Raul Barreto, Appellant, et al., Plaintiff,v.Metropolitan Transportation Authority, et al., Respondents. (And other Third-Party Actions.)BriefN.Y.February 11, 2015APL-2014-00031 New York County Clerk’s Index Nos. 108233/05, 591045/06 and 590440/07 Court of Appeals STATE OF NEW YORK Index No. 108233/05 RAUL BARRETO, Plaintiff-Appellant, and DERLIM BARRETO, Plaintiff, against METROPOLITAN TRANSPORTATION AUTHORITY, NEW YORK CITY TRANSIT AUTHORITY, THE CITY OF NEW YORK, and IMS SAFETY CORP., Defendants-Respondents. (Additional Caption On the Reverse) >> >> BRIEF FOR DEFENDANTS-RESPONDENTS METROPOLITAN TRANSPORTATION AUTHORITY AND NEW YORK CITY TRANSIT AUTHORITY WILSON ELSER MOSKOWITZ EDELMAN & DICKER LLP Attorneys for Defendants-Respondents Metropolitan Transportation Authority and New York City Transit Authority 150 East 42nd Street, 23rd Floor New York, New York 10017 212-490-3000 Date Completed: July 22, 2014 Of Counsel: Patrick J. Lawless To Be Argued By: Patrick J. Lawless Time Requested: 30 Minutes Third-Party Index No. 591045/06 IMS SAFETY INC., Third-Party Plaintiff, against ANDRES SERVICES CORPORATION, Third-Party Defendant. Second Third-Party Index No. 590440/07 METROPOLITAN TRANSPORTATION AUTHORITY and NEW YORK CITY TRANSIT AUTHORITY, Second Third-Party Plaintiff, against P.A.L. ENVIRONMENTAL SAFETY GROUP, Second Third-Party Defendant. i TABLE OF CONTENTS Page Preliminary Statement ................................................................................................ 1 Question Presented ..................................................................................................... 3 Facts ........................................................................................................................... 3 A. The Alleged Accident. ................................................................................. 3 B. The Instant Action. ....................................................................................... 7 C. The Motions and Cross-Motions for Summary Judgment. .......................... 7 D. The Supreme Court’s March 30, 2012 Order Granting the Defendants’ Motions for Summary Judgment ............................................. 9 E. The First Department’s October 31, 2013 Order Affirming the Supreme Court’s Decision ..................................................................... 9 F. The First Department’s Order Granting the Plaintiff’s Motion for Leave to Appeal to this Court ............................................................... 10 Argument.................................................................................................................. 11 Point I: The Plaintiff’s Labor Law § 240(1) Claim was Properly Dismissed as the Evidence Clearly Shows that He was the Sole Proximate Cause of the Accident. ................. 11 Point II: The Plaintiff’s Labor Law 241(6) Claim was Properly Dismissed. ........................................................................................ 16 Point III: The Plaintiff’s Labor Law § 200 and Common Law Negligence Claims Were Properly Dimissed. ......................... 17 A. The MTA and NYCTA Control or Supervise the Plaintiff’s Work nor did They Create or have any Notice of Any Dangerous Condition. ....................................... 17 ii B. The Manhole was Inherent to the Work Being Performed. ................................................................................. 20 C. The Alleged OSHA Violations Cited by the Plaintiff are Insufficient to Support his Labor Law§ 200 and Common Law Negligence Claims. ................... 21 Conclusion ............................................................................................................... 23 iii TABLE OF AUTHORITIES Page Cases Azad v. 270 5th Realty Corp., 46 A.D.3d 728 (2d Dep't 2007) ............................... 17 Blake v. Neighborhood Hous. Servs. Of N.Y. City, 1 N.Y.3d 280 (2003) ................................................................................................................ 11 Bombero v. NAB Constr. Corp., 10 A.D.3d 170 (1st Dep't 2004)........................... 20 Burke v. Hilton Resorts Corp., 85 A.D.3d 419 (1st Dep't 2011) ............................. 16 Cahill v. Triborough Bridge & Tunnel Auth., 31 A.D.3d 347 (1st Dep't 2006) ................................................................................................. 18 Cahill v. Triborough Bridge & Tunnel Auth., 4 N.Y.3d 35 (2004) ................... 11, 12 Capasso v. Capasso, 84 AD3d 997 (2d Dep't 2011) ............................................... 14 Comes v. New York State Elec. & Gas Corp., 82 N.Y.2d 876 (1993) ............... 17, 18 Dalanna v. City of New York, 308 A.D.2d 400 (1st Dep't 2003) ............................ 18 Dennis v. City of New York, 304 A.D.2d 611 (2d Dep't 2003) ................................ 