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 New York Supreme Court Appellate Division – First Department ROBERT GERRISH, Plaintiff-Appellant, – against – 56 LEONARD LLC and LEND LEASE (US) CONSTRUCTION LMB INC., Defendants-Respondents, – and – COLLAVINO STRUCTURES, LLC, Defendant. REPLY 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 i TABLE OF CONTENTS TABLE OF CASES ii PRELIMINARY STATEMENT 1 ARGUMENT POINT I INSOFAR AS PLAINTIFF’S ALLEGATIONS OF NEGLIGENCE AND LABOR LAW VIOLATIONS ON THE PART OF DEFENDANTS-RESPONDENTS WERE ADMITTED IN THE ANSWER, THE IAS COURT ERRED IN DISMISSING THE COMPLAINT 1 POINT II THE IAS COURT ERRED IN DISMISSING PLAINTIFF’S CLAIM UNDER LABOR LAW SECTION 241(6) 3 A. Flores is Distinguishable 3 B. Plaintiff Was Engaged In “Construction Work” in a “Construction Area” 5 C. Dismissal Under CPLR 3211 Was Improper 6 CONCLUSION 8 ii TABLE OF CASES Brogan v International Bus. Machs. Corp., 157 AD2d 76 (3d Dept 1990)… 5 Education Resources Inst., Inc. v. Hawkins, 88 AD3d 484, 485 (1st Dept 2011) ………………………………………………… 2 Flores v ERC Holding LLC, 87 AD3d 419 (1st Dept 2011) ………..... 3 Gonnerman v Huddleston, 78 AD3d 993, 995 (2d Dept 2010) ………. 5 Jones v Rochdale Vill., Inc., 96 AD3d 1014, 1016-18 (2d Dept 2012)... 7 McCay v J.A. Jones-GMO, LLC, 74 AD3d 615, 615-16 (1st Dept 2010).. 5 Shields v General Elec. Co., 3 AD3d 715, 717 (3d Dept 2004)…………. 5 1 PRELIMINARY STATEMENT Plaintiff Robert Gerrish submits the within brief in opposition in reply to the brief submitted on behalf of defendants-respondents, 56 Leonard LLC and Lend Lease (US) Construction LMB, and in further support of plaintiff’s appeal, which seeks reversal of Supreme Court’s order dated April 27, 2015, and reinstatement of plaintiff’s complaint in its entirety. Respectfully, plaintiff submits that the arguments raised by defendants- respondents in their brief merely confirm that, at the very least, issues of fact have been raised which preclude dismissal of plaintiff’s Labor Law and negligence claims. ARGUMENT POINT I INSOFAR AS PLAINTIFF’S ALLEGATIONS OF NEGLIGENCE AND LABOR LAW VIOLATIONS ON THE PART OF DEFENDANTS- RESPONDENTS WERE ADMITTED IN THE ANSWER, THE IAS COURT ERRED IN DISMISSING THE COMPLAINT In their brief, defendants-respondents implicitly concede that the admissions contained in their Answer preclude dismissal of plaintiff’s Amended Verified Complaint. In paragraph “FIFTEENTH” of the Complaint, plaintiff alleged that his accident was the result of the defendant’s negligence, and their violations of sections 200, 240 and 241(6) of the Labor Law (58). In their Answer, defendants-respondents 2 “admit[ted] to the allegations contained in paragraph “FIFTEENTH” of the complaint” (61). Defendants-respondents assert that this admission of liability was a “mere clerical error.” Brief for Defendants-Respondents p 10. However, there is absolutely nothing in the Record on Appeal to support this assertion. In fact, we do not know why defendants admitted the negligence and statutory violations asserted by the plaintiff in ¶ 15, but there is no dispute that the allegations were admitted. Defendants-respondents also assert that such a clerical error may “easily be corrected” pursuant to CPLR 3025. The fact is, the defendants-respondents have not sought any relief, whatsoever, pursuant to CPLR 3025. Finally, defendants argue that plaintiff’s contentions concerning the admissions are improperly raised for the first time on the present appeal. However, this Court has explicitly held that “new arguments” of this sort are properly considered on appeal if they raise issues of law “which may be determined from the face of the complaint and from defendant’s admission.” Education Resources Inst., Inc. v. Hawkins, 88 AD3d 484, 485 (1st Dept 2011) (new argument concerning the statute of limitations was properly raised upon an appeal from an order denying defendants’ motion pursuant to CPLR 3211[a][5] and [7]). 3 POINT II THE IAS COURT ERRED IN DISMISSING PLAINTIFF’S CLAIM UNDER LABOR LAW SECTION 241(6) Under Education Resources, supra, and given defendants’ express admission, it is clear that the IAS Court erred in granting defendants’ motion to dismiss pursuant to CPLR 3211. Moreover, even were defendants’ admission disregarded, dismissal of plaintiff’s Labor Law § 241(6) claim was unwarranted. A. Flores is Distinguishable In addressing the merits of plaintiff’s Labor Law § 241(6) claim, defendants- respondents rely almost entirely upon the decision of this Court in Flores v ERC Holding LLC, 87 AD3d 419 (1st Dept 2011). In Flores, plaintiff Ricardo Flores, a steel framing laborer, was injured while performing work at a facility in the Bronx that was leased by his employer, Kriti Contracting, and used by Kriti for the storage of its equipment and its materials. Kriti had been engaged to perform steel framing work by a general contractor that was erecting a building in Queens County. However, it appears Mr. Flores worked exclusively at the Bronx County site and, on the day of the accident, he had been working there, cutting 40-foot length beams into 17 foot segments. He was injured while attempting to affix a 700-pound steel beam to the bucket of a backhoe so that it could be transported to the Queens site. Although Mr. Gerrish and Ricardo Flores were both ostensibly involved in steel “fabrication” at the time of their accidents, the similarity ends there. Mr. 4 Flores’ work involved the handling and cutting of enormous pieces of steel weighing hundreds – or even thousands – of pounds. Work of this sort is understandably done at off-site locations, and not at places where construction is actually underway. Moreover, the Bronx storage site where Mr. Flores’ accident