POINT II PLAINTIFF’S ARGUMENT ABOUT THE WETNESS OF THE STAIRCASE IS IRRELEVANT TO THE LABOR LAW § 240(1) CLAIM BECAUSE THE STAIRCASE WAS NOT A SAFETY DEVICE UNDER THE STATUTE As demonstrated in our opening brief and Reply Point I, above, Labor Law § 240(1) does not apply to plaintiff’s accident because the staircase on which it occurred was not being used as a tool in his work, but rather as a mere passageway. Since the staircase was not a safety or “other device” within the meaning of Labor Law § 240(1), plaintiff’s citation to numerous cases involving slippery conditions on enumerated devices is irrelevant. His proposition presupposes that, unlike here, a safety device under the statute is involved in the accident. The cases plaintiff relies upon involve enumerated safety devices or their equivalents and thus, are irrelevant to the issue on this appeal. Specifically, this pertains to Mennis v. Commet 380, Inc., 54 A.D.3d 641 (1st Dep’t 2008) (involving wet rungs of an attached hatch ladder); Potter v. NYC P’ship Hous. -15- Dev. Fund Co., Inc., 13 A.D.3d 83 (1st Dep’t 2004) (wet rung of ladder, but contrary to plaintiff’s account, summary judgment denied based on multiple versions of accident); Rizzo v. Hellman Elec. Corp., 281 A.D.2d 258 (1st Dep’t 2001) (wet rungs on ladder); Reisch v. Amadori Const. Co., Inc., 273 A.D.2d 855 (4th Dep’t 2000) (wet crude plank ramp leading from bridge abutment to ground level over an excavation that “served the function of a ladder”); Robinson v. NAB Const. Corp., 210 A.D.2d 86 (1st Dep’t 1994) (rain on “scaffold-ladder” from which plaintiff fell); and Dennis v. Beltrone Const. Co., Inc., 195 A.D.2d 688 (3d Dep’t 1993) (fall off ladder placed in area where water and sheetrock dust had accumulated). Also misplaced is plaintiff’s reliance on Arumburu v. Midtown West B, LLC, 126 A.D.3d 498 (1st Dep’t 2015). In Arumburu, plaintiff was injured when he and a coworker were moving a heavy reel of wire down an incline and it rolled over plaintiff when he slipped on ice and his co-worker lost control of it. The court granted Arumburu summary judgment because safety devices, such as pulleys or ropes, were not used to lower the reel (which weighed between 300 and 1000 pounds). The fact that plaintiff’s injuries in part resulted -16- from slipping on ice on the ramp was irrelevant to the grant of summary judgment under Labor Law § 240(1), and similarly to the issue on this appeal. Plaintiff’s concluding thought to Point II of his brief that the statute will be deemed to have been violated “when a § 240(1) device is being used within the scope of the statute and it becomes wet and slippery thereby causing a fall”, misses defendants’ point entirely. As detailed in defendants’ opening brief and again in reply, the issue here is that the subject staircase was not a Labor Law § 240(1) device under the facts. This is because the staircase was not being used as a tool in plaintiff’s assigned work of maintaining the generator at ground level. Rather, he was using the staircase only as a means of access to the basement. Accordingly, a slip and fall on water on that staircase does not give rise to Labor Law § 240(1) liability. REPLY POINT III PLAINTIFF’S OWN ARGUMENTS CONFIRM THAT, AT THE VERY LEAST, THE COMPETING EXPERTS RAISED FACTUAL ISSUES THAT PRECLUDED GRANTING HIM SUMMARY JUDGMENT As this Court has cogently observed, “[t]he point of Labor Law § 240(1) is to compel contractors and owners to comply with the law, not to penalize them when they have done so.” Blake v. Neighborhood Hous. Services of New -17- York City, Inc., 1 N.Y.3d 280, 286 (2003). Plaintiff, however, ignores this important controlling principle in his brief. Rather, his short counter to the point that, at the very least, issues of fact precluded granting him summary judgment, actually reinforces defendants’ position. In particular, in plaintiff’s view, just the fact that he fell means the statute was violated. Obviously, this flatly contradicts the standard stressed by this Court in Narducci v. Manhasset Bay Assoc., 96 N.Y.2d 259, 267 (2001), that “[n]ot every worker who falls at a construction site, and not any object that falls on a worker, gives rise to the extraordinary protections of Labor Law § 240(1).” “Put differently, an accident alone does not establish a Labor Law § 240(1) violation or causation.” Blake, supra at 289. Furthermore, plaintiff’s