17 Gasper v Ford Motor Co., 13 N.Y.2d 104 (1963) ................................................... 20 Hansen v. Trustees of the M.E. Church of Glen Cove, 51 A.D.3d 725 (2d Dep't 2008) .................................................................................................. 20 Hughes–Berg v. Mueller, 50 AD3d 865 (2d Dep’t 2008) ....................................... 14 Hunt v. Meyers, 63 AD3d 685 (2d Dep't 2009) ....................................................... 14 Kerins v. Vassar Coll., 15 A.D.3d 623 (2d Dep't 2005) .......................................... 17 Khan v. Bangla Motor and Body Shop, Inc., 27 AD3d 528 (2006) ........................ 21 iv Kosavik v. Tishman Construction Corp. of New York, 50 A.D.3d 287 (1st Dep't 2008) ................................................................................................. 16 Landry v. General Motors Corp., 210 A.D.2d 898 (4th Dep't 1994) ...................... 22 Montgomery v. Federal Express, 4 N.Y.3d 805 (2005) .......................................... 13 Morales v. Spring Scaffold, Inc., 24 A.D.3d 42 (1 Dep't 2005) .............................. 16 Ortega v. Puccia, 57 A.D.3d 54 (2d Dep't 2008) .............................................. 17, 18 O'Sullivan v. IDI Constr. Co., Inc., 7 N.Y.3d 805 (2006) ....................................... 18 Parker v. 205–209 East 57th St. Assoc., LLC, 100 A.D.3d 607 (2d Dept. 2012) ................................................................................................. 16 Rizzuto v. L.A. Wenger Contr. Co., Inc., 91 N.Y.2d 343 (1998) ............................. 18 Robinson v. East Medical Center, 6 N.Y.3d 550 (2006) ......................................... 12 Russin v. Louis N. Picciano & Son, 54 N.Y.2d 311 (1981) .................................... 18 Schindler v. Ahearn, 69 A.D.3d 837 (2d Dep't 2010).............................................. 20 Statutes Labor Law § 200 ...............................................................................................passim Labor Law § 240(1) ..........................................................................................passim Labor Law § 241(6) ..........................................................................................passim Regulations 29 CFR 1910.23(a)(6) .............................................................................................. 15 29 CFR 1926.501(a)(4)(i) ........................................................................................ 15 1 Preliminary Statement This brief is respectfully submitted in behalf of the defendants-respondents the Metropolitan Transportation Authority (the “MTA”) and New York City Transit Authority (the “NYCTA”) which request that this Court affirm in all respects the order of Appellate Division First Department dated October 31, 2013, which affirmed the order of the Supreme Court, New York County (Stallman, J.), dated March 30, 2012, which, among other things, granted the MTA and NYCTA’s motion for summary judgment dismissing the plaintiff’s Labor Law §§ 200, 240(1), 241(6) and common law negligence claims against them. The plaintiff, an asbestos handler for PAL Environmental Safety Corp. (“PAL”), alleges that on January 9, 2005, he was injured when he fell into an uncovered manhole in front of 60 Lafayette Street in Manhattan while deconstructing a protective shelter around the manhole. At his deposition, the plaintiff admitted that his supervisor had specifically instructed him, both at the beginning of the project and on the day of the accident, that the manhole had to be covered before deconstruction work could begin. The plaintiff further admitted that at the time of the accident, he did not wait for permission to begin deconstruction work in contravention of his supervisor’s instructions, and that he neither checked nor asked whether the manhole was in fact covered. Accordingly, the First 2 Department correctly found that the plaintiff was the sole proximate cause of the accident. The First Department also correctly held that there is no basis for liability under Labor Law § 200 and common-law negligence claims because the undisputed evidence shows that the MTA and NYCTA did not control or supervise the plaintiff’s work, and that the plaintiff could not maintain a claim under Labor Law § 241(6) because the alleged Industrial Code violations cited by the plaintiff did not proximately cause the accident. Not surprisingly, the plaintiff ignores his prior admissions which demonstrate that he was the sole proximate cause of the accident and instead relies on incomplete and inaccurate characterizations of the record. As such, he has not provided this court with an adequate basis to disturb the First Department’s decision. 