The following papers number 1 to 13 read herein:Papers Numbered Notice of Motion/Order to Show Cause/ Petition/Cross Motion and Affidavits (Affirmations) Annexed 1-2, 3-4, 5-6 Opposing Affidavits (Affirmations) 7, 8, 9 Reply Affidavits (Affirmations) 10, 11, 12, 13
Upon the foregoing papers, defendant Messe Frankfurt Incorporated (Messe) moves for an order, pursuant to CPLR 3212, granting it summary judgment dismissing all claims asserted against it. Defendant Metropolitan Exposition Services, Inc. (Metropolitan) also moves for an order, pursuant to CPLR 3212, granting it summary judgment dismissing all claims asserted against it. Plaintiffs James Lewis and Michelle Lewis cross-move for an order, pursuant to CPLR 3212, granting them partial summary judgment on the issue of liability pursuant to Labor Law § 241 (6) against defendants.
This court will hereinafter use singular references to James Lewis, the physically injured plaintiff, in this decision and order. Plaintiff Michelle Lewis, his wife, asserts a cause of action for loss of services; that derivative claim is presently immaterial to the instant motions.
Defendant New York Convention Center Development Corporation was awarded summary judgment, and this action has been dismissed as asserted against it; accordingly, "defendants" refer only to Messe and Metropolitan.
Plaintiff commenced the instant action by electronically filing a summons and verified complaint on January 15, 2014; the pleadings were amended on March 11, 2015. Plaintiff alleges that on July 12, 2013, he received an electric shock from an electrical box on the floor of the Javits Center in Manhattan; plaintiff suffered injuries as a result of the shock.
More specifically, the record indicates that plaintiff was part of a carpentry company retained by the owner of the Javits Center. On the date of the accident, plaintiff and his coworkers were tasked with placing carpet sections on the concrete floor; this was done in anticipation of an impending trade show exhibit called Texworld USA. While plaintiff was walking on the carpeted floor, he apparently received a jolt from a covered electrical box; he was propelled into one of the wooden crates in which exhibit materials were shipped.
The complaint contains, among other things, causes of action alleging violations of sections 240 (1), 241 (6) and 200 of the Labor Law, as well as negligence. The pleadings state that the defendants are "owners" of the subject premises, "contractors" hired by the owners to perform construction work, or "agents" of the owners and contractors (as those terms are defined in the Labor Law and interpreted by the courts of New York State). As relevant to the instant motions, plaintiff claims that the owners are thus subject to vicarious liability, without regard to fault, according to the Labor Law. Plaintiff also contends that the owners breached their common-law duty to maintain a safe workplace. Plaintiff asserts that these violations of the Labor Law and breaches of the common-law duty of care proximately caused his injuries. Plaintiff seeks damages as a result.
Each remaining defendant interposed an answer, and discovery and motion practice ensued. On January 25, 2018, plaintiff filed a note of issue, certifying that discovery is complete and that this matter is ready for trial. The instant motions followed.
Arguments in Support of Messe's Motion
In support of its motion, Messe first contends that the record establishes that Messe is not subject to vicarious liability pursuant to the Labor Law. Messe notes that such liability is predicated on either control of the relevant work or property, or an ownership or possessory interest in the property. Messe states that none of those prerequisites are present. Messe points out that its only connection to the accident is that it held an event—the trade show—at the Javits Center; Messe asserts that it did not own, control or possess any relevant premises connected to the subject accident. Messe further claims that it had no control over the subject work; indeed, Messe continues, the relevant written agreements stipulated that the property owner alone would provide some of the relevant trade workers.
