Robert Gerrish, Respondent,v.56 Leonard LLC, et al., Appellants, et al., Defendant.BriefN.Y.February 15, 2018To be Argued by: JASON L. BECKERMAN New York County Clerk’s Index No. 159408/13 Sfeui |[nrk Supreme Court Appellate Btutaton - Jtrst department ROBERT GERRISH, Plaintiff-Appellant, - against - 56 LEONARD LLC and LEND LEASE (US) CONSTRUCTION LMB INC., Defendants-Respondents, -and- COLLAVINO STRUCTURES, LLC, Defendant. BRIEF FOR DEFENDANTS-RESPONDENTS ROPERS MAJESKI KOHN & BENTLEY, P.C. Attorneys for Defendants-Respondents 750 Third Avenue, 25th Floor New York, New York 10017 (212) 668-5927 kirsten.molloy@rmkb.com Printed on Recycled Paper TABLE OF CONTENTS TABLE OF CONTENTS TABLE OF AUTHORITIES PRELIMINARY STATEMENT QUESTIONS PRESENTED STATEMENT OF FACTS ARGUMENT POINT I. MERE CLERICAL ERROR IN DEFENDANTS’ PLEADING, AN ISSUE NEVER RAISED IN THE COURT BELOW, SHOULD NOT BE THE BASIS FOR REVERSAL OF THE LOWER COURT’S DECISION POINT II. LOWER COURT PROPERLY DISMISSED PLAINTIFF’S CLAIMS AS LABOR LAW §§ 240(1) OR 241(6) DOES NOT EXTEND TO OFF-SITE FACILITY OVER WHICH DEFENDANTS HAD NO CONTROL i ii 1 4 5 8 8 11 This Court’s Decision in Flores Mandates Dismissal of Plaintiffs Complaint and Lower Court’s Reliance upon Flores was Proper A. 11 Cases Relied upon by Plaintiff Are Inapposite to the Case atB. 17Bar. POINT III. DEFENDANTS’ MOTION TO DISMISS WAS NOT PROCEDURALLY DEFECTIVE, AND TRIAL COURT PROPERLY DISMISSED PLAINTIFF’S COMPLAINT ON THE MERITS 23 26CONCLUSION -i- TABLE OF AUTHORITIES Page(s) CASES Adams v. Fred Alvaro Const. Corp., Inc., 161 A.D.2d 1014 (3d Dept 1990) Adams v. Pfizer, Inc., 293 A.D.2d 291 (1st Dept 2002) Angel Fabric Ltd. v. Cravat Pierre, Ltd., 51 A.D.2d 951 (1st Dept 1976) Berer v. Fete Cap Corp., 57 A.D.2d 784 (1st Dept 1977) Blue Grass Partners v. Bruns, Nordeman, Rea & Co., 75 A.D.2d 791 (1st Dept 1980) Brogan v. International Bus. Marchs. Corp., 157 A.D.2d 76 (3d Dept 1990) D’Alto v. 22-24 129th Street, LLC, 76 A.D.3d 503 (2d Dept 2010) Dankulich v. Felchar Mfg. Cor., 247 A.D.2d 650 (3d Dept 1998) Diarrassouba v. Consolidated Edison Co. of New York, Inc., 123 A.D.3d 525 (1st Dept 2014) Flores v. ERC Holding LLC, 87 A.D.3d 419 (1st Dept 2011) Lewis v. Metropolitan Trans. Authority, 99 A.D.2d 246 (1st Dept 1984) Lucas v. KD Development Const. Corp., 300 A.D.2d 634 (2d Dept 2002) 18,21 21,22 .9 .9 .8 19, 20 20 18, 19 ,8 2,11, 12, 13,14, 16, 17, 19, 20 .8 20 -ii- Martinez v. City of New York, 93 N.Y.2d 322 (1999) McGuinness v. Hertz Corp., 15 A.D.3d 160 (1st Dept. 2005) Murray v. City of New York, 43 N.Y.2d 400(1977) Seda v. New York City Housing Authority, 181 A.D.2d 469 (1st Dept. 1992) Shields v. General Elec. Co., 3 A.D.3d 715 (3d Dept. 2004) Sprague v. Louis Picciano, Inc. , 100 A.D.2d 247 (3d Dept. 1984) Talansky v. Schulman, 2 A.D.3d 355 (1st Dept. 2003) Zito v. Occidental Chemical Corp., 259 A.D.2d 1015 (4th Dept. 1999) 21 21 10 10 19, 20 17, 18 .8 20 -iii- PRELIMINARY STATEMENT Defendants-Respondents 56 Leonard LLC and Lend Lease (US) Construction LMB, Inc. (collectively, “Defendants”) respectfully submit this brief in opposition to Plaintiff-Appellant Robert Gerrish’s appeal from the Decision and Order of the Supreme Court, New York County (Jaffe, J.) dated April 27, 2015 and entered on April 28, 2015, which granted Defendants’ Motion to Dismiss Plaintiffs Complaint. This action arises out of personal injuries allegedly sustained by Plaintiff when he allegedly tripped and fell on loose materials and debris left on the ground while working at a yard located in the Bronx, New York (the “Bronx Yard”). At the time of the accident, 56 Leonard, LLC (“56 Leonard”) was the owner of a real property located at 56 Leonard Street, New York, New York (the “Project Location”), and was in the process of developing the Project Location into a high- rise residential building (the “Project”). Lend Lease (US) Construction LMB, Inc. (“Lend Lease”) was the construction manager for the Project. The Bronx Yard where the alleged accident took place was located some eight (8) miles away from the Project Location in the County of New York. It was leased by Collavino Structures, LLC (“Collavino”), the contractor that was retained by Lend Lease to perform services at the Project Location. Lend Lease had no involvement in leasing the Bronx Yard, nor did it own, operate, control, -1- supervise or manage the Bronx Yard. At the time of the accident, Plaintiff was in the employ of Navillus Tile, Inc. (“Navillus”) which was hired by Collavino to perform certain services in connection with the Project. After the commencement of this action by Plaintiff, Defendants moved to dismiss Plaintiffs Complaint on the grounds that Defendants did not have a duty to provide protection under the Labor Law, as the accident in question occurred at an off-site facility located miles