3 Question Presented Question#1: Did the First Department correctly hold that the plaintiff could not maintain a claim under Labor Law § 240(1) against MTA and NYCTA claims where the evidence shows that the plaintiff was the sole proximate cause of the accident? Answer: Yes. Question#2: Did the First Department correctly hold that the plaintiff could not maintain a claim under Labor Law § 200 or common-law negligence against the MTA or NYCTA where the evidence showed they did not supervise or control the plaintiff’s work? Answer: Yes. Question#3: Did the First Department correctly hold that the plaintiff could not maintain a claim under Labor Law § 241(6) against the MTA and NYCTA where the alleged Industrial Code violations cited by the plaintiff did not proximately cause the accident? Answer: Yes. Facts A. The Alleged Accident. On January 9, 2005, the plaintiff, a certified asbestos handler employed by PAL, was allegedly injured when he fell down a manhole in front of 60 Lafayette Street, Manhattan. (A. 60-62). The street is owned by the City of New York (the “City”), which leased the area underneath the street to the NYCTA. (A. 1470- 1507). Prior to the accident, the MTA and NYCTA hired PAL to remove asbestos from the manhole. (A. 263-336). PAL retained IMS Safety, Inc. (“IMS”) as the site safety consultant for the job. (A. 215-232). IMS’s responsibilities included making 4 sure that everyone complied with all applicable safety regulations, and to monitor the levels of carbon dioxide, oxygen and methane in the underground work area before and during the asbestos removal. (A. 812-814, 912-913, 923, 1353). Brian O’Loughlin was the MTA/NYCTA asbestos handler supervisor for the job. (A. 802-803). His duties included monitoring the contractors and consultants on asbestos removal jobs and to protect the general public. (A. 803). He showed contractors which manhole to work in, but he did not direct the manner in which the contractors performed their work. (A. 803). If O’Loughlin noticed that the work was not being performed correctly, he would speak to IMS, who would then speak to PAL. (A. 803-804). O’Loughlin always remained outside of the cordoned off area where the asbestos removal work was being performed. (A. 826-827). He did not physically watch what the PAL workers were doing all the time on this job. (A. 827). O’Loughlin did not personally witness the plaintiff’s accident; he first learned of the accident when PAL supervisor Rafael Torres told him about it after the fact. (A. 825-826). Torres was responsible for directing the manner and method by which PAL workers performed the work. (A. 1353-1354). PAL was responsible to do all of the work including placing the barriers around the manhole. (A. 746). PAL was responsible for overall site safety. (A. 736). The MTA and NYCTA did not 5 contract with any entity regarding this project to provide site safety, and they did not provide any safety equipment at the project. (A. 736, 755). Before the asbestos removal could begin at the subject manhole, a protective shelter made of wood and plastic was built around it. (A. 458-465, 608-610, 807- 808). The shelter consisted of three walls that were placed around the manhole and a plastic sheet in front to allow access to the manhole. (A. 460). Any other configuration would not have permitted access to the manhole. (A. 460). After the shelter was built, PAL workers were not permitted to work below ground until inspectors from the MTA made sure that all electricity was turned off and the IMS inspector made sure that the air quality was satisfactory. (A. 466-467, 808-809, 813-814). Once PAL workers were given permission to start working underground, they would remove the manhole cover and place it outside the enclosed work area. (A. 465, 468). The manhole cover was too heavy for one person to move it; several PAL workers were needed to move it. (A. 465). At the end of every shift, the PAL supervisor would tell the workers to cover the manhole after IMS removed all the air monitoring equipment and inspected the manhole and the MTA supervisor indicated that the manhole could be closed. (A. 500-501, 868-872). It was only after the manhole was covered that PAL workers were supposed to deconstruct the shelter. (A. 569, 622, 624, 631). The last thing the he workers are supposed to do 6 after all other work has been completed is remove the construction lights. (A. 853, 867-869). The plaintiff received all of his instructions from Mr. Torres, no one else at the site ever told him what to do. (A. 470, 495). Mr. Torres specifically instructed the plaintiff, both at the beginning of the project and on the date of the accident, that the manhole cover must be in place before deconstruction of the shelter could begin. (A. 621-622, 1353-1354). Upon exiting the manhole at the end of his shift, the plaintiff was supposed to wait