Raul Barreto, Appellant, et al., Plaintiff,v.Metropolitan Transportation Authority, et al., Respondents. (And other Third-Party Actions.)BriefN.Y.February 11, 2015State of New York Court of Appeals BRIEF FOR DEFENDANT-RESPONDENT IMS SAFETY CORP. DICK BAILEY SERVICE (212) 608-7666 (718) 522-4363 (516) 222-2470 (914) 682-0848 Fax: (718) 522-4024 1-800-531-2028 - Email: appeals@dickbailey.com -Website: www.dickbailey.com Supreme Court, New York County, Index Nos. 108233/05, 591045/06 and 590440/07 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, [Caption Continues on Inside Cover] TO BE ARGUED BY: CLIFFORD I. BASS COURT OF APPEALS NO. APL-2014-00031 TIME REQUESTED: 10 MINUTES JONES MORRISON, LLP Attorneys for Defendant-Respondent/ Third-Party Plaintiff IMS Safety Inc. 670 White Plains Road, Penthouse Scarsdale, New York 10583 (914) 472-2300 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 CORP., Second Third-Party Defendant. i CORPORATE DISCLOSURE STATEMENT PURSUANT TO 22 NYCRR PART 500.1(f) Counsel for Defendant-Respondent, IMS SAFETY, INC., (sued herein incorrectly as IMS SAFETY CORP.) certifies that IMS SAFETY, INC. had no parent corporation, subsidiaries and /or affiliates. Dated: July 21, 2014 Scarsdale, New York _________________________ Clifford I. Bass, Esq JONES MORRISON, LLP Attorneys for Defendant-Respondent IMS Safety Corp. 670 White Plains Road, PH Scarsdale, New York 10583 (914) 472-2300 ii TABLE OF CONTENTS TABLE OF CONTENTS.......................................................................................... ii TABLE OF AUTHORITIES ....................................................................................iv QUESTION PRESENTED........................................................................................1 PRELIMINARY STATEMENT ...............................................................................2 COUNTERSTATEMENT OF FACTS .....................................................................6 LEGAL ARGUMENT ............................................................................................19 POINT I THE PLAINTIFF’S CLAIMS UNDER LABOR LAW §§240(1) and 241(6) WERE PROPERLY DISMISSED AGAINST IMS .............................................. 19 A. IMS was not a “Statutory Agent”, “Owner” or “Contractor” Under the Labor Law.....................................................................................19 B. Plaintiff was a Recalcitrant Worker and He was the Sole Proximate Cause of His Injuries......................................................................................26 C. Plaintiff was Provided with Adequate Safety Equipment ............................35 D. Labor Law Section 240(1) Should Not Be Applied Insofar As Plaintiff's Work Did Not Implicate an Elevation-Related Hazard ...............37 E. The Plaintiff’s Labor Law § 241(6) Claim Was Properly Dismissed...........41 POINT II THE PLAINTIFF’S LABOR LAW §200 AND COMMON LAW NEGLIGENCE CLAIMS WERE PROPERLY DISMISSED AGAINST IMS .......................................................................................................48 A. IMS Lacked Sufficient Responsibility or Authority to Control Plaintiff’s Work ...............................................................................49 iii B. Defendants Are Not Liable Because the Manhole was a Part of, or Inherent in the Work Being Performed ....................................................55 C. The Plaintiff’s Alleged Violations of OSHA are Insufficient to Support a Finding of Negligence Against IMS ........................................56 POINT III THE MTA DEFENDANTS AND THE CITY OF NEW YORK HAVE NO VIABLE CROSS - CLAIMS AGAINST IMS.....................................58 CONCLUSION........................................................................................................62 CERTIFICATION ...................................................................................................63 iv TABLE OF AUTHORITIES Cases Adams v Boston Properties Ltd. Partnership, 41 AD3d 112 (1st Dept 2007).........60 Allen v. City of Buffalo, 161 AD2d 1134 (4th Dept. 1990).....................................39 Allen v Cloutier Constr. Corp., 44 NY2d 290 (1978) ............................................ 43 Ares v State of New York, 80 NY2d 959 (1993) ....................................................42 Auchampaugh v Syracuse Univ., 57 AD3d 1291(3rd Dept. 2008) ..........................38 Blake v Neighborhood Hous. Services of New York City, Inc., 1 NY3d 280 (2003) .............................................................................................29 Bombero v. NAB Constr. Corp., 10 AD3d 170 (1st Dept. 2004) ............................55 Bonaparte v Niagara Mohawk Power Corp., 188 AD2d 853 (1992), appeal dismissed 81 NY2d 1067 (1993)...........................................................................38 Buccini v. 1568 Broadway Assoc., 250 AD2d 466 (1st Dept. 1998).......................24 Buckley v Columbia Grammar and Preparatory, 44 AD3d 263 (1st Dept 2007) ...48 Burke v. Hilton Resorts Corp., 85 AD3d 419 (1st Dept. 2011) ...............................32 Bussanich v 310 E. 55th St. Tenants, 282 AD2d 243 (1st Dept. 2001) ...................60 Cahill v. Triborough Bridge & Tunnel Auth., 4 NY3d 35 (2004) .................. passim Callahan v. P.J. Carlin Construction Co., 223 AD2d 459 (1st Dept. 1996).............57 Cappabianca v. Skanska, USA Bldg., Inc., 99 AD3d 139 (1st Dept. 2012)................................................................ 22, 23, 49 Carey v Five Bros., Inc., 106 AD3d 938 (2d Dept 2013)........................................39 v Carty v Port Auth. of New York and New Jersey, 32 AD3d 732 (1st Dept 2006)..................................................................................41 Cherry v Time Warner, Inc., 66 AD3d 233 (1st Dept 2009)...................................36 Cohen v. Memorial Sloan-Kettering Cancer Ctr, 11 NY3d 823 (2008)..................38 Comes v. New York State Elec. & Gas Corp., 82 NY2d 876 (1993) .............. 48, 49 Cunha v. City of New York, 18 Misc.3d 1104A; 856 NYS2d 23 (Sup. Ct. NY County 2007) ......................................................................... 40, 44 Doherty v. City of New York, 16 AD3d 124 (1st Dept. 2005) ......................... 20, 50 Dzieran v 1800 Boston Road, LLC, 25 AD3d 336 (1st Dept 2006) .......................44 Egan v Monadnock Const., Inc., 43 AD3d 692 (1st Dept 2007).............................31 Farruggia v Town of Penfield, 2014 WL 2978172, 2014 NY Slip Op 05057 (4th Dept July 3, 2014) ............................................. 40 Gasper v. Ford Motor Co., 13 NY2d 104 (1963) ....................................................55 Generoso v. New York City Housing Authority, 2008 NY Slip Op 33596U, 2008 N.Y. Misc. LEXIS 10658 (Sup. Ct. NY County November 25, 2009) ........................................... 21, 23, 24 Goncalves v 515 Park Ave. Condominium, 39 AD3d 262 (1st Dept. 2007) ...........60 Gonzalez v Stern's Dept. Stores, Inc., 211 AD2d 414 (1st Dept 1995)...................42 Greenwood v Shearson, Lehman & Hutton, 238 AD2d 311 (2d Dept 1997) .........42 Hawkins v City of New York, 275 AD2d 634 (1st Dept. 2000) ..............................43 Hughes v Tishman Const. Corp., 40 AD3d 305 (1st Dept 2007)......... 24, 49, 50, 51 Jock v. Fien, 80 NY2d 965 (1992)...........................................................................48 vi Jones v. NYCHA, 2010 NY Slip Op 31209U; 2010 N.Y. Misc. LEXIS 2129 (Sup. Ct. NY County May 10, 2010) ......... 24, 49 Khan v Bangla Motor and Body Shop, Inc., 27 AD3d 526 (2d Dept 2006) ...........57 Kollmer v. Slater Electric, Inc., 122 AD2d 117 (2d Dept. 1986)............................57 Lamia v. The City of New York, 2008 NY Slip Op 32136U, 2008 N.Y. Misc. LEXIS 8719 (Sup. Ct. NY County July 30, 2008) .......... 20, 23 Landry v. General Motors Corp., 210 AD2d 898 (4th Dept. 1994) .........................57 Lazarou v. Turner Construction Co., 18 AD3d 398 (1st Dept. 2005) ......................21 Loiacono v. Lehrer McGovern Bovis, Inc., 270 AD2d 464 (2d Dept. 2000) .........21 Long v Forest-Fehlhaber, 55 NY2d 154 (1982) ..................................................... 43 Maldonado v. Townsend Ave. Enterprises, 294 AD2d 207 (1st Dept. 2002)..........43 Masullo v. City of New York, 253 AD2d 541 (2d Dept 1998)...............................39 McGrath v Lake Tree Vil. Assoc., 216 AD2d 877 (4th Dept 1995) .......................42 McSweeney v Rochester Gas & Elec. Corp., 216 AD2d 878 (4th Dept 1995).......42 Montgomery v Fed. Express Corp., 4 NY3d 805 (2005) ........................................30 Morales v. Spring Scaffolding, Inc., 24 AD3d 42 (1st Dept. 2005).................. 31, 32 Narducci v Manhasset Bay Assoc., 96 NY2d 259 (2001).......................................37 Nascimento v. Bridgehampton Construction Corp., 86 AD3d 189 (1st Dept. 2011).............................................................................19 Nieves v Five Boro A.C. & Refrig. Corp., 93 NY2d 914 (1999)............................38 North Star Reinsurance Cor. V. Continental Ins. Co., 82 NY2d 281 (1993) ..........59 vii O'Sullivan v IDI Constr. Co., Inc., 28 AD3d 225 (1st Dept. 2006), aff’d 7 NY3d 805 (2006).....................................................................................51 Papoters v. 40-01 Northern Blvd. Corp., 11 AD3d 368 (1st Dept. 2004)................48 Pellescki v. City of Rochester, 198 AD2d 762 (4th Dept. 1993) ............................ 57 Paz v. City of New York, 89 AD3d 519 (1st Dept. 2011)................................. 24, 35 Plotnick v. Wok’s Kitchen Inc., 21 AD3d 358 (2d Dept. 2005) .............................40 Pope v. Safety & Quality Plus, Inc., 111 AD3d 911 (2d Dept. 2013).....................22 Reilly v Newireen Assoc., 303 AD2d 214 (1st Dept 2003) ....................................49 Reyes v. Magnetic Construction, Inc., 83 AD3d 512 (1st Dept. 2011)....................38 Rizzuto v. L.A. Wenger Contr. Co., 91 NY2d 343 (1998)..................................... 48 Robinson v E. Med. Ctr., LP, 6 NY3d 550 (2006) ..................................... 31, 35, 36 Ross v Curtis-Palmer Hydro-Electric Co., 81 NY2d 494 (1993) ......... 38, 41, 42, 48 Rossi v. Mt. Vernon Hosp., 265 AD2d 542 (2d Dept. 1999) ..................................39 Rukaj v Eastview Holdings, LLC, 36 AD3d 519 (1st Dept 2007)..........................31 Russin v Louis N. Picciano & Son, 54 NY2d 311 (1981)................................ 19, 48 Sajid v. Tribeca North Assoc., L.P., 20 AD3d 301 (1st Dept. 2005) .......................43 Salazar v Novalex Contr. Corp., 18 NY3d 134, 139 (2011) ................ 34, 38, 41, 45 Schindler v. Ahearn, 69 AD3d 837 (2d Dept. 2010) ...............................................55 Schiulaz v Arnell Const. Corp., 261 AD2d 247 (1st Dept 1999) ..................... 32, 42 Shaw v RPA Assoc., LLC, 75 AD3d 634 (2d Dept 2010) ......................................32 viii Sihly v New York City Tr. Auth., 282 AD2d 337 (1st Dept. 2001), lv dismissed 96 NY2d 897 (2001)................................................................ 38, 43 Singh v Black Diamonds LLC, 24 AD3d 138 (1st Dept 2005)...............................51 Smith v. McClier Corp., 22 AD3d 369 (1st Dept. 2005) .........................................20 Torres v. Morse Diesel Internat’l, Inc., 14 AD3d 401 (1st Dept. 2005) ..................50 Vernieri v Empire Realty Co., 219 AD2d 593 (2d Dept 1995)...............................42 Westchester Med. Ctr. v. Progressive Cas. Ins. Co., 51 AD3d 1014 (2d Dept. 2008) ..........................................................................52 Statutes Labor Law § 200 .............................................................................................. passim Labor Law § 240(1) ......................................................................................... passim Labor Law § 241(6) ......................................................................................... passim Workers Compensation Law § 11............................................................................58 Other Authorities OSHA Confined Spaces Standard 1910.146 ...................................................... 7, 15 Regulations Industrial Code Section 23-1.30 ..............................................................................44 Industrial Code Section 23-1.5 ................................................................................43 Industrial Code Section 23-1.7 ................................................................................44 Industrial Code Section 23-1.7(b)(1)(i) ............................................................ 44, 45 ix Industrial Code Section 23-1.7(b)(1)(ii) ..................................................................45 Industrial Code Section 23-1.7(b)(1)(iii) .................................................................44 Industrial Code Sections 23-3.3(j)(2)(i) and (ii)......................................................46 OSHA § 29 CFR 1926 ...................................................................................... 