Robert Gerrish, Respondent,v.56 Leonard LLC, et al., Appellants, et al., Defendant.BriefN.Y.February 15, 2018To be Argued by: SCOTT N. SINGER New York County Clerk’s Index No. 159408/13 iCmt Work Supreme Court Appellate Dtutstmt - Jfitrst 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 PLAINTIFF-APPELLANT SACKS AND SACKS, LLP Attorneys for Plaintiff-Appellant 150 Broadway, 4th Floor New York, New York 10038 (212) 964-5570 scott@sacks-sacks.com Printed on Recycled Paper TABLE OF CONTENTS TABLE OF CASES n PRELIMINARY STATEMENT 1 QUESTIONS PRESENTED 4 STATEMENT OF FACTS 6 ARGUMENT POINT I SINCE DEFENDANTS ADMITTED THE STATUTORY AND NEGLIGENCE CLAIMS ASSERTED BY PLAINTIFF, THE IAS COURT ERRED IN DISMISSING THE COMPLAINT 12 POINT II THE IAS COURT ERRED IN CONCLUDING, AS A MATTER OF LAW, THAT PLAINTIFF HAD NO VIABLE CLAIM UNDER LABOR LAW SECTION 241(61 13 A. Labor Law § 241(6) May Extend To Off-Site Accidents 15 B. Flores Is Distinguishable 19 C. Plaintiff Was Engaged In “Construction Work” In A “Construction Area 21 POINT III DEFENDANTS WERE NOT ENTITLED TO DISMISSAL UNDER CPLR 3211 23 CONCLUSION 25 TABLE OF CASES Adams v Fred Alvaro Const. Corp., Inc., 161 AD2d 1014 [3d Dept 1990] affd., 12NY2d 1011.... Ares v State, 80 NY2d 959 [1992] Brogan v Inti. Bus. Machines Corp., 157 AD2d 76 [3d Dept 1990] Capuano v Tishman Const. Corp., 98 AD3d 848 [1st Dept 2012] Coffin v President, etc., of Grand Rapids Hydraulic Co., 136 NY 655 [1893] Dankulich v Felchar, 247 AD2d 660 [3d Dept 1998] D’Alto v 22-24 129th St., LLC, 76 AD3d 503 [2d Dept 2010] Falkowski v 81 & 3 of Watertown, 288 AD2d 890 [4th Dept 2010] Flores v ERC Holding LLC, 87 AD3d 419 [1st Dept 2011] Gonnerman v Huddleston, 78 AD3d 993 [2d Dept 2010] Haimes v New York Tel. Co., 46 NY2d 132 [1978] Holgerson v S. 45th St. Garage, Inc., 16 AD2d 255 [1st Dept 1962] Integrated Const. Services, Inc, v Scottsdale Ins. Co., 82 AD3d 1160 [2d Dept 2011] Johnson v Rapisarda, 262 AD2d 365 [2d Dept 1999] Jones v 414 Equities LLC, 57 AD3d65 [1st Dept 2008] Jones v Rochdale Vil., Inc., 96 AD3d 1014 [2d Dept 2012] La France v Niagara Mohawk Power Corp., 89 AD2d 757 [3d Dept 1982] Lodato v Greyhawk N. Am., LLC, 39 AD3d 491 [2d Dept 2007] Lombardi v Stout, 80 NY2d 290 [1992] 15, 17 17 15, 16, 17 14 12 15 18 12 2, 11,20, 24 2,17 22 17 24 18 3 24, 25 18 14 18 ii Lucas v KD Development Const. Corp., 300 AD2d 634 [2d Dept 2002] McCav v J.A. Jones-GMO, LLC, 74 AD3d 615 [1st Dept 2010] McGuinness v Hertz Corp., 15 AD3d 160 [1st Dept 2005] Mosher v State, 80 NY2d 286 [1992] Nagel v D & R Realty Corp.. 99 NY2d 98 [2002] Rizzuto v L.A. Wenger Contr. Co., Inc., 91 NY2d 343 [1998] Ross v Curtis-Palmer Hydro-Electric Co., 81 NY2d 494 [1993] Shields v Gen. Elec. Co., 3 AD3d 715 [3d Dept 2004] Sprague v Louis Picciano, Inc., 100 AD2d 247 [3d Dept 1984] Struble v John Arborio, Inc., 74 AD2d 55 [3d Dept 1980] Walls v Turner Const. Co., 4 NY3d 861 [2005] Zegarowicz v Ripatti, 77 AD3d 650 [2d Dept 2010] Zito v Occidental Chem. Corp., 259 AD2d 1015 [4th Dept 1999] 19 2, 22 19 17 16 14 14 16 15, 17 18 14 2, 12 19 iii PRELIMINARY STATEMENT Plaintiff Robert Gerrish was seriously injured when, in the course of his work as an ironworker, he tripped and fell on debris at a work site. The accident occurred at a yard in the Bronx where rebar (reinforcing steel) was being bent and cut for use in the construction of a new building in Lower Manhattan. Such work is typically performed at the building site itself but, due to the physical constraints at the Lower Manhattan building site, the concrete superstructure contractor arranged to use the Bronx yard for that purpose. The Bronx yard was presumably obtained with the consent of the owner and/or construction manager of the new building: the relevant contract requires that “temporary facilities” be placed at “locations designated by the owner or construction manager.” Plaintiff commenced the present action to recover damages for the injuries he sustained against the owner, construction manager and concrete superstructure contractor, alleging violations of the Labor Law and common-law negligence. After issue was joined, but before disclosure took place, the owner and construction manager moved under CPLR 3211 to dismiss, alleging that they were not subject to liability as the accident did not occur in a “construction area.” See Labor Law § 241(6). Supreme Court granted defendants’ motion, finding that Labor Law § 240(1) and Labor Law § 241(6) were inapplicable to the accident since it did not l occur in the course of “construction work,” and the defendants had “no involvement in plaintiffs work” at the Bronx yard. Plaintiff has appealed. Respectfully, plaintiff submits that the work that plaintiff was performing at the time of his accident was clearly “construction work,” since the work involved the bending and cutting of rebar. See McCay v J.A. Jones-GMO, LLC, 74 AD3d 615, 615-16 (1st Dept 2010). Moreover, as the rebar was being “readied for use” at the site, Labor Law § 241(6) is applicable. See, e.g. Gonnerman v Huddleston, 78 