Messe maintains that the record establishes that plaintiff received instructions solely from his Metropolitan foreman (who testified that no agent of Messe supervised relevant work). Messe asserts that the same testimony establishes that Messe's involvement in the subject displays and booth was limited to aesthetical decisions. Moreover, Messe continues, relevant testimony establishes both that no one from Messe was present on the date of the accident and that Metropolitan was responsible for site and equipment safety. Messe also claims that its agents did not set up or dismantle the display booth, place carpets or run electrical lines; Messe states that Metropolitan set up the booths and the owner placed carpets. In sum, Messe disclaims any ownership, possession or control of any relevant area or equipment, alleging that the record supports this position. Messe concludes that it is thus not subject to any vicarious liability for the accident, and, consequently, this court should grant Messe's motion for summary judgment dismissing the complaint.
Alternatively, Messe turns to plaintiff's individual claims. First, Messe asserts that plaintiff does not have a viable Labor Law § 240 (1) claim because he neither fell from a height nor was struck by an object that fell from a height. Instead, Messe continues, the accident occurred when he was at ground level and received an electrical shock. Messe reasons that this accident does not involve the elevation-related risks that Labor Law § 240 (1) was designed to protect against. Messe concludes that, therefore, plaintiff's Labor Law § 240 (1) claim should be dismissed.
Next, Messe argues that plaintiff's Labor Law § 241 (6) claims should be dismissed on their merits. Messe points out that a viable Labor Law § 241 (6) claim requires a plaintiff to demonstrate a violation of a provision of the Industrial Code (12 NYCRR ch. 1, subch. A) that both applies to the facts and contains a concrete mandate. Here, continues Messe, the pleadings do not identify any such provision of the Industrial Code. Messe concludes that, therefore, plaintiff's Labor Law § 241 (6) claim should be dismissed.
Lastly, Messe argues that, according to the record, plaintiff has no viable common-law negligence or Labor Law § 200 claims against it. Specifically, Messe points out that common-law negligence and Labor Law § 200 claims are sustainable only if a claimant is either alleging that a dangerous premises condition caused the accident or seeking recovery against those who gave directions or instructions to the injured worker. Here, Messe continues, plaintiff received no supervision or direction by agents of Messe. Messe states that, to the contrary, its involvement was limited to designing the aesthetics of the booths. Messe asserts that Metropolitan received construction plans and directed how booths were to be built. Messe reiterates that the owner's electricians were exclusively responsible for electrical fixtures (such as floor outlets). Messe also claims that any control over the booths that it arguably retained constitutes mere general supervisory authority, which is insufficient control for Messe to be subject to Labor Law § 200 or common-law negligence liability.
To the extent that plaintiff claims that a dangerous premises condition caused the subject accident, Messe adds that it did not own, control or maintain any part of the Javits Center; only the owner did. Furthermore, Messe points out that the record indicates that agents of Messe neither created or exacerbated any dangerous condition nor had notice of any such condition. Messe claims that evidence of notice, such as prior complaints or similar accidents, is absent from the record. Messe states that even assuming for the sake of argument that the subject electrical outlet qualifies as a dangerous condition, no such danger was apparent—the outlet was covered by carpeting. Messe reasons that, therefore, the record contains no evidence of either actual or constructive notice. For these reasons, Messe concludes that plaintiff has no viable common-law negligence or Labor Law § 200 claims against it; thus, argues Messe, these claims should be dismissed. As such, Messe contends that the complaint should be dismissed as asserted against it.
Arguments in Support of Metropolitan's Motion
In support of its motion for summary judgment dismissing all claims asserted against it, Metropolitan first argues that plaintiff's claims against it are barred by the Workers' Compensation Law. To support this assertion, Metropolitan claims that plaintiff was its "special employee." Metropolitan notes the following: 1) plaintiff testified that he considered himself a Metropolitan employee; 2) plaintiff was injured while performing work for Metropolitan; and 3) agents of Metropolitan supervised, directed and controlled plaintiff's work at relevant times. Metropolitan concludes that these facts establish the "special employee" relationship.