7, 15 OSHA § 29 CFR 1926.501 ................................................................... 16, 17, 33, 45 OSHA § 29 CFR 1926.502 ................................................................... 16, 17, 33, 45 1 QUESTION PRESENTED The question certified by the Appellate Division, First Department to be reviewed by the Court of Appeals in its order of February 11, 2014 is: “Was the order of this Court, which affirmed the order of the Supreme Court, properly made?” It is respectfully submitted that the determination of the Appellate Division, First Department was correct as a matter of law insofar as both the majority decision and the dissenting opinion agreed that the Supreme Court had properly dismissed all causes of action asserted against Defendant-Respondent IMS Safety, Inc., s/h/a IMS Safety Corp. It is further submitted that the determination of the Appellate Division, First Department was correct as a matter of law in affirming the dismissal of the Plaintiff’s complaint on the basis that he had no viable claim against any of the defendants, including IMS Safety, Inc., and that his own acts and omissions constituted the sole proximate cause of his injuries. However, it is respectfully submitted that the lower Courts erred inasmuch as Labor Law Section 240 (1) should not apply to the facts of this case. 2 PRELIMINARY STATEMENT This case arises from an accident that is alleged to have occurred on January 9, 2005, in the street at or around 60 Lafayette Street, New York, New York, when the Plaintiff-Appellant, Raul Barreto (“Plaintiff”), an experienced asbestos abatement worker, fell into an uncovered manhole located within a confined protective shelter which he and his co-worker had begun to dismantle toward the end of their work shift. The Plaintiff has conceded that he had no good reason for commencing the deconstruction of the protective barrier prior to the manhole cover being replaced, and that he did so contrary to the instructions that he had received from his supervisor that same day. At the time of the alleged accident, Plaintiff was employed by the previously-named third-party defendant, PAL Environmental Safety Corp. (“PAL”) who, after being impleaded by Defendants-Respondents, METROPOLITAN TRANSIT AUTHORITY (“MTA”) and NEW YORK CITY TRANSIT AUTHORITY. (“NYCTA”) (Collectively, the “MTA Defendants”), agreed to assume the sole obligation to defend and indemnify the MTA Defendants, giving rise to the discontinuance of the impleader-action. The MTA Defendants are alleged to have owned and or controlled the site where the accident occurred, and to have contracted with PAL to perform the subterranean asbestos removal work in which the Plaintiff was engaged at the time of the accident. 3 Defendant-Respondent, THE CITY OF NEW YORK (“NYC”) is alleged to have owned the street where the subject accident took place. Defendant-Respondent, IMS SAFETY, INC., sued incorrectly as “IMS SAFETY CORP.” (“IMS”), contracted with PAL to be its Site Safety Consultant for the asbestos removal project. IMS, in turn, subcontracted to third-party defendant, Andres Services Corp., who is in default. Following the completion of discovery proceedings, IMS moved for an order of summary judgment dismissing the Plaintiff’s claims and all cross-claims against it on the basis that, as a site safety consultant under its contract with PAL, it lacked the requisite authority to supervise and control the Plaintiff’s work required, and that its alleged acts or omissions could not otherwise give rise to liability as a statutory agent of the owner or general Contractor under Labor Law § 240(1) or Labor Law § 241(6), and further that there was insufficient evidence that IMS had exercised sufficient control over the Plaintiff’s activities leading to the accident so as to be held liable to the Plaintiff under Labor Law § 200 or common law negligence. The MTA Defendants also moved for summary judgment dismissing the Plaintiff’s Labor Law § 240(1) and § 200 causes of action, and for partial summary judgment dismissing the Plaintiff’s Labor Law § 241(6) cause of action inasmuch as the alleged OSHA and Industrial Code violations that Plaintiff alleged could not give rise to such a cause of action. NYC also cross-moved for summary 4 judgment to dismiss all causes of action relating to negligence, and the complaint in its entirety based upon its claim to be an out-of-possession landlord entitled to indemnification from the MTA Defendants pursuant to an alleged lease agreement. Plaintiff cross-moved for partial summary judgment against all defendants, including IMS, on its claims under Labor Law § 240(1) and § 241(6) and against IMS and the MTA Defendants on its claims based upon Labor Law § 200 and common law negligence. By Decision and Order dated March 30, 2012 the trial court held that although the Plaintiff’s work was related to an elevation-related hazard falling within the ambit of Labor Law § 240(1), the Plaintiff’s complaint warranted dismissal, in its entirety, on the basis that the Plaintiff had been provided with an adequate safety device, and the Plaintiff’s conduct constituted the sole proximate cause of his injuries, insofar as Plaintiff began deconstructing the containment area around the manhole notwithstanding that he had been instructed to wait to do so until the manhole cover had been replaced. In light of its finding that Plaintiff was the sole proximate cause of his injuries, the trial court further held that he had no viable claim against any of the defendants alleging a violation of Labor Law §§ 240(1), 241(6), 200 or for common law negligence. (A. 12-35) Plaintiff appealed the trial court’s decision and order to the Appellate Division, First Department, which affirmed the decision and order of the trial court 5 by a split decision, with one dissent. Notably, both the majority and dissenting opinions were in agreement on the issue that IMS, as the safety consultant, could not be liable for the accident under any of the Plaintiff’s theories because it was a subcontractor with no supervisory authority over the Plaintiff or his work. (A. 1560-71) It is respectfully submitted that the decisions of the trial court and the First Department properly considered the nature of the Plaintiff’s work and appropriately applied practical considerations when it determined that the manhole cover itself was an adequate safety device under the specific facts of this case, while remaining consistent with precedent and the public policy that underlies the Labor Law. It is further respectfully submitted, however, that both the decisions of the trial court and of the First Department erred to the extent that they held that Labor Law § 240(1) applied to the facts at bar, while they otherwise properly held, thereafter, that the Plaintiff was the sole proximate cause of the occurrence and of the injuries sustained. It is respectfully submitted that This Court should affirm the majority opinion of the Appellate Division, First Department which affirmed the trial court’s order dismissing the Plaintiff’s complaint as against IMS and all other defendants, in its entirety. 6 COUNTER-STATEMENT OF FACTS On the date of the alleged accident, the Plaintiff was working for PAL, and was employed as an asbestos handler. The accident allegedly took place in the street in front of 60 Lafayette Street, the Family Court in Manhattan, where asbestos was being removed from a manhole which was located about one foot from the sidewalk edge. (A. 446-49) Plaintiff alleged that he was injured when he fell 10 feet into the uncovered manhole, when he and a co-worker began to deconstruct a temporary protective barrier of wood and plastic, after he and his co- worker had already completed their work inside of, and had exited from the manhole. (A. 581, 584, 589-91, 636-37) Although Plaintiff generally waited for his PAL supervisor to tell him that the manhole was covered before commencing the dismantling of the protective barrier, and although his PAL supervisor had told him that same day that the manhole had to be covered before deconstruction could begin, on the date of the accident, the Plaintiff commenced the deconstruction work before anyone told him that the manhole was covered, and without otherwise making any effort to ascertain that the manhole was covered. (A. 621-24) The roadway-site where the accident occurred was owned by NYC, who leased it to the MTA defendants pursuant to a written lease. (A. 1470-1507) The asbestos abatement and removal was performed at the direction of the MTA Defendants, who hired contractors to perform such work as needed. In this case, 7 the MTA Defendants contracted with the Plaintiff’s employer, PAL, to perform asbestos abatement in multiple manholes pursuant to a written contract dated December 16, 2002. (A. 263-336) PAL, in turn, subcontracted with IMS to perform that portion of its General Contractor ‘s agreement with the MTA Defendants, which dealt with on-site safety monitoring and consulting for the asbestos removal project in the MTA and NYCTA manholes (A.215-232) IMS’s scope of work under the subcontract included compliance and enforcement of OSHA Confined Spaces Standard 1910.146, as adopted by the NYCTA or MTA. (A. 918-921, 1021-1037). IMS’ scope of work did not include the asbestos abatement itself, but did involve ensuring that work was performed in compliance with OSHA rules under construction standards 29 CFR 1926. (A. 912-913) Over the course of his career prior to the subject accident, Plaintiff had significant prior experience working in manholes and was well aware that manhole covers should be replaced after the work inside was completed. He had even served as an Asbestos Supervisor at some sites in the past. (A. 452, 570-572) He admitted that on the day of the accident, the PAL supervisor advised him that the manhole had to be covered before he began deconstructing the area. (A. 622) According to the Plaintiff, the procedure for the work at this site comprised first of the construction of a protective barrier or structure made of wood and plastic, which was erected over the manhole where the asbestos abatement work 8 was to be performed. (A. 458-64) The manhole cover remained in place during the construction and erection of the protective barrier. An inspector from the MTA would inspect the area, check that the electricity was off, and give the approval to start work. (A. 466-67) Then, PAL employees would remove the manhole cover, which was too heavy for one person to move it alone. (A. 464, 465) On the day of the accident, the manhole cover was placed outside of the protective structure. (A. 468, 630) The MTA inspector was to remain in the area for the duration of the work. (A. 467) Thereafter, a ladder would be lowered into the open manhole, and two lights were suspended into the manhole to illuminate the work area. (A. 468) On the date of the accident, a PAL supervisor, Rafael Torres, was present at the worksite, as were four or five other PAL employees. (A. 469-470) When the manhole was opened, the safety supervisor from IMS inserted a probe to monitor the manhole for dangerous gasses. (A. 480-81) Generally, on the days before his accident, after exiting the manhole and before commencing deconstruction of the work area, Plaintiff would wait in a small decontamination area between two barriers formed by four curtains of plastic, until the manhole was covered. (A. 624-631) A PAL supervisor would order members of the team of PAL workers, which included the Plaintiff, to re- cover the manhole after IMS had inspected the manhole and the MTA supervisor 9 gave the approval to close the hole. (A. 500-501, 569) After the manhole was covered, the PAL supervisor would tell the PAL employees to go back into the work area and begin the deconstruction process. (A. 624) However, on the day of the accident, Plaintiff did not remain in the decontamination area, nor did he wait for the instruction of the PAL supervisor before commencing the deconstruction work. (A651-53, 668) The subject accident occurred at the end of the work shift, shortly after Plaintiff and his co- workers had exited the manhole and had begun to dismantle the protective structure around the manhole. Plaintiff and his co-worker exited the curtained “decontamination” area before having been told that the manhole was covered, in contrast to his normal practice, which was to wait for the manhole to be covered. (A. 624) Plaintiff admitted that he made no effort to ascertain that the manhole was covered before commencing the breakdown or otherwise notice whether the manhole cover was on or was off. (A. 502, 511) Plaintiff paid no attention at all to whether or not the manhole was covered before commencing the deconstruction work. (A. 525) He did not wait for anyone to tell him that the manhole had been covered. At no point from the time he exited the manhole until the time of his accident did Plaintiff pay attention to whether or not the manhole had been covered. He did not ask anyone whether the manhole was covered, nor did anyone 10 tell him that the manhole had been covered. (A. 667-69) To the contrary, the