AD3d 993, 995 (2d Dept 2010). Flores v ERC Holding LLC, 87 AD3d 419 (1st Dept 2011), cited by Supreme Court in its decision, is distinguishable. In the present case, unlike Flores, the proof established that the Bronx yard was effectively an integral part of the Lower Manhattan building site. In the circumstances, plaintiff submits that it was error for the IAS court to dismiss plaintiffs claims against the owner and construction manager as a matter of law, particularly since those defendants, in their answer, admitted the truth of the negligence and Labor Law claims set forth in the complaint. See Zegarowicz v Ripatti, 77 AD3d 650, 653 (2d Dept 2010); Prince, Richardson on Evidence § 8-215, at 523-524 [Farrell 11th ed.]). Moreover, since the record evidence clearly raises issues of fact, it was error for the Court to dismiss plaintiffs complaint upon a motion pursuant to CPLR 3211 - a motion which is addressed to the sufficiency of 2 the pleadings and documentary evidence. See Jones v 414 Equities LLC, 57 AD3d 65 (1st Dept 2008). Accordingly, the order appealed from should be reversed, and plaintiff s claims against the owner and construction manager reinstated. 3 QUESTIONS PRESENTED (1) Where the plaintiff alleged in his complaint that he was injured in the course of his work as an ironworker, and that his injuries resulted from the negligence of the defendants and their violation of sections 200, 240(1) and 241(6), and the defendant owner and construction manager admitted, in their answer, plaintiff’s allegations of negligence and Labor Law violations, did the IAS court properly conclude that defendants were nonetheless entitled to dismissal of plaintiffs claim upon a pre-disclosure motion under CPLR 3211(a)(1) and CPLR 3211 (a)(7)? The IAS court answered “Yes.” (2) Where the plaintiff ironworker alleged that his accident took place at a yard several miles from the Lower Manhattan location where a new building was being erected, and while plaintiff was engaged in the bending and cutting of reinforcing steel (rebar), and there was further proof that while such bending and cutting is normally done at the building site itself, the Lower Manhattan building site was too small to accommodate such work, and upon further proof establishing that, under the contract documents, the yard where the accident occurred was treated as a “temporary facility” of the building site, did the IAS properly conclude, as a matter of law, that the yard where the accident occurred was not a “construction area” 4 within the meaning of that statute and that, as such, plaintiffs accident was outside the purview of Labor Law § 241(6)? The IAS court answered “Yes.” (3) Upon the foregoing facts and pleadings, and upon other proof establishing a close nexus between the yard where the accident occurred and the site where the new building was being erected, did the IAS properly dismiss plaintiffs claims, as a matter of law, upon defendant’s motion pursuant to CPLR 3211(a)(1) (dismissal where defense is based on documentary evidence) and CPLR 3211(a)(7) (dismissal where the pleadings fail to state a cause of action)? The IAS court answered “Yes.” 5 STATEMENT OF FACTS On September 3, 2013, ironworker Robert Gerrish was seriously injured in the course of his work when he tripped and fell on debris and other materials in the course of his work (31, 263). Plaintiffs knee, injured in the fall, required surgical intervention (263). The accident occurred at a yard in the Bronx where rebar (reinforcing steel) was being prepared for erection to a construction site at 56 Leonard Street in Manhattan (263). The pertinent facts are not in dispute. Defendants 56 Leonard Street, LLC (“56 Leonard”), and Lend Lease (US) Construction LMB, Inc. (“Lend Lease”) were, respectively, the owner and construction manager at the 56 Leonard Street site, where a 56-story reinforced concrete building was being erected (246, 265, 320). By a “Trade Contract” agreement dated February 13, 2012, 56 Leonard, through its agent (Lend Lease) hired defendant Collavino Structures, LLC (“Collavino”), a Delaware corporation with offices in Jersey City, to erect the building’s concrete superstructure (247, 265). The Trade Contract required Collavino to provide “Temporary Facilities,” when needed, at “locations designated by Owner or Construction Manager” (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 6 shall be furnished by Contractor. Contractor agrees to furnish, at Contractor’s expense, sufficient Temporary Facilities for the efficient performance of the Work. Contractor agrees to place its Temporary Facilities in locations designated by Owner or Construction Manager. When it becomes necessary, in the opinion of the Construction Manager, for Contractor to provide Temporary Facilities, Contractor will do so in an expeditious manner and at no additional cost. (emphasis added) By subcontract, Collavino hired plaintiffs employer Navillus Tile, Inc. (“Navillus”) d/b/a Navillus Contracting, to “receive, bend and install all rebar required for said project” (77, 116, 247). The scope of Navillus’s work was described in the subcontract as follows (116-117): Exhibit A-SCOPE OF WORKS: Agreed pricing of $1.06 per pound (lb) to receive, bend and install all rebar required for said project. Navillus includes to receive, handle and unload all rebar from trucks at Bending yard in the Bronx or on the site. 1. 