Raul Barreto, Appellant, et al., Plaintiff,v.Metropolitan Transportation Authority, et al., Respondents. (And other Third-Party Actions.)BriefN.Y.February 11, 2015APL-2014-00031 New York County Clerk’s Index Nos. 108233/05, 591045/06 and 590440/07 Court of Appeals STATE OF NEW YORK Index No. 108233/05 RAUL BARRETO, Plaintiff-Appellant, and DERLIM BARRETO, Plaintiff, against METROPOLITAN TRANSPORTATION AUTHORITY, NEW YORK CITY TRANSIT AUTHORITY, THE CITY OF NEW YORK and IMS SAFETY CORP., Defendants-Respondents. (Additional Caption On the Reverse) >> >> BRIEF FOR PLAINTIFF-APPELLANT RAUL BARRETO GORAYEB & ASSOCIATES, P.C. Attorneys for Plaintiff-Appellant Raul Barreto 100 William Street, Suite 1205 New York, New York 10038 212-267-9222 Date Completed: May 14, 2014 Of Counsel: John M. Shaw To Be Argued By: John M. Shaw Time Requested: 30 Minutes Third-Party Index No. 591045/06 IMS SAFETY INC., Third-Party Plaintiff, against ANDRES SERVICES CORPORATION, Third-Party Defendant. Second Third-Party Index No. 590440/07 METROPOLITAN TRANSPORTATION AUTHORITY and NEW YORK CITY TRANSIT AUTHORITY, Second Third-Party Plaintiff, against P.A.L. ENVIRONMENTAL SAFETY CORP., Second Third-Party Defendant. i TABLE OF CONTENTS Page TABLE OF AUTHORITIES ................................................................................... iii PRELIMINARY STATEMENT ............................................................................... 1 QUESTION PRESENTED ........................................................................................ 4 STATEMENT OF FACTS ........................................................................................ 5 Plaintiff’s Affidavit & Deposition Testimony ................................................. 9 Deposition Testimony of Brian O’Loughlin, Who Testified on Behalf of MTA/NYCTA .................................................. 21 Deposition Testimony of Sunil Parikh, Who Testified on Behalf of NYCTA ............................................................ 23 Deposition Testimony of Joseph P. Mazzurco, the Convicted, Imprisoned Ex-President of IMS .......................................... 23 The Affidavit of Rafael Torres, P.A.L. Supervisor ....................................... 26 ARGUMENT ........................................................................................................... 28 POINT I PLAINTIFF SHOULD HAVE BEEN AWARDED PARTIAL SUMMARY JUDGMENT AGAINST DEFENDANTS ON PLAINTIFF’S LABOR LAW § 240(1) CAUSE OF ACTION AND THE MOTIONS TO DISMISS THAT CLAIM SHOULD HAVE BEEN DENIED ................................................................................. 28 1. It is well settled that a fall through an unguarded opening without proper safety equipment mandates partial summary judgment in favor of plaintiff pursuant to Labor Law Section 240(1) ............................................................................. 28 ii POINT II IN ITS DECISION, THE APPELLATE DIVISION MISCONSTRUED THE FACTS, IGNORED OTHER FACTS AND MISAPPLIED WELL SETTLED LAW REGARDING SOLE PROXIMATE CAUSE/RECALCITRANCE .................................... 39 POINT III PLAINTIFF HAS MAINTAINED A VIABLE LABOR LAW SECTION 241(6) CLAIM IN THAT PLAINTIFF HAS CITED TO SPECIFIC AND RELEVANT INDUSTRIAL CODE SECTIONS AND WAS NOT THE SOLE PROXIMATE CAUSE OF THE ACCIDENT ...................................................................... 54 POINT IV PLAINTIFF’S LABOR LAW § 200 AND COMMON LAW NEGLIGENCE CLAIMS HAVE MERIT AND SHOULD NOT HAVE BEEN DISMISSED ................................................................. 61 CONCLUSION ........................................................................................................ 71 iii TABLE OF AUTHORITIES Page Cases Aimatop Restaurant, Inc. v. Liberty Mutual Fire Insurance Co., 74 A.D.2d 516, 425 N.Y.S.2d 8 (1st Dep't. 1980) ............................................ 70 Akins v. Baker, 247 A.D.2d 562, 669 N.Y.S.2d 63 (2d Dep't. 1998) ..................... 68 Allen v. City of Buffalo, 161 A.D.2d 1134, 555 N.Y.S.2d 944 (4th Dep't. 1990)................................................................................................ 33 Allen v. Cloutier Construction Corp., 44 N.Y.2d 290, 405 N.Y.S.2d 630 (1978) .................................................................................. 61 Auriemma v. Biltmore Theatre, LLC, 82 A.D.3d 1, 917 N.Y.S.2d 130 (1st Dep't. 2011) .................................................................................... 32, 52, 53 Barzaghi v. Maislin Transport, 115 A.D.2d 679, 497 N.Y.S.2d 131 (2d Dep't. 1985), appeal dismissed, 67 N.Y.2d 852, 492 N.E.2d 788, 501 N.Y.S.2d 660 (1986) ....................................................... 65 Berrios v. 735 Avenue of the Americas, LLC, 82 A.D.3d 552, 919 N.Y.S.2d 16 (1st Dep't. 2011) .................................................................... 36 Blake v. Neighborhood Housing Services Of New York City, Inc., 1 N.Y.3d 280, 771 N.Y.S.2d 484 (2003) .................................................... 48, 50 Bland v. Manocherian, 66 N.Y.2d 452, 488 N.E.2d 810, 497 N.Y.S.2d 880 (1985) ............................................................................ 38, 46 Brandl v. Ram Builders, Inc., 7 A.D.3d 655, 777 N.Y.S.2d 511 (2d Dep't. 2004) ................................................................................................. 34 Burke v. Hilton Resorts Corp., 85 A.D.3d 419, 924 N.Y.S.2d 358 (1st Dept. 2011) ................................................................................................. 31 Caddy v. Interborough R.T. Co., 195 N.Y. 415, 88 N.E. 747 ................................. 54 iv Cahill v. Triborough Bridge & Tunnel Authority, 4 N.Y.3d 35, 790 N.Y.S.2d 74 (2004) .................................................................................... 43 Campbell v. Columbus Centre LLC, 48 A.D.3d 323, 852 N.Y.S.2d 89 (1st Dep't. 2008) ................................................................................................ 60 Carpio v. Tishman Constr. Corp. of New York, 240 A.D.2d 234, 658 N.Y.S.2d 919 (1st Dep't. 1997) ............................................................ 32, 33 Celestine v. City of New York, 86 A.D.2d 592, 446 N.Y.S.2d 131 (2d Dep't. 1982), affd. 59 N.Y.2d 938, 466 N.Y.S.2d 319 (1983) ................... 55 Cherry v. Time Warner, Inc., 66 A.D.3d 233, 885 N.Y.S.2d 28 (1st Dept. 2009) ........................................................................................... 52, 53 Cohen v. Herbal Concepts, Inc., 100 A.D.2d 175, 473 N.Y.S.2d 426 (1st Dep't. 1984) ................................................................................................ 70 Copertino v. Ward, 100 A.D.2d 565, 473 N.Y.S.2d 494 (2d Dep't. 1984) ................................................................................................. 55 DaBolt v. Bethlehem Steel Corp., 92 A.D.2d 70, 459 N.Y.S.2d 503 (4th Dep't. 1983), appeal dismissed, 60 N.Y.2d 701 (1983) ...................... 62, 68 De Jara v. 44-14 Newtown Road Apartment Corp., 307 A.D.2d 948, 763 N.Y.S.2d 654 (2d Dep't. 2003) .................................................................. 36 Deng v. A.J. Contracting Company, Inc., 255 A.D.2d 202, 680 N.Y.S.2d 223 (1st Dep't 1998) ................................................................... 47 Epstein v. Scally, 99 A.D.2d 713, 472 N.Y.S.2d 318 (1st Dep't. 1984) .................. 70 Espinosa v. Azure Holdings II, LP, 58 A.D.3d 287, 869 N.Y.S.2d 395 (1st Dep't. 2008) ................................................................................................ 67 Farrel v. Okeic, 266 A.D.2d 892, 698 N.Y.S.2d 132 (4th Dep't. 1999) ............ 68, 69 Forde v. Columbus McKinnon Corporation, 274 A.D.2d 446, 711 N.Y.S.2d 460 (2d Dep't. 2000) .................................................................. 65 Freitas v. NYCTA, 249 A.D.2d 184, 672 N.Y.S.2d 101 (1st Dep't. 1998) ................................................................................................ 66 v Gallagher v. New York Post, 14 N.Y.3d 83, 896 N.Y.S.2d 732 (2010) ........... 52, 53 Garcia v. 1122 East 180th Street Corp., 250 A.D.2d 550, 675 N.Y.S.2d 2 (1st Dep't. 1998) ...................................................................... 37 Giambrone v. New York Yankees, 181 A.D.2d 547, 581 N.Y.S.2d 756 (1stt Dep't. 1992) ................................................................. 63 Giuffrida v. Metro North Commuter Railroad Company, 279 A.D.2d 403, 720 N.Y.S.2d 41 (1st Dept. 2001) ......................................... 62 Gomez v. City of New York, 63 A.D.3d 511, 881 N.Y.S.2d 65 (1st Dep't. 2009) ................................................................................................ 36 Gordon v. Eastern Railway Supply, Inc., 82 N.Y.2d 555, 606 N.Y.S.2d 127 (1993) ................................................................ 28, 29, 30, 37 Griffin v. New York City Transit Authority. 16 A.D.3d 202, 791 N.Y.S. 98 (1st Dep't. 2005) ........................................................................ 67 Harris v. Rodriguez, 281 A.D.2d 158, 721 N.Y.S.2d 344 (1st Dep't 2001) ................................................................................................. 47 Jiminez v. Nidus Corp., 288 A.D.2d 123, 733 N.Y.S.2d 43 (1st Dep't. 2001) ................................................................................................ 32 Joblon v. Solow, 91 N.Y.2d 457, 672 N.Y.S.2d 286 (1998) ................................... 55 John v. Baharestani, 281 A.D.2d 114, 721 N.Y.S.2d 625 (1st Dep't. 2001) .......................................................................................... 32, 36 Klapa v. O & Y Liberty Plaza Co., 218 A.D.2d 635, 631 N.Y.S.2d 21 (1st Dept. 1995) ................................................................................................. 30 Klein v. City of New York, 222 A.D. 2d 351, 635 N.Y.S. 2d 634 (1st Dep't 1995), aff'd, 89 N.Y.S. 2d 833, 652 N.Y.S. 2d 723 (1996) ................................................................................................................ 51 Klos v. New York City Transit Authority, 240 A.D.2d 635, 659 N.Y.S.2d 97 (2d Dep't. 1997), leave to appeal dismissed by 91 N.Y.2d 846, 690 N.E.2d 489, 667 N.Y.S.2d 680 (1997) ........................ 34 vi Koenig v. Patrick Constr. Co., 298 NY 313 ............................................................ 29 Kollmer v. Slater Electric, Inc., 122 A.D.2d 117, 504 N.Y.S.2d 690 (2d Dep't. 1986) ................................................................................................. 66 Landry v. General Motors Corp., 210 A.D.2d 898, 621 N.Y.S.2d 255 (4th Dep't. 1994)................................................................................................ 65 Lewis-Moors v. Contel of New York, Inc., 78 N.Y.2d 942, 573 N.Y.S.2d 636 (1991) .................................................................................. 54 MacNair v. Salamon, 199 A.D.2d 170, 606 N.Y.S.2d 152 (1st Dep't 1993) ................................................................................................. 46 Maher v. Atlas Transit Mix Corp., 104 A.D.2d 591, 479 N.Y.S.2d 376 (2d Dep't. 1984) ................................................................................................. 55 Masullo v. City of New York, 253 A.D.2d 541, 677 N.Y.S.2d 162 (2d Dep't. 1998) ........................................................................................... 33, 34 Maza v. University Avenue Development Corp., 13 A.D.3d 65, 786 N.Y.S.2d 149 (1st Dep't. 2004) .................................................................. 60 McCann v. Central Synagogue, 280 A.D.2d 298, 720 N.Y.S.2d 459 (1st Dept. 2001) ................................................................................................. 31 McGarry v. CVP 1 LLC, 55 A.D.3d 441, 866 N.Y.S.2d 76 (1st Dep't. 2008) ................................................................................................ 60 Messina v. City of New York, 300 A.D.2d 121, 752 N.Y.S.2d 608 (1st Dep't. 2002) ................................................................................................ 59 Montgomery v. Federal Express Corp., 4 N.Y.3d 805, 795 N.Y.S.2d 490, 828 N.E.2d 592 (2005) ....................................................... 50 Morales v. Spring Scaffolding, Inc., 24 A.D.3d 42, 802 N.Y.S.2d 41 (1st Dep't 2005) ................................................................................................. 47 Murdoch v. Niagara Falls Bridge Commission, 81 A.D.3d 1456, 917 N.Y.S.2d 501 (4th Dep't. 2011), leave to appeal denied, 17 N.Y.3d 702, 929 N.Y.S.2d 93 (2011) .......................................................... 66 vii Nagel v. D & R Realty Corp., 99 N.Y.2d 98, 752 N.Y.S.2d 581 (2002) ................ 55 Negri v. Stop and Shop, 65 N.Y.2d 625, 491 N.Y.S.2d 151 ................................... 63 Negroni v. East 67th Street Owners, Inc., 249 A.D.2d 79, 671 N.Y.S.2d 464 (1st Dep't. 1998) .................................................................. 31 O'Connor v. Enright Marble & Tile Corp., 22 A.D.3d 548, 802 N.Y.S.2d 506 (2d Dep't. 2005) ............................................................ 35, 43 O'Connor v. Lincoln Metrocenter Partners, L.P., 266 A.D.2d 60, 698 N.Y.S.2d 632 (1st Dep't. 1999) ............................................................ 32, 59 Olsen v. James Miller Marine Service, Inc., 16 A.D.3d 169, 791 N.Y.S.2d 92 (1st Dep't. 2005) .................................................................... 59 Orellana v. American Airlines, 300 A.D.2d 638, 753 N.Y.S.2d 114 (2d Dep't 2002) .................................................................................................. 43 Ortega v. City of New York, 95 A.D.3d 125, 940 N.Y.S.2d 636 (1st Dept. 2012) ................................................................................................. 30 Page v. State, 73 A.D.2d 479, 426 N.Y.S.2d 594 (3d Dep't. 1980), aff'd. 56 N.Y.2d 604, 435 N.E.2d 1095, 450 N.Y.S.2d 480 (1982) ................. 60 Pichardo v Urban Renaissance Collaboration Ltd. Partnership, 51 A.D.3d 472, 857 N.Y.S.2d 144 (1st Dep't. 2008) .................................. 31, 59 Quigley v Thatcher, 207 NY 66 ............................................................................... 