Plaintiff commenced deconstruction activities almost immediately after exiting the manhole, before any supervisor was present or had an opportunity to direct that the manhole cover be replaced. (A. 583-84) His conduct on the date of the accident was in contrast to what he claimed to be the standard procedure, wherein he would wait for a supervisor to tell him that the manhole had been covered before commencing the deconstruction work. (A. 631) Additionally, according the Plaintiff, the MTA supervisor would have to approve of the “deconstruction” of the work area, and the MTA supervisor would normally instruct the workers to close the hole. (A. 569-70) In the moments just prior to the accident, Plaintiff had picked up a hammer which was in the work area, with intention of dislodging one of the 2’x4’s at the left rear corner of the ceiling of the work area. Plaintiff saw that a co-worker had been hammering the 2’x4’ at the front right section of the work area’s ceiling. He fell into the open manhole as he walked towards the left rear section, with intention of doing the same work. (A. 604-09, 631-33) At the time of the accident, he was working at ground level and, by his own admission, paid no attention to where he was walking. (A. 128) The Plaintiff admitted that he had not seen the IMS representative at any time after the beginning of the work day, until after the accident. (A. 669) He did not recall whether an IMS supervisor was generally 11 present on prior occasions when the manhole cover was re-applied after the completion of work. (A. 669) The Plaintiff testified unequivocally that the IMS representative did not direct the course of his work at this work site, and that his work was directed solely by the PAL supervisor (A. 495) who, on the date of the accident, was Rafael Torres. (A. 470) Shortly after the accident, Mr. Torres prepared and signed a Supervisor’s Accident Investigation report regarding the subject accident, in which he stated that Mr. Barreto had been trained in the appropriate use of protective equipment and proper safety procedures, and that Mr. Barreto had failed to “follow the procedure of replacing the manhole cover prior to anyone starting to break down [the] wooden barrier.” (A. 337) Mr. Torres further stated that he would personally supervise the replacing of the manhole cover after the last worker exited the manhole, in order to prevent the recurrence of this type of accident. (A. 337) Mr. Brian O’Loughlin, an asbestos handling supervisor employed by the MTA defendants at the site of the subject accident, described the asbestos removal work that was performed on Lafayette Street in NYCTA manholes. (A. 807) The work was performed at night, from 9:30pm to 5:30am. (A. 809) The general contractor, PAL, was responsible to close-off the work area from traffic; construct a containment shed around the manhole; plasticize both the interior and exterior of 12 the shed; and remove the manhole cover, after which the IMS inspector would lower air monitors into the manhole to check the carbon dioxide, oxygen and methane levels. The monitors remained in the open manhole while a NYCTA cable foreman checked the manhole for high tension feeders with voltage in excess of 600 volts. If no high voltage feeders were present, then work could begin in the manhole. (A. 808-09) Prior to work beginning in the manhole, the IMS inspector would leave the shed, and an air lock would be placed at the entrance. (A. 807-10, 816-17) IMS would not go back in until after the airlock had been removed. (A. 817) The NYCTA cable foreman and the MTA representative were required to remain at the site from the time work commenced, until when it was finished. (A. 812) As a general matter, the IMS inspector remained at the site during the night to monitor the asbestos conditions in and about the manhole, but would not re-enter the containment area until after removal of the airlock. (A. 817) Only after removal of the airlock would the IMS inspector re-enter the containment area to remove the air monitoring equipment from the manhole. (A. 868-71) The IMS representative generally remained within hearing distance of the site. (A. 843) He was not required to approve the closure of the manhole, though PAL had to wait until IMS removed its air monitoring equipment before the manhole could be closed. (A. 844, 868) 13 Ultimately, PAL was responsible to direct the closing of the manhole after IMS removed its equipment and ascertained that there were no wires in the way or men trapped in the hole. (A. 871-72) Prior to commencement of the work, the IMS inspector would conduct a safety meeting with the PAL employees who were assigned to the site. The safety meetings were generally conducted in Spanish. (A. 862-863) Mr. O’Loughlin testified that the IMS inspector on the night of the accident was “Diego”, while the regular IMS inspector was “Manuel”. (A. 841, 862) Mr. O’Loughlin denied having witnessed the accident, notwithstanding that it is reflected in his nightly log of January 8, 2005, which states that at 4:30 a.m., “handler R. Lopez slips and falls into [MH] cover and falls about 10 ft. down. He hurt his back but refused to go to the hospital.” (A. 825, 828-29, 1323-24) To Mr. O’Loughlin’s knowledge, neither OSHA nor the City of New York ever came to investigate the accident. (A. 840) Mr. O’Laughlin was advised of the name, “R. Lopez”, from the PAL supervisor, Ralph Torres. (A. 825-26) Mr. Sunil Parikh, also testifying on behalf of NYCTA, was working as an acting Construction Manager for NYCTA at the time of the accident, though he had no specific knowledge of the asbestos abatement work that was being done at 60 Lafayette Street, and did not recall ever having visited the work site. (A. 717- 19, 722-23) Mr. Parikh had no recollection of either IMS or of the Plaintiff’s 14 accident. (A. 737, 759, 779-80) Mr. Parikh confirmed that the MTA inspector was required to be present at the work site and had the authority to issue a stop work order if he saw something that concerned him. (A. 769-70) In his brief, Plaintiff improperly suggests that the incarceration of the former President of IMS, Joseph Mazzurco, is somehow relevant to the issue of whether IMS should be held liable for the accident at bar. The incarceration of Mr. Mazzurco resulted from a conviction that had no relationship with the New York City asbestos removal project site at which Plaintiff’s accident occurred. Mr. Mazzurco freely admitted that he pled guilty to having misrepresented the credentials of some former IMS employees in connection with certain Federal construction projects (A. 895-903), which imposed different requirements for safety inspectors than were required on non-federal jobs, or on jobs within New York City. (A. 1000) One of those former IMS employees was Manuel Fiallos, who was not present at the work site on the day of the accident, though he was properly qualified for the subject job in New York City. (A. 945, 1000) Rather, the IMS work in connection with the case at bar had been subcontracted to Andres Services and Diego Maldonado, an employee of Andres Services, was present as the IMS site safety consultant on the date of Plaintiff’s accident. (A. 946-50) Mr. Maldonado, a former IMS employee, was not a subject of Mr. Mazzurco’s guilty plea, and there is no evidence in the record that Diego Maldonado was in any way 15 unqualified for the job he was performing on behalf of IMS as a site safety consultant for PAL on the date of the accident. (A. 899-902, 947, 1000) Before it ceased its operations, IMS was a service company that provided safety and environmental compliance services to clients; conducted training for OSHA, EPA and DOT compliance, under Titles 29, 40 and 49 of the Federal Code; wrote plans for safety measures to be employed on jobs; consulted with companies regarding safety health and safety programs; and performed environmental services for gas, asbestos, and mold monitoring at various work sites. (A. 909-10) As regards the case at bar, PAL subcontracted to IMS that portion of its General Contractor agreement with the City, which dealt with on-site safety monitoring and consulting for the asbestos removal project in the MTA and NYCTA manholes, including those located at or near 60 Lafayette Street. (A. 911, 917) Mr. Mazzurco testified that, included in IMS’s scope of work under its subcontract with PAL, was compliance and enforcement of OSHA Confined Spaces Standard 1910.146, as adopted by the NYCTA or MTA. (A. 190-93, 215- 32). The scope of IMS’ work pursuant to the subcontract did not include the asbestos abatement, itself, but did involve ensuring that work was performed in compliance with OSHA rules and safety under construction standards 29 CFR 1926. (A. 912-913) Mr. Mazzurco was not present at the work site on the day of the subject 16 accident, and had never visited the site during the subject asbestos abatement project. (A. 935-936) He testified based on his experience that on other jobs involving manholes, the usual procedure was to have a three-sided guard rail or wooden barrier with plastic around a manhole, which served to control and regulate the area and provide protection. (A. 926-27, 934-35) Further, when the plastic barriers were up, IMS generally bore no responsibility for the manhole cover. (A. 925) Customarily, IMS remained outside of the containment area. (A. 992-93) Mr. Mazzurco testified that once the barriers were up, it was considered as full protection under OSHA § 29 CFR 1926.501 and OSHA § 29 CFR 1926.502. (A. 933) The practice was not to remove the guardrails or barriers from around the manhole opening before replacing the manhole cover. IMS did not remove barriers or guardrails. (A. 936) After the barrier or guardrail is removed, IMS was to ensure that the manhole cover was in place, and if IMS saw unsafe conditions, such as work being performed around an open manhole, the practice would be for IMS to speak to the PAL supervisor. (A. 937-939) It was the duty of the workers’ supervisor to ensure that no work was being performed around an open manhole before the cover was replaced. (A. 938) In the event that IMS saw work proceeding around an open manhole without guard rails or barriers, its authority was to speak to the PAL superintendent, and it would be up to the superintendent 17 to determine what to do. (A. 937-38) It was up to the PAL supervisor and the MTA defendants whether the manhole should be open or closed. (A. 923-24) If an unsafe condition was observed, IMS was to go to the PAL supervisor to advise them to so instruct their employees. (pp. 53-54) Only in the event of an “imminent danger”, involving the potential of serious injuries or death, would IMS have had the authority to stop the work and, in such a case, IMS, PAL and the MTA would all have authority to issue a stop work order. (A. 1002-03) OSHA does not specify that the manhole be covered before the containment area around the manhole is broken down. (A. 925) Contrary to the contentions of the Plaintiff, Mr. Mazzurco did not testify that a “guard rail system” consisting of a metal railing was required protection around an open manhole in addition to the wooden barrier system that was in place on the date of the accident. To the contrary, Mr. Mazzurco confirmed that the wooden and plastic barrier was considered as full protection under OSHA § 29 CFR 1926.501 and OSHA § 29 CFR 1926.502. (A. 933) Mr. Mazzurco recognized that, as a practical matter, workers would necessarily be inside of the barriers when working around an open manhole, and that to have barriers 100 percent of the time was simply not possible. (A. 928-29) He noted in particular that the person replacing the manhole cover would necessarily be working around an open manhole, and that OSHA recognizes that it is not feasible for that person to tie 18 himself to something in all situations. (A. 927-930) Mr. Mazzurco emphasized that safety on jobs such as the one at issue, including whether or not there was a safety railing around the manhole while it was opened, is a joint or shared effort between IMS, the PAL superintendent and the MTA supervisor. (A. 995-96) Mr. Mazzurco further noted that under OSHA, the workers also bear some responsibility for their own safety, and that the workers’ responsibilities in this regard are stated on OSHA posters that are posted in an office where the men go in and can see them. (A. 996-97) It is submitted that under the circumstances of this case, the lower courts both correctly determined that the manhole cover was an adequate safety device that would have prevented the Plaintiff’s accident, and that by disregarding his PAL supervisor’s instruction not to commence deconstruction of the barrier around the manhole before the manhole had been re-covered, the Plaintiff became a recalcitrant worker and that he was the sole proximate cause of his accident. 