2. Navillus understands that a lot of the required rebar accessories required for this project have a lead time for ordering. Navillus must coordinate the release and ordering of all accessories in sufficient time to not delay his work or the project. Navillus must understand the client, Lend Lease does not accept alternative fixes for these items. 5. 15. Collavino will provide all trucking for bent rebar from Bronx yard to the site. All straights must be trucked from CFS Steel and Navillus will coordinate all deliveries. 7 18. Navillus includes all labor and foremen to carry out his said work including rigging loads from truck to the required landing area. (emphasis added) Plaintiffs accident occurred in the Bronx “Bending yard” alluded to in the Subcontract Agreement. It was at that location that the rebar would be bent; it would then be transported immediately to 56 Leonard Street (263). Collavino was a licensed user of the so-called “Brown Place Location” in the yard pursuant to a temporary license issued by the Harlem River Yard Ventures, Inc., and HRY Holdings, LLC, as grantors (241). The Temporary License agreement specified the nature of the work that was to be performed at the site by Collavino (referred to as the as “grantee”) (242): WORK. The Grantee has advised the Grantor that certain work shall be performed at the Brown Place location which shall include steel fabrication (cutting and bending) delivered to the Brown Place Location via trucks and then fabricated at the Brown Place Location and then forwarded directly to a construction site in Manhattan (the “Work”). Grantee shall perform no other work at the Brown Place Location without prior written approval from the Grantor. (emphasis added) In an affidavit, Robert Gerrish recalled that the accident took place at a yard located beneath the Willis Avenue Bridge, and north of the Harlem Intermodal Yard in the Bronx. He explained (263): 8 I am an ironworker by trade and on September 3, 2013, I was working for Navillus at a yard located under the Willis Avenue Bridge in the vicinity of 132nd Street and north of the Harlem Intermodal Yard, in the Bronx, New York. On September 3, 2013, I was involved in an accident on the job in which I tripped and fell at the yard. As a result, I was forced to undergo surgical intervention to my right knee in October of 2013. I was performing steel fabrication at the yard and the work being performed at the yard was solely in connection with a construction project at 56 Leonard Street in New York, New York. There was not enough physical space at 56 Leonard Street to perform steel fabrication, so the yard where I was injured was utilized strictly in connection with construction work at 56 Leonard Street. Further, Navillus does not have their own private site, yard, or other area for fabricating steel. Navillus fabricates steel at the individual jobsites where it is contracted to work. Once my trade was finished fabricating the steel at the yard, the steel would be transported directly to 56 Leonard Street. Plaintiff commenced the present action in Supreme Court, New York County to recover damages for the injuries he sustained in the accident. Plaintiffs amended verified complaint named 56 Leonard, Lend Lease, and Collavino as defendants, and alleged negligence and Labor Law violations on their part (57-58): The occurrence as aforesaid wasFIFTEENTH: caused solely and wholly by reason of the negligence, carelessness and recklessness of the defendants, their contractors, agents and employees who were negligent in the ownership, operation, management and control of the aforesaid premises. While plaintiff was lawfully performing his duties, he was caused to trip and fall over dirt, debris, loose material, and other refuse, sustaining 9 serious and severe injuries. Defendants, their contractors, agents and employees failed to ensure that work areas, thoroughfares and passageways were free of tripping and/or slipping hazards; further, failed to ensure that work areas, passageways and thoroughfares were free from sharp projections; further, failed to cover, tag, mark, spray paint and otherwise barricade dangerous and hazardous protruding objects and tripping hazards at the aforesaid premises; further, failed to properly man the jobsite sufficient with laborers to keep up with the cleanup of dirt, debris and other refuse; further, allowed dangerous and hazardous conditions to exist for long periods of time, causing plaintiff to fall and sustain serious and severe injuries; further, violated Sections 200, 240 and 241(6) of the Labor Law of the State of New York, Rule 23 of the Industrial Code of the State of New York, specifically but not limited to 23-1.5, 