Metropolitan points out that the Workers' Compensation Law bars all liability save for workers' compensation insurance benefits for employees who are injured while performing work for their employer. Here, Metropolitan continues, plaintiff's testimony indicates that although he was paid by the owner, he was "employed" by Metropolitan. Metropolitan adds that the record also indicates that when plaintiff reported to work, he was supervised by an agent of Metropolitan. Metropolitan states that it also directed plaintiff's work, maintained all time cards for laborers (such as plaintiff) and furnished necessary equipment. Lastly, Metropolitan notes that plaintiff testified that he has applied for and received workers' compensation insurance benefits. For these reasons, Metropolitan concludes that this court should find that plaintiff was a Metropolitan "special employee," and, accordingly, dismiss the action as against Metropolitan.
Alternatively, Metropolitan argues that when the accident occurred, plaintiff was not engaged in work within the limited scope of the Labor Law at the relevant times. Specifically, Metropolitan contends that liability pursuant to the Labor Law applies only when the worker is engaged in the construction or alteration of a building or structure. Metropolitan adds that "alteration" requires that the worker cause a significant physical change to a building or structure. Here, Metropolitan claims, plaintiff's work consisted of laying carpet and setting up cubicles; no power tools were necessary and the cubicles were temporary constructions that would be dismantled after the trade show. Metropolitan reasons that plaintiff's work involved no significant change to the Javits Center building or any related structure. Therefore, concludes Metropolitan, plaintiff's claims pursuant to the Labor Law lack merit and should be dismissed.
Such tasks are frequently referred to as "protected activities."
Again in the alternative, Metropolitan argues that plaintiff's Labor Law § 240 (1) claim should be dismissed because he was not subjected to an elevation-related risk. Metropolitan points out that the statute does not apply to the usual dangers of a construction site; instead, continues Metropolitan, the statute applies only to accidents that involve a falling object or worker and significant elevation differentials. Metropolitan adds that an ordinary trip and fall accident, even if it occurs at a construction site, is not within the scope of Labor Law § 240 (1). Metropolitan similarly reasons that the alleged accident occurred when plaintiff stepped on an electrical box at ground level, causing plaintiff to receive an electric shock. Even if the shock caused plaintiff to fall to the ground, continues Metropolitan, the fact that he was walking on the ground prior to the shock renders Labor Law § 240 (1) inapplicable. Accordingly, concludes Metropolitan, this court should dismiss plaintiff's Labor Law § 240 (1) claims.
Metropolitan also argues that plaintiff's Labor Law § 241 (6) claims lack merit and should also be dismissed. Metropolitan points out that a sustainable Labor Law § 241 (6) claim requires that plaintiff pleads (and eventually proves) violations of one or more applicable provisions of the Industrial Code (12 NYCRR ch. 1, subch. A) that contain a positive, specific command. Provisions that contain a general safety standard, adds Metropolitan, are insufficient to support such a claim. Here, Metropolitan acknowledges that plaintiff's latest supplemental bill of particulars cites several sections of the Industrial Code that purportedly support his Labor Law § 241 (6) claims. However, Metropolitan contends that some of the Industrial Code provisions that plaintiff cites in support of his claim are either not applicable to the facts or actually not sufficiently specific to make a Labor Law § 241 (6) cause of action sustainable. Also, Metropolitan argues that it is not properly subject to vicarious liability pursuant to Labor Law § 241 (6) for electricity related accidents, since it neither supervised nor controlled such work. For these reasons, Metropolitan concludes that plaintiff's Labor Law § 241 (6) claims are not viable and must be dismissed. Together with the other arguments raised, Metropolitan concludes that this court should therefore dismiss all claims asserted against Metropolitan.
Arguments in Support of Plaintiff's Motion
In support of his motion for partial summary judgment, plaintiff argues that Messe and Metropolitan are, respectively, a licensee of the owner and a general contractor hired by the licensee to perform construction work. Accordingly, reasons plaintiff, both Messe and Metropolitan are subject to absolute and vicarious liability pursuant to Labor Law § 241 (6). Plaintiff notes that the duty to comply with Industrial Code provisions is nondelegable, and, accordingly, Messe and Metropolitan are liable for any on-site Industrial Code violations that proximately caused his injuries, irrespective of fault, supervision or control. Any contention to the contrary, plaintiff adds, should thus be rejected.