19 LEGAL ARGUMENT POINT I THE PLAINTIFF’S CLAIMS UNDER LABOR LAW §§240(1) and 241(6) WERE PROPERLY DISMISSED AGAINST IMS A. IMS was not a “Statutory Agent”, “Owner” or “Contractor” Under the Labor Law Both the majority and dissenting opinions in the Appellate Division, First Department were in accord that under the facts of this case, IMS bore no liability under the New York State Labor Law because it was not a statutory “agent” within the purview of the Labor Law. Plaintiff herein has provided no support for any contention that IMS, a site safety consultant retained by the Plaintiff’s employer, PAL, has the status as a “contractor” and/or statutory “agent” required to impose Labor Law liability. A subcontractor, in contrast to a general contractor or owner, may be held liable for plaintiff's injuries as a statutory agent under Labor Law §§ 240 (1) and 241 (6), only if it had the authority to supervise and control the work giving rise to the plaintiff’s injuries. Russin v Louis N. Picciano & Son, 54 NY2d 311, 317-318 (1981) The notion that all contractors and subcontractors, by virtue of their position in the chain of command, are necessarily liable as statutory agents under Labor Law §§ 240 (1) and 241 (6) has been rejected by the courts. See, Nascimento v. Bridgehampton Construction Corp., 86 AD3d 189 (1st Dept. 2011) Courts have repeatedly declined to impose the status of statutory agent on 20 site safety consultants, such as IMS, who lack authority to supervise and direct the plaintiff’s work and who do not exercise such authority. See, e.g., Doherty v. City of New York, 16 AD3d 124 (1st Dept. 2005) (Court upheld dismissal of action against site safety consultant, Total Safety Consulting, Inc., where there was no evidence that Total Safety directed, supervised or controlled plaintiff’s work, it was not the supplier of safety equipment to the job site, and there was no evidence that it acted negligently or unreasonably as site safety consultant); Smith v. McClier Corp., 22 AD3d 369 (1st Dept. 2005) (a general contractual obligation to ensure compliance with safety regulations, was found insufficient to support imposition of Labor Law liability on an agency theory) In the case of Lamia v. The City of New York, 2008 NY Slip Op 32136U, 2008 N.Y. Misc. LEXIS 8719 (Sup. Ct. NY County July 30, 2008), the plaintiff, who was employed as an electrician, fell into an uncovered hole during the renovation of Whitehall Ferry Terminal. At issue was whether the construction consultant, Tishman Construction, and/or the Safety Manager, Total Safety Consulting Corp. (“Total Safety”), could be held liable as statutory agents of the owner. Total Safety’s duties were virtually identical to those of IMS in the case at bar: they included walking the job site, providing safety orientation for employees, reporting hazardous conditions, meeting with contractors, writing reports and holding safety meetings. Upon observing work in an unsafe manner, or an unsafe 21 condition, Total Safety - - just as IMS herein - - would ask the contractor to rectify the problem and to notify the construction manager. Under these circumstances, the court found that Total Safety lacked sufficient authority to supervise and control the injury-producing work to be held vicariously liable as a statutory agent of the owner under Labor Law §§ 240(1) and 241(6). Moreover, the court further held that being under a general contractual obligation to ensure compliance with safety regulations, without more, was insufficient to impose liability as an agent under the Labor Law. See also, Lazarou v. Turner Construction Co., 18 AD3d 398 (1st Dept. 2005); Loiacono v. Lehrer McGovern Bovis, Inc., 270 AD2d 464 (2d Dept. 2000) (authority to review safety on the site did not rise to the level of supervision or control necessary to impose Labor Law liability) The facts of the case of Generoso v. New York City Housing Authority, 2008 NY Slip Op 33596U, 2008 N.Y. Misc. LEXIS 10658 (Sup. Ct. NY County November 25, 2009) are analogous to the case at bar. In Generoso, the plaintiff fell from a broken fire escape while working on the façade of a building. The General contractor, Bri-Den, hired the Safety Consultant, Pro Safety, to provide safety consulting services. Just as in the case at bar, the contract between Bri-Den and Pro Safety required Pro Safety to supply a full-time, licensed Site Safety Manager. The site safety manager’s responsibility at the site was to monitor compliance with safety regulations and OSHA requirements. Nothing in the 22 contract gave Pro Safety the authority to direct, control or supervise employees of any subcontractor, just as is the case with IMS herein. Also like IMS in the case at bar, Pro Safety monitored compliance with safety regulations, would notify workers of unsafe work practices, and would report them. While there was also testimony that Pro Safety would stop life-threatening unsafe practices immediately, and would then call the superintendent to address the matter, the Court found that the duties of Pro Safety fell short of the degree of direction, supervision or control of plaintiff’s work that was necessary to impose liability under the Labor Law. Id. In the case of Cappabianca v. Skanska, USA Bldg., Inc., 99 AD3d 139 (1st Dept. 2012), the court held that all of the plaintiff's Labor Law claims against the defendant safety consultant, Safety and Quality Plus, were properly dismissed because, in its limited role as a safety consultant for the construction project, the safety consultant could not be held liable either as the owner's or general contractor's agent or under a theory of negligence given its lack of authority to supervise and control the Plaintiff’s work. The Court in Cappabianca further noted that a contractual obligation to ensure compliance with safety regulations at a worksite does not constitute a sufficient basis for liability under the Labor Law or common law negligence. Id. at 148. See also, Pope v. Safety & Quality Plus, Inc., 111 AD3d 911 (2d Dept. 2013) (safety consultant with no supervisory authority entitled to dismissal as a matter of law of all claims and cross-claims against it) 23 In the instant case, it is uncontroverted that PAL retained IMS as a safety consultant or environmental consultant solely for that portion of its contract with MTA and/or NYCTA as pertained to the removal of asbestos from manholes. According to IMS, its primary functions at the site were to develop OSHA safety compliance programs, including the monitoring of air quality during the asbestos removal process, conduct Safety Meetings and training on the site. Its duties on the job at issue were of the same nature as those of the safety consultants in the above-cited Lamia, Generoso and Cappabianca cases, which were found insufficient to impose Labor Law liability on the safety consultants as statutory agents of the owner. The actual removal and replacement of manhole covers, and the securing of the manhole areas with plastic barriers, was performed solely under the supervision, direction and control of PAL and MTA. The Plaintiff admitted in sworn testimony that IMS did not direct his work and that it had no supervisory authority over his activities. There is no evidence that IMS, a site safety consultant, had sufficient authority or control over the plaintiff’s work in order to be held vicariously liable as a statutory agent of the general contractor, PAL, or of the property owner, the City and MTA. Plaintiff concedes that he received his work instructions exclusively from his employer, PAL. There is no evidence that IMS played any role in directing the Plaintiff’s work or activities. Even as to the replacement of 24 the manhole cover and the breakdown of the protective barrier, the Plaintiff and his PAL co-workers received their instructions from the PAL supervisor, and not from IMS. It was the Plaintiff’s failure to wait for instruction from his PAL supervisor before starting to deconstruct the protective barrier at the end of his work shift that resulted in his accident. Lastly, even if IMS had the authority to stop dangerous work, that authority does not rise to the level of supervision and control that would support a finding that IMS was a “statutory agent” under the Labor Law. The mere authority to stop and report highly dangerous or life-threatening work practices has been deemed insufficient to impose statutory liability under the Labor Law. Hughes v Tishman Const. Corp., 40 AD3d 305 (1st Dept 2007); Buccini v. 1568 Broadway Assoc., 250 AD2d 466 (1st Dept. 1998); Paz v. City of New York, 89 AD3d 519 (1st Dept. 2011); Generoso v. New York City Housing Authority, 2008 NY Slip Op 33596U, 2008 N.Y. Misc. LEXIS 10658 (Sup. Ct. NY County November 25, 2009); Jones v. NYCHA, 2010 NY Slip Op 31209U, 2010 N.Y. Misc. LEXIS 2129 (Sup. Ct. NY County May 10, 2010) (site safety consultant hired by construction manager lacked sufficient authority to supervise, control or direct plaintiff’s work at the construction site to be deemed a statutory agent of the owner where its authority was to report unsafe conditions.) 25 With respect to the replacement of the manhole cover, IMS had no responsibility to perform this task, which was indisputably performed by PAL. The authority of IMS was limited to giving the approval for PAL to close the manhole after determining that all monitoring equipment had been removed, and that there were no workers remaining in the manhole. Plaintiff has presented no evidence to demonstrate whether IMS did or did not issue its approval for the manhole cover to be replaced, or whether replacement of the manhole cover would even have been proper before Plaintiff and his co-worker unilaterally left the decontamination area and commenced deconstruction activities without the approval of their PAL supervisor. There is no evidence that IMS had authority to direct Plaintiff’s work or tell him whether to commence deconstructing protective barriers. The evidentiary facts before the Court below demonstrated that IMS had implemented proper safety procedures which were to be executed through the Plaintiff’s employer, PAL, but which were disregarded by the Plaintiff himself, and thereby resulted in his accident. It is respectfully submitted that under the facts of this case, IMS lacked the requisite authority and control over the worksite and the Plaintiff’s work to be held liable to the Plaintiff under Labor Law § 240(1) and § 241(6) as a statutory agent of the owner or general contractor and, therefore, the dismissal of the case against IMS should be affirmed. 26 B. Plaintiff was a Recalcitrant Worker and He was the Sole Proximate Cause of His Injuries In the case at bar, the majority decision of the Appellate Division, First Department correctly affirmed the finding of the trial court that the Plaintiff was the sole proximate cause of his accident, because he had been furnished with an available, adequate safety device that would have prevented the accident, and he offered no good reason for his failure to use that device. (A. 1560-65) Under the circumstances of the Plaintiff’s work site, both the trial court and the majority opinion of this Court reached the practical and reasonable conclusion that the manhole cover itself was an adequate safety device that would have protected the Plaintiff and his co-workers, and would have prevented the Plaintiff’s accident. Plaintiff and his co-workers knew or should have known that the manhole was uncovered, as they had just exited it, and they knew or should have known that the manhole cover was available just outside of the plastic barrier, because only PAL workers had handled the manhole cover. It is of no moment whether the Plaintiff, himself, as opposed to one or more of his co-workers, would be directed to remove or replace the manhole cover, or that the manhole cover was heavy and required more than one person to move it. The fact remains that the Plaintiff had been told that very day by his supervisor not to commence deconstruction of the wooden protective barrier until he had been advised that the manhole cover was replaced and it was safe to proceed. Plaintiff chose to 27 disregard that clear and common-sense instruction, and the record is bereft of any reason why he commenced deconstruction activity virtually immediately after he exited the manhole rather than waiting for sufficient time to elapse so that the, MTA and PAL supervisors could perform their jobs of securing the manhole and the PAL supervisor could direct the replacement of the manhole cover. The instruction that the Plaintiff chose to disobey was clear, unequivocal and specifically related to deconstruction of the protective barrier, which is an activity that logically should not take place until and unless the manhole had been re- covered. At his deposition, the Plaintiff testified as follows: Q: On the date of your accident, at any time, did the supervisor from PAL tell you that the manhole had to be covered, not by you, but just that it had to be covered before you began the deconstruction of the area? A: Yes (A. 622) Plaintiff admittedly disobeyed a direct and specific safety instruction that the manhole had to be covered before he began deconstruction work, and his actions in commencing that work before the manhole cover had been replaced was correctly determined by the lower courts to be the sole proximate cause of his accident. 