29 Ritzer v. 6 East 43rd Street Corp., 57 A.D.3d 412, 871 N.Y.S.2d 26 (1st Dep't. 2008) ................................................................................................ 60 Robinson v. East Med. Ctr., L.P., 6 N.Y.3d at 550, 847 N.E.2d 1162, 814 N.Y.S.2d 589 (2006) .................................................................................. 50 Rocha v. State of New York, 77 Misc.2d 290, 352 N.Y.S.2d 990 (N.Y.Ct.Cl. 1974), affirmed, 45 A.D.2d 633, 360 N.Y.S.2d 484 (3d Dep't. 1974), mot. lv. to app. denied, 36 N.Y.2d 642, 366 N.Y.S.2d 1026 ............................................................................................ 36 viii Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 577 N.Y.S.2d 219 (1991) ............................................................................ 29, 30 Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 601 N.Y.S.2d 49 (1993) ........................................................................ 29, 55, 59 Royal v. Brooklyn Union Gas Co., 112 A.D.2d 132, 504 N.Y.S.2d 519 (2d Dep't. 1986) .................................................................. 70 Runner v. New York Stock Exch., 13 N.Y.3d 599, 922 N.E.2d 865, 895 N.Y.S.2d 279 (2009) .................................................................................. 30 Russin v. Picciano & Son, 54 N.Y.2d 311, 429 N.E.2d 805, 445 N.Y.S.2d 127 (1981) ............................................................................ 61, 66 S.J. Capelin Associates, Inc. v. Globe Manufacturing Corporation, 34 N.Y.2d 338, 357 N.Y.S.2d 478 (1974) ........................................................ 70 Sanatass v. Consolidated Inv. Co., Inc., 10 N.Y.3d 333, 858 N.Y.S.2d 67 (2008) .......................................................................... 3, 43, 53 Santamaria v. 1125 Park Avenue Corporation, 249 A.D.2d 16, 670 N.Y.S.2d 844 (1st Dep't. 1998) .................................................................. 60 Scala v. Port Jefferson Free Library, 255 A.D.2d 574, 681 N.Y.S.2d 77 (2d Dep't. 1998) .................................................................... 67 Secord v. Willow Ridge Stables, Inc., 179 Misc.2d 366, 684 N.Y.S.2d 867 (1999) .................................................................................. 49 Segarra v. All Boroughs Demolition & Removal, 284 A.D.2d 321, 725 N.Y.S.2d 559 (2d Dep't. 2001) .................................................................. 68 Singh v. Barrett, 192 A.D.2d 378, 596 N.Y.S.2d 45 (1st Dep't 1993) .................... 43 Sponholz v. Benderson Property Development, Inc., 273 A.D.2d 791, 709 N.Y.S.2d 748 (4th Dep't. 2000) ................................................................. 68 Stolt v. General Foods Corp., 81 N.Y.2d 918, 597 N.Y.S.2d 650 (1993) ................................................................................................................ 52 ix Tate v. Clancy-Cullen Storage Co., Inc., 171 A.D.2d 292, 575 N.Y.S.2d 832 (1st Dept. 1991) .................................................................. 52 Torino v. KLM Const. Inc., 257 A.D.2d 541, 685 N.Y.S.2d 24 (1st Dep't. 1999) ................................................................................................ 37 Trillo v. City of New York, 262 A.D.2d 121, 691 N.Y.S.2d 515 (1st Dep't. 1999) ................................................................................................ 32 Valensisi v Greens at Half Hollow, LLC, 33 A.D.3d 693, 823 N.Y.S.2d 416 (2d Dep't. 2006) ............................................................ 34, 50 Vanriel v. A. Weissman Real Estate, 262 A.D.2d 56, 691 N.Y.S.2d 446 (1st Dep't. 1999) .................................................................. 37 Vasquez v. Urbahn Associates Inc., 79 A.D.3d 493, 918 N.Y.S.2d 1 (1st Dep't. 2010) ................................................................................................ 59 Weininger v. Hagedorn & Co., 91 N.Y.2d 958, 672 N.Y.2d 840, motion for reargument denied, 92 N.Y.2d 875, 677 N.Y.S.2d 777 (1998) ............................................................................ 48, 49 Yates v. Dow Chemical Company, 68 A.D.2d 907, 414 N.Y.S.2d 200 (2d Dep't. 1979) ................................................................................................. 70 Zimmer v. Chemung County Performing Arts, Inc., 65 N.Y.2d 513, 493 N.Y.S.2d 102 (1985) reargument denied 65 N.Y.2d 1054, 494 N.Y.S.2d 1033, (1985) ............................................................. 29, 36, 38, 46 Zuckerman v. City of New York, 49 N.Y.2d 557, 404 N.E.2d 595, 427 N.Y.S.2d 595 (1980) .................................................................................. 69 Statutes CPLR § 5713 .............................................................................................................. 4 Labor Law § 200 ...............................................................................................passim Labor Law § 240(1) ..........................................................................................passim Labor Law § 241(6) ..........................................................................................passim x Regulations 12 NYCRR § 23-3.3(c) ............................................................................................ 60 12 NYCRR §23-3.3(j)(2)(i) ..................................................................................... 57 12 NYCRR §23-3.3(j)(2)(ii) .................................................................................... 58 29 C.F.R. 1910 ................................................................................................... 24, 63 29 C.F.R. 1926 ................................................................................................... 24, 63 1 PRELIMINARY STATEMENT Plaintiff-Appellant, Raul Barreto (“plaintiff”), respectfully submits this brief in support of its appeal to the Court of Appeals pursuant to leave granted by the Appellate Division, First Department by order dated February 11, 2014 (A. 1558). 1 Defendants-Respondents, Metropolitan Transportation Authority (“MTA”), New York City Transit Authority (“NYCTA”), The City of New York (“CITY”) and IMS Safety Corp. (“IMS”)(collectively “defendants”) moved in Supreme Court, New York County for summary judgment to dismiss the complaint. Plaintiff cross-moved for partial summary judgment pursuant to Labor Law Sections 240(1), 241(6), 200 and on his common law negligence claim against the aforementioned defendants. The Supreme Court granted defendants’ respective motions, dismissed plaintiff’s complaint and denied plaintiff’s cross-motion (A.10-35). Plaintiff appealed to the Appellate Division, First Department for reversal of the decision of the Supreme Court, New York County. By Order dated October 31, 2013 by a three-one decision (with one dissent), the Appellate Division, First Department affirmed the Supreme 1 All references to the Appendix are hereby denoted as e.g. (“A”). 2 Court decision (A.1559-71). Thereafter, plaintiff moved before the Appellate Division, First Department for reargument and/or for leave to appeal before the Court of Appeals of the State of New York. By Order dated February 11, 2014 the Appellate Division, First Department granted plaintiff leave to appeal to the Court of Appeals (A.1558). The Appellate Division, First Department granted plaintiff leave to appeal to the Court of Appeals and certified that the following question of law is to be reviewed by the Court of Appeals: “Was the Order of this Court [Appellate Division, First Department], which affirmed the order of Supreme Court, properly made?” (A.1558) As will be demonstrated, infra, it is respectfully submitted that the Appellate Division, First Department erred as a matter of law when it affirmed the decision of the Supreme Court. The order of the Appellate Division, First Department clearly conflicts with well settled precedent of the Court of Appeals of the State of New York as well as the well settled case law of the respective Appellate Divisions as well. Plaintiff, who was a laborer and not a supervisor at the subject site, fell through an unprotected opening without any safety equipment. As will be further demonstrated, infra, plaintiff could not have been the sole proximate cause of this accident. Putting aside that plaintiff was not provided with proper safety equipment, 3 plaintiff was never specifically directed to replace the manhole cover. That was not the responsibility of plaintiff. Moreover, it took at least two people to replace the cover, notwithstanding that plaintiff was not assigned to be one of those people. The Appellate Division order squarely conflicts with the numerous cases of the Court of Appeals, including Sanatass v. Consolidated Inv. Co., Inc., 10 N.Y.3d 333, 858 N.Y.S.2d 67 (2008). This Court has held that Labor Law Section 240(1) exists solely for the benefit of workers and operates to place the ultimate responsibility for safety violations on owners and contractors (i.e. defendants) not workers, regardless if the owners and contractors were not present at the site. Sanatass, supra. The October 31, 2013 order should be modified to the extent that it granted defendants’ motions for summary judgment and dismissal of plaintiff’s complaint; and denied plaintiff’s cross-motion for partial summary judgment on its Labor Law Section 240(1) claim; or alternatively, the October 31, 2013 order should be modified to the extent that it granted defendants’ respective motions for summary judgment and dismissal of plaintiff’s Labor Law Section 240(1), 241(6), 200 and common law negligence claims against defendants; this matter should be permitted to proceed to trial, at the very least, with respect to plaintiff’s Labor Law Sections 240(1), 241(6), 200 and common law negligence claims against defendants. 4 QUESTION PRESENTED This Court has subject matter jurisdiction pursuant to CPLR Section 5713 since the Appellate Division, First Department certified that the following question of law has arisen which in its opinion ought to be reviewed by the Court of Appeals: 1. “Was the order of this Court [the Appellate Division, First Department] which affirmed the order of the Supreme Court, properly made?” (A.1558). It is respectfully submitted that in its determination the Appellate Division, First Department erred as a matter of law, was not made in the exercise of discretion and squarely conflicts with the well settled law of the Court of Appeals and the law of the State of New York when the Appellate Division affirmed the order of the Supreme Court. 5 STATEMENT OF FACTS It is undisputed that plaintiff, an asbestos handler and employee of P.A.L. Environmental Safety Corp. (“P.A.L.”), was injured while in the process of performing asbestos removal on a demolition, construction, alteration and repair project when he was caused to fall through an open and unprotected manhole located on the sidewalk (near the street) in front of 60 Lafayette Street (Family Court), New York, New York. The manhole was located within a temporary structure that was erected as a containment area and the manhole was the access point to a lower work level below the street (A.1100-1108). In the course of dismantling the containment enclosure around the manhole, at the end of the shift, Plaintiff was caused to fall through the open and unprotected manhole to the lower level, below, a distance of approximately 10-feet. Plaintiff sustained serious injuries as a result. The area was poorly lit, unsafe, dangerous and precarious. There was no guardrail/safety railing around the open manhole. Plaintiff’s work clearly involved an elevation and he was subjected to gravity-related risks in performing his work. Plaintiff was not given necessary, adequate and proper safety devices to protect him from falling (A.503; A.825-832; A.855-856; A.1100-1108; A.1323). 6 Plaintiff did not remove the manhole cover. Plaintiff was not directed to put it back in place. 2 Although the temporary electric lights had been turned off, Plaintiff did not do that. Plaintiff did not know that the manhole cover had not been replaced and he believed that it was in place. Given the poor lighting, the ambient noise, difficulty communicating (due to having to wear a respirator/mask) and flurry of activity that was taking place, none of Plaintiff’s actions can logically be deemed to be the sole proximate cause, or an intervening or a superseding cause of the accident. This is particularly true given the safety violations that existed at the time of the accident and while the work was being performed. No safety railing or guard rails were provided and no safety harness and lifeline system was provided. No netting was provided beneath the manhole (A.1100-1108). Plaintiff’s work was “elevation-related” in that he was required to work in an area where there was a “floor” opening. Plaintiff was working 10-feet above the next level, below, without being provided safety equipment such as a guardrail or safety railing system, harness and lifeline, netting or cover and lighting was poor. 2 The P.A.L. Supervisor’s Accident Investigation signed by Rafael Torres (see, A.337) is inadmissible, self-serving, speculative and conclusory and also fails to establish that plaintiff was a so-called “recalcitrant” worker. Said report also acknowledges that it was Rafael Torres’ responsibility, not plaintiff’s responsibility, to supervise replacement of the manhole cover before beginning the breakdown of the “wooden visual barrier.” 7 Plaintiff’s accident occurred because there was an unguarded opening (to wit, a large manhole approximately 3-to-4-feet in diameter) above the level at which Plaintiff was required to remove asbestos contaminated material that was approximately 10-feet below that upper work station where Plaintiff was also required to work. MTA, NYCTA, The City and IMS moved for summary judgment to dismiss plaintiff’s Complaint. Plaintiff cross-moved for partial summary judgment against defendants MTA, NYCTA, CITY and IMS on plaintiff’s Labor Law Section 240(1) and Section 241(6) causes of action. Plaintiff also moved for summary judgment against MTA, NYCTA and IMS on plaintiff’s § 200 and common law negligence causes of action. During the motion practice, plaintiff voluntarily agreed to discontinue his Labor Law Section 200 and common law negligence causes of action as against defendant CITY, but only as against CITY. Only plaintiff’s Labor Law § 200 and common law negligence causes of action were discontinued as against defendant CITY. The loss of services claim of co-plaintiff Derlim Barreto was also discontinued. Third-party defendant, Andres Services Corporation (“Andres”), did not appear and answer in this action. Second third-party defendant, P.A.L., also did not appear and answer in this action. 