More specifically, plaintiff alleges that Messe is subject to absolute vicarious liability pursuant to the Labor Law as an agent of the owner. Plaintiff notes that it is undisputed that Messe is the owner's licensee; Plaintiff also avers that Messe occupied the Javits Center at relevant times to run the Texworld USA trade show. Plaintiff points out that Messe hired Metropolitan to construct and dismantle the booths and displays. Plaintiff reasons that since Messe occupied the property and had the authority to hire a general contractor, Messe is thus subject to vicarious liability as an agent of the owner, without reference to fault or supervision, pursuant to the Labor Law.
Next, plaintiff acknowledges that a successful Labor Law § 241 (6) claim requires that the injured worker identify an Industrial Code provision that contains a specific safety command. Here, plaintiff maintains that the facts suggest that at least two Industrial Code provisions were violated. Both of the provisions, plaintiff continues, protect workers from electrocution risks. Plaintiff claims that in this matter he was subjected to such a risk, and, as such, the Industrial Code required defendants to provide warnings, de-energize any nearby live circuits, and/or provide electrical insulation devices. Plaintiff adds that the defendants provided none of those required items and the provisions of the Industrial Code were thus violated. Given that a shock precipitated the accident, reasons plaintiff, the violations were the proximate cause of his injuries. Plaintiff claims that he has thus demonstrated prima facie entitlement to judgment as a matter of law with respect to defendants' liability pursuant to Labor Law § 241 (6).
Finally, plaintiff asserts that the defendants have no valid affirmative defenses to liability pursuant to Labor Law § 241 (6). He points out that Labor Law § 241 (6) imposes liability without reference to principles of common-law negligence, and, therefore, defendants are vicariously liable for violations even if they had no notice thereof. Plaintiff next dispels any contention that direct contact with an electrical circuit is necessary for the violation to exist. Instead, continues plaintiff, it suffices that the record indicates that electricity traveled to the metal cover of the subject electrical panel, giving him a shock. Plaintiff reiterates that Messe and Metropolitan, as an agent of the owner and a general contractor, respectively, are vicariously liable even if they did not supervise either plaintiff's work or electrical work. Lastly, plaintiff states that any suggestion of comparative negligence is belied by the record. Accordingly, concludes plaintiff, this court should grant his motion for partial summary judgment on the issue of liability pursuant to Labor Law § 241 (6) against defendants.
Plaintiff's Opposition Arguments
In opposition to Metropolitan's motion for summary judgment, plaintiff first challenges the notion that he was Metropolitan's special employee. Plaintiff asserts that for a court to find a special employment relationship, the purported special employer must exercise control over the employee's duties over a significant period of time. Plaintiff claims that here, there is no indication that Metropolitan exercised such control. To the contrary, continues plaintiff, the record contains deposition testimony stating that plaintiff's foremen and stewards retained control over plaintiff's duties. This fact alone, argues plaintiff, completely undermines the argument that plaintiff was Metropolitan's special employee.
The Plaintiff contends that other items in the record indicate against a special employee finding. Plaintiff points out that his wages were paid by the owner and that he receives benefits from the owner's workers' compensation insurance policy. Plaintiff also notes that the owners had authority to control plaintiff's work. Plaintiff adds that, other than a small ratchet supplied by Metropolitan, plaintiff brought his own tools with him. Moreover, plaintiff points out that the work he performed did not benefit Metropolitan's interests alone. Finally, plaintiff contends that, at the very least, the record indicates issues of fact as to whether a special employee relationship existed.
Plaintiff also argues that when the accident occurred, he was engaged in a work activity that was protected by the Labor Law. Specifically, plaintiff claims that the tasks he performed should be considered either directly erecting the trade show display booths or a task ancillary to erecting the booths. Plaintiff contends that either way, under prevailing appellate authority, his work is protected by the Labor Law. More specifically, plaintiff contends that his work consisted of erecting walls that, although temporary, qualify as "structures" for Labor Law purposes. Accordingly, Plaintiff concludes that Metropolitan's argument concerning the scope of the Labor Law lacks merit.