23-1.7, 23-1.15, 23-1.30, 23-2.1, 23- 2.4, Article 1926 of O.S.H.A and was otherwise negligent, careless and reckless causing plaintiff to sustain serious and severe injuries. In their answer, 56 Leonard and Lend Lease admitted the allegations contained in paragraph FIFTEENTH (61). Nonetheless, after issue was joined, those defendants moved to dismiss the complaint, alleging, inter alia, that sections 200, 240(1) and 241(6) of the Labor Law were inapplicable as plaintiffs accident occurred at “an offsite facility,” and not at “The Project Location” (24). In an order dated April 27, 2015, Supreme Court (Jaffe, J.), granted defendants’ motion in its entirety, stating (7): It is undisputed that at the time of plaintiffs accident, he was fabricating steel rebars at an off-site temporary project facility in the Bronx leased by subcontractor Collavino Structures, LLC, for a 10 construction project located at 56 Leonard Street in Manhattan, ad that the 56 Leonard Street construction site was owned by defendant 56 Leonard LLC, which contracted with defendant general contractor Lend Lease (US) LMB Inc., and with subcontractor Collavino Structure, LLC, which contracted with plaintiffs employer. 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(12), and working at a construction site within the meaning of Labor Law 241(6). ( Flores v ERC Holding LLC, 87 AD3d 419 [1st Dept 2011]). Thus, in Flores, the plaintiffs injury, which occurred while he was engaged in the fabrication of steel at his employer’s Bronx facility and not while performing construction work at the construction site in Queens, was not covered under either Labor Law §§ 240(1) or 241(6). The facts here are indistinguishable from those in Flores. And, as Collavino was not defendants’ agent for the purpose of leasing the offsite premises, and as defendants had no involvement in plaintiffs work at the premises, they may not be held liable under the Labor Law 200. The remaining issues need not be addressed. Plaintiff has appealed. Plaintiff claims against Collavino were not addressed in Supreme Court’s decision. li ARGUMENT POINT I SINCE DEFENDANTS ADMITTED THE STATUTORY AND NEGLIGENCE CLAIMS ASSERTED BY PLAINTIFF, THE IAS COURT ERRED IN DISMISSING THE COMPLAINT The plaintiffs accident occurred during his work as an ironworker employed by nonparty subcontractor Navillus Tile, Inc. (157, 263). The complaint alleges, in paragraph “FIFTEENTH,” that plaintiff was injured when he tripped and fell “over dirt, debris, loose material and other refuse” at the site where he was working (57). Violations of Labor Law §§ 200, 240 and 241(6) as well as various rules of the New York State Industrial Code are alleged (58). Negligence is also asserted. Those allegations are admitted in the answer (61), which states, in pertinent part: Defendants admit to the allegations contained in the paragraph “FIFTEENTH” of the Complaint. The facts which are admitted in the defendants’ answer “constitute formal judicial admissions.” Zegarowicz v Ripatti, 77 AD3d 650, 653 (2d Dept 2010); Falkowski v 81 & 3 of Watertown, 288 AD2d 890, 891 (4th Dept 2010); Prince, Richardson on Evidence § 8-215, at 523-524 [Farrell 11th ed.]). Formal judicial admissions are conclusive of the facts admitted in the action in which they are made. Coffin v Grand Rapids Hydraulic Co., 136 NY 655 (1893); Zegarowicz, supra; Prince, supra. 12 In the present case, since the crucial allegations of negligence and statutory violation have been admitted by defendants 56 Leonard and Lend Lease in their answer, it was clearly error for the Supreme Court to conclude, as a matter of law, that plaintiffs complaint was fatally flawed. POINT II THE IAS COURT ERRED IN CONCLUDING, AS A MATTER OF LAW, THAT PLAINTIFF HAD NO VIABLE CLAIM UNDER LABOR LAW SECTION 241(6) Even were it assumed, arguendo, that Supreme Court was justified in disregarding defendants’ admission, it was nonetheless error for the Court to dismiss plaintiffs claim under Labor Law § 241(6). That statute, in part, provides: All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, when constructing or demolishing buildings or doing any excavating in connection therewith, shall comply with the following requirements: 6. All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places. The commissioner may make rules to carry into effect the provisions of this subdivision, and the owners and contractors and their agents for such work, except owners 13 of one and two-family dwellings who contract for but do not direct or control the work, shall comply therewith. Liability under Labor Law § 241(6) will be imposed where it is shown that one of the contractors or subcontractors at the job site was negligent and violated a “specific, positive command” of the regulations codified in the Industrial Code. Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343 (1998); Ross v Curtis-Palmer Hydro-Electric Co., 81 NY2d 494 (1993). “Once it has been alleged that a concrete specification of the code has been violated, it is for the jury to determine whether the negligence of some party to, or participant in, the construction project caused plaintiffs injury.” Rizzuto, supra. Liability will be imposed vicariously on the general contractor or construction manager for injuries caused by the negligence of their subcontractors. Id.; Walls v Turner Const. Co., 4 NY3d 861, 863-64 (2005) (construction manager subject to liability under Labor Law § 240); Lodato v Greyhawk N. Am., LLC, 39 AD3d 491, 493-94 (2d Dept 2007) (construction manager liable under Labor Law § 241[6]). In the present case, plaintiff has alleged violations of specific mandates of the Industrial Code, including 12 NYCRR 23- 1.7(e) (“tripping hazards”). See, e.g., Capuano v Tishman Const. Corp., 98 AD3d 848 (1st Dept 2012) (12 NYCRR 23-1.7[e][2] is a specific Industrial Code provision “mandating compliance with concrete specifications”). 14 A. Labor Law § 241(6) May Extend To Off-Site Accidents Although the purview of Labor Law § 241(6) is clearly limited to “areas in which construction, excavation or demolition work is being performed,” the courts have not limited the application of the statute to accidents arising at the precise location where a building or structure is being erected. Even accidents which occur some distance from the actual construction site are within the purview of section 241(6) (and section 240) if they occur as materials are “being readied for use” at the site. Thus, in Sprague v Louis Picciano, Inc., 100 AD2d 247, 250 (3d Dept 1984), the Third Department observed that “the proximity of material or equipment to the actual construction site is not necessarily dispositive of whether liability exists away from the site, where a showing is made that the material or equipment is being readied for use in connection with the construction/excavation.” See also Dankulich v Felchar, 247 AD2d 660 (3d Dept 1998) (Labor Law § 240(1) applicable to injury to worker using motorized lift to move from one construction site to another); Adams v Fred Alvaro Const. Corp., Inc., 161 AD2d 1014 (3d Dept 1990) (Labor Law § 240(1) was applicable to an accident in which a worker was injured while unloading materials “intended for imminent use in the ongoing construction of a building”); Brogan v International Bus. Machs. Corp., 157 AD2d 76 (3d Dept 1990) (“the lack of proximity between the place of accident and the precise location of the 15 construction is not dispositive against Labor Law liability for injuries to workers handling construction materials and equipment”). In Shields v General Elec. Co., 3 AD3d 715, 717 (3d Dept 2004), a boilermaker employed by a contractor (Raytheon) was engaged to perform work at a building owned by defendant General Electric Company (“GE”). Although the boilermaker was actually injured off-site - at a fabrication building located some 100 yards away from the building under construction- the Appellate Division held that the accident fell within the purview of Labor Law § 241(6), stating: GE and Raytheon initially contend that Supreme Court erred in failing to dismiss the Labor Law § 241(6) cause of action because Shields was not engaged in construction of the rail car unloading building as required by that provision. We disagree. The Court of Appeals has instructed that Labor Law § 241(6) covers industrial accidents that occur in the context of construction {see Nagel vD&R Realty Corp., 99 NY2d 98, 103 [2002]). In that regard, work that is an “integral part of the construction contract” and is “necessitated by and incidental to the construction and involve[s] materials being readied for use in connection therewith” is construction work {Brogan v Int 7. Bus. Machs. Corp., 157 AD2d 76, 79 [1990]). The record makes plain that on the day of the accident, Shields was engaged in the fabrication and welding of stainless steel duct work that was to be installed in a rail car unloading building that was then under construction. As such, the flanges being made by Shields were part of the construction. Contrary to GE's assertion, Shields' presence in a fabrication building some 100 yards distant from the building under construction did not divest 16 him of the protection of the Labor Law, as “the lack of proximity between the place of accident and the precise location of construction is not dispositive against Labor Law liability for injuries to workers handling construction materials and equipment” (id. at 79). Inasmuch as the record makes plain that Shields was engaged in work on GE's property connected to the construction of the rail car unloading building, Supreme Court properly determined that Labor Law § 241(6) was applicable. Recent Second Department decisions are in accord. In Gonnerman v Huddleston, 78 AD3d 993, 995 (2d Dept 2010), the Appellate Division held that the location near a highway where light poles were being assembled for future installation was a construction site within the meaning of Labor Law § 241(6): The protection afforded workers by Labor Law § 241(6) is not limited to construction involving buildings, but extends to workers