attempt to liken the instant circumstances to those involving the physical collapse of a ladder or scaffold is unavailing. Putting aside that the staircase, again, was not an enumerated device, as this Court pointed out in Blake, 1 N.Y.3d at 289, n 8: In cases involving ladders or scaffolds that collapse or malfunction for no apparent reason, we have (ever since Stewart v Ferguson, 164 NY 553 [1900], supra) continued to aid plaintiffs with a presumption that the ladder or scaffolding device was not good enough to afford proper protection. See Panek v County of Albany (99 NY2d 452, 458 [2003] [summary judgment appropriate -18- for the plaintiff where it was uncontroverted that a ladder collapsed beneath him, causing the fall]); Styer v Walter Vita Constr. (174 AD2d 662 [2d Dept 1991]); Olson v Pyramid Crossgates Co. (291 AD2d 706 [3d Dept 2002]). Here, the staircase did not collapse, shift, fall, shake or fail in any way. Plaintiff simply slipped. As there could be any number of reasons why he slipped that have nothing to do with the staircase itself, the mere happening of the accident did not by itself give rise to a Labor Law § 240(1) violation. That is the jurisprudence of this state as repeatedly set forth by this Court. Plaintiff would outright discount defendants’ expert proof as irrelevant. But, as recognized by dissenting Justice Friedman, the parties’ respective expert’s affidavits raised issues of fact as to whether plaintiff was provided with proper protection under Labor Law § 240(1). Even the majority recognized that “[t]he affidavits of plaintiff’s and defendant’s experts conflict as to the adequacy and safety of the temporary stairs” (R: 889 [emphasis added]). Yet, the majority then erroneously found plaintiff entitled to summary judgment, deciding disputed factual issues itself. To be sure, the issue the entire Court identified is whether these circumstances give rise to Labor Law § 240(1) liability; it is not, as plaintiff understands, simply whether he slipped and fell. If it were, then every accident -19- would automatically create liability and no issue of fact could ever exist. Yet, by granting plaintiff summary judgment on this record, the majority misapplied this Court’s precedent, turning Labor Law defendants into insurers for all risks encountered at a construction site. See Blake, 1 N.Y.3d at 286 (“At no time, however, did the Court or the Legislature ever suggest that a defendant should be treated as an insurer after having furnished a safe workplace.”). Under the majority’s rationale here, however, nothing short of 100% accident prevention could comply with Labor Law § 240(1). That is not the law, however, as accidents can happen even under the safest conditions. Accordingly, the Appellate Division should not have granted plaintiff partial summary judgment on his Labor Law § 240(1) claim. REPLY POINT IV PLAINTIFF IS NOT ENTITLED TO A MODIFICATION OF THE APPELLATE DIVISION’S ORDER SO AS GRANT HIM SUMMARY JUDGMENT ON HIS LABOR LAW § 241(6) CLAIM A. Applicable Law - Labor Law § 241(6) To prevail under Labor Law § 241(6), plaintiff must first establish the violation of an Industrial Code provision that sets forth a specific standard of conduct relevant to the facts of the case. See Ross v. Curtis-Palmer Hydro-Elec. -20- Co., 81 N.Y.2d 494, 501-505 (1991). “The interpretation of an Industrial Code regulation and determination as to whether a particular condition is within the scope of the regulation present questions of law for the court.” Messina v. City of New York, 300 A.D.2d 121, 123 (1st Dep’t 2002) citing Penta v. Related Companies, L.P., 286 A.D.2d 674 (2d Dep’t 2001). “[O]nce it has been alleged that a concrete specification of the Code has been violated, it is for the jury to determine whether the negligence of some party to, or participant in, the construction project caused the plaintiff’s injury. If proven, the general contractor * * * is vicariously liable without regard to his or her fault.” Rizzuto v. L.A. Wenger Contracting Co., Inc., 91 N.Y.2d 343, 350 (1998), citing Allen v. Cloutier Const. Corp., 44 N.Y.2d 290 (1978). “An owner or general contractor may, of course, raise any valid defense to the imposition of vicarious liability under section 241(6), including contributory and comparative negligence” Rizzuto v. L.A. Wenger Contracting Co., Inc., supra, at 350. Section 241(6)’s