Plaintiff also opposes Messe's motion. First, plaintiff maintains that Messe is in fact subject to vicarious liability, without regard to fault, pursuant to the Labor Law. Plaintiff points out that vicarious liability under the Labor Law applies to owners, contractors and their agents. Plaintiff suggests that parties who both have an interest in real property (such as lessees and licensees) and fulfill the role of owner by hiring a construction contractor are considered owners, or agents thereof, for Labor Law purposes. The critical fact, continues plaintiff, is whether the party has the right or authority to control the relevant work. Here, argues plaintiff, there is no dispute that Messe obtained a license to occupy the subject premises and to operate the Texworld USA trade show thereon. Plaintiff further claims that Messe hired Metropolitan to first, construct, and later, dismantle the display booths for the trade show. Plaintiff contends that Messe agents both designed the booths and oversaw construction thereof. As such, plaintiff reasons that Messe had the right to exercise control over the relevant work, and it is therefore subject to vicarious Labor Law liability, irrespective of whether it exercised that right. Plaintiff concludes that, therefore, this court should deny Messe's motion for summary judgment.
Plaintiff's opposition papers explicitly concede dismissal of claims pursuant to common-law negligence, Labor Law § 200 and Labor Law § 240 (1).
Opposition Arguments of Metropolitan
In opposition to plaintiff's arguments in support of his motion for summary judgment, Metropolitan first asserts that plaintiff was not engaged in a protected activity under the Labor Law. Specifically, Metropolitan argues that for work to be protected, the work must have been performed in the context of a construction project that involves the significant alteration of a building or structure. Here, continues Metropolitan, plaintiff's work consisted of laying down carpeting and building temporary cubicles that would be dismantled as soon as the trade show ended. Metropolitan points out that plaintiff made no substantial changes to the structure of the Javits Center. Thus, reasons Metropolitan, plaintiff's tasks do not constitute significant alteration of a structure, and, therefore, the Labor Law does not apply to this matter.
Alternatively, Metropolitan argues that plaintiff has not met the requirements for a viable Labor Law § 241 (6) claim. Metropolitan cites plaintiff's most recent supplemental bill of particulars; it contains two sections of the Industrial Code that were allegedly violated. However, Metropolitan continues, one of the sections has been cited by appellate courts of this state and deemed insufficiently specific to support a Labor Law § 241 (6) cause of action. The second, adds Metropolitan, addresses electrocution hazards, and thus requires an expert opinion identifying a defect. Metropolitan claims that no such opinion exists in the record. Metropolitan concludes that plaintiff's Labor Law § 241 (6) claims lack merit.
Again in the alternative, Metropolitan avers that, assuming that this court considers plaintiff's Labor Law § 241 (6) claims viable, plaintiff is nevertheless not entitled to partial summary judgment on the issue of liability with respect to those claims. Metropolitan points out that appellate authority deems an Industrial Code violation as some evidence of negligence that a trier of fact may take into consideration. Also, adds Metropolitan, the issue of whether an Industrial Code violation proximately caused injuries is for the trier of fact to resolve. For these reasons, Metropolitan concludes that plaintiff's motion for partial summary judgment on the issue of liability pursuant to Labor Law § 241 (6) should be denied.