away from the actual construction site, which Defendants did not own, lease, operate, control, supervise, or manage, and that Defendants had no involvement with any work being performed at that location. Defendants’ Motion was granted. As more fully set forth herein, the lower court correctly dismissed Plaintiffs Complaint against Defendants, as there is no question that Defendants had no involvement whatsoever with the Bronx Yard, and the work that was being performed by Plaintiff at that location is thus not covered under the Labor Law. The caselaw in the First Department is clear. While Plaintiff attempts to distinguish this Court’s well-established decision in Flores v. ERC Holding LLC, 87 A.D.3d 419 (1st Dept. 2011) and rely on cases from other Departments, Plaintiffs interpretation of these cases is either simply wrong or taken completely out of context. Plaintiff should not be permitted to revive his claims that should not have been brought against Defendants in the first place, and accordingly, it is -2- respectfully requested that the lower court’s Decision and Order be affirmed. -3- QUESTIONS PRESENTED (1) Whether a mere clerical error in Defendants’ Answer to Plaintiffs Complaint, an issue that was never raised in the court below, should be the basis for reversal of the trial court’s Decision and Order which dismissed Plaintiffs Complaint on the merits? No. The trial court correctly granted Defendants’ Motion to Dismiss Plaintiffs Complaint. (2) Whether the trial court properly granted Defendants’ Motion to Dismiss Plaintiffs Complaint based upon the finding that the Labor Law did not extent to the off-site facility over which Defendants had no control? Yes. (3) Whether Defendants’ Motion to Dismiss was procedurally proper and therefore the trial court properly granted said Motion? Yes. -4- STATEMENT OF FACTS This action arises out of Plaintiffs claim that on September 3, 2013, he suffered personal injuries while working at the Bronx Yard, located under the Willis Avenue Bridge, in the vicinity of 132nd Street and north of the Harlem River Intermodal yard, in the Bronx, New York. (R. 56-57, 263). Plaintiff alleges that while working at the Bronx Yard, he tripped and fell on loose materials and debris left on the ground and sustained injuries. (R. 263). At the time of the alleged accident, Defendant 56 Leonard was the owner of a real property located at 56 Leonard Street, New York, New York (the “Project Location”), and was in the process of developing the Project Location into a high- rise residential building (the “Project”). (R. 246). Defendant Lend Lease was the construction manager for the Project. (R. 246). Lend Lease, as construction manager, contracted with Collavino to provide services at the Project Location, and Collavino in turn sub-contracted with Navillus to perform certain services. (R. 247). Plaintiff was employed by Navillus as an ironworker. (R. 263). While the subject accident occurred at a facility located in the Bronx, New York, the Project itself was located in the County of New York, some eight (8) miles away from the location of the accident. (R. 588). The Bronx Yard was leased by Collavino from a third party, by operation of which Collavino was a temporary licensee with access to the location for “steel fabrication (cutting and -5- bending).” (R. 241-242). Collavino then entered into a subcontract with Navillus, pursuant to which Navillus agreed to provide certain services, including “receiving, bending, and installing all rebar.” (R. 116). Navillus was hired by Collavino as an independent contractor that was required to provide “all materials, labor, supervision, services, inspection, testing, tools, equipment, supplies, fuel, transportation, installation, temporary facilities, clean up and all items or services of any kind whatsoever necessary to fully perform and complete [its] Work.” (R. 78). On the day of the accident, Plaintiff was working for Navillus at the Bronx Yard, performing steel fabrication. (R. 263). Plaintiff sustained injuries while at the Bronx Yard when he allegedly slipped and fell over loose materials and debris left on the ground. (R. 263). At the time of the accident, Plaintiff was on a break and on his way to get coffee at the shanty. (R. 582). Defendants did not own, lease, operate, manage, or otherwise control the Bronx Yard, or supervise any work that was being performed at the Bronx Yard. (R. 247-248). Nor did Defendants provide any equipment or employees for work at the Bronx Yard or direct Plaintiff to perform any work at that location. (R. 248). Defendants did not have any of their employees at the Bronx Yard to manage, supervise, or instruct any workers, including Plaintiff. (R. 248). Based upon the foregoing undisputed facts, the Supreme Court granted -6- Defendants’ Motion and dismissed Plaintiffs