involved in, among other things, road construction projects (see Mosher v State of New York, 80 NY2d 286, 289; Ares v State of New York, 80 NY2d 959, 960). Further, its protections are not limited to the actual site of the construction. “Generally, the scope of a work site must be reviewed as ‘a flexible concept, defined not only by the place but by the circumstances of the work to be done’ ” (Adams v Fred Alvaro Const. Corp., 161 AD2d 1014, quoting Holgerson v South 45th St. Garage, 16 AD2d 255, 258, affd. 12 NY2d 1011). Thus, Labor Law § 241(6) extends to areas where materials or equipment are being readied for use (see Adams v Fred Alvaro Constr. Corp., 161 AD2d at 1015), as opposed to areas where they are merely stored for future use (see Sprague v Louis Picciano, Inc., 100 AD2d 247, 250; La France v Niagara Mohawk Power Corp., 89 AD2d 757, 17 758). Here, the evidence was undisputed that the lightpoles the plaintiff was delivering to the staging area were also being assembled there. The evidence regarding the use of the staging area for assembly of the lightpoles for transport to the various points of installation was sufficient to establish that the staging area was a construction site, and that the plaintiff was engaged in construction work within the meaning of the statute. In D’Alto v 22-24 129th St., LLC, 76 AD3d 503, 504-07 (2d Dept 2010), the same Court held that Labor Law § 240(1) was applicable to an accident in which a worker was injured while descending from a cement truck parked some 100 feet away from the construction site. In pertinent part, the Court stated: Since, at the time of the accident, the injured plaintiff had been preparing the cement mixture in his truck for immediate delivery to the work site approximately 100 feet away, an activity necessary and incidental to the alteration work occurring at the work site, his accident is within the purview of Labor Law § 240(1) {see Lombardi v Stout, 80 NY2d 290, 296; Johnson v Rapisarda, 262 AD2d 365; Struble v John Arborio, Inc., 74 AD2d 55, 57). Accordingly, we reject the contention of both PLS and 129th Street that the injured plaintiffs accident is, as a matter of law, outside of the protections of Labor Law § 240(1) because he was approximately 100 feet away from the work site when the accident occurred and those defendants, thus, failed to establish their prima facie entitlements to judgment as a matter of law dismissing the Labor Law § 240(1) cause of action insofar as asserted against each of them. 18 In an earlier decision, Lucas v KD Development Const. Corp., 300 AD2d 634 (2d Dept 2002) the Second Department held that Labor Law § 241(6) was applicable to a flagman struck by a car while walking on a street adjacent to the worksite, where he had been awaiting the arrival of concrete trucks. See also Zito v Occidental Chem. Corp., 259 Ad2d 1015 (4th Dept 1999) (Labor Law § 200 and Labor Law § 241[6] applicable where the worker was injured when he slipped on a spot of grease while reporting to work at a landfill owned by defendant). This Court has similarly held that Labor Law § 241(6) may be applicable to off-site accidents. In McGuinness v Hertz Corp., 15 AD3dl60, 161 (1st Dept 2005), the plaintiff, a foreman at a building site, was struck by a vehicle on an unbarricaded portion of a street immediately adjacent to the site. Citing Lucas and Shields, the Court held that “the work that plaintiff was involved in at the time of his injury constituted an integral part of the construction project and occurred within the worksite.” B. Flores Is Distinguishable In the present case, notwithstanding this Court’s decision in McGuinness, and the Second and Third Department decisions discussed above, nisi prius held that the subject accident fell outside the purview of Labor Law § 241(6), finding that the Bronx yard where the accident occurred was not a construction site (7). This Court’s 19 decision in Flores v ERC Holding LLC, 87 AD3d 419 (1st Dept 2011) was the only decision cited in the Court’s opinion. In Flores, the plaintiffs accident occurred while he was engaged in the fabrication of structural steel at his employer’s Bronx facility and not while performing construction work at the building site in Queens. The Bronx facility was leased by plaintiffs employer, a subcontractor at the Queens site, and was owned by a related entity. The Bronx facility was used by the employer “for the storage of its equipment and materials,” presumably, including equipment and materials that were used at other jobs. In concluding that the Bronx facility was not a “construction area” within the meaning of Labor Law § 241(6), this Court held that both Brogan and Shields were “distinguishable by such factors as physical proximity and common ownership and operation of the premises.” In the present case, by contrast, the bending yard where the accident occurred was not leased by plaintiffs employer, but rather by the project’s general construction contractor-Collavino Structures, LLC. Presumably, it was located at a site approved by the