8 Counsel for defendant CITY admitted that the CITY is the owner of the property where the accident occurred (A.1428, ¶ “13”) and the Supreme Court held that the CITY owned the street at that location (A.15, last sentence). The location of the accident was identified by plaintiff in his affidavit (A.1101, § “5”). Defendant CITY’s Counsel attached Lease documents to its cross- motion (A.1470-1506). The Lease established and the lower court held that the accident location was leased to by CITY to NYCTA (A.16). The Lease confirmed NYCTA’s and MTA’s liability status as Labor Law defendants (see, e.g., “Article II, Lease, Section 2.1” at A.1474-1475; “Article VI, Section 6.8,” “Section 6.14,” “Section 6.15” and “Section 6.17” at A.1484- 1487), but did not negate defendant CITY’s liability status as an “owner” for purposes of the Labor Law. Pursuant to the terms of its Lease, defendant CITY had “…the right to free access to make reasonable inspection of the Leased Property” (see, “Article VI, Section 6.6”). Defendant CITY also had the right to use the facilities and the responsibility to share the cost of maintaining and conducting the facilities (see, “Article V, Section 5.2” and “5.3”). Defendant CITY also had the right to approve contracts entered into by co-defendant NYCTA (see, “Article XV, Section 15.1 and 15.2”). Thus, the CITY had a 9 choice in the matter. Plaintiff’s employer, P.A.L., was hired by MTA acting by NYCTA, as MTA’s authorized agent (see, “Work Order #81,” A.1111; see also, Contract No.: C-33252 - referenced in “Work Order #81”, A.263-336; see, also, A.807, 818-819). In addition to hiring P.A.L., MTA/NYCTA hired LiRo-Kassner Inc. to monitor asbestos outside of the containment enclosure/barrier (A.846). Plaintiff’s Affidavit & Deposition Testimony Plaintiff was born in Ecuador on , 1962. Plaintiff’s middle name is “Omar” and his mother’s maiden name is “Lopez.” Plaintiff explained that in Latin American culture, the mother’s last name is included, so it is formally correct for plaintiff to also give his full name as Raul Omar Barreto Lopez. Although plaintiff usually went by Raul Barreto, which is the way that it is commonly done in the United States, plaintiff’s formal name also appears in documents that he was issued. Plaintiff further explained that it would therefore not be surprising that someone might refer to plaintiff as “R. Lopez” in a job site log or report (A.1100, ¶ “1”), which is how plaintiff’s name was entered on the “LiRo/NYCT Asbestos Data Sheet” and the “Field Narrative Log Report” (A.1325 and A.1326, opposite “0400” hours). Plaintiff is approximately 5-feet, 6-inches tall. At the time of the accident, plaintiff weighed approximately 180 pounds. Plaintiff is right- 10 handed. Plaintiff came to the United States in 1987 and is a United States citizen. At the time of the accident plaintiff was a legal resident of the United States. Spanish is plaintiff’s primary language, but plaintiff speaks and understands some English (A.1100, ¶ “2”). Plaintiff was seriously injured in an accident in the early morning on January 9, 2005. Plaintiff had started his shift the night before at approximately 8:00 p.m., which was January 8, 2005. The accident happened at approximately 4:00 a.m., which was by then January 9, 2005 (A.1100, ¶ “3”; A.469-470; A.487-488). At the time of the accident plaintiff was working for P.A.L. as an asbestos handler, and plaintiff was duly qualified to do so. At the time of the accident, plaintiff was a member of Local 78 (A.1100, ¶ “4”). At the time of the accident, plaintiff was working for P.A.L. as part of a work crew of asbestos handlers. They had a P.A.L. asbestos supervisor named Rafael Torres assigned to their crew. Plaintiff recalled that in addition to plaintiff, Julio, Charlie and a woman, who was a shop steward, were in the crew. There may have been another asbestos handler in the crew, as well. The work that they were doing was to remove asbestos that was down inside a manhole below the sidewalk, right next to the street, in front of 60 Lafayette Street, in Manhattan. They had been working at this particular manhole 11 location for approximately the week of the accident (A.1101, ¶ “5”; A.485- 486). The first thing that the crew did was drive to the work site in a large P.A.L. truck that transported their tools, equipment and materials. The truck had a decontamination unit on it for the crew to shower at the end of the shift (A.1101, ¶ “6”; A.472-474). After the P.A.L. crew arrived at the work site, they had a safety meeting with their P.A.L. supervisor and the IMS supervisor, Manuel, whose job was to make sure the crew was safe (A. 475, 479, 483). The crew then built a containment enclosure around the manhole. The containment enclosure that the crew erected around the manhole was built with wooden plywood sheets that plaintiff called panels. The panels were used to make three (3) sides that were approximately in the shape of a “U,” when erected in place. Two panels of plywood were used to make each of the three sides. Each panel was approximately 4-feet wide and 8-feet, or less, in height. The panels were low enough that plaintiff could reach up and touch the top with a tool. The panels were all positioned vertically with the panels resting on the ends that were approximately 4-feet-wide (A.1101, ¶ “7”). Wooden 2 x 4’s were placed in the shape of an “X” on top of the “U- shaped” enclosure to stabilize the panels and frame the ceiling, which was 12 created by attaching sheets of plastic to the 2 x 4’s. Nails were used to connect the 2 x 4’s and the 3 side-wall panels (A.1101, ¶ “8”). Two sets of double sheets of plastic, that were separated approximately 4-feet apart, were placed like curtains on the open side of the “U” of the enclosure. That created a small decontamination area between the outside and the contamination area where the manhole was located. Sheets of plastic were stapled and glued to the 2 x 4’s to make a ceiling. Plastic sheeting was also glued in place on the floor and stapled and glued to the walls of the inside of the containment enclosure. The glue that was used came in a spray can (A.1102, ¶ “9”). After the plastic was placed on the floor, a hole was cut in the plastic around the cover of the manhole, but the manhole cover was not removed until the MTA authorized work to begin. After the manhole cover had been removed, the cut-out in the plastic allowed access in-and-out of the manhole. At this job site, the manhole was located near the back wall of the “U” of the containment enclosure, between the two sidewalls of the “U.” The manhole was a very large manhole and had a diameter that was between 3-to-4-feet (A.1102, ¶ “10”). Before the manhole cover was removed, an MTA inspector arrived to make sure the electricity was turned off before the P.A.L. workers went down 13 into the manhole. Plaintiff believed that there were several inspectors there from the MTA. Rafael Torres would take the crew members’ licenses and give them to the MTA inspector. The P.A.L. workers were then given their licenses back at the end of the shift (A.1102, ¶ “11”). After the MTA inspector would authorize work to begin, the cover for the manhole was then removed. The manhole cover was placed outside of the containment enclosure after it was removed. Plaintiff did not remember who removed the cover and placed it outside, but plaintiff did not assist in doing that (A.1102, ¶ “12”). After the manhole cover had been removed, a number of other things were done. There was an inspector there from IMS that was responsible for the safety of plaintiff’s crew. Plaintiff recalled that the IMS inspector’s name was Manuel.3 As plaintiff understood it, Manuel had the authority to correct unsafe conditions and to stop the work. In addition to the MTA and IMS inspectors, there was also an inspector from DEP of the City that monitored the air quality in the manhole (A.1103, ¶ “13”). Manuel (IMS inspector) was from Ecuador and was very overweight. Manuel did not do as much as other safety supervisors that plaintiff had seen working on other job sites. Manuel was supposed to wear a Tyvek suit and 3 Other evidence points to the IMS inspector as being Diego Maldonado. 14 other proper gear but he did not wear one. Plaintiff recalled that after the manhole cover had been removed, Manuel looked down inside the manhole to see if there were any chemicals and he used something to measure air quality. Manuel did not go down into the hole at any time during the shift (night of accident) and Manuel did not come inside the containment enclosure at any other time before the accident (A.1103, ¶ “14”). When they were done erecting the containment enclosure, the P.A.L. crew put their protective equipment on, including two Tyvek suits (one on top of the other), covers for their boots, a respirator with air filters, goggles, a hard hat and gloves. They were not given a light or headlamp to attach to their hard hats such as those used by coal miners (A.1103, ¶ “15”). After the MTA and IMS gave plaintiff and crew members the go ahead to work in the manhole, they had a toolbox safety discussion with Rafael Torres, their P.A.L. supervisor. Rafael told them to be careful down below in the hole and to watch out for chemicals and electricity and that sort of thing. Rafael Torres directed them and told them what to do on that job site. The crew was employed by P.A.L. The crew members were not employees of any other company or entity (A.1103, ¶ “16”). Before working in the containment enclosure and going down into the manhole, an aluminum extension ladder had to be placed down through the 15 manhole so that they could get access to the next level below the sidewalk and street which was approximately 10-feet below grade. Electrical lights powered by a generator were taken down into the manhole and also placed in the containment enclosure to provide artificial light. The lights were rectangular with little stands that rested on the floor. When they first went down into the manhole, Rafael Torres showed the P.A.L. crew what asbestos- containing material had to be removed (A.1104, ¶ “17”). The P.A.L. crew did their asbestos removal down below at that lower level that was approximately 10-feet below the manhole. They used a number of tools to remove the asbestos. Among those tools were knives, hammers, heavy duty shears, screw drivers, crow bars and hack saws. After they cut or broke free the materials that contained asbestos, they placed them in plastic bags and added some water from a spray bottle and then tied the bags (A.1104, ¶ “18”). There were many bags filled with asbestos material that had to be removed from the lower level where the P.A.L. crew was working. Plaintiff did not remember how many bags were brought out, but it was a lot more than 100 bags. Near the end of the shift, they started to bring up the bags of asbestos and placed them on the floor in the containment enclosure. It took 16 quite a while to bring all of the bags upstairs from down below. All of the bags had to be brought up through the manhole opening (A.1104, ¶ “19”). 4 It was very noisy down below because the subway tracks were nearby. It was hard to communicate and conditions were difficult with all of the special equipment that the P.A.L. crew members had to wear. In general, it was hard to talk wearing a respirator because it completely covered the mouth (A.1104-1105, ¶ “20”). There was a lot of activity toward the end of the shift on the day of plaintiff’s accident. After they brought all of the bags and tools and lights up from below, they had to be put in the area between the two plastic curtains so that the breakdown could begin. Somebody brought the ladder up out of the manhole but plaintiff did not know who did that. As plaintiff was helping move the bags of asbestos and tools, somebody turned off the lights in the containment enclosure. It was dark in the containment enclosure, but there was a small amount of light from the street that reflected through the plastic (A.1105, ¶ “21”). Plaintiff’s crew members, Julio and Charlie, then started taking down the plastic sheeting inside the containment enclosure and plaintiff then started 4 Documentary evidence indicates that there were 180 bags brought up and out during that shift (A.1323, opposite “4A”; A.1326). 17 to help. Plaintiff cut some plastic down and put it in a bag for the asbestos. Charlie began hitting a 2x4 in the ceiling with a hammer and plaintiff went to the back left hand corner of the “U” to do that to another 2x4. In the process of looking up to knock it out, plaintiff stepped into and went down through the manhole. There was no protection at all around the manhole and plaintiff fell down to the level below, which was a distance of approximately 10-feet. When plaintiff stopped moving plaintiff was lying down. Plaintiff had to be helped up and out of the lower level by Rafael Torres with additional assistance. The ladder had to be put back in the hole to get plaintiff out (A.1105, ¶ “22”; A.490). Plaintiff was busy performing the work that plaintiff was doing and plaintiff did not know that the manhole cover was not on the manhole. Plaintiff thought that the manhole cover had been put back on because the breakdown had started and the manhole cover is supposed to be put back on when that work begins. Plaintiff did not remove the manhole cover and plaintiff was not directed to put the cover back on the manhole at the end of the shift. According to plaintiff, it was the responsibility of the P.A.L., IMS, and MTA supervisors that were present to give appropriate orders and to make sure that workers were protected from dangerous and unsafe conditions, but they failed to do so (A.1105-1106, ¶ “23”; A.492-494). 