28 Upon exiting the manhole, the Plaintiff had been provided with a safe place in the decontamination area to wait until the manhole cover had been replaced and until he received his PAL supervisor’s instruction to commence the deconstruction of the barriers. Plaintiff had no reason to go anywhere or do anything until his PAL supervisor instructed him. Plaintiff’s contention that the IMS representative should have been there is belied by his own testimony, in which he admits that he came out of the manhole and began deconstruction work right away, even before his supervisor, Rafael Torres, had entered the work area. (A. 583-84) Plaintiff’s testimony was that only his PAL co-workers, Julio and Charlie, and a female shop steward had entered the work area before he started deconstruction activities. (A. 584-85). Thus, according to Plaintiff’s own testimony, he did not even wait long enough for the IMS representative to re-enter the containment area to inspect the manhole, or for anyone in authority to order it covered, before he simply went ahead and started the deconstruction process. Both the trial court and the majority in the Appellate Division, First Department correctly noted that the Plaintiff offered no reason for his failure to wait for confirmation that his PAL co-workers had replaced the manhole cover, and had he waited until the manhole was covered, he would not have fallen through. The Plaintiff had no reason to believe that the manhole cover had been 29 replaced, and admitted that he took no notice of whether the manhole was covered or not before he started the deconstruction work. (A. 502, 511) Whether or not a worker is found to be “recalcitrant,” it has been held that there can be no liability under Labor Law § 240(1) when there is no violation of the statute and the worker's actions or his negligence are the “sole proximate cause” of the accident. Blake v Neighborhood Hous. Services of New York City, Inc., 1 NY3d 280, 290 (2003); Cahill v. Triborough Bridge & Tunnel Auth., 4 NY3d 35, 39 (2004). “Extending the statute to impose liability in such a case would be inconsistent with statutory goals since the accident was not caused by the absence of (or defect in) any safety device, or in the way the safety device was placed.” Blake v Neighborhood Hous. Services of New York City, Inc., 1 NY3d 280, 290 (2003) In Cahill v Triborough Bridge and Tunnel Auth., 4 NY3d 35 (2004), the Court of Appeals reversed the trial court’s grant of summary judgment to the plaintiff on his Labor Law § 240(1) claim. In Cahill, the plaintiff had been injured when he fell from a height of 10 to 15 feet while climbing a structure called a “form”. The workers sometimes had a “man lift” for this purpose, but when the man life was not available, the workers had been instructed to climb and descend, using safety lines. Plaintiff had been to several safety meetings at which instruction was given and discussion was had as to the use of safety lines and, at 30 least on one occasion, he had been specifically told to use a safety line after being caught climbing without one. Nonetheless, at the time of his accident, the plaintiff was not using a safety line. Under these facts, the Cahill court found, as a matter of law, that the plaintiff was a recalcitrant employee not entitled to protection under the Labor Law in that he had received instructions to use an available safety line and chose to disregard them. Id. at 39. The Court of Appeals further recognized that had the plaintiff not made that choice, he would not have been injured, leading to the conclusion that the defendant had no liability under Labor Law § 240(1). Id. at 40. The Court of Appeals in Cahill further held that the failure to follow instructions to the plaintiff to use the safety device given even weeks before the accident, were sufficient to support the recalcitrant worker defense. Cahill v. Triborough Bridge and Tunnel Authority, 4 N.Y.3d 35, 39 (2004). In the case at bar, the Plaintiff admittedly disregarded instructions given to him not weeks before, but at the beginning of the shift that very day, and his recalcitrance in not heeding such instructions proximately caused his accident. In Montgomery v Fed. Express Corp., 4 NY3d 805, 806 (2005), the Court affirmed the holding of the Appellate Division First Department that the plaintiff, who chose to use an inverted bucket to get up to an elevator motor room located about four feet above the roof, and then to jump down, was the sole proximate 31 cause of his injury, and was therefore not entitled to recover under Labor Law § 240(1). See also, Robinson v E. Med. Ctr., LP, 6 NY3d 550, 555 (2006) (worker who knowingly used a 6 foot ladder when an adequate 8 foot ladder was available was the sole proximate cause of his accident); Egan v Monadnock Const., Inc., 43 AD3d 692, 693 (1st Dept 2007) (worker who chose to use an inadequate A-frame ladder when proper ladders were readily available was the sole proximate cause of his injuries); Rukaj v Eastview Holdings, LLC, 36 AD3d 519, 520 (1st Dept 2007) (plaintiff’s conduct in climbing the ladder while guiding the pump with one hand and using the other to hold onto the ladder steps was the sole proximate cause of his fall off the ladder) The facts of the case at bar are closely analogous to those of Cahill v Triborough Bridge and Tunnel Auth., 4 NY3d 35 (2004). In both cases, the injured worker chose to disregard specific safety instructions to utilize equipment or devices that were available and would have prevented their respective accidents. The cases cited by Plaintiff in support of his contention that he was not recalcitrant or was not the sole proximate cause of his accident are inapplicable and are distinguishable from the case at bar. In Morales v. Spring Scaffolding, Inc., 24 AD3d 42 (1st Dept. 2005), the plaintiff was injured when he fell off of an improperly constructed sidewalk bridge, when he leaned on a parapet wall that broke. Unlike the present case, there was no suggestion that the plaintiff in 32 Morales disregarded a safety instruction and also, unlike the present case, the Morales accident was caused by a failed or broken safety device. The case of Burke v. Hilton Resorts Corp., 85 AD3d 419 (1st Dept. 2011) is also distinguishable because in that case, the court found that plaintiff was not the sole proximate cause of his accident where unspecified insufficient safety devices were provided. By contrast, as was correctly noted by the trial court in the case at bar, the plaintiff herein had an adequate safety device readily available to him, as it was PAL workers who would remove and replace the manhole cover. (A. 31-32) Lastly, the Plaintiff’s contention that he was not a recalcitrant worker or the sole proximate cause of his injuries because he alleged various OSHA violations was properly rejected by the trial court. Alleged violations of OSHA do not give rise to liability under the Labor Law. In this case, Plaintiff has produced no evidence of a finding by any agency or authority that any OSHA regulation was violated by IMS, and he has cited to no authority that an alleged OSHA violation is material to an alleged violation of Labor Law § 240(1). To the contrary, it has been held that OSHA violations are insufficient to support Labor Law liability. See, e.g., Schiulaz v Arnell Const. Corp., 261 AD2d 247 (1st Dept 1999); Shaw v RPA Assoc., LLC, 75 AD3d 634 (2d Dept 2010) It is respectfully submitted that the Plaintiff’s reliance on the deposition testimony of former IMS president, Joseph Mazzurco, for the proposition that there 33 should have been a “guardrail system” around the manhole at all times is misplaced. The Plaintiff has suggested that Mr. Mazzurco’s testimony is not wholly reliable, because he was “convicted” and “imprisoned” at the time of his deposition. Notwithstanding, Mr. Mazzurco was never present at the subject job site, and none of his testimony regarding railings or protective barriers was specific to the site where the Plaintiff was working on the date of the accident. Contrary to plaintiff’s contentions, Mr. Mazzurco did not testify that a “guard rail system” consisting of a metal railing was required protection around an open manhole in addition to the wooden barrier system that was in place on the date of the accident. To the contrary, the usual procedure for an asbestos removal project was to have a three-sided guard rail or a wooden barrier with plastic around a manhole, which served to control and regulate the area and provide protection. (A. 926-27, 934-35) Mr. Mazzurco confirmed that such a wooden and plastic barrier, in and of itself, was considered as full protection under OSHA § 29 CFR 1926.501 and OSHA § 29 CFR 1926.502. (A. 933) Mr. Mazzurco’s testimony about metal guardrail systems was in reference to work around open manholes, as a general matter, and not specifically applicable to asbestos removal work, where a wooden and plastic barrier system was in use. (A. 930-35) Moreover, his testimony did not state that a metal guardrail system was required in addition to the wooden and plastic protective barrier. (A. 932-933) 34 As a practical matter, workers would necessarily be inside of any type of barrier when working around an open manhole, and any additional barrier would serve no purpose and would be an impediment during the work shift, during which the Plaintiff and his PAL co-workers brought up about 180 bags of asbestos material through the open manhole, as well as entering and leaving for bathroom and lunch breaks. (A. 482, 825, 851) As such, the presence of an additional guardrail would have interfered with the object of the work, impeding the PAL work crew from safely and expeditiously exiting the manhole while carrying bags of asbestos. Moreover, at the end of the work shift, it would still have been necessary to remove the guardrail before replacing the manhole cover, leaving the same exact situation as existed at the time of the Plaintiff’s accident. Holding that protective devices were not required around an uncovered manhole where those devices would have been inconsistent with an integral part of the job, the Court of Appeals has stated that “Labor Law § 240(1) should be construed with a commonsense approach to the realities of the workplace at issue.” Salazar v. Novalex Contracting Corp., 18 NY3d 134, 140 (2011) For the above reasons, the lower courts correctly reasoned that the Defendants had provided Plaintiff with an adequate safety device that would have prevented his accident, to wit, the manhole cover. The Plaintiff knew or should have known that the manhole was uncovered, having just exited it, and he also 35 knew or should have known that the manhole cover was located just outside of the containment area, insofar as he was part of a small PAL work crew, and only PAL workers had removed the manhole cover and placed it there. The Plaintiff’s commencement of deconstruction activities immediately upon exiting the manhole before the manhole cover was replaced was not only recalcitrant behavior, but was correctly found to be tantamount to the refusal to utilize a safety device that had been provided by the defendants. C. Plaintiff was Provided With Adequate Safety Equipment Where adequate safety devices have been made available to a worker and the worker has been instructed to use them, the worker may not recover under Labor Law § 240(1) for injuries caused solely by his violation of those instructions, even though the instructions were given several weeks before the accident occurred. Cahill v Triborough Bridge and Tunnel Auth., 4 NY3d 35 (2004) If adequate safety devices are provided and the worker either chooses for no good reason not to use them, or misuses them, then liability under Labor Law § 240(1) does not attach. Paz v City of New York, 85 AD3d 519 (1st Dept 2011); Robinson v E. Med. Ctr., LP, 6 NY3d 550 (2006); see Cahill v. Triborough Bridge & Tunnel Auth., 4 N.Y.3d 35, 40 (2004). The Plaintiff herein erroneously contends that he was not furnished with an adequate safety device. To the contrary, for the reasons set forth above, the lower 36 courts correctly found that under the circumstances of the case at bar, the manhole cover itself was an adequate safety device which would have prevented the Plaintiff’s accident, and that the location of, and need to utilize this device was readily available to the Plaintiff . Under Robinson v. E. Med. Ctr., LP, 6 NY3d 550 (2006), a safety device is considered to have been made available where the workers know the location of the device and there is a practice of workers’ obtaining such devices. See also, Cherry v Time Warner, Inc., 66 AD3d 233 (1st Dept 2009) The manhole cover at issue, though located just outside of the containment area, was readily available to the Plaintiff, a PAL employee. (A. 520) Given that PAL employees had removed the manhole cover, they had reason to know where it was located. The normal practice was that only PAL employees removed or replaced the manhole cover itself. The evidence establishes that Plaintiff, as one of only three PAL asbestos workers present on the date of the