contractor pursuant to Schedule 3 of the Trade Contractor between Lend Lease and Collavino (287). Moreover, it was to be used exclusively for the cutting and bending of steel in conjunction with the 56 Leonard Street project unless the yard owner granted specific permission allowing Collavino to use it for some other purpose (242). Thus, although the 56 Leonard Street building site and 20 the bending yard were not formally under the same ownership, the Bronx yard location where the accident occurred was closely linked to the 56 Leonard Street project itself, and not the plaintiffs employer, Navillus. Moreover, the so-called Brown Place Location was not a mere storage yard. In effect, it was an active construction site, where rebar pieces that had been fabricated elsewhere would be cut and bent for imminent use in connection with the work at 56 Leonard Street. Typically, such bending and cutting are performed at the actual construction site, but this procedure could not be followed at the 56 Leonard Street job because of the limited space available there (263). C. Plaintiff Was Engaged In “Construction Work” In A “Construction Area” In a sense, the use of the term “steel fabrication” to describe the work that plaintiff was performing at the time of his accident is a bit misleading. The steel rods that plaintiff was working with at the time he fell were actually manufactured elsewhere. Plaintiffs duties at the Bronx Yard were limited to cutting and bending steel rods. This is the kind of specialized ironwork performed by metal lathers; plaintiffs union, Metal Lathers Local 46 was a signatory of the project labor agreement for the 56 Leonard Street site (460-461, 510). Under its subcontract agreement with Collavino, plaintiffs employer, Navillus, hired the lathers who would “receive, bend and install all rebar required for said project” (77, 116, 247). Plaintiff was performing such contract work at the time of his accident. 21 There is not the slightest doubt that the work that plaintiff was performing at the time of his accident- the bending and cutting of rebar-constituted construction work within the meaning of Labor Law § 241(6). For example, in McCay v J.A. Jones-GMO, LLC, 74 AD3d 615, 615-16 (1st Dept 2010), this Court held that a laborer had viable claims under Labor Law § 240(1), as well as Labor Law § 241(6) for injuries he sustained when he fell while carrying a bundle of rebar rods toward a rebar bending machine, so that they could be bent for installation. See McCay Record on Appeal pp 285-286, 291, 419-420. In the present case, since plaintiff was engaged in construction work, it stands to reason that the area where he was performing the work was a “construction area” within the meaning of Labor Law § 241(6). Defendant should not be exculpated from liability under Labor Law § 241(6) merely because, due to the physical restraints of the Lower Manhattan site where the building was being erected, it was not possible to perform routine rebar bending work at the site itself. Rather, Labor Law § 241(6) should be construed broadly, in accordance with its legislative purpose - to promote proper safety practices at construction sites. See NY Legis. Ann., 1969, p 407, quoted in Haimes v New York Tel. Co., 46 NY2d 132 (1978). The motion court’s narrow decision, rejecting plaintiffs Labor Law § 241(6) claim as a matter of law, should be set aside. 22 POINT III DEFENDANTS WERE NOT ENTITLED TO DISMISSAL UNDER CPLR 3211 Plaintiff submits that the defendants’ motion for dismissal was not simply deficient on the merits. The motion should have been denied on procedural grounds as well. Defendants’ motion seeks dismissal of plaintiffs claim under CPLR 3211(a)(1) (defense founded upon documentary evidence) as well as CPLR 3211(a)(7) (failure to state a cause of action). Plaintiff believes that neither of these sections provides a proper procedural framework for dismissal of plaintiffs complaint. Defendants contend that the “documentary evidence” establishes that the area where plaintiffs accident occurred was not a “construction area” within the meaning of Labor Law § 241(6). However, under the Trade Contract between the owner and Collavino, the “Superstructure Concrete Contractor,” the yard location where the accident occurred was plainly a “temporary project site facility” governed by Schedule 3 (287). Under Schedule 3 the bending and cutting work that plaintiff was performing at the time of his accident was required to be at a “location designated by Owner or Construction Manager” (287). The Trade Contract appears to belie the assertion, contained in the affidavit of Lend Lease’s vice president, Gerald Bianco, that neither 56 Leonard nor Lend Lease 23 “control[led] the premises where the accident occurred” (247). Also relevant is Mr. Gerrish’s affidavit, in which he states, that Lend Lease was the “construction manager for the work being performed at the Bronx Yard” at the time of the accident (263). Given the factual disputes, it is submitted that Supreme Court was unjustified in