Complaint, holding that “fabricating materials to be used with ongoing work at a construction site is distinguished from performing construction work within the meaning of Labor Law § 240(1), and working at a construction site within the meaning of Labor Law § 241(6)”, and therefore, Plaintiffs injury was not covered under either Labor Law §§ 240(1) or 241(6). The Supreme Court further held that because Defendants had no involvement in Plaintiffs work at the offsite premises leased by Collavio, they may not be held liable under Labor Law § 200. -7- ARGUMENT POINT I. MERE CLERICAL ERROR IN DEFENDANTS’ PLEADING, AN ISSUE NEVER RAISED IN THE COURT BELOW, SHOULD NOT BE THE BASIS FOR REVERSAL OF THE LOWER COURT’S DECISION. Plaintiff contends that the lower court’s Decision and Order which dismissed Plaintiffs Complaint on the merits should be reversed because Defendants “admitted”, in their Answer to Plaintiffs Complaint, Plaintiffs allegations of negligence as well as violations of the Labor Law. Due to this perceived “admission” of liability by Defendants, Plaintiff argues that it was a “clear error” for the Supreme Court to dismiss Plaintiffs Complaint. This argument must be rejected out of hand. It is axiomatic that the appellant is precluded from raising on appeal an issue not raised in the court below. See, e.g., Diarrassouba v. Consolidated Edison Co. of New York, Inc., 123 A.D.3d 525 (1st Dept. 2014)(appellanf s argument was raised for the first time on appeal, and it is, therefore, unpreserved); Talansky v. Schulman, 2 A.D.3d 355, n.7 (1st Dept. 2003)(plaintiff s belated request for attorneys’ fees is apparently raised for the first time on appeal, and is, therefore, not properly before this court); Lewis v. Metropolitan Trans. Authority, 99 A.D.2d 246, 251 (1st Dept. 1984)(the issue was never raised at trial and may not be relied upon for the first time on appeal); Blue Grass Partners v. Bruns, Nordeman, Rea & Co., 75 A.D.2d 791, 793 (1st Dept. 1980)(we adhere to the rule that an appellant -8- will ordinarily be precluded from raising on appeal an issue not raised at Special Part); Berer v. Fete Cap Corp., 57 A.D.2d 784 (1st Dept. 1977)(the appellant will be precluded from raising on appeal an issue not raised at Special Term); Angel Fabric Ltd. v. Cravat Pierre, Ltd., 51 A.D.2d 951, 952 (1st Dept. 1976)(the issue was not raised below and our review should be limited to issues raised in the record and passed upon by Special Term). When Defendants moved to dismiss Plaintiffs Complaint in the court below, in opposing Defendants’ Motion, Plaintiff never once raised an issue of Defendants’ Answer to Plaintiffs Complaint. The only issues raised by the parties and considered by the lower court were: (a) whether, based upon the facts of the case, the protection afforded under Labor Law §§ 200, 240(1) and 241(6) may be extended to the off-site facility where Plaintiffs accident occurred; and (b) whether Defendants’ Motion to Dismiss was procedurally proper. Plaintiffs argument concerning Defendants’ “admission” of liability in their Answer is being raised for the very first time on this appeal, and was never considered or ruled on by the court below. Indeed, Plaintiffs Pre-Argument Statement filed on May 14, 2014 indicates only that the “grounds for seeking reversal” is that “the record evidence presented questions of fact as to defendants’ violation of Labor Law § 200, § 240(1), and § 241(6).” There is no mention of the issue concerning Defendants’ Answer to -9- Plaintiffs Complaint. Accordingly, this issue is unpreserved and not properly before this Court, and Plaintiff should not be permitted to rely upon this issue that was never raised below. Moreover, Defendants’ “admission” of liability in their Answer was a mere clerical error which can easily be corrected. CPLR 3025 is explicit that a party may amend his pleading at any time by leave of court, and leave is freely given upon such terms may be just. See Murray v. City of New York, 43 N.Y.2d 400 (1977); Seda v. New York City Housing Authority, 181 A.D.2d 469 (1st Dept. 1992)(leave to amend pleadings is to be freely given absent prejudice or surprise resulting directly from delay). Here, Defendants never intended to admit that Plaintiffs injury occurred as a result of their alleged negligence or statutory violations. If Defendants truly intended to admit such allegations, Defendants would not have moved to dismiss Plaintiffs Complaint. In any event, a mere clerical error in Defendants’ pleading (which can easily be amended) should not be the grounds for reversal of the lower court’s Decision and Order which dismissed Plaintiffs Complaint on the merits. Not only was this issue never raised and considered by the court below, even if this Court were to reverse the lower court’s decision on this basis, Defendants would