18 At the time of the accident, plaintiff had multiple licenses and certifications. Among them was an asbestos handler’s certification from the State of New York and City of New York, which plaintiff needed to work on that job site as an asbestos handler. Plaintiff received a certification from taking an MTA and NYCT course called “Track Safety” that was a general safety course that allowed plaintiff to work in the subways. Plaintiff knew from his “Track Safety” license that electrical power should be turned off before working in a manhole or removing asbestos from the wiring systems. Plaintiff also had a supervisor’s license from the State of New York for asbestos removal at the time of the accident and plaintiff was certified as a shop steward by Local 78 (A.1106, ¶ “24”). Although plaintiff had a supervisor’s license, plaintiff was never a supervisor on any P.A.L. job. On the job where the accident occurred, plaintiff was only one member of the P.A.L. crew of asbestos handlers. Plaintiff did not supervise anybody on the job site and plaintiff was not told by P.A.L. that plaintiff should do that, or that he was even authorized to do that (A.1106, ¶ “25”). Plaintiff never worked as a supervisor on any job or project involving asbestos removal in a manhole and plaintiff never worked on any MTA projects as a supervisor for any company. Plaintiff never worked as a 19 supervisor on any asbestos jobs that involved working below ground. None of the courses plaintiff took or the training that plaintiff received for which he was given a license or certification discussed the subject of replacing manhole covers or what protection should be provided around manholes (A.1106, ¶ “25”). Plaintiff averred that he was not given a safe place to work on this job site. Plaintiff was not provided with proper, reasonable, adequate protection and safety on this job site. Plaintiff was subjected to a risk of having to work at an elevated height around an unprotected opening that was approximately 10- feet above the level below, without any protection to prevent or break a fall (A.1107, ¶ “26”). Plaintiff was caused to fall to the lower level and sustain serious injuries. Plaintiff went to St. John’s Hospital in the afternoon on the day of the accident. Plaintiff had to have two surgical procedures on his right shoulder and surgery to his right knee as a result of this accident. Plaintiff has also suffered other serious physical, mental and emotional injuries and other damages (A.1107, ¶ “26-27”). If plaintiff had been provided with proper, reasonable and adequate protection and safety, plaintiff believes that his accident and injuries would have been prevented. If a safe and proper work platform, or safety railings or 20 guardrails, or a cover, or a safety harness and lifeline had been provided to plaintiff, his accident would not have occurred and his injuries would have been prevented (A.1107, ¶ “27”). A color copy of a photo shows a combined protective railing and hoist/safety harness system for use in and around a manhole (A.1113). Plaintiff averred that that safety system could have been used on the job site where the accident occurred and it would have prevented plaintiff’s accident. Such a safety system would also have reduced the risk of having to continuously work around an open manhole on plastic sheeting on the floor when removing the bags of asbestos and tools from the lower level as they could have been hoisted up and there would have been protective railing around the manhole (A.1107, ¶ “28”). A color photocopy shows a simpler railing system for use around a manhole that would also have prevented the accident (A.1114). Plaintiff had seen that type of protective railing used by Con Edison on its job sites. Plaintiff did not know why they were not given that type of protection (A.1107-1108, ¶ “29”). There was no safety protection on the truck and none provided at the job to safeguard the open manhole. Plaintiff did not refuse to use any safety equipment because none was provided to plaintiff to use. Plaintiff did not 21 refuse to follow any instructions. The only protection on site was the cover for the manhole and it had not been replaced at the time of the accident. Plaintiff did not know that the manhole cover had not been replaced. At no time before the accident was plaintiff warned that the manhole cover had not been replaced. No barricades were erected around the opening and lighting conditions were poor (A.1108, ¶ “30”). Plaintiff averred that he did not cause the accident. It was plaintiff’s belief that the accident was caused by the failure of the defendants to provide and ensure that plaintiff was provided with proper, reasonable and adequate protection and safety on this job site (A.1108, ¶ “31”). Deposition Testimony of Brian O’Loughlin, Who Testified on Behalf of MTA/NYCTA Brian O’Loughlin testified that he was employed by MTA/NYCTA as an Asbestos Handler Supervisor and was required to be on site while work was being performed (A.802-803, 851). MTA/NYCTA also had a cable foreman that was required to be on site while work was being performed (A.808). The project involved removing asbestos in approximately 300 manholes (A.818-819). Mr. O’Loughlin would check the licenses of all of the asbestos handlers every night (A.848). 22 Mr. O’Loughlin testified that IMS would check the levels of carbon dioxide, oxygen and methane in each manhole after it was opened (A.808). IMS would hold a safety meeting at the beginning of the shift. IMS would give P.A.L. the okay to open the manhole after the containment was set up; and then at the end of the shift IMS would give P.A.L. the okay to close the manhole and assure that it was closed before they removed the plywood panels (A.813-814, 843, 868-871). Mr. O’Loughlin was informed of the accident by Rafael (“Ralph”) Torres (P.A.L. supervisor), and that advisement was entered in Mr. O’Loughlin’s Log (A.826-832). His Log entry at “4:30” states, in part, that, “Handler R. Lopez [plaintiff] slips and falls into MH [manhole] cover (sic) and falls about 10ft down. He hurt his back (A.1323). Mr. O’Loughlin testified that he checked the depth of the area beneath the manhole after the accident and approximated it to be 10-feet (A.855-856). When Mr. O’Loughlin looked inside the manhole he observed a ladder that belonged to the NYCTA (A.857-858) [the witness was then taken outside the EBT room by his attorney, came back in and “expanded” upon his answer]. Significantly, Mr. O’Loughlin claimed that he did not know if there were any OSHA regulations about putting the manhole cover back on (A.839). 23 Deposition Testimony of Sunil Parikh, Who Testified on Behalf of NYCTA Sunil Parikh (NYCTA acting construction manager), who testified on behalf of NYCTA, identified the Contract (C-33252) between P.A.L. and MTA/NYCTA which involved asbestos removal work (A.719-727, 730). Mr. Parikh testified that the NYCTA inspector was required to be on site whenever P.A.L. was performing its work (A.735). Mr. Parikh believed that P.A.L. was required to subcontract site safety supervision on the project (A.736). This was confirmed by Joseph Mazzurco of IMS (A.991). The NYCTA would give P.A.L. specifications on how barriers were to be erected around open manholes (A.745-746, 777-778). The procedures set forth in the contract required P.A.L. to follow OSHA regulations (A.763, 762- 763). Mr. Parikh further testified that the NYCTA inspector on the project had the authority to stop the contractor’s (P.A.L.) work (A.769-770) and NYCTA project leader/resident engineer was responsible for overseeing the NYCTA inspector’s work on the specific manhole project (A.766, 773-775). Deposition Testimony of Joseph P. Mazzurco, the Convicted, Imprisoned Ex-President of IMS IMS was no longer in business at the time of Joseph P. Mazzurco’s deposition (A.904). P.A.L. hired IMS as a subcontractor to provide safety, at a cost of $1,500,000.00 (A.218). Joseph P. Mazzurco, the incarcerated ex- 24 president of IMS, admitted to having been convicted of wire fraud, conspiracy to commit wire fraud and mail fraud for misrepresentation (A.893-894). Mr. Mazzurco’s guilty plea was based upon having provided resumes of IMS employees that did not properly express their competency, experience and training (A.895-899). Mr. Mazzurco testified that IMS’s safety responsibility on the job site was for “OSHA compliance” (A.997-998). Mr. Mazzurco also testified that it was the IMS’s safety supervisors’ job to enforce safety regulations and they had the authority to stop the work if they observed an unsafe or hazardous condition at the site (A.912, 923). The scope of work issued to IMS included the enforcement of safety with respect to OSHA regulations that are contained in 29 C.F.R. 1910 (A.921) and 29 C.F.R. 1926 [construction standards] (A.912). Mr. Mazzurco spent a lot of time talking about required protection around an open manhole (A.924-935), to wit, a guard rail system (A.934), which was not in place and not provided on the date of accident. Mr. Mazzurco never learned whether there was such protection around the subject manhole (A.995). Although Mr. Mazzurco admitted that IMS’s responsibility was OSHA compliance, he attempted to claim that making sure that a safety railing was in place was a joint effort between IMS’s safety supervisors, 25 “whoever was there,” the PAL supervisor, the MTA person watching the job and that it was a team effort because one man can’t see everything (A.995- 996). If OSHA required that the manhole be “barricaded,” that would be part of IMS’s duty, P.A.L.’s duty and part of the MTA’s duty, the “owner” (A.998). Mr. Mazzurco testified that there should have been a guardrail system in place around the open manhole, which was the responsibility of IMS, the P.A.L. superintendent and the MTA supervisor (A.933-935). Had there not been guardrails around the open manhole (which there was not at any time), IMS’s responsibility would have been to insure that the manhole cover got back on safely (A.937). There is no testimony in this case that anyone ever saw a barrier/guardrail/safety railing around the open manhole; the reason being that there never was such a safety device present. Although Mr. Mazzurco testified that IMS had employees on site every day, he also claimed that IMS “subcontracted” its work to Andres. Of course, there was no written agreement, note or memorandum of any kind evincing such alleged arrangement between IMS and Andres (A.946-951). Mr. Mazzurco originally testified that Manuel Fiallos was an employee of IMS whose qualifications had been misrepresented (A.895, 897-899), but then claimed that at the time of the accident Manuel was suddenly no longer 26 an employee of IMS, but rather an employee of Andres Inc. Mr. Mazzurco also made the dubious claim that Manuel Fiallos was qualified for this particular project (A.1000). Plaintiff averred that Manuel was on the job site (A.1103, ¶¶ “13-14”). Mr. Mazzurco testified that Diego Maldonado was the safety person on duty on the night of the accident (A. 841, 862, 899, 959, 983, 990). Mr. O’Loughlin believed that Diego Maldonado was an employee of IMS but Mr. Mazzurco claimed that Diego was an employee of Andres (A.899, 950, 990). The Affidavit of Rafael Torres, P.A.L. Supervisor Rafael Torres submitted an affidavit in opposition to defendant IMS’s summary judgment motion (A.1352-1354). Mr. Torres averred in ¶ “4,” that, “IMS Safety, Inc. (“IMS”) was responsible for overseeing the safety of the workers on the site. On the date of accident, a representative of IMS was at the site and was present at the time of the accident.” Apparently, Mr. Torres knew nothing of the unsubstantiated and questionable allegation that IMS had subcontracted work to Andres. In ¶ “6” Mr. Torres averred, in part, that, “[o]ne of IMS’ duties was to ensure that the manhole was covered before PAL would disassemble the barriers [i.e., the wooden panels that framed the enclosure] around the manhole. The IMS representative should have been standing there when the 27 barrier area is dismantled to ensure that no work is being performed until the manhole is covered.” However, as further averred in ¶ “7” of Mr. Torres’ affidavit, instead of doing the latter, the IMS site safety person (Diego) was sitting in his car instead of overseeing protection and safety and failed to ensure that the manhole was covered before the temporary asbestos containment structure was disassembled. Mr. Torres averred in ¶ “9” that he only directed plaintiff at the beginning of the project not to perform work around the manhole area if the manhole was not covered. Certainly, such a directive was inherently vague, at best. 28 ARGUMENT POINT I PLAINTIFF SHOULD HAVE BEEN AWARDED PARTIAL SUMMARY JUDGMENT AGAINST DEFENDANTS ON PLAINTIFF’S LABOR LAW § 240(1) CAUSE OF ACTION AND THE MOTIONS TO DISMISS THAT CLAIM SHOULD HAVE BEEN DENIED 1. It is well settled that a fall through an unguarded opening without proper safety equipment mandates partial summary judgment in favor of plaintiff pursuant to Labor Law Section 240(1) Section 240(1) of the Labor Law of the State of New York, commonly referred to as the “scaffold law” [Gordon v. Eastern Railway Supply, Inc., 82 N.Y.2d 555, 559, 606 N.Y.S.2d 127 (1993)], sets forth in pertinent part that: All contractors and owners … in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or a structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which are so constructed, placed and operated as to give proper protection to a person so employed. The legislative intent in enacting this statute was to protect workers by placing “…ultimate responsibility for safety practices at building construction jobs 29 where such responsibility actually belongs, on the owner and general contractor’ (1969 NY Legis Ann, at 407), instead of on workers, who ‘are scarcely in a position to protect themselves from accident’ (Koenig v. Patrick Constr. Co., 298 NY 313, 318).” Zimmer v. Chemung County Performing Arts, Inc., 65 N.Y.2d 513, 520, 493 N.Y.S.2d 102 (1985), reargument denied 65 N.Y.2d 1054, 494 N.Y.S.2d 1033, (1985). “…[T]his statute is one for the protection of workmen from injury and undoubtedly is to be construed as liberally as may be for the accomplishment of the purpose for which it was thus framed’ (Quigley v Thatcher, 207 NY 66, 68, quoted in Koenig v Patrick Constr. Co., supra, at p 319).” Zimmer, supra, at p. 521. The statute imposes absolute liability upon owners, contractors and their statutory “agents” where a breach of this statutory duty proximately causes an injury. Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 513, 577 N.Y.S.2d 219 (1991); Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 500, 601 N.Y.S.2d 49 (1993); Gordon, supra. As the Court of Appeals stated, in Ross, supra, at p. 501, “…Labor Law Section 240(1) was designed to prevent those types of accidents in which the scaffold, hoist, stay, ladder or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person.” Judge Titone reiterated, therein, the 30 Court’s prior opinion that Section 240(1) “…evinces a clear legislative intent to provide ‘exceptional protection’ for workers against ‘special hazards’ that arise when the worksite …is…elevated” (citing Rocovich, 78 N.Y.2d 509, 514). Indeed, as stated by the Court of Appeals in its decision in Rocovich, at 514, “[t]he contemplated hazards are those related to the effects of gravity where protective devices are called for either because of a difference between the elevation level of the required work and a lower level or a difference between the elevation level where the worker is positioned and the higher level of the materials or load being hoisted or secured.” “Plaintiff need not demonstrate…that the precise manner in which the accident happened, or the extent of injuries, was foreseeable (citation omitted).” Gordon, supra; Ortega v. City of New York, 95 A.D.3d 125, 940 N.Y.S.2d 636 (1st Dept. 2012) [same Supreme Court judge 5 as in the case herein was reversed; foreseeability need not be proven outside the context of a collapse of a permanent structure]; Klapa v. O & Y Liberty Plaza Co., 218 A.D.2d 635, 631 N.Y.S.2d 21 (1st Dept. 1995). However, the accident was foreseeable to defendants. The Court of Appeals stated in deciding Runner v. New York Stock Exch., 13 N.Y.3d 599, 922 N.E.2d 865, 895 N.Y.S.2d 279 (2009), that, “…the 5 Honorable Justice Michael D. Stallman. 31 single decisive question is whether plaintiff’s injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential.” In the instant matter there was clearly a height elevation involved and the open manhole presented a risk to all of the workers on site, including plaintiff. Indeed, it has not been disputed that “…the accident actually occurred, or that the accident is gravity-related.” McCann v. Central Synagogue, 280 A.D.2d 298, 720 N.Y.S.2d 459 (1st Dept. 2001). Falls from unprotected elevated areas require the granting of summary judgment pursuant to Labor Law § 240(1). Plaintiff’s work clearly involved an elevation and he was subjected to a significant gravity-related risk. Pichardo v Urban Renaissance Collaboration Ltd. Partnership, 51 A.D.3d 472, 857 N.Y.S.2d 144 (1st Dep’t. 2008) [worker fell through large hole in floor several stories deep and was granted summary judgment on all Labor Law claims, to wit, § 240(1), § 241(6) and § 200]; Burke v. Hilton Resorts Corp., 85 A.D.3d 419, 924 N.Y.S.2d 358 (1st Dept. 2011) [worker fell 15-feet through an unprotected hole in the floor of a construction site and was properly awarded summary judgment on § 240(1) claim]; Negroni v. East 67th Street Owners, Inc., 249 A.D.2d 79, 671 N.Y.S.2d 464 (1st Dep’t. 1998) [worker fell through open, unguarded hatchway between 1st and 2nd floors; 32 granted summary judgment on § 240(1) claim]; Auriemma v. Biltmore Theatre, LLC, 82 A.D.3d 1, 917 N.Y.S.2d 130 (1st Dep’t. 2011) [worker that fell while descending from one elevation to another; awarded summary judgment on § 240(1) claim upon search of the record]; Jiminez v. Nidus Corp., 288 A.D.2d 123, 733 N.Y.S.2d 43 (1st Dep’t. 2001) [granting of summary judgment affirmed on § 240(1) claim to worker that slipped and fell into a 15-feet deep foundation excavation]; John v. Baharestani, 281 A.D.2d 114, 721 N.Y.S.2d 625 (1st Dep’t. 2001) [lower court reversed and summary judgment on § 240(1) claim granted to worker that fell through either an unguarded opening, or the “functional equivalent of a scaffold”]; Trillo v. City of New York, 262 A.D.2d 121, 691 N.Y.S.2d 515 (1st Dep’t. 1999) [lower court reversed in denying summary judgment on § 240(1) claim; worker’s fall into 8-feet deep trench constituted a difference in elevation and therefore a risk within contemplation of the statute]; O’Connor v. Lincoln Metrocenter Partners, L.P., 266 A.D.2d 60, 698 N.Y.S.2d 632 (1st Dep’t. 1999) [summary judgment affirmed on § 240(1) claim where worker partially fell through floor opening]; Carpio v. Tishman Constr. Corp. of New York, 240 A.D.2d 234, 658 N.Y.S.2d 919 (1st Dep’t. 1997) [lower court reversed in denying partial summary judgment on § 240(1) claim to a painter that stepped into a hole in a concrete floor]. 33 In Carpio, supra, this Court found that the risk of injury to plaintiff existed because of a difference between the elevation level of the required work (the third floor), and a lower level. This Court held, at 240 A.D.2d 235, that "[p]laintiff's partial fall through a hole at a construction site can hardly be characterized as only tangentially related to the effects of gravity," and granted plaintiff summary judgment based on Labor Law § 240(1). The legal principle enunciated in Carpio, supra, is still applicable. The rule in the Fourth Department also supports plaintiff’s position. Allen v. City of Buffalo, 161 A.D.2d 1134, 555 N.Y.S.2d 944 (4th Dep’t. 1990). As the Fourth Department stated in Allen, supra, at p. 944, “…the uncovered manhole through which decedent fell was an elevated worksite. Accordingly, absolute liability should be imposed under Labor Law § 240(1) because decedent’s death was the result of a fall from an elevated worksite and there were no safety or protective devices in place at the time of his fall …(citations omitted).” Counsel for MTA/NYCTA previously cited to Masullo v. City of New York, 253 A.D.2d 541, 677 N.Y.S.2d 162 (2d Dep’t. 1998), which references a quote from Misseritti, supra. As noted, Misseritti has no application to Plaintiff’s gravity-related accident. Furthermore, in addition to being at odds with case law in the First and Third Judicial Departments, the facts in Masullo 34 are not on point. As the Appellate Division, Second Department expressly noted in its decision in Masullo, supra, at p. 542, “…the work in which the injured plaintiff was involved was wholly unrelated to an elevation-related hazard, the manhole in which he fell….” Obviously, the case does not stand for the generalized proposition as was suggested by defendants’ Counsel that a fall into an open manhole on a construction site is not actionable, per se, under the Labor Law. The Second Department’s decision in Masullo v. City of New York, 253 A.D.2d 541, 677 N.Y.S.2d 162 (2d Dep’t. 1998) is specific to its particular facts. Both prior and subsequent Second Department decisions favor Plaintiff’s position; to wit, Brandl v. Ram Builders, Inc., 7 A.D.3d 655, 777 N.Y.S.2d 511 (2d Dep’t. 2004) [award of summary judgment on § 240(1) cause of action affirmed; worker fell through unprotected opening in floor to basement]; Valensisi v Greens at Half Hollow, LLC, 33 A.D.3d 693, 823 N.Y.S.2d 416 (2d Dep’t. 2006) [lower court reversed and summary judgment granted to plaintiff’s decedent laborer due to fall through fiberglass grating at sewage treatment plant]; Klos v. New York City Transit Authority, 240 A.D.2d 635, 659 N.Y.S.2d 97 (2d Dep’t. 1997), leave to appeal dismissed by 91 N.Y.2d 846, 690 N.E.2d 489, 667 N.Y.S.2d 680 (1997) and 91 N.Y.2d 885, 691 N.E.2d 628, 668 N.Y.S.2d 556 (1998) [plaintiff’s decedent’s award 35 of summary judgment affirmed; fall through a delivery opening in a sidewalk which gave access to electrical substation vault]. Plaintiff’s accident occurred because there was an unguarded opening (to wit, a large manhole approximately 3-to-4-feet in diameter) above the level at which Plaintiff was required to remove asbestos contaminated material, which was approximately 10-feet below that upper work station where Plaintiff was also required to work. In the course of dismantling the containment enclosure around the manhole, Plaintiff was caused to fall through the open and unprotected manhole to the lower level and sustain serious injuries. There was a failure to provide proper protection to plaintiff so as to either prevent, or break plaintiff’s fall. It was defendants’ obligation to ensure that proper safety devices were “constructed, placed and operated” for Plaintiff to perform his work, which is why the statute was enacted. O’Connor v. Enright Marble & Tile Corp., 22 A.D.3d 548, 802 N.Y.S.2d 506 (2d Dep’t. 2005). The area was unsafe, dangerous and precarious. Plaintiff’s work clearly involved an elevation and he was subjected to gravity-related risks in performing his work. Plaintiff was not given necessary, adequate and proper safety devices to protect him from falling when he inadvertently stepped into the open manhole and was caused to fall down to the next level, below, a 36 distance of approximately 10-feet. A violation of Labor Law § 240(1) thus occurred. The work platform area that was created inside the containment enclosure for access through the manhole opening to a lower level was the “functional equivalent of a scaffold,” albeit a very unsafe one. Berrios v. 735 Avenue of the Americas, LLC, 82 A.D.3d 552, 919 N.Y.S.2d 16 (1st Dep’t. 2011); Gomez v. City of New York, 63 A.D.3d 511, 881 N.Y.S.2d 65 (1st Dep’t. 2009); John v. Baharestani, 281 A.D.2d 114, 721 N.Y.S.2d 625 (1st Dep’t. 2001); De Jara v. 44-14 Newtown Road Apartment Corp., 307 A.D.2d 948, 763 N.Y.S.2d 654 (2d Dep’t. 2003); Rocha v. State of New York, 77 Misc.2d 290, 352 N.Y.S.2d 990 (N.Y.Ct.Cl. 1974), affirmed, 45 A.D.2d 633, 360 N.Y.S.2d 484 (3d Dep’t. 1974), mot. lv. to app. denied, 36 N.Y.2d 642, 366 N.Y.S.2d 1026. Failure to provide proper safety devices at a worksite establishes an owner's, contractor’s and their statutory agent’s liability under Labor Law § 240(1), as a matter of law. Zimmer, supra The court in Zimmer, supra, stated that, "When the evidence establishes the absence of any safety devices at the worksite, the statute's clear dictates have not been met." 65 N.Y.2d 513, 523, 482 N.E.2d 898, 902, 493 N.Y.S.2d 102, 107 (1985). Here, there was clearly an absence of safety devices sufficient to prevent, or break 37 plaintiff’s fall. The statute was violated and the violation was “a” proximate cause of plaintiff’s accident and injuries. The “core objective” of Labor Law Section 240(1) is to protect workers who are exposed to elevation-related risks and prevent them from falling. When that core objective has not been met, the statute has been violated. Torino v. KLM Const. Inc., 257 A.D.2d 541, 685 N.Y.S.2d 24 (1st Dep’t. 1999); Gordon v. Eastern Railway Supply, Inc., 82 N.Y.2d 555, 559, 626 N.E.2d 912, 606 N.Y.S.2d 127 (1993); Garcia v. 1122 East 180 th Street Corp., 250 A.D.2d 550, 675 N.Y.S.2d 2 (1st Dep’t. 1998); Vanriel v. A. Weissman Real Estate, 262 A.D.2d 56, 691 N.Y.S.2d 446 (1st Dep’t. 1999). Here, there were no proper safety devices provided to plaintiff to help break plaintiff’s fall, or that were provided to help prevent the fall. Furthermore, "[a]n owner's statutory duty is not met merely by providing safety instructions, or by making other safety devices available, but by furnishing, placing and operating such devices so as to give proper protection." Gordon, supra (emphasis added). But that was not done on this job site. In the instant matter, the fact that plaintiff fell, while working on an elevated work surface, places the accident within the ambit of Labor Law § 240(1). There is no view of the facts in this case that would support a finding that plaintiff was offered proper protection, or that the absence of 38 adequate protective devices was not a proximate cause of plaintiff's injuries and, therefore, plaintiff is entitled to partial summary judgment against the defendants as a matter of law. Zimmer, supra. The Court of Appeals set forth in Zimmer, supra, that once a violation of the statute has been established, the only question that remains is whether the violation proximately caused plaintiff's injury. Later in the same year, the Court of Appeals reiterated, in Bland v. Manocherian, 66 N.Y.2d 452, 459, 488 N.E.2d 810, 813, 497 N.Y.S.2d 880, 883 (1985), that Labor Law § 240(1) imposes absolute liability upon an owner or contractor (or statutory “agent”) for failing to provide, or erect safety devices necessary to give proper protection to a worker who sustains injuries proximately caused by that failure. 39 POINT II IN ITS DECISION, THE APPELLATE DIVISION MISCONSTRUED THE FACTS, IGNORED OTHER FACTS AND MISAPPLIED WELL SETTLED LAW REGARDING SOLE PROXIMATE CAUSE/RECALCITRANCE In its majority decision, the Appellate Division’s three member panel has pounded a square peg into a round hole, misconstrued the facts, ignored other facts and also misapplied decisional law regarding sole proximate cause/recalcitrance. The majority’s decision is inconsistent with case law established by the Court of Appeals on the issue of sole proximate cause, particularly given the facts of this case, which is why plaintiff should be granted leave to appeal to the Court of Appeals should reargument and reversal not be granted to plaintiff. Per the Appellate Division’s synopsis of the basic facts on page “4” of the Court’s decision and order, “[p]laintiff brought this personal injury action after he fell into an uncovered manhole in front of 60 Lafayette Street in Manhattan in January 2005, while performing asbestos removal work below city streets as part of a City environmental project. Plaintiff was employed by third-party defendant P.A.L. Environmental Safety Corp. (PAL), the general contractor at the work site. PAL was hired by NYCTA on behalf of MTA, which leased the area of the street surrounding the manhole from the City, the 40 site owner. By subcontract, PAL retained IMS as a safety consultant at the site.” (A. 1561) Plaintiff was caused to fall down through an open manhole inside the asbestos containment enclosure. The cover for the manhole had been removed by other workers and was placed outside the containment enclosure and remained there for virtually the entire shift. Just before the breakdown, the supervisor did not tell plaintiff to cover the manhole, the supervisor only said that the manhole had to be covered before the breakdown began. (A.622) Plaintiff testified that he never took a manhole cover off and he never put a manhole cover back on at any job site. (A.640) Plaintiff clearly testified that it was his supervisor’s and IMS’s responsibility to make sure that the cover was back on the manhole before the breaking down of the enclosure occurred (A.500) and that plaintiff never had to make sure that it was covered because it was the supervisors’ responsibility. (A.529, A.620) Plaintiff never saw that there was a “hole” there [uncovered manhole] just before his accident. Therefore, contrary to the Appellate Division’s finding on page “7” of its decision and order (2 nd ¶), plaintiff did not “…disregard[] his supervisor’s explicit instruction given that day to replace the cover before dismantling the enclosure.” (A.1564). 