occurred was leased by his own employer, and was evidently used in connection with all of Kriti’s work, not just the Queens project. By contrast, at the time of his accident, Mr. Gerrish had been working with rebar – i.e. reinforcing steel – that typically comes in narrow rods. Rebar bending – sometimes referred to as “fabrication – is normally performed by specialized ironworkers known as lathers, who perform their work at the location where buildings are being erected (263). In the present case, because of space limitations at the 56 Leonard Street jobsite, Mr. Gerrish, a lather, had to bend steel at an off-site yard in the Bronx (id.). Significantly, the Bronx location was leased – not by plaintiff’s own employer, Navillus – but by the general construction contractor for the 56 Leonard Street project, defendant Collavino Structures, LLC (241). The work that was being performed at the Bronx site was limited to work directly linked to the 56 Leonard Street project (242). In effect, the Bronx yard where plaintiff’s accident occurred was simply an “annex” of the actual construction site in Manhattan. As such, the rebar-bending work that plaintiff engaged in at the time of his accident was “construction work,” and the Bronx accident location was 5 a “construction area” within the meaning of Labor Law § 241(6). See e.g., McCay v J.A. Jones-GMO, LLC, 74 AD3d 615, 615-16 (1st Dept 2010), and the McCay Record on Appeal at pp 285-286, 291, and 419-420. B. Plaintiff Was Engaged In “Construction Work” in a “Construction Area” The fact that the Bronx location where the accident occurred was several miles away from the main construction site in Lower Manhattan does not, in and of itself, remove plaintiff’s accident from the purview of Labor Law § 241(6). Even accidents at remote locations may give rise to Labor Law § 241(6) liability if they involve “materials being readied for use in connection” with construction. See Shields v General Elec. Co., 3 AD3d 715, 717 (3d Dept 2004), quoting Brogan v International Bus. Machs. Corp., 157 AD2d 76 (3d Dept 1990). In Gonnerman v Huddleston, 78 AD3d 993, 995 (2d Dept 2010), the Second Department explained: 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. 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.’ ” Thus, Labor Law § 241(6) extends to areas where materials or equipment are being readied for use, as opposed to areas where they are merely stored for future use. (citations omitted, emphasis added) 6 Other relevant case law pertaining to off-site accidents is discussed in pp 15- 19 of the Brief for Plaintiff-Appellant of the principal Brief for Plaintiff-Appellant. C. Dismissal Under CPLR 3211 Was Improper In the present case, the facts suggest that plaintiff’s accident did occur as material was being readied for imminent use at the 56 Leonard Street site. The circumstance that the record is, at this point, still undeveloped, merely serves to buttress plaintiff’s contention that dismissal of the case pursuant to CPLR 3211 is, at the present time, premature and unwarranted. Given defendants’ significant admission, defendants cannot seriously maintain that dismissal is warranted based upon the pleadings alone. See CPLR 3211(a)(7). Nor have defendants established the defense based upon “documentary evidence.” See CPLR 3211(a)(1). Pursuant to the terms of the Trade Contract between the owner and Collavino, the “Superstructure Concrete Contractor,” the yard location where the accident occurred is considered a “temporary project site facility” governed by Schedule 3 (287). As such, the bending and cutting work that plaintiff was performing at the time of his accident was required to be done at a “location designated by owner or construction manager” (id.). In an affidavit submitted in support of defendants’ motion, Gerald Bianco, asserts that plaintiff has misinterpreted the meaning of the contractual provisions in question (591). However, plaintiff should not be required 7 to take Mr. Bianco at his word, particularly given the fact that he has not been deposed. This issue, along with other issues relating to the nature of the work plaintiff was performing at the time of his accident, and the physical constraints at the 56 Leonard Street location, can only be determined after disclosure has been completed. There are also questions of fact concerning the “common ownership and operation of the premises” at 56 Leonard Street and the Bronx accident location. Upon a motion brought pursuant to CPLR 3211(a)(1), the Court is not empowered to resolve issues of fact. Before considering whether dismissal is warranted on the basis of the evidence, the Court must give “adequate notice” to both parties. See CPLR 3211(c); Jones v Rochdale Vill., Inc., 96 AD3d 1014, 1016- 18 (2d Dept 2012). In the present case, no such notice was given. As such, it was error for the IAS Court to grant defendants’ motion to dismiss pursuant to CPLR 3211. Rather, the parties should be permitted to proceed to discovery. If, at the conclusion of disclosure, it appears that no issues of fact remain, then either party will have the opportunity to move for summary judgment. CONCLUSION The order appealed from should be reversed, and plaintiffs claims reinstated. Dated: New York, New York March 31, 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 Counsel: Scott N. Singer, 8 Printing Specifications Statement I, Scott N. Singer, attorney for the Plaintiff-Appellant, hereby certify that this brief is in compliance with § 600.10(d)(1)(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 1,598 words counted by the word-processing program. Dated: New York, New York March 31, 2016 Sacks and Sacks, LLP By: Scott N. Singer, Esq. Attorney for Plaintiff - Appellant