Summary judgment is a drastic remedy that deprives a litigant of his or her day in court and should thus only be employed when there is no doubt as to the absence of triable issues of material fact (Kolivas v Kirchoff, 14 AD3d 493 [2d Dept 2005]; see also Andre v Pomeroy, 35 NY2d 361, 364 ). "[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Manicone v City of New York, 75 AD3d 535, 537 [2d Dept 2010], quoting Alvarez v Prospect Hosp., 68 NY2d 320, 324 ; see also Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 ; Zuckerman v City of New York, 49 NY2d 557, 562 ; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 , rearg denied 3 NY2d 941 ). The motion should be granted only when it is clear that no material and triable issue of fact is presented (Di Menna & Sons v City of New York, 301 NY 118 ). Moreover, a party seeking summary judgment has the burden of establishing prima facie entitlement to judgment as a matter of law by affirmatively demonstrating the merit of a claim or defense and not by simply pointing to gaps in the proof of an opponent (Nationwide Prop. Cas. v Nestor, 6 AD3d 409, 410 [2d Dept 2004]; Katz v PRO Form Fitness, 3 AD3d 474, 475 [2d Dept 2004]; Kucera v Waldbaums Supermarkets, 304 AD2d 531, 532 [2d Dept 2003]). If a movant fails to do so, summary judgment should be denied without reviewing the sufficiency of the opposition papers (Derise v Jaak 773, Inc., 127 AD3d 1011, 1012 [2d Dept 2015], citing Winegrad, 64 NY2d 851 ).
If a movant meets the initial burden, parties opposing the motion for summary judgment must demonstrate evidentiary proof sufficient to establish the existence of material issues of fact (Alvarez, 68 NY2d at 324, citing Zuckerman, 49 NY2d at 562). Parties opposing a motion for summary judgment are entitled to "every favorable inference from the parties' submissions" (Sayed v Aviles, 72 AD3d 1061, 1062 [2d Dept 2010]; see also Nicklas v Tedlen Realty Corp., 305 AD2d 385 [2d Dept 2003]; Akseizer v Kramer, 265 AD2d 356 [2d Dept 1999]; McLaughlin v Thaima Realty Corp., 161 AD2d 383, 384 [1st Dept 1990]; Gibson v American Export Isbrandtsen Lines, 125 AD2d 65, 74 [1st Dept 1987]; Strychalski v Mekus, 54 AD2d 1068, 1069 [4th Dept 1976]). Indeed, in deciding a motion for summary judgment, the court is required to accept the opponents' contentions as true and resolve all inferences in the manner most favorable to opponents (Pierre-Louis v DeLonghi America, Inc., 66 AD3d 859, 862 [2d Dept 2009], citing Nicklas, 305 AD2d at 385; Henderson v City of New York, 178 AD2d 129, 130 [1st Dept 1991]; see also Fundamental Portfolio Advisors, Inc. v Tocqueville Asset Mgt., L.P., 7 NY3d 96, 105-106 ). Furthermore, "[i]n all but the most extraordinary instances, whether a defendant has conformed to the standard of conduct required by law is a question of fact necessitating a trial" (St. Andrew v O'Brien, 45 AD3d 1024, 1028 [3d Dept 2007] [internal quotations omitted]; see also Ferrer v Harris, 55 NY2d 285, 291-292 ; Andre, 35 NY2d at 364; Nandy v Albany Med. Ctr. Hosp., 155 AD2d 833, 833 [3d Dept 1989]; Kiernan v Hendrick, 116 AD2d 779, 781 [3d Dept 1986]). Lastly, "[a] motion for summary judgment 'should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility'" (Ruiz v Griffin, 71 AD3d 1112, 1112 [2d Dept 2010], quoting Scott v Long Is. Power Auth., 294 AD2d 348 [2d Dept 2002]; see also Benetatos v Comerford, 78 AD3d 750, 751-752 [2d Dept 2010]; Lopez v Beltre, 59 AD3d 683, 685 [2d Dept 2009]; Baker v D.J. Stapleton, Inc., 43 AD3d 839 [2d Dept 2007]).
Vicarious Liability Pursuant To The Labor Law
The duties imposed by Labor Law §§ 240 (1) and 241 (6) on owners, contractors and their agents are nondelegable—in other words, property owners, construction contractors and agents of owners and contractors are subject to absolute liability for violations of these provisions without regard to fault (see generally Alfonso v Pacific Classon Realty, LLC, 101 AD3d 768, 770 [2d Dept 2012] [vicarious liability provisions of Labor Law §§ 240 (1) and 241 (6) apply to owners, contractors, and their agents]). Here, Messe maintains that it is not any of the three classes of Labor Law defendants.