seek to amend their Answer and move to dismiss the Complaint again. Accordingly, in the interest of judicial economy and pursuant to the well- -10- established rule precluding the appellant from raising new issues on appeal, this Court should reject Plaintiffs contention concerning Defendants’ Answer to the Complaint. POINT II. LOWER COURT PROPERLY DISMISSED PLAINTIFF’S CLAIMS AS LABOR LAW §§ 240(1) OR 241(6) DOES NOT EXTEND TO OFF-SITE FACILITY OVER WHICH DEFENDANTS HAD NO CONTROL. As a preliminary matter, in his brief, Plaintiff does not take issues with the lower court’s dismissal of Plaintiffs claims under Labor Law §§ 200 and 240(1). Instead, Plaintiffs brief focuses on Labor Law § 241(6), and argues that that particular section of the Labor Law “may extend to off-site accidents” such as the one at issue here. However, as discussed in detail below, this is simply not true under the facts of this case. This Court’s Decision in Flores Mandates Dismissal of Plaintiffs Complaint and Lower Court’s Reliance upon Flores was Proper. Plaintiff contends that the lower court erred in dismissing Plaintiffs A. Complaint, and criticizes the lower court’s reliance upon the First Department’s decision in Flores v. ERC Holding LLC, 87 A.D.3d 419 (1st Dept. 2011). In so doing, Plaintiff unsuccessfully attempts to “distinguish” Flores from the present case, whose facts are strikingly similar to those in Flores. Unfortunately for Plaintiff, the holdings and facts of Flores are crystal clear, and the lower court properly relied upon Flores in granting Defendants’ Motion to Dismiss. -11- In Flores, plaintiff was employed by subcontractor Kriti Contracting, who was retained by the general contractor to perform steel framing work in connection with a project to erect a building owned by defendant in Queens County. Kriti leased a facility in Bronx County for the storage of its equipment and materials. Plaintiff reported for work at the Bronx facility, where he was directed to cut several steel beams. After completing the first cut, he was instructed by Kriti’s principal (who was also the general contractor’s principal) to affix the steel beam to a backhoe so that the beam could be transported to the construction site in Queens. Plaintiff was injured when the backhoe shifted, causing the beam to come loose and struck plaintiff. Other beams were transported to the Queens construction site from the Bronx facility for use in construction that same day, and plaintiff was to have gone in the transport truck to work at the Queens construction site for the rest of the day. The First Department held that Labor law §§ 240(1) and 241(6) did not apply, reasoning as follows: Performing construction work for purposes of Labor Law § 240(1) and working at a construction site for purposes of Labor Law § 241(6) are distinguished from fabricating and transporting materials to be used in connection with ongoing work at a construction site. Dispositive is that at the time of his injury, plaintiff was engaged in the fabrication and loading of steel at his employer’s Bronx facility, not in performing construction work at the Queens site. -12- Flores, 87 A.D.3d at 420. The Court went on to state that “[ajpplying the Labor Law to fabrication performed and loading of steel beams onto a truck for transport some 12 miles away at a facility that is independently owned and operated would be an untoward extension of the protection afforded by the Legislature.” Id. at 421. The facts in Flores are virtually identical and indistinguishable from the facts presented in the instant matter. Here, Plaintiff was employed by Navillus, the subcontractor of Collavino. (R. 77, 263). The Bronx Yard where Plaintiffs alleged accident occurred was leased by Collavino, not by Defendants. (R. 241- 245). The Bronx Yard was independently owned and operated by a third party, and Defendants did not supervise, manage, or control the Bronx Yard in any manner. (R. 241, 247). Further, the Bronx Yard was some eight (8) miles away from the actual construction site located in New York County, an entirely different county (R. 588- 589)-much like in Flores in which plaintiffs accident occurred in a facility in the Bronx, 12 miles away from the construction site in Queens County. In addition, on the day of the accident, Plaintiff was performing “steel fabrication” at the Bronx Yard for use at the construction site in New York County (R. 263), just as plaintiff in Flores was performing fabrication of steel beams in Bronx County for use at the construction site in Queens County. Further, when he slipped and fell over debris at the Yard, Plaintiff was on a break and on his way to get coffee at the shanty, -13- rather than performing any type of work. (R. 582). This Court’s decision in Flores is directly on point, and under Flores, it is clear that at