until his supervisors had advised him that the manhole cover had in fact been replaced before deconstructing the shelter. (A. 624, 631). At the time of the accident, the plaintiff began to deconstruct the shelter as soon as he came out of the manhole. (A. 583-584). Although the plaintiff was admittedly aware that he was not supposed to work around the manhole unless it was covered, he did not “pay attention” whether the manhole cover was actually in place. (A. 525, 667-669). The only other people who were present at the time were his co-workers Charlie and Julio and a female shop steward from PAL. (A. 584- 585). As the plaintiff was deconstructing the shelter, he fell down the uncovered manhole and injured himself. (A. 487-488, 604-612). The plaintiff had been working at the subject manhole for about five days prior to the accident. (A. 457). Every day prior to the accident, the plaintiff did not 7 begin deconstructing the shelter until his supervisor advised him that the manhole cover had been replaced. (A. 500, 631). The plaintiff previously worked on about 20 to 30 manholes over the years, and had been working continuously on different manholes for about one year before this particular project. (A. 452, 456-457). As a result of his prior work experience, he was keenly aware that the manhole should always be covered during the deconstruction process. (R. 493, 524, 569). Shortly after the accident, Torres prepared an accident report which stated that although the plaintiff had been trained in proper safety procedures, he failed to follow specific instructions to replace the manhole cover before deconstructing the shelter. (R. 337). B. The Instant Action. The plaintiff commenced this action against the MTA, NYCTA, the City and IMS alleging causes of action based on violations of Labor Law §§ 200, 240(1), 241(6), and for common law negligence. (A. 56-71). IMS, the MTA and NYCTA and the City all answered denying the material allegations of the complaint. (A. 82- 110, 1451-1454). C. The Motions and Cross-Motions for Summary Judgment. At the completion of discovery, IMS moved for summary judgment, arguing that it cannot be held liable under the Labor Law because it was a mere safety 8 consultant and not an owner, contractor or statutory agent thereof. (A. 36-37, 38- 55). The MTA and NYCTA separately moved for summary judgment dismissing all claims against them, arguing that the plaintiff’s accident was not the result of an elevation related risk contemplated by § 240(1), and in any event, the plaintiff was the sole proximate cause of his accident. (A. 338-340, 359-369). They further argued that the plaintiff’s § 241(6) claims should be dismissed because the Industrial Code sections that he relies upon are too general to support such a claim or inapplicable to the facts of this case. (A. 375-377). Finally, they argued that the plaintiff’s § 200 and common law negligence claims must be dismissed because they did not control or supervise the plaintiff’s work. (A. 370-375). The plaintiff cross-moved for summary judgment on his Labor Law and common law negligence claims, arguing that the defendants failed to provide him with adequate safety devices. (A. 1055-1058, 1067-1098). The City also cross- moved for summary judgment, arguing that it cannot be held liable for the plaintiff’s injuries because it is an out-of-possession landlord. (A. 1420-1422, 1423-1431). 9 D. The Supreme Court’s March 30, 2012 Order Granting the Defendants’ Motions for Summary Judgment. In an order dated March 30, 2012, the Supreme Court, New York County (Stallman, J.), granted the respective summary judgment motions of IMS and the MTA and NYCTA and denied the plaintiff’s cross-motion for partial summary judgment. (A. 12-35). The court held the plaintiff could not recover against any of the defendants because he was the sole proximate cause of the accident. (A. 30- 34). E. The First Department’s October 31, 2013 Order Affirming the Supreme Court’s Decision. In an order dated October 31, 2013, the First Department, by a 3-1 majority, affirmed the Supreme Court’s decision. The court held that liability did not attach under Labor Law § 240(1) because the plaintiff was the sole proximate cause if the accident. The court noted that the plaintiff “was provided with the perfect safety device, namely, the manhole cover, which was nearby and readily available.” The court further noted that the plaintiff disregarded his supervisor’s specific instruction not to begin dismantling the protective enclosure until the manhole cover had been replaced, and that he failed to provide any good reason why he started taking apart the enclosure before ascertaining whether the manhole cover was in place: “Having just emerged from it, plaintiff should have known that the 10 manhole was still open, and covering it at that