Klimowiczv.Powell Cove Associates

Supreme Court, Appellate Division, Second Department, New York.Nov 6, 2013
975 N.Y.S.2d 419 (N.Y. App. Div. 2013)
975 N.Y.S.2d 419111 A.D.3d 6052013 N.Y. Slip Op. 7158

2013-11-6

Zdzislaw KLIMOWICZ, appellant, v. POWELL COVE ASSOCIATES, LLC, et al., defendants third-party plaintiffs-respondents; Vinny Construction Corp., third-party defendant-respondent.

Bader, Yakaitis & Nonnenmacher, LLP, New York, N.Y. (John J. Nonnenmacher and Jesse M. Young of counsel), for appellant. French & Casey, LLP, New York, N.Y. (Douglas R. Rosenzweig of counsel and Russo & Toner, LLP [John J. Komar], former of counsel on the brief), for defendants third-party plaintiffs-respondents.



Bader, Yakaitis & Nonnenmacher, LLP, New York, N.Y. (John J. Nonnenmacher and Jesse M. Young of counsel), for appellant. French & Casey, LLP, New York, N.Y. (Douglas R. Rosenzweig of counsel and Russo & Toner, LLP [John J. Komar], former of counsel on the brief), for defendants third-party plaintiffs-respondents.
DANIEL D. ANGIOLILLO, J.P., L. PRISCILLA HALL, LEONARD B. AUSTIN, and ROBERT J. MILLER, JJ.



In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Queens County (James J. Golia, J.), dated December 12, 2011, as granted those branches of the cross motion of the defendants third-party plaintiffs, and those branches of the separate cross motion of the third-party defendant, which were for summary judgment dismissing the causes of action alleging violations of Labor Law §§ 200 and 241(6).

ORDERED that the order is modified, on the law, by deleting the provisions thereof granting those branches of the cross motion of the defendants third-party plaintiffs, and those branches of the separate cross motion of the third-party defendant, which were for summary judgment dismissing the cause of action alleging violations of Labor Law § 200 and so much of the cause of action alleging violations of Labor Law § 241(6) as was predicated upon alleged violations of 12 NYCRR 23–5.1(c), 23–5.1(e)(1), and 23–5.3(f), and substituting therefor provisions denying those branches of the separate cross motions; as so modified, the order is affirmed insofar as appealed from, with one bill of costs payable to the appellant by the defendants third-party plaintiffs-respondents and the third-party defendant-respondent.

The plaintiff, a bricklayer employed by the third-party defendant, allegedly injured his right shoulder when, while working on an elevated scaffold at a construction site, his right foot fell through an opening created by missing planks and he grabbed onto overhead planks to stop himself from falling.

The Supreme Court improperly granted those branches of the cross motion of the defendants third-party plaintiffs, and those branches of the separate cross motion of the third-party defendant, which were for summary judgment dismissing so much of the cause of action alleging violations of Labor Law § 241(6) as was predicated upon alleged violations of 12 NYCRR 23–5.1(c), 23–5.1(e)(1), and 23–5.3(f), as the movants failed to establish, prima facie, their entitlement to judgment as a matter of law in this regard.

Although a plaintiff asserting a Labor Law § 241(6) cause of action must allege a violation of a specific and concrete provision of the Industrial Code ( see Ross v. Curtis–Palmer Hydro–Elec. Co., 81 N.Y.2d 494, 503, 601 N.Y.S.2d 49, 618 N.E.2d 82; Kowalik v. Lipschutz, 81 A.D.3d 782, 783, 917 N.Y.S.2d 251; Samuel v. A.T.P. Dev. Corp., 276 A.D.2d 685, 686, 714 N.Y.S.2d 729), a failure to identify the Code provision in the complaint or bill of particulars is not fatal to such a claim ( see Galarraga v. City of New York, 54 A.D.3d 308, 310, 863 N.Y.S.2d 47; Kelleir v. Supreme Indus. Park, 293 A.D.2d 513, 513–514, 740 N.Y.S.2d 398; Noetzell v. Park Ave. Hall Hous. Dev. Fund Corp., 271 A.D.2d 231, 705 N.Y.S.2d 577). The plaintiff's belated allegations that the defendants third-party plaintiffs violated 12 NYCRR 23–5.1(c), 23–5.1(e)(1), 23–5.1(f), and 23–5.3(f) involved no new factual allegations, raised no new theories of liability, and caused no prejudice to the defendants third-party plaintiffs ( see Kelleir v. Supreme Indus. Park, 293 A.D.2d at 513–514, 740 N.Y.S.2d 398; Noetzell v. Park Ave. Hall Hous. Dev. Fund Corp., 271 A.D.2d 231, 705 N.Y.S.2d 577; see also O'Connell v. Consolidated Edison Co. of N.Y., 276 A.D.2d 608, 610, 714 N.Y.S.2d 328). The defendants third-party plaintiffs were put on sufficient notice that the cause of action alleging violations of Labor Law § 241(6) related to missing scaffold planks through the plaintiff's bill of particulars and deposition testimony. Thus, they cannot reasonably claim prejudice or surprise.