the time of his injury, Plaintiff was not performing construction work at the Project Location for purposes of Labor Law §§ 240(1) or 241(6). Accordingly, the trial court was correct in holding that Defendants are not liable under either Labor Law § 240(1) or § 241(6). In his attempt to “distinguish” Flores from the present case, Plaintiff presents a number of arguments, none of which are meritorious. First, Plaintiff contends that Flores is somehow inapplicable because the Bronx Yard is leased by Collavino instead of Plaintiffs employer, Navillus. This fact is completely immaterial. Whether the Bronx Yard was leased by Collavino or Navillus, the simple fact of the matter is that Defendants had absolutely nothing to do with, and exercised no control over, the Bronx Yard, and had no involvement in the work that was being performed by Plaintiff at the Yard. The Court in Flores held that defendants therein were not liable under Labor Law §§ 240(1) and 241(6), even when plaintiff was instructed by defendant-general contractor’s employee to affix the steel beam to a backhoe for transportation to the construction site. Here, none of Defendants’ employees were present at the Bronx Yard, nor did Defendants provide any instruction to Plaintiff concerning his work to be performed there. Further, Plaintiff speculates that “presumably, [the Bronx Yard] was located -14- at a site approved by the contractor pursuant to Schedule 3 of the Trade Contract between Lend Lease and Collavino.” Again, this is simply not true. Schedule 3 of the contract between Lend Lease and Collavino provides in pertinent part (R. 287): SCHEDULE 3-TEMPORARY FACILITIES All temporary Project site facilities and storage, shed, shanties, material storage rooms, field offices, power, hoists, scaffolding, cold weather protection, etc. (“Temporary Facilities”) required in performing the Work shall be furnished by Contractor [Collavino]... Contractor agrees to place its Temporary Facilities in location designated by Owner or Construction Manager. Plaintiff completely misconstrues this portion of the contract, conveniently but incorrectly implying that the Bronx Yard must have been approved and designated by Defendants, and therefore, Defendants must have something to do with it. However, this portion of the contract pertains to “temporary Project site facilities” placed within the Project Location itself, such as shanties, sheds, storage units and other temporary on-site facilities that contractors need to perform their work. (R. 591). It does not include off-site facilities such as the Bronx Yard. (R. 591). In fact, the contract between Lend Lease and Collavino makes no mention of the Bronx Yard location. (R. 265-566). Equally unavailing is Plaintiffs contention that because the Bronx Yard was used “exclusively for the cutting and bending of steel in conjunction with the 56 Leonard Street project,” this somehow provides the basis for finding liability on -15- the part of Defendants. Plaintiffs goes on to argue that his duties at the Bronx Yard was limited to cutting and bending steel rebar, and this constitutes construction work within the meaning of Labor Law § 241(6). In his own words, on the day of the accident, Plaintiff was engaged in “steel fabrication” at the Bronx Yard. (R. 263). What Plaintiff refuses to recognize is the fact that plaintiff in Flores was performing the identical type of work at the time of his accident. As detailed above, plaintiff in Flores was also cutting steel beams at an off-site facility in the Bronx for immediate transport and use of such beams at the construction site in Queens County. In fact, in addition to cutting the steel beams, he was loading the truck with the beams so that they could be transported to the construction site for use that very same day, and plaintiff was to go to the construction site to work there for the rest of that day. Still, the Court held that cutting the steel beams at the Bronx facility, namely “fabricating materials”, did not constitute performing construction work or working at a construction site for purposes of Labor Law §§ 240(1) and 241(6)-which directly refutes Plaintiffs baseless contention. Based upon the foregoing, it is respectfully submitted that Flores is directly on point, and the lower court’s reliance upon Flores dismissing Plaintiffs Complaint was proper. Accordingly, the lower court correctly granted Defendants’ Motion to Dismiss, and it is respectfully requested that this Court affirm the lower -16- court’s decision and order dismissing Plaintiffs Complaint. B. Cases Relied upon by Plaintiff Are Inapposite to the Case at Bar. Despite the First Department’s well-established decision in Flores, in support of his argument that Labor Law § 241(6) extends to off-site facilities such as the Bronx Yard, Plaintiff exclusively relies upon