41 Furthermore, as noted previously, “[i]t was very noisy down below because the subway tracks were nearby. It was hard to communicate and conditions were difficult with all of the special equipment that the PAL crew members had to wear. In general, it was hard to talk wearing a respirator because it completely covered the mouth. (A. 1104-1105, ¶ “20”). There was a lot of activity toward the end of the shift on the day of accident. After they brought all the bags and tools and lights up from below they had to be put in the area between the two plastic curtains so that the breakdown could begin. Somebody brought the ladder up out of the manhole but plaintiff did not know who did that. As plaintiff was helping move the bags of asbestos and tools, somebody turned off the lights in the containment enclosure. It was dark in the containment enclosure, but there was a small amount of light from the street that reflected through the plastic. (A. 1105, ¶ “21”). Plaintiff’s crew members, Julio and Charlie then started taking down the plastic sheeting inside the containment enclosure and plaintiff then started to help. Plaintiff cut some plastic down and put it in a bag for the asbestos. Charlie began hitting a 2 x 4 in the ceiling with a hammer and plaintiff went to the back left hand corner of the “U” to do that to another 2 x 4. In the process of looking up to knock it out, [plaintiff] stepped into and went down 42 through the manhole. There was no protection at all around the manhole and [plaintiff] fell down to the level below, which was approximately 10-feet. When [plaintiff] stopped moving [plaintiff] was lying down. [Plaintiff] had to be helped up and out of the lower level by Rafael with additional assistance. The ladder had to be put back in the hole to get plaintiff out. (A. 1105, ¶ “20”). Plaintiff was busy performing the work that plaintiff was doing. Plaintiff did not know that the manhole cover was not on the manhole. Plaintiff thought that the cover had been put back on because the breakdown had started and the manhole cover is supposed to be put back on when that work begins. Plaintiff did not remove the manhole cover and plaintiff was not directed to put the cover back on the manhole at the end of the shift. It was the responsibility of P.A.L. supervisors to give the orders to do so but these supervisors failed to give such orders (A. 1105-1106, ¶23). The Supreme Court dismissed plaintiff’s complaint, finding that plaintiff was the sole proximate cause of his accident. This is hard to fathom for multiple reasons, discussed above and below. Furthermore, the Appellate Division majority overlooked facts, including but not limited to the fact that no safety devices were constructed, placed and operated around the open manhole at the time of the accident. 43 O’Connor v. Enright Marble & Tile Corp., 22 A.D.3d 548, 802 N.Y.S.2d 506 (2d Dep’t 2005); Orellana v. American Airlines, 300 A.D.2d 638, 753 N.Y.S.2d 114 (2d Dep’t 2002). Defendants, the City of New York, MTA and NYCTA, failed to meet their statutory obligation. Said defendants cannot, and the Appellate Division should not have imposed the burden on plaintiff to guarantee his safety, which is improper. Zimmer; supra; Sanatass, supra. Thus, unlike the circumstances presented in Cahill v. Triborough Bridge & Tunnel Authority, 4 N.Y.3d 35, 790 N.Y.S.2d 74 (2004), cited by the majority, where a safety line [lifeline] was provided, but which plaintiff did not hook onto while climbing, in the case at bar no safety devices were provided at the time of the accident. A manhole cover lying somewhere outside of the containment enclosure for almost the entirety of the work shift, which could not be lifted by one person alone, can hardly be considered a “safety device”; nor should plaintiff have to guarantee his own safety by constructing, erecting, and placing protection around the open manhole, which he was also not required to cover. Singh v. Barrett, 192 A.D.2d 378, 596 N.Y.S.2d 45 (1st Dep’t 1993). The contract documents mandated adherence to OSHA requirements, which required the presence of a guardrail system or personal fall arrest 44 system when the manhole was open. 6 Respectfully, the Appellate Division majority’s decision overlooked salient facts and, as noted above, is incorrect on the law. OSHA was violated and the violation of OSHA was material to the violation of Labor Law § 240(1). Joseph Mazzurco, the former president of IMS testified that there should have been a guardrail system around the open manhole, which was the responsibility of IMS, the P.A.L. superintendent and the MTA supervisor (A.933-935). Mr. Mazzurco clearly testified that IMS (along with P.A.L. and MTA) had a duty to make sure that there was a guardrail system in place. Mr. Mazzurco also testified that if a guardrail system is in place [which was not in place at any time the day of the accident], you remove the guardrails to replace the manhole cover. [A.936] It is inconceivable that this Court deems it a responsible practice to allow the creation of an unsafe work environment by leaving an open manhole unprotected for the virtual entirety of a work shift when safety railing/guardrails were mandated to be in place until the manhole was covered. The majority’s assertion that even if there had been a metal guardrail 6 See, A.762-763; see also, OSHA sections 1910.23(a)(2) and 1910.23(a)(6) [A.1115]; see, also, section 1910.23(e)(1) [A..1118]; see, also, section 1926.501 Duty to have fall protection (b)(4) Holes (i) [A.1121]. 45 system around the open manhole, “…[it] would have been opened or removed to allow the workers to exit the manhole and deconstruct the enclosure” [p. 8] (A.1565) makes no sense in view of the deposition testimony of Mr. Mazzurco. Simultaneously, for safety’s sake, had guardrails been in place, which they were not, it would only have been necessary to move the guardrails “off center” when the manhole cover was present so that the manhole cover could immediately be placed on top of the manhole. Furthermore, had a guardrail system been in place such as the one depicted at A.1114, the workers could fasten the chains as soon as they exited from the ladder at the top of the manhole. Even if the chains were open, the presence of the extension ladder would have protected that opening in the guardrail but still allow workers to exit the ladder on either side of the ladder. Thus, if proper safety protocol had been followed by constructing, erecting and placing a guardrail system, there would be virtually no manner of risk for a worker to fall before the manhole cover was replaced. Because of the violation of the statute [§ 240(1), and § 241(6) for that matter] none of plaintiff’s actions or inactions could be deemed the sole proximate cause of the accident. In its majority decision at pages “4-5,” (A.1561-1562), the Appellate Division acknowledged that, “[a]t the beginning of each shift, the PAL 46 workers constructed a wooden enclosure covered with a plastic sheeting around the manhole to protect the surroundings from asbestos contamination.” (A. 1561-1562). Clearly, the primary concern of those supervisory persons on site at the end of the shift was to see that the manhole cover was replaced before deconstruction of the containment enclosure began in order to prevent those same asbestos fibers from travelling into and contaminating the atmosphere after the work was completed. Hon. Justice Paul Feinman’s dissenting opinion should have been the majority decision. The dissent is well reasoned and in keeping with past precedent on the issue of sole proximate cause/recalcitrance. The dissent properly applies the law to the facts. Justice Feinman’s dissent also clearly and convincingly supports the argument that plaintiff should have been granted summary judgment on his Labor Law § 240(1) claim. Indeed, it is difficult to fathom how the Appellate Division majority could have deemed plaintiff to have been the sole proximate cause of his accident when it took at least two people to replace the cover and plaintiff was not assigned to be one of them. Case law is patently clear, arguendo, that comparative negligence is not a viable defense to liability under Labor Law § 240(1). Bland v. Manocherian, 66 N.Y.2d 452, 488 N.E.2d 810, 497 N.Y.S.2d 880; Zimmer, supra; MacNair v. Salamon, 199 A.D.2d 170, 171, 606 47 N.Y.S.2d 152 (1st Dep’t 1993); Deng v. A.J. Contracting Company, Inc., 255 A.D.2d 202, 680 N.Y.S.2d 223 (1st Dep’t 1998); Morales v. Spring Scaffolding, Inc., 24 A.D.3d 42, 802 N.Y.S.2d 41 (1st Dep’t 2005). The plaintiff did not deliberately refuse to use a safety device. Harris v. Rodriguez, 281 A.D.2d 158, 721 N.Y.S.2d 344 (1 st Dep’t 2001). Plaintiff did not assist in removing the manhole cover at the start of the night’s work. (A.1102, ¶ “12”; A.1105, ¶ “23”) The fact that plaintiff was wearing a double Tyvek suit [half of which he had removed before the accident in the outer area (A.650-653)], a respirator with air filters covering his mouth and goggles (A.1103, ¶ “15”); that plaintiff observed other workers tearing down the containment enclosure (A.1105, ¶ “22”); that plaintiff was instructed by his supervisor, Rafael Torres, to remove the plastic (A.581); that, in ¶ “6” of his affidavit, Mr. Torres averred, in part, that, “[o]ne of IMS’ duties was to ensure that the manhole was covered before PAL would disassemble the barriers [i.e., the wooden panels that framed the enclosure] around the manhole. The IMS representative should have been standing there when the barrier area is dismantled to ensure that no work is being performed until the manhole is covered”; that plaintiff believed that the manhole cover was in place and could not see that it was not back on (A.503, A.1105-1106, ¶ “23”); that it was not plaintiff’s job to put the manhole cover back on (A.1105-1106, 48 ¶ “23”); that plaintiff was not asked to put the manhole cover back on (A.1105-1106, ¶ “23”); that plaintiff could not have put the manhole cover on by himself because it was too heavy; that plaintiff was a laborer and not a supervisor on this job site; that plaintiff heard no one say that the manhole cover was not on; that no supervisory personnel told the other workers to stop their initial deconstruction activities when those supervisors knew or should have known that the manhole cover had not yet been replaced; that the lights had been turned off and that plaintiff did not turn off the lights (A.503, 587); that it was dark and plaintiff had difficulty seeing in the darkness causing plaintiff to complain to his supervisor but was told to work quickly (A.505) – all lead to no other conclusion but that plaintiff was neither recalcitrant nor the sole proximate cause of his accident. It is respectfully submitted that that the Appellate Division majority opinion is entirely incorrect with respect to the finding that plaintiff was the sole proximate cause of his accident. This finding, if allowed to stand, will turn existing case law on its head and expand the scope of sole proximate cause as a defense. Indeed, the defense bar will be set abuzz in the same manner that took place after the issuance of the Court of Appeals’ decisions in Weininger v. Hagedorn & Co., 91 N.Y.2d 958, 672 N.Y.2d 840, motion for reargument denied, 92 N.Y.2d 875, 677 N.Y.S.2d 777 (1998) and Blake v. 49 Neighborhood Housing Services Of New York City, Inc., 1 N.Y.3d 280, 771 N.Y.S.2d 484 (2003). While defense arguments have consistently and generally been misguided and misplaced in their reliance upon Blake and Weininger, supra, the defense bar will now first look for support in the Appellate Division’s majority decision in Barreto, supra. Both reason and reference to an established body of case law, as cited herein, tell us that Blake, like Weininger, supra, only has application in a limited set of circumstances (e.g., where there has been a misuse of a safety device). This case is not among them. In Weininger, supra, the Court of Appeals held that it was error for the trial court to have directed a verdict in favor of the plaintiff because of the plaintiff’s egregious and intentional misconduct, to wit, his standing on the crossbar of the ladder, which created a question of fact as to whether such conduct was the sole proximate cause of the accident. The fact pattern in Weininger regarding plaintiff’s misuse of his ladder is discussed in Secord v. Willow Ridge Stables, Inc., 179 Misc.2d 366, 684 N.Y.S.2d 867 (1999). In the case at bar nothing even remotely similar took place. There is no evidence of any intentional misconduct (e.g., willful, or intentional misuse of safety equipment). There is no evidence in the record to show that plaintiff engaged in egregious and intentional misconduct, or that he misused a safety 50 device, or that he was a “recalcitrant” worker. Had the open manhole been properly protected, or had proper safety devices been employed throughout his work shift, plaintiff’s accident would not have happened. In Blake v. Neighborhood Housing Services Of New York City, Inc., 1 N.Y.3d 280, 771 N.Y.S.2d 484 (2003), also cited by the Appellate Division majority, the plaintiff used an extension ladder without locking the extension clips. The jury returned a verdict in defendant’s favor and the Court of Appeals found, at p. 290, that “…the accident was not caused by the absence of (or defect in) any safety device, or in the way the safety device was placed.” Where, as here, “if a statutory violation is a proximate cause of an injury, the plaintiff cannot be solely to blame for it.” Blake, supra, at 291; see, also, Valenisi v. Greens At Half Hollow, LLC, 33 A.D.3d 693, 823 N.Y.S.2d 416 (2d Dep’t 2006). Further, the facts in this case are not similar to those in either Montgomery v. Federal Express Corp., 4 N.Y.3d 805, 795 