time would have avoided the accident.” The court rejected the plaintiff’s argument that the defendants were required to provide a guardrail around the manhole, or alternatively, a safety harness or netting, holding that such devices were not applicable here where the manhole cover was the adequate device for protecting workers. The court noted that, in any event, none of these devices would have prevented the accident as they would have been opened or removed to allow the workers to exit the manhole and to deconstruct the enclosure. F. The First Department’s Order Granting the Plaintiff’s Motion for Leave to Appeal to this Court. The plaintiff subsequently moved to reargue the First Department’s October 31, 2013 order, or in the alternative, for leave to appeal that order to this Court from the same order. In an order dated February 11, 2014, the First Department denied reargument, but granted the plaintiff leave to appeal to this Court on the following certified question: Was the order of this Court, which affirmed the order of Supreme Court, properly made? The MTA and NYCTA respectfully submit that this question should be answered in the affirmative. 11 Argument Point I: The Plaintiff’s Labor Law § 240(1) Claim was Properly Dismissed as the Evidence Clearly Shows that He was the Sole Proximate Cause of the Accident. A defendant cannot be held liable under Labor Law § 240(1) where the worker’s actions were the “sole proximate cause” of the worker's injuries. See Cahill v. Triborough Bridge & Tunnel Auth., 4 N.Y.3d 35, 39 (2004); Blake v. Neighborhood Hous. Servs. Of N.Y. City, 1 N.Y.3d 280, 290 (2003). A plaintiff will be found to be the sole proximate cause of the accident where the evidence shows that he: “had adequate safety devices available; that he knew both that they were available and that he was expected to use them; that he chose for no good reason not to do so; and that had he not made that choice he would not have been injured.” Cahill, 4 N.Y.3d at 40. In this case, the First Department correctly held that the plaintiff was the sole proximate cause of his accident. The plaintiff admitted that his supervisor Rafael Torres had specifically instructed him, both at the beginning of the project and on the day of the accident, that deconstruction of the protective shelter around the manhole should not begin until the manhole was covered. (A. 622). The plaintiff further admitted that upon exiting the manhole at the end of his shift, he was supposed to wait until his supervisors had advised him that the manhole cover 12 had in fact been replaced before deconstructing the shelter. (A. 624). The plaintiff admitted that when he exited the manhole, he immediately began to deconstruct the shelter and did not “pay attention” whether the manhole was in fact covered. (A. 525, 583-584). He neither asked, nor checked whether the manhole was covered. (A. 668). The only people who were present in the containment area at the time of the accident were his two co-workers and an unidentified PAL shop steward. (A. 590). None of the supervisors who had the authority to direct that the manhole be covered were present in the containment area. (A. 500-501, 583-584). Because the supervisors were the only individuals who gave permission to open and close the manhole (A. 500-501), and it was PAL workers who were responsible for opening and closing the manhole (A. 465, 501), the plaintiff either knew or should have known that the manhole was not covered, but began deconstructing the shelter anyway. The foregoing evidence shows that the plaintiff had an adequate safety device available, i.e., the manhole cover itself; he knew it was available and was expected to use it; he had “no good reason” not to use it; and he would not have been injured had had he used it. Under these circumstances, the First Department properly held that liability did not attach under Labor Law § 240(1). See Cahill, supra; see also Robinson v. East Medical Center, 6 N.Y.3d 550 (2006) (dismissal of the plaintiff’s 240(1) claim is warranted where the evidence demonstrates that 13 he was the sole proximate cause of the accident); Montgomery v. Federal Express, 4 N.Y.3d 805, 806 (2005) (holding that where a plaintiff’s actions are contrary to the “normal and logical response” to a situation, he is not entitled to recover under the Labor Laws as he is the sole proximate cause of his injuries). The plaintiff argues that he was neither a recalcitrant worker nor the sole proximate cause of his accident because he did not remove the manhole cover and he was not directed to put the cover back on the manhole at the end of his shift. However, it is not relevant whether the plaintiff assisted his fellow PAL workers in removing and replacing the manhole cover. What is relevant is that he ignored his supervisors’ specific