accident, knew or should have known that the manhole cover was located just outside of the containment area when he exited the manhole. In fact, Plaintiff testified that the manhole cover was located just outside of his work area, yet he started his deconstruction activities right away after exiting the manhole. (A. 520) No evidence suggested that it would have been difficult to locate the manhole cover or that it was at any significant distance from the open manhole. Plaintiff knew that, after exiting the manhole toward the end of the shift, a supervisor was 37 supposed to give the instruction to PAL employees to replace the manhole cover. In failing to wait until the instruction was imparted to cover the manhole before starting to deconstruct the wooden barrier, the Plaintiff refused to use an available safety device that he had been specifically instructed to use. D. Labor Law Section 240(1) Should Not Be Applied Insofar As Plaintiff's Work Did Not Implicate an Elevation-Related Hazard It is respectfully submitted that the lower courts in this case incorrectly determined that the work in which the Plaintiff was engaged at the time of his accident involved an elevation-related hazard that implicated the protections of Labor Law § 240(1). As set forth more fully below, whether Labor Law § 240(1) is triggered by a fall through an open manhole has met with different appellate court interpretations, and this Court should hold that Section 240(1) is inapplicable to a case where a worker falls through a manhole located at street level. It has been held by this Court that not every worker who falls at a construction site, and not every object that falls on a worker, gives rise to the extraordinary protections of Labor Law § 240(1). Rather, liability is contingent upon the existence of a hazard contemplated in Labor Law § 240(1) and the failure to use, or the absence or the inadequacy of, a safety device of the kind enumerated therein. Narducci v Manhasset Bay Assoc., 96 NY2d 259, 267 (2001) Liability under Labor Law § 240(1) depends on whether the injured worker's “task creates an elevation-related risk of the kind that the safety devices listed in section 240(1) 38 protect against”. Salazar v Novalex Contr. Corp., 18 NY3d 134, 139 (2011) Moreover, Labor Law § 240(1) liability should not be imposed where an injury results from a separate hazard unrelated to the risk which brought about the need for an enumerated safety device in the first place. Cohen v. Memorial Sloan- Kettering Cancer Ctr, 11 NY3d 823 (2008) Liability under Labor Law § 240(1) is not implicated unless the plaintiff’s injuries resulted from an elevation or gravity- related risk, as opposed to the usual and ordinary dangers of a construction site. See, Reyes v. Magnetic Construction, Inc., 83 AD3d 512 (1st Dept. 2011), citing Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 (1993); Nieves v Five Boro A.C. & Refrig. Corp., 93 NY2d 914, 916 (1999); see also Sihly v New York City Tr. Auth., 282 AD2d 337 (1st Dept. 2001), lv dismissed 96 NY2d 897 (2001). It has been repeatedly held that the mere fact that a plaintiff fell while he was at a level elevated from that below does not, in and of itself, render the injury a result of an elevation-related risk, particularly where, as in the case at bar, the accident occurred at the same level where the plaintiff was working. See, Auchampaugh v Syracuse Univ., 57 AD3d 1291, 1292-1293 (3rd Dept. 2008) (plaintiff tripped and fell over the edge of a trap door and partially into an open hatchway); Bonaparte v Niagara Mohawk Power Corp., 188 AD2d 853 (1992), appeal dismissed 81 NY2d 1067 (1993) (plaintiff’s injury was not proximately caused by failure to provide safety devices) 39 The Appellate courts that have considered cases involving whether falls into uncovered manholes implicate the type of elevation-related risk covered by Labor Law § 240(1) have come to differing conclusions. In the case of Allen v. City of Buffalo, 161 AD2d 1134 (4th Dept. 1990), the Appellate Division, Fourth Department held that Labor Law § 240(1) applied where a worker fell into an uncovered manhole that was obscured by snow and could not have been easily seen from the surface. The facts of the case at bar are easily distinguishable, in that there is no indication that the manhole into which the Plaintiff fell was obscured from his view at the time of the accident. By contrast, the Appellate Division, Second Department, in Masullo v. City of New York, 253 AD2d 541 (2d Dept 1998) found that a manhole negligently left uncovered is not one of the gravity-related hazards or perils subject to the safeguards prescribed by Labor Law § 240(1). Id. at 542. In that case, the plaintiff worked for an entity that had been hired to replace certain sewer pipes located at a pumping station. The court concluded that “the fall was the type of ordinary and usual peril a worker is commonly exposed to at a construction site”. Id. See also, Carey v Five Bros., Inc., 106 AD3d 938 (2d Dept 2013) (fall through an open manhole atop a 10– foot–deep precast drainage vault did not fall within the ambit of either Labor Law § 240(1) or § 241(6); Rossi v. Mt. Vernon Hosp., 265 AD2d 542 (2d Dept. 1999) (Labor Law § 240(1) did not apply to plaintiff who fell into a grease pit while 40 renovating the façade of a building at ground level); Plotnick v. Wok’s Kitchen Inc., 21 AD3d 358 (2d Dept. 2005) (staircase negligently left uncovered did not present an elevation-related hazard subject to Labor Law § 240(1)); Farruggia v Town of Penfield, 2014 WL 2978172, 2014 NY Slip Op 05057 (4th Dept July 3, 2014) (steep ravine located near a work area did not involve “an elevation-related risk of the kind that the safety devices listed in Labor Law § 240(1) protect against”) The facts of the case at bar are similar to those of the case of Cunha v. City of New York, 18 Misc.3d 1104A; 856 NYS2d 23 (Sup. Ct. NY County 2007), in which the plaintiff alleged he was injured when he fell into an uncovered manhole while walking backwards as he was in the process of directing construction equipment. The trial court in Cunha held that the plaintiff’s workplace at the time of his accident was the street, and that the presence of covered and uncovered manholes is a common feature of street surfaces. Id. In its decision below, the trial court attempted to distinguish the facts of in the instant case from those of Cunha on the basis that the manhole was “very much” related to the performance of Plaintiff’s work. (A. 29) However, the work that the Plaintiff was engaged in at the time of his accident was deconstructing a wooden and plastic barrier, which took place exclusively at street level and did not involve the use of the manhole. Respectfully, after the Plaintiff and his co-workers had exited the manhole for the 41 last time at the end of their shift, the workplace was entirely at street level, and the work being performed no longer implicated any elevation related hazard. In the context of holding that protective devices were not required around an uncovered hole where those devices would have been inconsistent with an integral part of the job, the Court of Appeals has stated that “Labor Law § 240(1) should be construed with a commonsense approach to the realities of the workplace at issue.” Salazar v. Novalex Contracting Corp., 18 NY3d 134, 140 (2011) E. The Plaintiff’s Labor Law § 241(6) Claim Was Properly Dismissed Even if, arguendo, this Court were to find IMS to be within the purview of New York’s Labor Law, contrary to the argument above and to the findings of the trial court and both the majority and dissenting opinions of the Appellate Division, First Department, it is submitted that the Plaintiff’s claims pursuant to Labor Law § 241(6) were still properly dismissed as against IMS. Under Labor Law § 241(6), owners and general contractors are require to provide reasonable and adequate protection and safety for workers and to comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor. Ross v Curtis-Palmer Hydro-Electric Co., 81 NY2d 494, 501-02 (1993) A cause of action under Labor Law § 241(6) depends upon a showing of noncompliance with some specific safety standard. Carty v Port Auth. of New York and New Jersey, 32 AD3d 732 (1st Dept 2006) 42 In order to impose liability under Labor Law § 241(6), the provision of the Industrial Code violated must mandate compliance with concrete specifications and not just establish general safety standards. Ross v Curtis-Palmer Hydro- Electric Co., 81 NY2d 494, 505 (1993). However, violations or alleged violations of OSHA standards do not provide a basis for liability under Labor Law § 241(6). Schiulaz v Arnell Const. Corp., 261 AD2d 247 (1st Dept 1999); Vernieri v Empire Realty Co., 219 AD2d 593 (2d Dept 1995); McGrath v Lake Tree Vil. Assoc., 216 AD2d 877 (4th Dept 1995); McSweeney v Rochester Gas & Elec. Corp., 216 AD2d 878 (4th Dept 1995); Greenwood v Shearson, Lehman & Hutton, 238 AD2d 311 (2d Dept 1997) In addition to requiring that the Plaintiff plead and prove violation of a concrete provision of the Industrial Code to invoke the protection of Labor Law 241(6), the Plaintiff must also establish that the violation of that provision was a proximate cause of his accident. Gonzalez v Stern's Dept. Stores, Inc., 211 AD2d 414, 415 (1st Dept 1995), citing Ares v State of New York, 80 NY2d 959, 960 (1993). Therefore, in the case at bar, where the Plaintiff was the sole proximate cause of his accident, his claims under Labor Law § 241(6) must necessarily fail. Additionally, the Plaintiff in this case has not alleged and proven a violation of any provision of the Industrial Code on the part of IMS that is sufficiently 43 concrete or applicable to support a claim under Labor Law § 241(6), or that any such alleged violation was the proximate cause of his accident. It is well-established that the alleged violation of regulations that set general as opposed to specific safety standards are insufficient to form a basis for a claim under Labor Law § 241(6). (See, e.g., Long v Forest-Fehlhaber, 55 NY2d 154, 159 (1982); Allen v Cloutier Constr. Corp., 44 NY2d 290 (1978)). For instance, in the case of Sihly v. New York City Transit Auth., 282 AD2d 337 (1st Dept. 2001), the First Department specifically addressed violations of Rule 23 of the New York State Industrial Code and held that alleged violations of such regulations - - including Industrial Code Section 23-1.5 - - , that only set general safety standards, would not constitute a basis for a claim under Labor Law § 241(6). See also, Sajid v. Tribeca North Assoc., L.P., 20 AD3d 301 (1st Dept. 2005); Hawkins v City of New York, 275 AD2d 634 (1st Dept. 2000); Maldonado v. Townsend Ave. Enterprises, 294 AD2d 207 (1st Dept. 2002) (Industrial Code Section 23-1.5 found to be comprised of general directives insufficient as a predicate to impose liability under Labor Law § 241(6)) To the extent that the Plaintiff alleged violations of sections of the Industrial Code that might be considered specific enough to support liability under Labor Law § 241(6), violation of those sections must also be applicable to and constitute 44 a proximate cause of the Plaintiff’s accident, in order to form the basis for Labor Law § 241(6) liability. Plaintiff cites to Industrial Code Section 23-1.30, which contains some general requirements for illumination of work areas. Whether or not this requirement is sufficiently specific or concrete, there is no evidence in the record that IMS had any responsibility pertaining to site illumination in and of itself, or particularly for the area in and surrounding the manhole. Accordingly, any alleged violation of this section of the Industrial Code cannot form the basis for summary judgment as against IMS. Plaintiff further cites to various subsections of the Industrial Code, Section 23-1.7, that are inapplicable to his accident. For instance, Industrial Code Section 23-1.7(b)(1)(iii), which requires protective planking, is inapplicable where, as here, plaintiff fell less than 15 feet. See Dzieran v 1800 Boston Road, LLC, 25 AD3d 336 (1st Dept 2006). It is also inapplicable where the provisions of that subsection would preclude access in and out of the manhole. Cunha v. City of New York, 18 Misc3d 1104A; (Sup. Ct. NY County 2007). In the instant case, Plaintiff testified that he fell only 10 feet (A. 636-37). The same issue of access to the manhole is raised by Industrial Code Section 23-1.7(b)(1)(i), which requires either a cover or a safety railing. Where covering the hole would be inconsistent with the object of the work at issue, or where actual 45 use of the hole is an integral part of the job, Industrial Code Section 23-1.7(b)(1)(i) does not require covering the hole or safety devices of the sort described by the Plaintiff. See, Salazar v. Novalex Contracting Corp., 18 NY3d 134 (2011). In the instant case, access to the manhole was needed throughout most of the work shift during which the Plaintiff and his PAL co-workers brought up about 180 bags of asbestos material through the open manhole, as well as entering and leaving for bathroom and lunch