Three-Part Test The standard of proof in establishing a Labor Law § 241(6) cause of action involves a three-part test, each of which must be answered in favor of plaintiff for liability against the defendant to ensue. See PJI 2:216A; Rizzuto, -21- supra; Belcastro v. Hewlett-Woodmere Union Free School Dist. No. 14, 286 A.D.2d 744 (2d Dep’t 2001). First, the jury must decide whether a specific and applicable Industrial Code provision was violated. Importantly, the “breach of a duty imposed by a rule in the Code is merely some evidence for the factfinder to consider on the question of a defendant’s negligence” Misicki v. Caradonna, 12 N.Y.3d 511, 515 (2009)(emphasis added; citation omitted); Ross v. Curtis- Palmer Hydro-Electric Co., 81 N.Y.2d 494, 502 (1993)(“Furthermore, a breach of Labor Law § 240 (1)’s requirements leads to ‘absolute’ liability, while a breach of a duty imposed by a regulation promulgated under Labor Law § 241 (6) is merely some evidence of negligence [citation omitted]”); see also Belcastro, supra at 746. Second, if a violation occurred, the jury must next determine “whether the equipment, operation or conduct at the worksite was reasonable and adequate under the particular circumstances” Rizzuto v. L.A. Wenger Contr. Co., Inc., 91 N.Y.2d 343, 351 (1998). Thus, if the jury finds a violation it must still decide whether that violation constituted a failure to use reasonable care. Lastly, if the jury finds that there was a violation of a specific Industrial Code and that the violation constituted a failure to use reasonable care (i.e., -22- someone in the chain of the construction project was negligent), only then does it determine whether such negligence was the proximate cause of the injury. See Rizzuto, supra; PJI 2:216A. B. The Appellate Division Correctly Found Issues Of Fact As To Plaintiff’s Labor Law § 241(6) Claim As the sole predicate for his Labor Law § 241(6) claim, plaintiff relies on Industrial Code Rule 12 NYCRR § 23-1.7(d) (slipping hazards), which provides: Employers shall not suffer or permit any employee to use a floor, passageway, walkway, scaffold, platform or other elevated working surface which is in a slippery condition. Ice, snow, water, grease and any other foreign substance which may cause slippery footing shall be removed, sanded or covered to provide safe footing. Notwithstanding that defendants dispute that a hazardous condition even existed on the staircase (R: 678-680), the Appellate Division reversed the motion court’s grant of summary judgment on the § 241(6) claim, reasoning that (R: 890): The grant of summary judgment on plaintiff’s § 241(6) claim insofar as it was predicated on a violation of 12 NYCRR § 23– 1.7(d) was also in error. Issues of fact exist concerning whether someone within the chain of the construction project had notice of the hazardous condition (see Booth v. Seven World Trade Co., L.P., 82 A.D.3d 499, 918 N.Y.S.2d 428 [1st Dept 2011]). In Booth v. Seven World Trade Co., L.P., 82 A.D.3d 499, 501 (1st Dep’t 2011), the Appellate Division found that: -23- The evidence that plaintiff slipped on snow and ice raises a triable issue as to whether “someone within the chain of the construction project was negligent in not exercising reasonable care, or acting within a reasonable time, to prevent or remediate the hazard” (Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 351 [1998]; Temes v Columbus Ctr. LLC, 48 AD3d 281 [2008]). On appeal to this Court, plaintiff continues his flawed understanding that Labor Law § 241(6) liability attaches solely upon a predicate Industrial Code violation. Specifically, he maintains that “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” (Respondent’s Brf. at 28). Plaintiff’s erroneous contention, however, mutates Labor Law § 241(6) into an absolute liability statute, which it is not, and ignores the elements of the aforementioned three-part test. See Bland v. Manocherian, 66 N.Y.2d 452, 460 (1985) (“a violation of Labor Law § 241(6) does not constitute negligence as a matter of law resulting in absolute liability”). This Court has opined on the same Industrial Code provision at issue here, observing that a violation of 23-1.7(d) only constitutes some evidence of negligence. Thus, it is not enough simply for the provision to have been violated. Rather, the inquiry is whether defendant’s conduct was reasonable and -24- adequate under the particular circumstances. In Rizzuto v. L.A. Wenger Contr. Co., Inc., 91 N.Y.2d 343, 351 (1998) (emphasis in original), this Court opined that: A violation of 12 NYCRR 23–1.7(d), while not conclusive on the question of negligence, would thus constitute some evidence of negligence and thereby reserve, for resolution by a jury, the issue of whether the equipment, operation or conduct at the worksite was reasonable and adequate under the particular circumstances. It follows that plaintiff has raised at least a triable issue of fact both as to whether the Transit Authority, an employer and a party to the renovation construction project, violated the Code provision, and thereby was guilty of negligently causing plaintiff’s injuries. Contrary to plaintiff’s contention, therefore, a violation of an Industrial Code provision is only some evidence of negligence and does not result in absolute liability. As the Appellate Division observed in DeStefano v. Amtad New York, Inc., 269 A.D.2d 229, 229 (1st Dep’t 2000): Plaintiff, an electrician assigned to turn on the power at the construction site before the other trades arrived, and who was the first person to enter the site on the morning of the accident, has no cause of action under Labor Law § 241 (6) and 12 NYCRR 23-1.7 (d) absent any evidence tending to show that “someone within the chain of the construction project” had notice of the overnight accumulation of snow on the ramp on which he slipped (Rizzuto v Wenger Contr. Co., 91 NY2d 343, 350, 351). At the very least, the same issue of fact exists here. -25- C. Plaintiff’s Case Law Reliance Undermines His Position Plaintiff relies on Velasquez v. 795 Columbus LLC, 103 A.D.3d 541 (1st Dep’t 2013), in which the Appellate Division searched the record, finding plaintiff entitled to partial summary judgment on his Labor Law § 241(6) claim predicated on a violation of § 23-1.7(d). The Appellate Division, however, did not simply state that because § 23-1.7(d) was violated plaintiff was entitled to summary judgment. The Court noted that plaintiff’s “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”(citing Rizzuto, 91 N.Y.2d at 350) Velasquez at 542. As such, the Court did not merely rely on a violation of the Industrial Code to impose Labor Law § 241(6) liability, but concluded that the three-part test was satisfied. Here, plaintiff has identified no facts establishing that someone within the chain of the construction project was negligent to satisfy the three-part test as a matter of law. Plaintiff has proffered no evidence of when it rained last or whether anyone in the chain of construction was aware, i.e., on notice that the first step was allegedly in a dangerous condition because it was wet. At most, he simply makes broad statements, without reference to the record, that “[i]t is -26- 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)” (Respondent’s Brf. at 29). Such statements are insufficient to impose Labor Law § 241(6) liability as a matter of law. Furthermore, to the extent that any Appellate Division has granted a plaintiff summary judgment under Labor Law § 241(6) based on an improper application of the statute, this Court is not bound by such flawed reasoning. D. The Conflicting Expert Affidavits Raised Issues Of Fact As To Whether 23-1.7(d) Was Violated And Whether The Staircase Posed a Hazardous Condition If this Court agrees with defendants that the competing expert affidavits raised issues of fact precluding summary judgment under Labor Law § 240(1), then this too necessarily raises further issues of fact in connection with the § 241(6) cause of action, beyond the notice issue identified by the Appellate Division. Besides the question of whether anyone in the chain of the construction project had notice of the alleged hazardous condition, there are preliminary issues of whether the staircase constituted a hazardous condition in violation of 23-1.7(d). In short, the parties’ competing expert affidavits submitted in support -27- of their respective summary judgment motions (R: 624, 684) disagree on whether the temporary staircase was constructed and equipped so as to provide plaintiff with reasonable protection. Because this expert conflict raises questions of fact, summary judgment is inappropriate. See Torres v. City of New York, 127 A.D.3d 1163, 1166–67 (2d Dep’t 2015) (plaintiff’s motion for