N.Y.S.2d 490, 828 N.E.2d 592 (2005) or Robinson v. East Med. Ctr., L.P., 6 N.Y.3d at 550, 847 N.E.2d 1162, 814 N.Y.S.2d 589 (2006). Those cases do not support the majority’s decision in this case. Unlike the plaintiffs in the latter two Court of Appeals cases, who misused devices, one a safety device (by standing on the cap of the ladder), plaintiff in Barreto did not know that the manhole cover 51 had not been replaced and it was not his responsibility to do so. Plaintiff in Barreto could not be said to have misused the manhole and he did not deliberately and willfully choose not to use it. It is hornbook law that once a plaintiff has established a prima facie violation of Labor Law Section 240(1), as a matter of law the burden shifts to the defendants to provide evidentiary proof in admissible form (“not speculation”), sufficient to establish that intentional misconduct, or egregious misconduct was the sole proximate cause of the accident. Klein v. City of New York, 222 A.D. 2d 351, 635 N.Y.S. 2d 634 (1 st Dep’t 1995), aff’d, 89 N.Y.S. 2d 833, 652 N.Y.S. 2d 723 (1996). Furthermore, none of plaintiff’s actions could be considered to be a superseding act, so extraordinary as to break the causal nexus between the violation of the statute and its having been a proximate cause of the accident. Accordingly, both the Supreme Court and the Appellate Division erred in dismissing and affirming the dismissal of plaintiff’s complaint, respectively. Further, there was an error in the denial of plaintiff’s cross motion for summary judgment and in affirming that denial on the cause of action alleging a violation of Labor Law Section 240(1). It is hornbook law that a plaintiff need not show that the statutory violations was the only cause but need only show that it was a contributory 52 cause. Stolt v. General Foods Corp., 81 N.Y.2d 918, 597 N.Y.S.2d 650 (1993); Tate v. Clancy-Cullen Storage Co., Inc., 171 A.D.2d 292, 575 N.Y.S.2d 832 (1st Dept. 1991). The record is indisputable that plaintiff was not a recalcitrant worker. It is further settled that the burden of providing a safety device is squarely on contractors and owners [i.e., defendants]. To defeat a motion for summary judgment defendants must show that adequate safety devices were available; 2) that plaintiff knew that they were available and he was directed to use them; 3) that he chose for no good reason not to do so, and 4) had plaintiff not made that choice, he would not have been injured. Auriemma, supra; Cherry v. Time Warner, Inc., 66 A.D.3d 233, 885 N.Y.S.2d 28 (1st Dept. 2009); Gallagher v. New York Post, 14 N.Y.3d 83, 896 N.Y.S.2d 732 (2010). The mere general availability of safety devices does not relieve defendants of liability. The worker must know exactly where the safety devices are located and the safety devices must be easily obtainable. A standing order to use safety devices does not raise a question of fact that the plaintiff knew that safety devices were available and unreasonably chose not to use them. Moreover, some general announcement directing workers to use safety devices does not raise a question of fact as to whether the plaintiff knew that the safety devices were available, that he was expected to use them, and 53 unreasonably chose not to do so. Cherry, supra; Auriemma, supra; Gallagher, supra. In the case at bar the record is devoid of any proof that plaintiff was a recalcitrant worker/the sole proximate cause of the accident. Putting aside that plaintiff was not provided with proper safety equipment, no one ever directed plaintiff to put the manhole cover back. It is well settled by the Court of Appeals that Labor Law Section 240(1) exists solely for the benefit of workers and operates to place the ultimate responsibility for safety violations on owners and contractors, not the workers, regardless if the owners and contractors were not present at the site. Sanatass, supra. Plaintiff has established a prima facie violation of Labor Law Section 240(1). The burden then shifts to defendants. Other than mere speculation and gross misstatements of law, defendants have failed to put forth any proof, much less admissible proof, to controvert the foregoing. Accordingly, it is respectfully submitted that the Court modify the lower court order and reinstate plaintiff’s Labor Law Section 240(1) claim; and grant partial summary judgment pursuant to Labor Law Section 240(1) in favor of plaintiff. 54 POINT III PLAINTIFF HAS MAINTAINED A VIABLE LABOR LAW SECTION 241(6) CLAIM IN THAT PLAINTIFF HAS CITED TO SPECIFIC AND RELEVANT INDUSTRIAL CODE SECTIONS AND WAS NOT THE SOLE PROXIMATE CAUSE OF THE ACCIDENT The Appellate Division majority’s decision incorrectly affirmed the dismissal of plaintiff’s Labor Law Section 241(6) claim, presumably because of the majority’s finding that said cause of action was otherwise dismissed due to plaintiff’s having been the sole proximate cause of the accident. For the reasons stated in plaintiff’s cross motion, Labor Law Section 241(6) applies to the within action (A. 1079-1086). Clearly, the asbestos removal work being performed on this job site constitutes “construction” and is thus qualified work for purposes of the statute [Labor Law Section 241(6)]. Plaintiff was also clearly engaged in demolition work (asbestos removal) in addition to construction work. Plaintiff was thus among the class of workers to be afforded reasonable and adequate protection pursuant to the statute. The work that plaintiff was performing also qualifies as “alteration” and “repair” work of a “structure.” Under the Labor Law, “[a] ‘structure’ is ‘any production or piece of work artificially built up or composed of parts joined together in some definite manner’ (Caddy v. Interborough R.T. Co., 195 N.Y. 415, 420, 88 N.E. 747).” Lewis-Moors v. Contel of New York, Inc., 78 N.Y.2d 55 942, 573 N.Y.S.2d 636 (1991); Joblon v. Solow, 91 N.Y.2d 457, 672 N.Y.S.2d 286 (1998); Nagel v. D & R Realty Corp., 99 N.Y.2d 98, 752 N.Y.S.2d 581 (2002). Labor Law § 241(6), like § 240(1), is not limited only to buildings in the narrow sense, but applies to construction generally. Copertino v. Ward, 100 A.D.2d 565, 473 N.Y.S.2d 494 (2d Dep’t. 1984) [involved work on a sewer line]; Maher v. Atlas Transit Mix Corp., 104 A.D.2d 591, 479 N.Y.S.2d 376 (2d Dep’t. 1984) [plaintiff splattered by concrete]; Celestine v. City of New York, 86 A.D.2d 592, 446 N.Y.S.2d 131 (2d Dep’t. 1982), affd. 59 N.Y.2d 938, 466 N.Y.S.2d 319 (1983). Labor Law § 241(6) applies to the within action not only because the location of the accident was within the zone of protection afforded by the Labor Law, but because plaintiff alleged violations of “specific” sections of Rule 23 of the Industrial Code, as required by Ross, supra. Rule 23 of the New York State Industrial Code [12 NYCRR 23] requires that hazardous openings into which a person may fall shall be guarded by a cover or railing. Rule 23 also requires that when an employee is required to work close to the edge of the opening, the employee shall be protected by planking, a life net, or harness with an attached lifeline. 56 There was a violation of Section 23-1.7 Protection from general hazards. Section 23-1.7(b)(1)(i) reads as follows: “Hazardous Openings, (i) Every hazardous opening into which a person may step or fall shall be guarded by a substantial cover fastened in place or by a safety railing constructed and installed in compliance with this Part (rule).” Section 23-1.7(b)(1)(ii) reads as follows: “(ii) Where free access into such an opening is required by work in progress, a barrier or safety railing constructed and installed in compliance with this Part (rule) shall guard such opening and the means of free access to the opening shall be a substantial gate. Such gate shall swing in a direction away from the opening and shall be kept latched except for entry and exit.” Section 23-1.7(b)(1)(iii) reads as follows: “(iii) Where employees are required to work close to the edge of such an opening, such employees shall be protected as follows: (a) Two-inch planking, full size, or material of equivalent strength installed not more than one floor or 15 feet, whichever is less, beneath the opening; or (b) An approved life net installed not more than five feet beneath the opening; or 57 (c) An approved safety belt with attached lifeline which is properly secured to a substantial fixed anchorage.” The foregoing subsections were violated. None of the safety devices described above was in place at the time of the accident. Even basic protective devices such as those depicted in the record (A.1113 and A.1114), but were not provided, would have prevented Plaintiff’s accident. There was a violation of Section 23-1.30 Illumination. Section 23-1.30 states, as follows: “Illumination sufficient for safe working conditions shall be provided whenever persons are required to work or pass in construction, demolition and excavation operations, but in no case shall such illumination be less than 10 foot candles in any area where persons are required to work nor less than five foot candles in any passageway, stairway, landing or similar area where persons are required to pass.” There was a violation of Section 23-3.3(j) Floor openings. 12 NYCRR §23-3.3(j)(2)(i) states as follows: “Every opening used for the removal of debris or materials on every floor not closed to access, except the top working floor, shall be provided with an enclosure from floor to ceiling equivalent to that afforded by planking not less than two inches thick full size. Such enclosure shall be solid except for portions openable for loosening blocked debris. Alternatively, the opening shall be 58 fenced off by a substantial safety railing constructed and installed in compliance with this Part (rule) and placed not less than 20 feet from the perimeter of such opening. Every opening not used for the removal of debris or other materials in any floor to which access is permitted shall be protected by a solid enclosure as described above, by a substantial safety railing constructed and installed at least two feet from the perimeter of the opening and otherwise in compliance with this Part (rule) or such opening shall be solidly planked over with planks not less than two inches thick full size.” 12 NYCRR §23-3.3(j)(2)(ii) states, as follows: Openings in the top or working floor more than 16 inches in least dimension shall be protected on all sides, except the side at which debris or other materials is deposited, by a substantial safety railing constructed and installed at least two feet from the perimeter of the opening and otherwise in compliance with this Part (rule) or by a rope not less than five-eighths inch diameter or an equivalent chain placed not less than two feet from the perimeter of such opening. Such rope or chain shall be not less than 36 inches nor more than 42 inches above the floor surface. That portion of any floor opening adjacent to and immediately below a point where persons are employed in any work upon a wall or equivalent structure shall be provided with solid flooring not less than five feet in width measured from the inside face of such wall or equivalent structure. Such flooring shall consist of planking not less than two inches thick full 59 size, exterior grade plywood not less than three-quarters inch thick or material of equivalent strength. The foregoing sections of Rule 23 are “specific” sections that support Plaintiff’s Labor Law § 241(6) cause of action. Olsen v. James Miller Marine Service, Inc., 16 A.D.3d 169, 791 N.Y.S.2d 92 (1st Dep’t. 2005); O’Connor v. Lincoln Metrocenter Partners, L.P., 266 A.D.2d 60, 698 N.Y.S.2d 632 (1st Dep’t. 1999); Messina v. City of New York, 300 A.D.2d 121, 752 N.Y.S.2d 608 (1st Dep’t. 2002). All of the foregoing sections are included within plaintiff’s Bills of Particulars (A.1133, 1148, 1153-1154 and 1167-1168). The violations of said sections of Rule 23 satisfy the requirement in Ross, supra; to wit, said sections and subsections are “specific” and applicable to the facts herein. The violations of the foregoing “specific” sections of Rule 23 were “a” proximate cause of the accident and plaintiff’s injuries and provide a proper basis for plaintiff’s Labor Law § 241(6) claim. All of the admissible evidence proves that there were violations of the applicable sections of Rule 23. Pichardo v Urban Renaissance Collaboration Ltd. Partnership, 51 A.D.3d 472, 857 N.Y.S.2d 144 (1st Dep’t. 2008) [fall through large hole in floor several stories deep; plaintiff granted summary judgment on all Labor Law claims including § 241(6)]; Vasquez v. Urbahn Associates Inc., 79 A.D.3d 60 493, 918 N.Y.S.2d 1 (1st Dep’t. 2010) [collapse of stairs and floor; summary judgment granted on § 241(6) claim due to failure to conduct inspections pursuant to § 23-3.3(c)]; McGarry v. CVP 1 LLC, 55 A.D.3d 441, 866 N.Y.S.2d 76 (1st Dep’t. 2008) [fall down makeshift staircase]; Santamaria v. 1125 Park Avenue Corporation, 249 A.D.2d 16, 670 N.Y.S.2d 844 (1st Dep’t. 1998) [fall from fixed ladder that broke from wall during brick replacement work]; Campbell v. Columbus Centre LLC, 48 A.D.3d 323, 852 N.Y.S.2d 89 (1st Dep’t. 2008) [fall down hoistway that was not gated]; Ritzer v. 6 East 43 rd Street Corp., 57 A.D.3d 412, 871 N.Y.S.2d 26 (1st Dep’t. 2008) [fall from mobile scaffolding that had no safety railings and only had brakes for 2 of 4 wheels]; Maza v. University Avenue Development Corp., 13 A.D.3d 65, 786 N.Y.S.2d 149 (1st Dep’t. 2004) [worker granted summary judgment on § 241(6) and § 200 claims due to trip and fall over debris and snow/ice in courtyard at construction site]; Page v. State, 73 A.D.2d 479, 426 N.Y.S.2d 594 (3d Dep’t. 1980), aff’d. 56 N.Y.2d 604, 435 N.E.2d 1095, 450 N.Y.S.2d 480 (1982) [worker injured by trench collapse]. Accordingly, it is respectfully submitted that plaintiff’s Labor Law Section 241(6) claim be reinstated. 