decisions from the Second and Third Departments. However, all of these cases relied upon by Plaintiff are inapposite to the case at bar. While courts have held that a worksite within the meaning of Labor Law §§ 240(1) and 241(6) is not limited only to the actual construction site, courts have limited Labor Law liability to include only those areas that are immediately adjacent to the actual construction site where work is being performed. This is entirely different from the situation presented here. As discussed at length above, Plaintiff was performing work in Bronx County, some 8 miles away from the construction site located in New York County. The Bronx Yard was not owned or operated by Defendants either. Notably, as outlined below, the cases upon which Plaintiff relies all present facts where the subject accidents occurred directly adjacent to the construction sites, rather than an accident that occurred at a completely different location, miles away from the site where the actual construction work was being performed. For instance, Plaintiff relies upon Sprague v. Louis Picciano, Inc., 100 -17- A.D.2d 247 (3d Dept. 1984). There, plaintiffs accident occurred in a parking lot of the construction site where excavation was being performed. While the Third Department did state that the proximity of material or equipment to the actual construction site is not necessarily dispositive of whether liability exists away from the site, Plaintiff takes this holding out of context. First, the Court did not find liability on the part of defendants under Labor Law § 241(6), holding that the parking lot in which plaintiff was injured did not qualify as an “area in which construction, excavation or demolition work is being performed.” Id. at 250. Significantly, the Third Department did advise caution in construing Labor Law § 241(6) liberally: While we recognize that section 241(6) is to be liberally construed to protect workers engaged in hazardous occupations, it may not be so implemented by decisional law as to establish a cause of action and right of recovery not contemplated by the Legislature. Accordingly, we agree with the trial court’s conclusion that plaintiff failed to establish a prima facie case against Picciano of a violation of section 241(6) of the Labor law as a matter of law. Id. See also, Adams v. Fred Alvaro Const. Corp., Inc., 161 A.D.2d 1014 (3d Dept. 1990)(accident occurring at a parking lot owned by defendant which was part of a subdivision being developed by defendant where excavation was being performed). Moreover, Dankulich v. Felchar Mfg. Cor., 247 A.D.2d 650 (3d Dept. 1998) -18- presents a completely different set of facts, and is thus inapplicable to this case. In Dankulich, plaintiff was injured while driving a motorized lift between construction sites when the lift malfunctioned and he was forced to jump off the platform of the lift from approximately seven feet in the air. The Court characterized this case as a Labor Law § 240(1) case involving the “gravity-related hazard of falling” rather than involving claims under Labor Law § 241(6). Id. at 660. The Court further stated that the peril to which plaintiff was exposed is not of a type ordinarily encountered at a construction site, but is more akin to the danger posed by a scaffold that is improperly constructed or placed. Id. at 661. As such, this case is completely inapposite to the facts presented in the instant matter. Plaintiff also relies upon the Third Department’s decisions in Brogan v. International Bus. Marchs. Corp., 157 A.D.2d 76 (3d Dept. 1990) and Shields v. General Elec. Co., 3 A.D.3d 715 (3d Dept. 2004). However, these are the very two cases that were distinguished by the First Department in reaching its decision in Flores. In Flores, the Court stated: Cases extending Labor Law protection to injuries sustained at the work site while handling materials essential to the construction project (e.g. Brogan v. International Bus. Bachs. Corp., 157 A.D.2d 76, 555 N.Y.S.2d 895 [1990] [transport from one end of a building to the other “necessitated by and incidental to the construction”]) or while fabricating material integral to the construction work at a separate on-site facility (e.g. Shields v. General Elec. Co., 3 A.D.3d 715, 771 N.Y.S.2d 249 [2004] [fabrication building 100 yards -19- from building under construction]) are distinguishable by such factors as physical proximity and common ownership and operation of the premises. Applying the Labor Law to fabrication performed and loading of steel beams onto a truck for transport some 12 miles away at a facility that is independently owned and operated would be an untoward extension of the protection afforded bv the Legislature. Thus, “at the time of the accident, the plaintiff was not engaged in construction work within the meaning of Labor