concluding, as a matter of law, that “defendants had no involvement of plaintiffs work at the premises” (7). There was a question of fact as to whether the defendants effectively exercise “common ownership and operation of the premises” at 56 Leonard Street and the Bronx Yard. Flores, supra. Such a factual dispute is relevant in determining whether plaintiffs accident occurred within a “construction area” within the meaning of Labor Law § 241(6). Flores, supra. “A motion to dismiss a complaint pursuant to CPLR 3211(a)(1) may be granted only if the documentary evidence utterly refutes the factual allegations of the complaint and conclusively establishes a defense to the claims as a matter of law.” Jones v Rochdale Vill., Inc., 96 AD3d 1014, 1016-18 (2d Dept 2012), quoting Integrated Const. Servs., Inc. v Scottsdale Ins. Co., 82 AD3d 1160 (2d Dept 2011). Moreover, defendants cannot plausibly maintain that a deficiency is evident from the face of the pleadings. See CPLR 3211(a)(7). As previously noted (See Point I, supra) plaintiffs allegations of negligence and Labor Law violation are admitted by 56 Leonard and Lend Lease in their Answer. 24 Of course, where a Court believes that the issues raised on a CPLR 3211 motion may be resolved by consideration of evidence, it is empowered to convert a CPLR 3211 motion into a motion for summary judgment. See CPLR 3211(c). But such a conversion is only appropriate where “adequate notice” is given to both parties. See CPLR 3211(c); Jones, supra. In the present case, no such notice was given, and defendants’ motion could not properly be considered a motion for summary judgment. Accordingly, it was error for the IAS court to dismiss plaintiffs complaint pursuant to CPLR 3211. CONCLUSION The order appealed from should be reversed, and plaintiffs claims in common-law negligence and under the Labor Law reinstated. Dated: New York, New York February 12, 2016 Respectfully submitted, Sacks and Sacks, LLP Attorneys for Plaintiff ROBERT GERRISH 150 Broadway- 4th Floor New York, New York 10038 (212) 964-5570 Of Cdhnsel: Scott N. Singpri Esq. 25 Printing Specifications Statement I, Scott N. Singer, attorney for the Plaintiff-Appellant, hereby certify that this brief is in compliance with § 600.10(d)(l)(v). The brief was prepared using Microsoft Word 2003. The typeface is Times New Roman. The main body of the brief is in 14 pt. Footnotes and Point Headings are in compliance with § 600.10(d)(1)(i). The brief contains 5,688 words counted by the word-processing program. Dated: New York, New York February 12, 2016 Sacks and Sacks, LLP By: Scott N. Singer, Esq. Attorney for Plaintiff - Appellant SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION -FIRST DEPARTMENT X Index No. 159408/13ROBERT GERRISH, Plaintiff, PRE-ARGUMENT STATEMENT - against - 56 LEONARD LLC, LEND LEASE (US) CONSTRUCTION LMB INC., and COLLAVINO STRUCTURES, LLC, Defendants-Respondents — X Pursuant to Section 600.17 of the Rules of the Appellate Division, First Department, plaintiff-appellant states as follows: 1. The title of the action is as set forth above. The names of the original parties are as set forth above. There has been no2. change in the parties. 3. Name, address, and telephone number of counsel for appellant: SACKS AND SACKS, LLP, 150 Broadway, 4th Floor, New York, New York 10038, (212) 964- 5570. 4. Name, address, and telephone number of counsel for respondent: COZEN O'CONNOR Seth J. Zuckerman, Esq. Attorneys for Defendants 56 LEONARD LLC and LEND LEASE (US) CONSTRUCTION LMB INC. 45 Broadway - 16th Floor New York, N.Y. 10006 212-509-9400 BARTLETT, MCDONOUGH & MONAGHAN, LLP Attorneys for Defendant COLLAVINO STRUCTURES, LLC 170 Old Country Road Mineola, New York 11501 516-877-2900 Court and county, or administrative body from which the appeal is taken:5. Order of the Supreme Court, New York County (Jaffe, J.). Nature and object of the cause of action or special proceeding: Tort-6. personal injury (construction accident). 7. Result reached in the court or administrative body below: Upon a motion for summary judgment, the IAS Court dismissed the complaint as against defendants 56 Leonard LLC, and Lend Lease (US) Construction LMB Inc. 8. Grounds for seeking reversal, annulment, or modification: At the very least, the record evidence presented questions of fact as to defendants' violation of Labor Law § 200, § 240(1) and § 241(6). 9. There are no related actions, and no other pending appeals in this action. 10. Notice of Appeal and relevant order are annexed hereto. Dated: New York, New York May 14, 2015 SACKS ANy SACKS' LLP/ BY: SCOTT K SINGER, ESQÿj Attorneys for the PlaintiffijbAppellants ROBERT GERRISH 150 Broadway, 4th Floor New York, New York 10038 (212) 964-5570 TO: COZEN O'CONNOR Seth J. Zuckerman, Esq. Attorneys for Defendants 56 LEONARD LLC and LEND LEASE (US) CONSTRUCTION LMB INC. 45 Broadway - 16th Floor New York, N.Y. 10006 212-509-9400 BARTLETT, MCDONOUGH & MONAGHAN, LLP Attorneys for Defendant COLLAVINO STRUCTURES, LLC 170 Old Country Road Mineola, New York 11501 516-877-2900