instructions not to deconstruct the shelter unless the manhole cover was in place. (A. 621-624). Clearly, the accident would not have occurred had the plaintiff simply obeyed this instruction. Contrary to the plaintiff’s contention, the First Department did not improperly impose a burden on him to guarantee his own safety. Rather, it merely found that his willful failure to follow specific safety instructions was the sole proximate cause of the accident. The plaintiff argues that it was his supervisors’ responsibility, and not his, to make sure that the manhole cover was in place before deconstruction work began. In so arguing, he ignores his own admission that he was well aware that he was not supposed to start deconstructing the shelter until after the manhole had been 14 covered and after his supervisors had given him permission to do so. (A. 501, 621- 624). It is undisputed that he did not receive such permission prior to the accident. The plaintiff, citing to the affidavit that he submitted in opposition to the defendants’ motions for summary judgment, asserts that there was lot of activity going on at the end of the shift, and that he assumed that the manhole cover was in place because the deconstruction of the shelter had started. (A. 1105-1106). However, the plaintiff’s affidavit contradicts his earlier deposition testimony, and as such, merely raises feigned issues of fact which are insufficient to defeat summary judgment. See Capasso v. Capasso, 84 AD3d 997 (2d Dep’t 2011)(holding that the plaintiff's affidavit presented a feigned issue of fact, designed to avoid the consequences of her earlier statement, and was insufficient to defeat the defendants' motion); Hunt v. Meyers, 63 AD3d 685 (2d Dep’t 2009); Hughes–Berg v. Mueller, 50 AD3d 865 (2d Dep’t 2008). Specifically, the plaintiff testified that he did not “pay attention” whether the manhole cover was in place and that he immediately began deconstructing the shelter upon exiting the manhole at the end of his shift. (A. 583-584). Under these circumstances, he could not have reasonably believed that the manhole cover was in place. The plaintiff argues that the First Department erred in holding that the manhole cover constituted a proper safety device. However, it has never been disputed that the manhole cover would have completely prevented the accident. 15 The plaintiff further contends that the defendants were required under § 240(1) to provide a guardrail around the manhole, or safety netting or a harness. The plaintiff fails to submit any evidence, expert or otherwise, demonstrating that these devices were required under the circumstances. Indeed, these devices are not necessary where, as here, the manhole cover was the “perfect” device for protecting the plaintiff and his coworkers. The plaintiff’s reliance on OSHA regulations is equally misplaced, as such regulations do not require that any such devices be utilized around a closed manhole. See 29 CFR 1910.23(a)(6); 29 CFR 1926.501(a)(4)(i). Had the plaintiff simply followed instructions and waited until his supervisors had advised him that the manhole cover was in place and it was safe to begin deconstructing the shelter, the accident would have never happened. To the extent that the plaintiff relies on the deposition testimony of IMS president Joseph Mazzcuro, such reliance is unavailing. Mazzcuro indicated that a guardrail may be required only if PAL workers were deconstructing the shelter around an open manhole (A. 937). Again, a guardrail is not required around a closed manhole. Mazzcuro further testified that it is not feasible to have a guardrail around the manhole 100 percent of the time. (A. 928-929). Indeed, the guardrail would have to be removed to allow workers and materials in and out of the manhole, and when the manhole cover is put back into place. (A. 928-929). 16 Finally, the cases that the plaintiff relies upon are inapplicable to the facts of this case as none of them involve a situation where the accident was caused by the plaintiff’s admitted failure to comply with a specific safety instruction and failure to utilize a proper safety device. See, e.g., Burke v. Hilton Resorts Corp., 85 A.D.3d 419 (1st Dep’t 2011) (plaintiff’s fall was caused by failure to provide him with adequate safety devices and not a failure to comply with a specific safety instruction); Kosavik v. Tishman Construction Corp. of New York, 50 A.D.3d 287 (1st Dep’t 2008) (no evidence that the plaintiff refused a specific safety instruction); Morales v. Spring Scaffold, Inc., 24 A.D.3d 42 (1 Dep’t 2005) (plaintiff’s accident was caused by improperly constructed sidewalk bridge). In sum, the plaintiff has failed to provide this Court with any basis to disturb the First Department’s decision. Accordingly, the decision should be affirmed in all respects. Point