Law 240(1) and was not working in a construction area within the meaning of Labor Law § 241(6)” and these claims were properly dismissed. Flores, supra, at 420-21 (emphasis supplied). The Court emphasized “physical proximity and common ownership and operation of the premises” as significant factors in finding liability under Labor Law §§ 240(1) and 241(6). Indeed, in Brogan, the accident occurred in a parking area located within the facility in which the work was being performed, and was owned and operated by defendant where several of defendant’s representatives were present. Brogan, 157 A.D.2d at 79-80. Similarly, Shields involved an accident that occurred on defendant’s property some 100 yards distant from the building under construction. Shields, 3 A.D.3d at 717. See also, D’Alto v. 22-24 129th Street, LLC, 76 A.D.3d 503 (2d Dept. 2010)(worker injured while descending from a cement truck parked some 100 feet away from the construction site located on property owned by defendant); Lucas v. KD Development Const. Corp., 300 A.D.2d 634 (2d Dept. 2002)(worker injured while walking on the street adjacent to the worksite); Zito v. Occidental Chemical Corp., 259 A.D.2d 1015 (4th Dept. 1999)(worker injured -20- while using a passageway to and from the work area which was designated by defendant for reporting to work); McGuinness v. Hertz Corp., 15 A.D.3d 160 (1st Dept. 2005)(plaintiff s injury occurred within the work site and was performed on or in close proximity to a street). Plaintiff erroneously argues that since Plaintiffs work involved “bending and cutting of rebar” for use at the construction site, Labor Law protection should be extended to Plaintiffs injuries. However, as clearly demonstrated above, such argument does not find support in fact or in law. Further, this line of argument has been plainly rejected by the Court of Appeals in Martinez v. City of New York, 93 N.Y.2d 322 (1999) when the Court stated: “[w]e reject the analysis...which focused on whether plaintiffs work was an ‘integral and necessary’ part of a larger project within the purview of section 240(1). Such a test improperly enlarges the reach of the statute beyond its clear terms.” Id. at 326. Similarly, following the decision in Martinez, the First Department in Adams v. Pfizer, Inc., 293 A.D.2d 291 (1st Dept. 2002) also rejected the argument set forth by Plaintiff herein. In Adams, plaintiff was injured when the motorized scaffold on which he was riding tipped over. The injury occurred on his employer’s premises and not on the premises of either of the defendants. Plaintiffs work at the time of the accident was incidental to a mock-up being constructed by his employer in connection with the renovation by of defendant’s premises. This Court held that -21- “plaintiff at the time of his injury was not involved in ‘construction’ within the intended meaning of the statute, [and] plaintiff has no claim against defendants under Labor Law § 241(6). Nor is there authority to support plaintiffs claim that his employer’s premises were an extension of the renovation site for purposes of the Labor Law.” Id at 291. The Bronx Yard where Plaintiff was allegedly injured is neither a construction site nor an extension of the construction site located in New York County. And the work Plaintiff was performing on the day of the accident, i.e. steel fabrication, was not “construction work” under the meaning of either Labor Law § 240(1) or § 241(6). At the time of his injury, Plaintiff was in fact was on a coffee break. The Bronx Yard was a facility leased by Collavino, owned and operated by an independent third party. Collavino subsequently contracted with Navillus to produce a product at the Bronx Yard. It is immaterial whether this product was to be used at the construction site at 56 Leonard Street. Plaintiffs accident simply did not occur at the construction site. Plaintiffs accident occurred at the Bronx Yard which Defendants did not own, operate, manage, supervise, or otherwise control. Accordingly, the trial court’s dismissal of Plaintiff s causes of action under the Labor Law as against Defendants must be upheld. -22- POINT III. DEFENDANTS’ MOTION TO DISMISS WAS NOT PROCEDURALLY DEFECTIVE, AND TRIAL COURT PROPERLY DISMISSED PLAINTIFF’S COMPLAINT ON THE MERITS. In the court below, Defendants moved to dismiss Plaintiffs Complaint pursuant to CPLR 3211(a)(1) based on documentary evidence, as well as CPLR 3211(a)(7) for failure to state a cause of action upon which relief can be granted. (R. 11). Plaintiff contends that Defendants were not entitled to dismissal under 3211(a)(1) because there is a “factual dispute” as to whether Defendants exercised common ownership and operation of the premises at the construction site in New York County as well as the Bronx Yard. In support of such contention, Plaintiff once