61 POINT IV PLAINTIFF’S LABOR LAW § 200 AND COMMON LAW NEGLIGENCE CLAIMS HAVE MERIT AND SHOULD NOT HAVE BEEN DISMISSED Section 200 of the Labor Law codifies the common-law duty of an owner, contractor, or employer to provide workers with a safe place to work. Allen v. Cloutier Construction Corp., 44 N.Y.2d 290, 299, 405 N.Y.S.2d 630 (1978). Section 200 is not limited to construction work and covers all places to which the Labor Law applies. There can be no dispute that Section 200 applies to the type of work that Plaintiff was performing. Section 200 applies to owners, contractors, or their agents, who “…have the authority to control the activity bringing about the injury to enable it to avoid or correct an unsafe condition…” Russin v. Picciano & Son, 54 N.Y.2d 311, 317, 429 N.E.2d 805, 445 N.Y.S.2d 127 (1981). Defendants MTA, NYCTA and IMS exercised control over the worksite and P.A.L.’s performance. Defendants, MTA, NYCTA and IMS, were manifestly aware of the dangerous and defective condition of the open manhole that served as a means of access from one level to another. Section 200 applies to those owners, contractors and “statutory” agents who have actual or constructive 62 notice of an unsafe condition that causes an accident. DaBolt v. Bethlehem Steel Corp., 92 A.D.2d 70, 459 N.Y.S.2d 503 (4th Dep’t. 1983), appeal dismissed, 60 N.Y.2d 701 (1983). Proper inspections, prior to and during the work, would have revealed the deficiencies of the job site regarding the open, unprotected manhole that plaintiff and the P.A.L. work crew was required to use. The work should not have started until a proper safety inspection had been performed on the day of the accident and prior thereto to ensure that guard/safety railings for open manholes were provided and utilized. The work should not have been allowed to commence until proper safety procedures were followed and enforced, especially considering the absence of safety devices to prevent or break a fall. Further, in this regard, the duty to provide a safe place to work under Labor Law 200 “…encompasses the duty to make reasonable inspections to detect unsafe conditions (citation omitted).” DaBolt, at 505. “…[I]t is not plaintiff’s burden in opposing the motion for summary judgment to establish that defendants had actual or constructive notice of the hazardous conditions. Rather it is defendants’ burden to establish the lack of notice as a matter of law (citations omitted).” Giuffrida v. Metro North Commuter Railroad Company, 279 A.D.2d 403, 404, 720 N.Y.S.2d 41 (1st Dept. 2001). 63 “Where ‘[t]he record contains some evidence tending to show that defendant had constructive notice of a dangerous condition which allegedly caused injuries…’ a prima facie case is made out (Negri v. Stop and Shop, 65 N.Y.2d 625, 626, 491 N.Y.S.2d 151). Only where the record is ‘palpably insufficient’ to establish actual or constructive notice ‘that the condition existed for a sufficient period to afford the [defendants], in the exercise of reasonable care, an opportunity to discover and correct it’ can it be said that there is no factual issue to submit to the trier of fact (citation omitted).” Giambrone v. New York Yankees, 181 A.D.2d 547, 581 N.Y.S.2d 756 (1st t Dep’t. 1992). The lower court abruptly and improperly dismissed “…‘any cause of action’ grounded in alleged violations of OSHA provisions…” (A.14, last sentence of footnote “2”). Subsection “1.2 Regulations” of Section “1.0 GENERAL REQUIREMENTS” of the Contract between MTA/NYCTA and P.A.L. mandated that there be compliance with OSHA 29 C.F.R. Part 1910 and OSHA 29 C.F.R. 1926 (A.267). Copies of the applicable 1910 and 1926 OSHA sections that were violated are contained within the record (A.1115- 1126). OSHA section 1910.23(a) “Protection for floor openings” was violated. Section 1910.23(a)(2) states, that, “[e]very ladderway floor opening or 64 platform shall be guarded by a standard railing with standard toeboard on all exposed sides (except at entrance to opening) with the passage through the railing either provided with a swinging gate or so offset that a person cannot walk directly into the opening.” Section 1910.23(a)(6) states, that, “[e]very manhole shall be guarded by a standard manhole cover which need not be hinged in place. While the cover is not in place, the manhole opening shall be constantly attended by someone or shall be protected by removable standard railings.” Pursuant to section 1910.23(e)(1), a “standard railing shall consist of top rail, intermediate rail, and posts, and shall have a vertical height of 42 inches nominal from upper surface of top rail to floor, platform, runway or ramp level….” OSHA section 1926.501(b)(4) Holes (i), states, “[e]ach employee on walking/working surfaces shall be protected from falling through holes (including skylights) more than 6 feet (1.8m) above lower levels, by personal fall arrest systems, covers, or guardrail systems erected around such holes.” This foregoing section was clearly violated. Section 1926.503 Training requirements was violated because P.A.L. was mandated to “…assure that each employee has been trained, as necessary, by a competent person qualified in the following areas: (i) The nature of fall 65 hazards in the work area;” and “(ii) The correct procedures for erecting, maintaining, disassembling, and inspecting the fall protection systems to be used;” and “(iii) The use and operation of guardrail systems, personal fall arrest systems, safety net systems, warning line systems, safety monitoring systems, controlled access zones, and other protection to be used.” In addition to serving as proof that Labor Law 240(1) was violated, the OSHA violations are proof of defendants’ negligence and violation of Labor Law § 200. OSHA violations are relevant to a consideration of negligence and violation of Labor Law § 200 [safe place to work statute]. The OSHA violations were not asserted as a basis on which to establish liability under Labor Law § 241(6). Although plaintiff was only an employee of P.A.L. and was neither a general nor “special” employee of defendants, the OSHA violations are relevant to defendants’ negligence and failure to provide a safe place to work since they had supervisory control over the work. Case law supports plaintiff’s position that OSHA violations should be considered as some evidence of negligence and a violation of Labor Law § 200. Forde v. Columbus McKinnon Corporation, 274 A.D.2d 446, 711 N.Y.S.2d 460 (2d Dep’t. 2000); Landry v. General Motors Corp., 210 A.D.2d 898, 621 N.Y.S.2d 255 (4th Dep’t. 1994); Barzaghi v. Maislin Transport, 115 A.D.2d 66 679, 497 N.Y.S.2d 131 (2d Dep’t. 1985), appeal dismissed, 67 N.Y.2d 852, 492 N.E.2d 788, 501 N.Y.S.2d 660 (1986); Murdoch v. Niagara Falls Bridge Commission, 81 A.D.3d 1456, 917 N.Y.S.2d 501 (4th Dep’t. 2011), leave to appeal denied, 17 N.Y.3d 702, 929 N.Y.S.2d 93 (2011); Kollmer v. Slater Electric, Inc., 122 A.D.2d 117, 504 N.Y.S.2d 690 (2d Dep’t. 1986). The job site was unsafe and defendants knew and/or clearly should have known that. The OSHA violations are applicable since MTA, NYCTA and IMS mandated and/or were responsible for enforcing compliance with same. Clearly, plaintiff was not provided with a safe place to work and he was not provided with proper, reasonable and adequate protection and safety on this job site. Under the seminal Court of Appeals case of Russin, supra, the mere authority alone to direct, supervise or control the work is sufficient to establish defendants’ liability exposure under Labor Law 200 [safe place to work] and common law negligence principles. The fact that defendants MTA/NYCTA hired contractors and consultants for this project establishes that they had direct control over the work. Freitas v. NYCTA, 249 A.D.2d 184, 672 N.Y.S.2d 101 (1st Dep’t. 1998). At a minimum, defendants failed to eliminate triable issues of fact. Arguendo, a jury can fairly find that defendants were negligent with regard to 67 their acts and omissions at the premises. Arguendo, a jury can also fairly find that defendants allowed the condition to be created, had notice of the condition, failed to provide and erect guardrails/safety railing around the open manhole and warn plaintiff, and otherwise failed to provide proper, reasonable and adequate protection and safety and prevent the accident from occurring. Defendants have failed to prove that the defective condition of the open manhole “…was not visible or apparent for a sufficient length of time for [them], in the exercise of reasonable care, to remedy the defect (citations omitted). The defendant[s] failed to do so.” Scala v. Port Jefferson Free Library, 255 A.D.2d 574, 681 N.Y.S.2d 77 (2d Dep’t. 1998). Indeed, there was no protection at all around the open manhole for at least several days while Plaintiff and his crew worked at this job site. Labor Law Section 200 applies to those owners, contractors and “statutory” agents who have actual or constructive notice of an unsafe condition that causes an accident, as well as of the possibility that there is unsoundness of any structural elements. Espinosa v. Azure Holdings II, LP, 58 A.D.3d 287, 869 N.Y.S.2d 395 (1st Dep’t. 2008); Griffin v. New York City Transit Authority. 16 A.D.3d 202, 791 N.Y.S. 98 (1st Dep’t. 2005); 68 DaBolt v. Bethlehem Steel Corp., 92 A.D.2d 70, 459 N.Y.S.2d 503 (4th Dep’t. 1983), appeal dismissed 60 N.Y.2d 701 (1983). Defendants had prior actual and/or constructive notice of the open and unprotected condition of the manhole that caused the accident. Akins v. Baker, 247 A.D.2d 562, 669 N.Y.S.2d 63 (2d Dep’t. 1998) [worker delivering sheetrock to construction site injured because stairs leading to door had been removed]; Segarra v. All Boroughs Demolition & Removal, 284 A.D.2d 321, 725 N.Y.S.2d 559 (2d Dep’t. 2001) [plaintiff caused to fall through hole in floor while working on house undergoing demolition]; Sponholz v. Benderson Property Development, Inc., 273 A.D.2d 791, 709 N.Y.S.2d 748 (4th Dep’t. 2000) [plaintiff caused to fall through loft floor and defendants failed to establish that they took “…reasonable care and prudence in securing the safety of the work area” (citations omitted)]; Farrel v. Okeic, 266 A.D.2d 892, 698 N.Y.S.2d 132 (4th Dep’t. 1999) [plaintiff caused to fall through loft in barn]. Arguendo, it is also no defense to plaintiff’s Labor Law § 200 claim that the dangerous condition may have been observable. Farrel v. Okeic, 266 A.D.2d 892, 698 N.Y.S.2d 132 (4th Dep’t. 1999). Arguendo, at a minimum, the open and unprotected condition of the manhole was easily discoverable by defendants through reasonable inspection. Sponholz v. Benderson Property 69 Development, Inc., 273 A.D.2d 791, 709 N.Y.S.2d 748 (4th Dep’t. 2000); Farrel v. Okeic, 266 A.D.2d 892, 698 N.Y.S.2d 132 (4th Dep’t. 1999). Furthermore, according to the affidavit of Rafael Torres, the IMS site safety person was sitting in his car instead of overseeing protection and safety and failed to ensure that the manhole was covered before the temporary asbestos containment structure was disassembled, even though that was part of his job site responsibility. IMS failed to protect plaintiff and the job site and failed to stop the work. Arguendo, at a minimum, this record establishes that defendants failed to eliminate triable issues of fact that warrant a denial of defendants’ motions to dismiss plaintiff’s Labor Law Section 200 and common law negligence claims [as well as Sections 240(1) and 241(6)]. Plaintiff’s Complaint sufficiently establishes a prima facie case of negligence against defendants and a violation of all applicable Labor Law statutes, Industrial Code sections as well as OSHA sections that were violated. A party moving for summary judgment is obligated to prove, through admissible evidence, that it is entitled to judgment as a matter of law. Zuckerman v. City of New York, 49 N.Y.2d 557, 404 N.E.2d 595, 427 N.Y.S.2d 595 (1980). As indicated above, defendants did not do so. Where, as here, the defendant summary judgment movants have failed to demonstrate 70 the absence of a genuine issue of material fact on every relevant issue, then the motions must be denied, even if the opposing papers are inadequate (which they are not). Yates v. Dow Chemical Company, 68 A.D.2d 907, 414 N.Y.S.2d 200 (2d Dep’t. 1979); Aimatop Restaurant, Inc. v. Liberty Mutual Fire Insurance Co., 74 A.D.2d 516, 425 N.Y.S.2d 8 (1st Dep’t. 1980). The proponent of a motion for summary judgment must eliminate all relevant issues of fact using sufficient evidence. Royal v. Brooklyn Union Gas Co., 112 A.D.2d 132, 504 N.Y.S.2d 519 (2d Dep’t. 1986). Summary judgment is a drastic remedy and it should not be granted where there is any doubt of the existence of a triable issue, or where the issue is even arguable. Cohen v. Herbal Concepts, Inc., 100 A.D.2d 175, 473 N.Y.S.2d 426 (1st Dep’t. 1984). Issue finding, not issue determination, is the appropriate judicial function in adjudicating a motion for summary judgment. Epstein v. Scally, 99 A.D.2d 713, 472 N.Y.S.2d 318 (1st Dep’t. 1984). The Court is not to determine credibility, only whether there are any arguable issues of fact. S.J. Capelin Associates, Inc. v. Globe Manufacturing Corporation, 34 N.Y.2d 338, 357 N.Y.S.2d 478 (1974). Defendants failed to eliminate questions of fact regarding plaintiff’s causes of action based upon common law negligence and Labor Law §§ 200 [as well as 240(1) and 241(6)]. The only party entitled to summary judgment is plaintiff. 71 CONCLUSION It is respectfully submitted that the Appellate Division, First Department order is inconsistent with and contrary to well settled case law. The Appellate Division, First Department misconstrued and ignored applicable facts in the record, and ignored case law promulgated by the Court of Appeals as to sole proximate cause/recalcitrant. For all the foregoing reasons and for the reasons set forth in appellant’s brief in the Appellate Division and in the dissenting opinion, it is respectfully submitted that the Appellate Division order dated October 31, 2013 be modified to the extent that it granted defendants’ respective motions for summary judgment to dismiss plaintiff’s complaint; that plaintiff’s complaint against defendants, which asserted causes of action pursuant to Labor Law Sections 240(1), 241(6), 200 and common law negligence, should be reinstated; and appellant’s cross motion for partial summary judgment pursuant to Labor Law Section 240(1) be granted; or in the alternative this matter should be permitted to proceed to trial against defendants; and with any other and different relief that this Court deem just and proper. 72 Dated: New York, New York May 14, 2014 Respectfully submitted, _________________________ John M. Shaw Gorayeb & Associates, P.C. Attorney for Plaintiff-Appellant RAUL BARRETO 100 William Street, Suite 1205 New York, New York 10038 (212) 267-9222 Of counsel: John M. Shaw