II: The Plaintiff’s Labor Law 241(6) Claim was Properly Dismissed. In order to support a viable cause of action under § 241(6), a plaintiff must demonstrate that his injuries were proximately caused by a violation of an Industrial Code provision that is applicable given the circumstances of the accident and that sets forth a concrete standard of conduct. See Parker v. 205–209 East 57th St. Assoc., LLC, 100 A.D.3d 607, 608 (2d Dept. 2012). In this case, the First Department correctly held that none of the alleged Industrial Code violations cited 17 by the plaintiff proximately caused the accident. As noted above, the plaintiff’s own negligence was the sole proximate cause of his accident. He admitted that just prior to his accident, his supervisor specifically instructed him not to begin the deconstruction work unless the manhole was covered. (A. 622). Yet, he willfully chose to ignore this instruction, and instead began the deconstruction work without even checking to see if the manhole was in fact covered. (A. 525, 667-669). Thus, his § 241(6) was properly dismissed. Point III: The Plaintiff’s Labor Law § 200 and Common Law Negligence Claims Were Properly Dimissed. A. The MTA and NYCTA Control or Supervise the Plaintiff’s Work nor did They Create or have any Notice of Any Dangerous Condition. Where a premises condition is at issue, property owners may be held liable for a violation of Labor Law § 200 if the owner either created the dangerous condition that caused the accident or had actual or constructive notice of the dangerous condition that caused the accident. See Ortega v. Puccia, 57 A.D.3d 54 (2d Dep’t 2008); Azad v. 270 5th Realty Corp., 46 A.D.3d 728, 730 (2d Dep’t 2007); Kerins v. Vassar Coll., 15 A.D.3d 623, 626 (2d Dep’t 2005). By contrast, when the manner of work is at issue, “no liability will attach to the owner solely because [he or she] may have had notice of the allegedly unsafe manner in which work was performed.” Dennis v. City of New York, 304 A.D.2d 611, 612 (2d Dep’t 2003), see Comes v. New York State Elec. & Gas Corp., 82 N.Y.2d 876, 877 18 (1993). When a claim arises out of alleged defects or dangers in the methods or materials of the work, recovery against the owner or general contractor cannot be had under Labor Law § 200 unless it is shown that the party to be charged had the authority to supervise or control the performance of the work. See Rizzuto v. L.A. Wenger Contr. Co., Inc., 91 N.Y.2d 343, 352 (1998); Russin v. Louis N. Picciano & Son, 54 N.Y.2d 311, 317 (1981). Although property owners often have a general authority to oversee the progress of the work, mere general supervisory authority at a worksite for the purpose of overseeing the progress of the work and inspecting the work product is insufficient to impose liability under Labor Law § 200. See O'Sullivan v. IDI Constr. Co., Inc., 7 N.Y.3d 805 (2006); Cahill v. Triborough Bridge & Tunnel Auth., 31 A.D.3d 347 (1st Dep’t 2006); Dalanna v. City of New York, 308 A.D.2d 400 (1st Dep’t 2003); Comes v. New York State Elec. & Gas Corp., 82 N.Y.2d 876 (1993). A defendant has the authority to supervise or control the work for purposes of Labor Law § 200 when that defendant bears the responsibility for the manner in which the work is performed. See Ortega v. Puccia, 57 A.D.3d 54 (2d Dep’t 2008). In this case, it is clear that the plaintiff’s accident arose from the method in which he performed his work. Moreover, the undisputed evidence shows that the MTA and NYCTA did not direct, control or supervise the plaintiff’s work. (A. 19 803-804). The plaintiff’s own deposition testimony establishes that PAL supervisor Rafael Torres was the only one who directed the plaintiff’s work at the site. (A. 470, 495). The plaintiff further testified that he did not notice the MTA supervisor when he was conducting the breakdown of the protected area just prior to his accident. (A. 525-526). Importantly, he testified that the MTA supervisor never goes into the work area. (A. 526). According to the plaintiff, the only people in the work area at the time of the accident were his co-workers Charlie, Julio and the PAL shop steward. (A. 590). The plaintiff also testified that after PAL finished their work in the manhole, he did not see the PAL supervisor speaking to anyone from the MTA, and he did not see anyone from the MTA or NYCTA enter into the work area after PAL had removed all of its equipment from the manhole. (A. 573- 574). It is clear from plaintiff’s own testimony that the MTA and NYCTA did not direct, control or supervise his work at the time of the accident. The plaintiff’s testimony also makes it is clear that the MTA and NYCTA were unaware that the he was deconstructing the protective shelter while the manhole was not covered. Therefore, he cannot recover against the MTA and NYCTA under