again cites to Schedule 3 of the contract between Lend Lease and Collavino. However, this issue was soundly refuted by Defendants in the court below, and the trial court properly found that Defendants did not exercise any control over the Bronx Yard or the work that was being performed at the location. (R. 7). Schedule 3 of the contract between Lend Lease and Collavino provides in pertinent part (R. 287): SCHEDULE 3-TEMPORARY FACILITIES All temporary Project site facilities and storage, shed, shanties, material storage rooms, field offices, power, hoists, scaffolding, cold weather protection, etc. (“Temporary Facilities”) required in performing the -23- Work shall be furnished by Contractor [Collavino]... Contractor agrees to place its Temporary Facilities in location designated by Owner or Construction Manager. Plaintiff repeatedly claims that because of this provision, the Bronx Yard must have been approved and designated by Defendants, and therefore, Defendants must have exercised some type of ownership or operation of the Bronx Yard. Such contention, however, is utterly without proof, and therefore, speculative at best. As discussed in detail above, as well as in Defendants’ motion papers below, this portion of the contract pertains to “temporary Project site facilities” placed within the Project Location in New York County, such as shanties, sheds, storage units and other temporary on-site facilities which contractors need to perform their work on-site. (R. 591). It does not include off-site facilities such as the Bronx Yard, miles away from the actual construction site. (R. 591). In fact, the contract between Lend Lease and Collavino makes no mention of the Bronx Yard location. (R. 265-566). The affidavit of Gerald Bianco, who signed the contract between Lend Lease and Collavino and is familiar with the contract, clearly establishes this fact. (R. 590-591). Contrary to Plaintiffs assertion that the affidavit of Lend Lease’s Vice President, Gerald Bianco is belied by this provision in the contract, the affidavit actually makes clear that Defendants had no involvement in leasing, operating, or managing the Bronx Yard, and that Defendants did not exercise any common -24- ownership and/or operation of the Project Location and the Bronx Yard. (R. 246- 249). Defendants only owned the real property at the Project Location in New York County, and the Bronx Yard was owned and operated by a third party, Harlem River Yard Ventures, Inc., that had absolutely nothing to do with any construction work that was being performed at the Project Location. (R. 246-217, 241). There is absolutely no evidence which indicates Defendants’ ownership, operation, management, and/or control of the Bronx Yard. On the contrary, the documentary evidence in this matter clearly establishes that Defendants had no involvement whatsoever with the Bronx Yard where the accident occurred. In any event, it has already been established on the merits that Plaintiff has no viable claim under Labor Law §§ 200, 240(1), and 241(6) against Defendants, and as such, Plaintiffs contention that Defendants’ Motion to Dismiss should have been denied on procedural grounds must be rejected. Accordingly, the lower court properly granted Defendants’ Motion to Dismiss, and its decision and order dismissing Plaintiffs Complaint must be affirmed. -25- CONCLUSION For all of the foregoing reasons, the decision and order appealed from should be upheld and affirmed, and Defendants’ Motion to Dismiss Plaintiffs Complaint must be granted in its entirety. Respectfully submitted,Dated: New York, New York Match 23,2016 ROPERS, MAJESKI, KOHN & BENTLEY Kirsten L. MoHoy By: Attorneys for Defendants, 56 Leonard LLC, and Lend Lease (US) Construction LMB, LLC 750 Third Avenue, 25th Floor New York, New York 10017 Tel. (212) 668-5927 Fax (212) 668-5929 -26- PR1NGTING SPECIFICATIONS STATEMENT I, Kirsten L. Molloy, attorney for Defendants, 56 Leonard LLC and Lend Lease (US) Construction LMB, LLC, hereby certify pursuant to 22 N.Y.C.R.R. § 600.10 that the foregoing Defendants-Respondents’ brief was prepared using Microsoft Word 2010. A proportionally spaced typeface was used as follows: Name of Typeface: Times New Roman Point Size: 14 Line Spacing: Double (except for quotations) The total number of words in this brief, inclusive of point headings and footnotes, and exclusive of pages containing the table of contents, table of authorities, proof of services, certificates of compliance, or any authorized addendum containing statutes, rules, regulations, etc., is: 5,573. Dated: New York, New York Match 23,2016 ROPERS, MAJESKI, KOHN & BENTLEY By- Kirsten L. MoUoy"--1Attorneys for Defendants, 56 Leonard LLC, and Lend Lease (US) Construction LMB, LLC 750 Third Avenue, 25th Floor New York, New York 10017 Tel. (212) 668-5927 Fax (212) 668-5929 -27-