summary judgment on Labor Law § 241(6) claim properly denied because of “the existence of triable issues of fact, based upon the conflicting experts’ affidavits.”). E. Plaintiff Has Not Eliminated Issues Of Fact As To Whether He Was Comparatively Negligent It is well settled that “comparative negligence remains a cognizable affirmative defense to a section 241(6) cause of action” St. Louis v. Town of N. Elba, 16 N.Y.3d 411, 414 (2011). Plaintiff fails to eliminate issues of fact as to whether he was comparatively negligent, precluding summary judgment in his favor. In his brief to this Court, plaintiff actually identifies conduct that could be considered negligent, which is for a jury to decide (Respondent’s Brf. at 27- 28). -28- Specifically, during his deposition plaintiff admitted to stepping on the front portion, or edge, of the tread of the first step knowing that the stairs were wet (R: 256, 264). He testified that (R: 257): Q. Do you remember clearly enough to be able to give a reasonable estimation about where your foot was, where it had stepped, to circle a general area where your foot slipped? A. Right on the edge of the tread. Plaintiff “didn’t have a visual” on the steps when he descended them (R: 258). He only looked down the steps before and when he started to descend them (R: 264). Plaintiff also was asked if he adjusted his behavior knowing that the steps were wet, but conceded he did not (R: 264-265): Q. Did you do anything else, like maybe adjust your step pattern or your speed or anything else because of the wet steps? A. No. In sum, questions abound as to whether plaintiff’s conduct contributed to his fall. See Torres v. City of New York, 127 A.D.3d 1163, 1166-67 (2d Dep’t 2015) (plaintiff’s motion for summary judgment on Labor Law § 241(6) claim properly denied because he “did not demonstrate, prima facie, that he was free from comparative fault.”); Lopez v. Boston Properties Inc., 41 A.D.3d 259, 260 (1st Dep’t 2007) (“Issues of fact, including the degree to which plaintiff’s -29- actions may have contributed to the accident, preclude summary judgment to either party on the Labor Law § 241 (6) claim, predicated on Industrial Code (12 NYCRR) § 23-6.1 (j) (hoist brakes) and § 23-6.1 (e) (signal system)”); Edwards v. C & D Unlimited, Inc., 295 A.D.2d 310, 311 (2d Dep’t 2002) (“Here, contrary to the plaintiffs’ contention, issues of fact exist as to the injured plaintiff’s comparative negligence” thus court “should have denied the plaintiffs’ cross motion for partial summary judgment on the issue of liability on their Labor Law § 241 (6) claims.”); Paolangeli v. Cornell Univ., 296 A.D.2d 691, 692–93 (3d Dep’t 2002) (“Notwithstanding the finding by Supreme Court that plaintiff established a viable claim under 12 NYCRR 23-1.7 (b) (1) or, even assuming for these purposes, under 12 NYCRR 23-1.30, the denial of summary judgment was nonetheless proper since even a violation of these sections would only amount to ‘some evidence of negligence.’ Clearly, genuine factual issues remain concerning plaintiff’s comparative fault and ‘whether the negligence of some party to, or participant in, the construction project caused plaintiff’s injury’” [citations omitted]); Sacchetti v. Vasile Const. Corp., 254 A.D.2d 777 (4th Dep’t 1998) (“Vasile has raised comparative negligence as a defense, and factual issues remain with respect to that defense. We therefore modify the order by denying that part of plaintiff's cross motion seeking partial summary judgment on Vasile's liability pursuant to Labor Law § 241 (6)." [citations omitted]). Accordingly, plaintiff is not entitled to summary judgment on his Labor Law § 241 ( 6) claim. CONCLUSION For the additional foregoing reasons, this Court should answer the certified question in the negative and modify the Appellate Division's Decision and Order to grant defendants' motion for summary judgment dismissing the Labor Law § 240(1) claim or reinstate the motion court's order denying both sides' 1notions for summary judgment on that cause of action; and/or affirm the Appellate Division's determination on the Labor Law§ 241 (6) claim. Completed: September 8, 2016 Shaub, Ahmuty, Citrin & Spratt LLP 1983 Marcus Avenue Lake Success, NY 11042 (516) 488-3300 Appellate Counsel to -30- -31- Fabiani, Cohen & Hall, LLP Attorneys for Defendants Of Counsel Christopher Simone Robert M. Ortiz Gerard S. Rath