breaks. Plaintiff’s reliance on the testimony of Joseph Mazzurco for the proposition that an additional metal guardrail should have been present is misplaced. According to Mr. Mazzurco, the protective three-sided wooden and plastic barrier that was constructed by PAL prior to opening the manhole - - which also addressed the requirement of Industrial Code Section 23-1.7(b)(1)(ii) of a barrier that provides free access as needed - - constituted full protection under OSHA § 29 CFR 1926.501 and OSHA § 29 CFR 1926.502. (A. 933) Mr. Mazzurco was not qualified as an expert witness, and his testimony was clear that he was not present at the job site and had no first-hand knowledge of what was or should have been done on the particular site. Moreover, a metal guardrail around the manhole would have been inconsistent with the object of the work, and would have served not only to hamper the PAL workers’ access to the manhole, but would likely have presented a tripping hazard as they exited the manhole holding large bags of 46 asbestos material. Under the factual circumstances of this case, the lack of an additional guardrail, lifeline or safety net, was not the proximate cause of the Plaintiff’s accident. As was held by both the trial court and the majority opinion of the Appellate Division, First Department in this case, the sole proximate cause of the Plaintiff’s accident was his failure to heed the instruction of his PAL supervisor or to wait in the safe area provided for him for the few additional minutes it would have taken for the end-of-shift inspection of the area and for the PAL supervisor to direct the replacement of the manhole cover. As to the alleged violations of Industrial Code Sections 23-3.3(j)(2)(i) and (ii), Plaintiff has cited no authority that these sections, which pertain to “Floor openings” , have ever been applied to manholes located on sidewalks or streets. The very language of these Industrial Code provisions, which refer to floors, top floors and ceilings, establishes that they are applicable only to demolition work being performed on structures that actually have floors and ceilings, unlike the manhole in this case. The cases cited by Plaintiff do not find that Industrial Code Sections 23-3.3(j)(2)(i) and (ii) apply to holes in the street or conditions other than those found in the construction or renovation of buildings. Even if, arguendo, Plaintiff were to prove violation of a sufficiently-specific Industrial Code provision that is applicable to the facts of this case, it is submitted that he cannot demonstrate 47 that any such violation was the proximate cause of his accident where, as here, he has been found to be the sole proximate cause of his injuries. As set forth above, and as correctly held by the lower courts in this case, the conduct of the Plaintiff in this case constituted the sole proximate cause of his accident. The Plaintiff testified that he had prior experience working in approximately 20 to 30 manholes before the date of the accident. (A. 452) Plaintiff further testified that he had worked at the subject manhole for about five days immediately prior to the accident, and had been working continuously on various manholes for about a year. (A. 456-57) He admitted that on the date of the accident, the PAL supervisor instructed him that the manhole had to be covered before he began deconstruction of the work area at the end of the shift. (A. 620- 22) His usual practice was to wait for a supervisor to tell him that the manhole was covered before beginning the deconstruction work. (A. 631) Despite his experience, and contrary to the instructions of his PAL supervisor, on the date of the accident the Plaintiff started performing deconstruction work immediately after exiting the manhole and before his supervisor had even entered the work space. (A. 583-84) He did not wait for his supervisor or anyone else to tell him that the manhole was covered. Nor did he check himself to see if the manhole was covered at any time between exiting the manhole and his accident. (A. 667) Plaintiff did not ask anyone about the 48 manhole cover or even pay attention to whether or not the manhole had been covered. (A. 525) He did not see anyone replace the manhole cover. To the extent that any of the Plaintiff’s statements in the affidavit that he submitted in support of his motion for partial summary judgment conflict with his sworn deposition testimony, such statements should properly have been disregarded by the court and are insufficient to create issues of fact. Papoters v. 40-01 Northern Blvd. Corp., 11 AD3d 368 (1st Dept. 2004) POINT II THE PLAINTIFF’S LABOR LAW §200 AND COMMON LAW NEGLIGENCE CLAIMS WERE PROPERLY DISMISSED AGAINST IMS Labor Law § 200 codifies the common-law duty of an owner or employer to provide employees with a safe place to work. Jock v. Fien, 80 NY2d 965 (1992); Buckley v Columbia Grammar and Preparatory, 44 AD3d 263 (1st Dept 2007); see also Ross v. Curtis–Palmer Hydro–Elec. Co., 81 NY2d 494 (1993) An implicit precondition to this duty is that the party charged with that responsibility has the authority to control the activity bringing about the injury. (Comes v. New York State Elec. & Gas Corp., 82 NY2d 876 (1993); Russin v. Picciano & Son, 54 NY2d 311 (1981); see Rizzuto v. L.A. Wenger Contr. Co., 91 NY2d 343 (1998). In order to establish liability against a subcontractor, such as IMS, under Labor Law § 200 and common-law negligence, Plaintiff must prove that the subcontractor had authority to supervise and control the activity which produced 49 the injury, and that it exercised that authority. Reilly v Newireen Assoc., 303 AD2d 214 (1st Dept 2003). Under Comes v. New York State Elec. & Gas Corp., 82 NY2d 876 (1993), there is no basis for a cause of action under Labor Law § 200 or common law negligence unless the defendant supervised, controlled or directed the work of the plaintiff. Constructive notice of a defective or dangerous condition, without the requisite authority to supervise and control the work, is insufficient to support a finding of liability under Labor Law § 200 and common- law negligence against a subcontractor. See, Cappabianca v Skanska USA Bldg. Inc., 99 AD3d 139 (1st Dept 2012) A. IMS Lacked Sufficient Responsibility or Authority to Control Plaintiff’s Work As applicable to IMS, a site safety consultant who does not supervise, direct or control the work that brought about a plaintiff’s injury cannot be held liable to the Plaintiff under Labor Law § 200 or under theories of common law negligence. Hughes v Tishman Const. Corp., 40 AD3d 305 (1st Dept 2007) (site safety coordinator whose role was limited to safety related tasks and did not have authority over how the trades performed their work was not liable under Labor Law § 200 or common law negligence); See also, Jones v. NYCHA, 2010 NY Slip Op 31209U; 2010 N.Y. Misc. LEXIS 2129 (Sup. Ct. NY County May 10, 2010) (subcontract that required site safety consultant inspected scaffolds and to “take all reasonable precautions to protect the persons…from injury” did not confer 50 sufficient authority to hold safety consultant liable in common law negligence); Doherty v. City of New York, 16 AD3d 124 (1st Dept. 2005) (where safety consultant did not direct, supervise or control plaintiff’s work, it was not liable to plaintiff in the absence of evidence that it acted negligently or unreasonably as site safety consultant.) Summary judgment is properly granted where an entity is merely responsible for overseeing the safety of the work performed by subcontractors and enforcing safety standards at the work site. Torres v. Morse Diesel Internat’l, Inc., 14 AD3d 401 (1st Dept. 2005) (contractual duties to supervise and enforce safety standards at the work site insufficient to create an issue of fact as to the entity’s negligence). The case of Hughes v Tishman Const. Corp., 40 AD3d 305 (1st Dept 2007) is instructive in this matter. In that case defendant, Site Safety, was hired by a construction project’s general contractor, Tishman, so as to comply with certain sections of the Administrative Code of the City of New York. Site Safety did not control the manner in which the plaintiff performed his work. Site Safety was responsible for performing functions delineated in the Department of Buildings' Manual for Site Safety Programs, which included such activities as inspecting the construction site to monitor compliance with federal, state and local safety rules and regulations, generating and maintaining safety records and coordinating safety meetings. Just as in the case at bar with IMS, Site Safety's role on the site was 51 limited to performing safety-related tasks; it did not have the authority to control the manner in which the trades performed their work nor did it attempt to do so. Id. In Hughes, the fact that Site Safety may have had the authority to stop work for certain safety reasons was held to be insufficient to raise a triable issue of fact with respect to whether Site Safety was vested with the requisite degree of supervision and control or exercised such over the work being performed, so as to sustain a claim under Labor Law § 200 or for common-law negligence. See O'Sullivan v IDI Constr. Co., Inc., 28 AD3d 225 (1st Dept. 2006), aff’d 7 NY3d 805 (2006) (retention by general contractor of a site safety manager insufficient to demonstrate a triable issue of fact with respect to liability under Labor Law § 200 or for common-law negligence for injury allegedly caused by work performed by a subcontractor); Singh v Black Diamonds LLC, 24 AD3d 138 (1st Dept 2005) (evidence that a contractor defendant conducted regular walk-throughs and, if he observed an unsafe condition, had the authority to find whoever was responsible for the condition and have them correct it or, if necessary, stop the work; and had even discussed covering the subject hole in the roof with the carpentry contractor and had inspected the plywood in question after it had been nailed down over the hole, was insufficient to trigger liability under Labor Law § 200 or common law negligence where the plaintiff was injured when he fell through a hole in the roof) In the case at bar, IMS did not have control over the work site and did not 52 have supervisory control over the Plaintiff or his co-workers in the performance of their duties. There is no evidence that IMS directed or controlled the performance of the work in which Plaintiff was engaged at the time of his injury. To the contrary, Plaintiff himself has testified that his employer, PAL, solely supervised and directed his work. (A. 495) IMS had no authority to instruct the Plaintiff to commence deconstruction of the containment area or to direct the removal or replacement of the manhole cover. Only the Plaintiff’s PAL supervisor, who was Rafael Torres on the date of the accident, had that authority. (A. 938-39) In the Supervisor Accident Report that he prepared and signed, Mr. Torres, noted that the Plaintiff had received training in the appropriate use of personal protective equipment and proper safety procedures, but that he “did not follow procedure of replacing manhole cover prior to anyone starting to breakdown wooden visual barrier.” (A. 337) It is respectfully submitted that this accident report was evidentiary proof, valid for the trial court’s consideration on a summary judgment motion, as a business record, having been made in the normal course of business of PAL, at or around the time of the incident, and by a person who was present and under a business duty to make this report. See, Westchester Med. Ctr. v. Progressive Cas. Ins. Co., 51 AD3d 1014 (2d Dept. 2008) The crux of Plaintiff’s negligence allegations against IMS is that it failed to ensure the replacement of the manhole cover prior to deconstruction of the 53 protective barrier. There is no evidence that IMS’s duties included removal or replacement of the manhole cover itself: that work was performed solely by PAL employees, under the direction of the PAL supervisor. At most, IMS’s duties involving the manhole at the end of the shift were limited to ensuring that air monitoring equipment had been removed, and that all persons had exited the manhole before the PAL supervisor directed one or more of the PAL employees to replace the manhole cover. (A. 843-44) Plaintiff presumes, without evidentiary proof in support, that because he started working on deconstruction of the barrier, that the manhole should have been covered, and that it was somehow IMS’s fault that the manhole was not covered, as opposed to the Plaintiff’s own fault in having disregarded specific safety instructions and in starting to deconstruct the barrier before the manhole had been covered. Plaintiff has presented no evidence that IMS knew or had reason to know that plaintiff had immediately begun to dismantle the protective barrier, or that IMS had a reasonable time to re-enter the barricaded area to perform the inspection that was necessary before anyone could have ordered the manhole to be closed. To the contrary, Plaintiff admitted that he started the deconstruction work almost immediately after he had exited