Labor Law § 200 or for common-law negligence under either theory of liability upon which these claims are based (i.e., unsafe work method or dangerous condition) because 20 they did not create or have any notice of the dangerous condition which caused the accident and they did not control or supervise the manner in which he performed his work. B. The Manhole was Inherent to the Work Being Performed. Labor Law § 200 does not extend to hazards which are “part of or inherent in” the very work being performed or to those hazards that may be readily observed by reasonable use of the senses in light of the worker's age, intelligence and experience. See Gasper v Ford Motor Co., 13 N.Y.2d 104, 110 (1963); see also Schindler v. Ahearn, 69 A.D.3d 837, 838 (2d Dep’t 2010) (owner did not violate any duty to an elevator inspector where the danger posed by the faulty coupling in an elevator cab’s braking system was known or apparent to the inspector before he stepped into the cab to make a notation on the inspection certificate); Hansen v. Trustees of the M.E. Church of Glen Cove, 51 A.D.3d 725, 726 (2d Dep’t 2008) (worker who was injured while removing gutters and rotted soffit from church building could not recover under Labor Law § 200 against the church trustees where his injuries were caused by the rotted soffit that he was hired to remove and replace); Bombero v. NAB Constr. Corp., 10 A.D.3d 170 (1st Dep’t 2004) (a concrete inspector who was injured while walking on an exposed steel reinforcement bar could not maintain a Labor Law § 200 claim against the general 21 contractor, as such hazard was part of or inherent in plaintiff's job as inspector and was readily observable). In this case, the removal of the manhole cover was “part of or inherent in” the asbestos removal work that the plaintiff was performing at the time of the accident. The uncovered manhole was readily observable by the reasonable use of the plaintiff’s senses, especially when considering his age, intelligence and experience. Indeed, the plaintiff had previously worked on about 20 to 30 manholes over the years, had been working continuously on different manholes for about one year before this particular project, and had been working at the subject manhole for around five days before the accident. (A. 452, 456-457). Significantly, the plaintiff knew that the manhole cover had been removed prior to his accident and plaintiff negligently failed to ensure that it had been replaced prior to his accident. (A. 525, 667-669). Thus, in addition to the foregoing, the plaintiff does not have a viable Labor Law § 200 or common-law negligence cause of action. C. The Alleged OSHA Violations Cited by the Plaintiff are Insufficient to Support his Labor Law§ 200 and Common Law Negligence Claims. The plaintiff argues that he is entitled to summary judgment on his Labor Law § 200 and common-law negligence claims because the defendants violated certain OSHA regulations. However, an alleged violation of an OSHA regulation is not a predicate for a claim against defendant under Labor Law § 200. See Khan 22 v. Bangla Motor and Body Shop, Inc., 27 AD3d at 528–529 (2006) ( “OSHA governs employee/employer relationships ... Since [defendant was] not an employer of [plaintiff] ... the OSHA regulations do not provide a specific, statutory duty, a violation of which would result in [its] liability”). Nevertheless, the plaintiff argues the Fourth Department’s decision in Landry v. General Motors Corp., 210 A.D.2d 898 (4th Dep’t 1994), supports his position. However, the plaintiff ignores that in Landry, the court, before discussing OSHA, first found a question of fact as to whether the owner had assumed supervisory control over the work of the plaintiff and, thus, could be treated as the employer subject to OSHA regulations. This is crucial since, as noted above, OSHA regulations only apply to an employer/employee relationship. To the extent that the plaintiff attempts to argue that the MTA and NYCTA supervised or controlled his work, this argument is directly contradicted by the evidence in the record, including his own deposition testimony that he only took instruction from his direct supervisor. (A. 470, 495, 622). In any event, the plaintiff would not be entitled to summary judgment on his Labor Law § 200 and common-law negligence claims because his own actions was the sole proximate cause of the accident. 23 Conclusion For the reasons sated above, the order appealed from should be affirmed in all respects. Dated: New York, New York July 22, 2014 Respectfully submitted, WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP By: Patrick J. Lawless Attorneys for defendants-respondents Metropolitan Transit Authority and New York City Transit Authority 150 East 42nd Street New York, New York 10017 (212) 490-3000 File No. 07097.00029