Moreover, 12 NYCRR 23–5.1(c), 23–5.1(e)(1), and 23–5.3(f) set forth specific, rather than general, safety standards, and are sufficient to support a Labor Law § 241(6) cause of action ( see Abreo v. URS Greiner Woodward Clyde, 60 A.D.3d 878, 880, 875 N.Y.S.2d 577; Tomyuk v. Junefield Assoc., 57 A.D.3d 518, 521, 868 N.Y.S.2d 731; Soltes v. Brentwood Union Free School Dist., 47 A.D.3d 804, 805, 849 N.Y.S.2d 628; O'Connor v. Spencer [1997] Inv. Ltd. Partnership, 2 A.D.3d 513, 515, 769 N.Y.S.2d 276; Sopha v. Combustion Eng'g, 261 A.D.2d 911, 912, 690 N.Y.S.2d 813). The defendants third-party plaintiffs and the third-party defendant did not establish either that those Industrial Code provisions were inapplicable to the facts of this case, or that the alleged violation of those provisions was not a proximate cause of the damages alleged ( see Ross v. Curtis–Palmer Hydro–Elec. Co., 81 N.Y.2d at 501–505, 601 N.Y.S.2d 49, 618 N.E.2d 82; Treu v. Cappelletti, 71 A.D.3d 994, 998, 897 N.Y.S.2d 199; Abreo v. URS Greiner Woodward Clyde, 60 A.D.3d at 880, 875 N.Y.S.2d 577). However, 12 NYCRR 23–5.1(f) does not support the cause of action alleging violations of Labor Law § 241(6) because that Industrial Code provision sets forth a general, rather than a specific, safety standard ( see Sopha v. Combustion Eng'g, 261 A.D.2d at 912, 690 N.Y.S.2d 813; Moutray v. Baron, 244 A.D.2d 618, 619, 663 N.Y.S.2d 926).

“Labor Law § 200(1) is a codification of the common-law duty of an owner or general contractor to provide workers with a safe place to work” (Ortega v. Puccia, 57 A.D.3d 54, 60, 866 N.Y.S.2d 323; see Ross v. Curtis–Palmer Hydro–Elec. Co., 81 N.Y.2d at 505, 601 N.Y.S.2d 49, 618 N.E.2d 82). Where, as here, a plaintiff's claim arises out of alleged defects or dangers in the methods or materials of the work, to prevail on a Labor Law § 200 cause of action, the plaintiff must show that the defendant “had the authority to supervise or control the performance of the work” (Ortega v. Puccia, 57 A.D.3d at 61, 866 N.Y.S.2d 323; see Pilato v. 866 U.N. Plaza Assoc., LLC, 77 A.D.3d 644, 646, 909 N.Y.S.2d 80). “A defendant has the authority to supervise or control the work for purposes of Labor Law § 200 when that defendant bears the responsibility for the manner in which the work is performed” (Ortega v. Puccia, 57 A.D.3d at 62, 866 N.Y.S.2d 323). “[T]he right to generally supervise the work, stop the contractor's work if a safety violation is noted, or to ensure compliance with safety regulations and contract specifications is insufficient to impose liability under Labor Law § 200 or for common-law negligence” (Austin v. Consolidated Edison, Inc., 79 A.D.3d 682, 684, 913 N.Y.S.2d 684 [internal quotation marks omitted]; see Cambizaca v. New York City Tr. Auth., 57 A.D.3d 701, 702, 871 N.Y.S.2d 220).

Here, the defendants third-party plaintiffs and the third-party defendant failed to make a prima facie showing that the defendants third-party plaintiffs did not have the authority to supervise or control the manner in which the plaintiff's work was performed ( see Torres v. Perry Street Dev. Corp., 104 A.D.3d 672, 676, 960 N.Y.S.2d 450; Hurtado v. Interstate Materials Corp., 56 A.D.3d 722, 723, 868 N.Y.S.2d 129). Accordingly, those branches of the respective cross motions which were for summary judgment dismissing the cause of action alleging violations of Labor Law § 200 should have been denied, regardless of the sufficiency of the opposition papers ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572).