the manhole, without checking whether or not the manhole had been covered, and before his PAL supervisor or anyone else told him that the manhole was covered and that it was safe to do so. (A. 520-21, 54 584, 590, 622, 667) The PAL supervisor, Rafael Torres, admitted in his affidavit that at the time of the accident, the IMS representative was sitting just a few feet from the barricade area. (A. 1354) If that is true, it is consistent with the testimony of the MTA that the IMS representative generally remained outside of the wooden barrier until the end of the work shift, when he would return to determine when the manhole could be closed. (A. 817) Plaintiff also testified that after the manhole had been opened, he would not see the IMS representative again until the end of the day, other than at lunch. (A. 481-82) It was not uncommon or unusual for those who did not need to be inside the wooden barriers to sit in a car parked nearby, as there was no real place to wait, and a car was where logbooks and other documents might be kept and could be worked on. (A. 827) To the extent that Plaintiff places the blame for his accident on inadequate illumination of the work area, he presented no evidence that IMS bore any responsibility for, or exercised any control over the lighting of the area, or that the occurrence took place due to the lighting conditions. In sum, considering the evidence in a light most favorable to the Plaintiff, IMS’ role regarding replacement of the manhole cover was, at most, to remove its air monitoring equipment and ensure that all personnel had exited the manhole before advising PAL that the cover could be replaced. By the Plaintiff’s own admissions, he did not afford IMS the opportunity to perform its duties before he 55 commenced deconstruction activities, as he had been directed. There is no evidence that IMS did not perform its duties properly. In light of IMS’ limited authority as a site safety consultant as set forth above, there is insufficient evidence for a summary finding of either common-law negligence, or violation of Labor Law § 200 as against IMS. B. Defendants Are Not Liable Because the Manhole was a Part of, or Inherent in the Work Being Performed It has been held that the duty under Labor Law § 200 does not extend to hazards which are part of or inherent in the very work being performed, or which are readily observable by reasonable use of the senses in light of a worker’s age, intelligence and experience. Gasper v. Ford Motor Co., 13 NY2d 104 (1963); Schindler v. Ahearn, 69 AD3d 837 (2d Dept. 2010); Bombero v. NAB Constr. Corp., 10 AD3d 170 (1st Dept. 2004) (walking on an exposed rebar was part of or inherent to a concrete and steel inspector’s job, and the hazard was readily observable) In the case at bar, work around an open manhole and removal of the manhole cover was part of and was inherent in the work which PAL was performing for the asbestos abatement project. Simply put, the manhole necessarily had to be uncovered so that the PAL workers could enter and remove the asbestos, and it was expected that the manhole would necessarily be open as the workers made their final exit from the opening at the end of the day. An 56 uncovered manhole in a small protective enclosure was a hazard readily observable to this Plaintiff in light of his age, intelligence, and prior experience working in and around manholes and, indeed, as serving as a Supervisor for asbestos removal projects in the past. Plaintiff knew that the manhole cover had been removed before he went into the manhole to perform work, and that being around an open manhole for some finite amount of time before it was covered was inherent in his work. Also inherent in the performance of his work was ascertaining that the manhole cover had been replaced, either by personally so doing, by personal observation, by asking his supervisor or co-workers, or by waiting to hear from his supervisor that it had been replaced. For these reasons, Plaintiff has no viable claim under Labor Law § 200 or common-law negligence. C. The Plaintiff’s Alleged Violations of OSHA are Insufficient to Support a Finding of Negligence Against IMS The trial court properly dismissed as against all defendants Plaintiff’s negligence claims to the extent that they were based on alleged violations of OSHA regulations. As to the Plaintiff’s claims as against IMS that are premised upon alleged violations of various OSHA regulations, no evidence has been produced of a finding or citation by any agency or authority that an OSHA regulation was actually violated. Nor has the Plaintiff submitted an expert opinion to support his contention that the violation of any OSHA regulation was a substantial factor in bringing about his accident. While violation of OSHA 57 regulations may constitute some evidence on the issue of negligence, provided that the violation was a substantial factor in bringing about the occurrence, Landry v. General Motors Corp., 210 AD2d 898 (4th Dept. 1994), the mere allegation of OSHA violations, without more, and without an expert’s connection, is insufficient to defeat summary judgment. See, Callahan v. P.J. Carlin Construction Co., 223 AD2d 459 (1st Dept. 1996) (noting that OSHA citations did not constitute findings and were not evidence of negligent supervision). In the case of Kollmer v. Slater Electric, Inc., 122 AD2d 117 (2d Dept. 1986), cited by the Plaintiff, the defendant had actually paid a fine for violating an OSHA regulation. In the Kollmer case, the Court held that the defendant’s stipulation settling the OSHA violation could not, by its terms, be admitted at trial as evidence of negligence, though under the specific circumstances of that case, the court permitted copies of the regulations themselves to be submitted for a jury to decide whether they were violated and if so, whether the violations were evidence of negligence of the plaintiff’s employer. As has been set forth above, the responsibility to see that OSHA regulations are carried out lies solely with employers, as OSHA governs employer/employee relationships. Pellescki v. City of Rochester, 198 AD2d 762 (4th Dept. 1993); Khan v Bangla Motor and Body Shop, Inc., 27 AD3d 526 (2d Dept 2006) Undisputedly, PAL was the Plaintiff’s employer in this case, and bore the responsibility of compliance with OSHA regulations. 58 By reason of the above, the Plaintiff failed to raise an issue of fact as to IMS’s negligence, and the trial court therefore properly granted summary judgment dismissing Plaintiff’s causes of action against IMS based on negligence. POINT III THE MTA DEFENDANTS AND THE CITY OF NEW YORK HAVE NO VIABLE CROSS - CLAIMS AGAINST IMS In its initial moving papers, IMS sought dismissal of any cross-claims brought or contemplated as against IMS by the MTA Defendants and the City of New York. That branch of IMS’ motion was not ruled upon specifically, in light of the dismissal of the Plaintiff’s complaint, in its entirety, against all defendants. Should this Court decide that any portion of the Plaintiff’s claims should not have been dismissed as against the MTA Defendants and/or the City of New York, it is submitted that, in equity, those defendants should not be permitted to claim-over as against IMS where, as here, IMS cannot claim over as against PAL due to the exclusivity provisions of the Workers Compensation Law § 11 and insofar as PAL - - through its comprehensive general liability insurer - - heretofore assumed the obligation to defend and indemnify the MTA Defendants after PAL was impleaded by said MTA Defendants. As set forth above, having been impleaded by the MTA Defendants, PAL agreed to assume the sole obligation to defend and indemnify the MTA Defendants and the impleader-action was discontinued, accordingly. It is understood that Courts should not interfere where insurance has been procured and 59 insurance exists so as to shield and protect the parties through an agreed upon allocation of risks between contracting parties: this was the ratio decidendi behind this Court’s prior rejection of the pre-indemnification doctrine and, as such, to the extent that PAL agreed by contract to obtain insurance to defend and indemnify the MTA/NYCTA or the City of New York against vicarious liability arising from PAL’s negligence, that protection should not be disturbed. See, e.g., North Star Reinsurance Cor. V. Continental Ins. Co., 82 NY2d 281 (1993) (in which the Court of Appeals rejected the pre-indemnification doctrine so as to effectuate the parties’ contractual intention that the contractor’s insurance policy bear all risks other than the owner’s own negligence) The reasoning behind this rejection of the pre- indemnification doctrine, was that negotiated agreements to allocate risk through insurance procurement should not be disturbed, as they serve to insure and offer a shield to protect against the risks that arise from vicarious liability. However, those policy implications do not apply here, where the MTA Defendants, who would ordinarily have a right to indemnification by PAL, could seek to use their insurance agreement provisions as a sword against IMS in addition to providing a shield to protect the MTA Defendants. Had PAL not assumed the defense and indemnity of the MTA Defendants, the MTA, and arguably the City of New York, would have pursued their right to contractual indemnification against PAL as the clear “target” Defendant. IMS has no privity of contract with PAL and is 60 prevented from asserting a claim-over under the Omnibus Worker’s Compensation Act. Having taken over the defense of the MTA Defendants, PAL’s insurer should not now be permitted to rely upon this Court’s rejection of the pre-indemnification doctrine to eschew its obligation to indemnify by asserting a claim - over as against IMS. It is respectfully submitted that to allow the MTA Defendants to claim over against IMS under these circumstances, would create the anomalous and inequitable result of potentially holding IMS liable for the negligence of the Plaintiff’s employer, PAL. Lastly, it is respectfully submitted that the MTA Defendants cannot assert a viable contractual indemnification claim as against IMS based upon the subcontract between PAL and IMS. (A1021-1027). Even where, as here, a construction subcontract incorporates the main agreement by reference, it has been held that such incorporation clauses in a construction subcontract, incorporating prime contract clauses by reference into a subcontract, bind a subcontractor only as to prime contract provisions relating to the scope, quality, character and manner of the work to be performed by the subcontractor, and do not create any rights to indemnification by the subcontractor. Adams v Boston Properties Ltd. Partnership, 41 AD3d 112 (1st Dept 2007); Bussanich v 310 E. 55th St. Tenants, 282 AD2d 243 (1st Dept. 2001); see Goncalves v 515 Park Ave. Condominium, 39 AD3d 262 (1st Dept. 2007) In the case at bar, IMS was not a signatory to the main contract 61 between PAL and the MTA Defendants. Therefore, the MTA Defendants cannot assert an indemnification claim against IMS, because any such promise of indemnification of the MTA Defendants was found in the main contract, to which IMS was not a signatory, and the clauses that incorporate portions of the prime contract by reference bind IMS only as to the scope, quality, character and manner of that portion of PAL’s work pertaining to supplying a site safety consultant, and not to any agreement that PAL made with respect to indemnification of the MTA Defendants. By reason of the above, it is respectfully submitted that this Court should find, as a matter of law, that no viable cross-claims may be asserted as against IMS or, in the alternative, remand the issue to the Appellate Division, First Department in the event that this Court determines that the Plaintiff’s claims against the MTA Defendants or the City of New York should not have been dismissed on summary judgment. 62 CONCLUSION For the reasons stated above, it is respectfully submitted that the Order of the trial court dated March 30, 2012 granting the motion of IMS Safety Corp. for summary judgment dismissing the Plaintiff’s complaint as against it in all respects and denying the Plaintiff’s cross-motion for summary judgment on his complaint, and the majority opinion of the Appellate Division, First Department affirming the Order trial court should be affirmed, in its entirety. Dated: Scarsdale, New York July 21, 2014 Respectfully submitted, _______________________________ Clifford I. Bass, Esq. Marcy Blake, Esq. Jones Morrison, LLP Attorneys for Defendant-Respondent IMS Safety Corp. 670 White Plains Road, PH Scarsdale, New York 10583 (914) 472-2300 63 CERTIFICATION Pursuant to 22 NYCRR 130-1.1, the undersigned certifies that upon information and belief and after reasonably inquiry, the contentions contained in the annexed document are not frivolous. Dated: Scarsdale, New York July 21, 2014 _______________________ Clifford I. Bass, Esq. Jones Morrison, LLP Attorneys for Defendant-Respondent IMS Safety Corp. 670 White Plains Rd., Penthouse Scarsdale, New York 10583 (914) 472-2300