Indeed, the record does indicate that Messe is not an "agent" of an owner or contractor (see e.g. Guclu v 900 Eighth Ave. Condominium, LLC, 81 AD3d 592, 593 [2d Dept 2011] ["A party is deemed to be an agent of an owner or general contractor under the Labor Law when it has the 'ability to control the activity which brought about the injury'"], quoting Walls v Turner Constr. Co., 4 NY3d 861, 863-864 ). The record indicates both that plaintiff's task was to lay carpet and that the property owner directed plaintiff's work. The record further indicates that only the owner hired electricians. Accordingly, Messe has established, prima facie, that it lacked the "ability to control the activity which brought about the injury" (Walls v Turner Constr. Co., 4 NY3d at 863-864).
However, the record contains issues of fact as to whether Messe is an "owner" or "contractor" for Labor Law purposes. It is undisputed that Messe was a licensee of the property owner; specifically, Messe occupied the relevant area with a view to conducting the Texworld USA trade show. It is also undisputed that Messe hired Metropolitan for various construction activities (as indicated in the contract between them) related to the trade show. Accordingly, an issue of fact exists as to whether Messe is a "contractor." Courts have interpreted "contractor" to mean the party that was "responsible for coordinating and supervising the entire . . . project and was invested with a concomitant power to enforce safety standards and to hire responsible contractors" (Caiazzo v Mark Joseph Contr., Inc., 119 AD3d 718, 720 [2d Dept 2014], quoting Temperino v DRA, Inc., 75 AD3d 543, 544 [2d Dept 2010]). Here, the record at least suggests that Messe coordinated the entire project, enforced its safety standards, and hired contractors. Accordingly, an issue of fact exists as to whether Messe is, as a "contractor," subject to absolute vicarious liability pursuant to the Labor Law.
Moreover, as plaintiff properly points out, an issue of fact exists as to whether Messe is an "owner" for Labor Law purposes. Messe, the producer of a trade show at the Javits Center, is a licensee. The agreement between Messe and the owner indicates that Messe, during the license term, had the authority to operate and maintain the premises; there is authority suggesting that this is sufficient to deem Messe an "owner" for Labor Law purposes (see e.g. Perez v Beach Concerts, Inc., 154 AD3d 602 [1st Dept 2017]). Accordingly, an issue of fact exists as to whether Messe is, as an "owner," subject to absolute vicarious liability pursuant to the Labor Law. For these reasons, the court rejects Messe's argument that it is, as a matter of law, not subject to absolute vicarious liability pursuant to the Labor Law.
Workers' Compensation Law Bar
Workers' Compensation Law § 10 states, in applicable part:
1. Every employer subject to this chapter shall in accordance with this chapter, except as otherwise provided in section twenty-five-a hereof, secure compensation to his employees and pay or provide compensation for their disability or death from injury arising out of and in the course of the employment without regard to fault as a cause of the injury . . . ."
Further, Workers' Compensation Law § 11 states, in applicable part:
"The liability of an employer prescribed by the last preceding section shall be
exclusive and in place of any other liability whatsoever, to such employee, his or her personal representatives, spouse, parents, dependents, distributees, or any person otherwise entitled to recover damages, contribution or indemnity, at common law or otherwise, on account of such injury or death or liability arising therefrom, except that if an employer fails to secure the payment of compensation for his or her injured employees and their dependents as provided in section fifty of this chapter, an injured employee, or his or her legal representative in case of death results from the injury, may, at his or her option, elect to claim compensation under this chapter, or to maintain an action in the courts for damages on account of such injury; and in such an action it shall not be necessary to plead or prove freedom from contributory negligence nor may the defendant plead as a defense that the injury was caused by the negligence of a fellow servant nor that the employee assumed the risk of his or her employment, nor that the injury was due to the contributory negligence of the employee."
Lastly, Workers' Compensation Law § 29 (6) states, in applicable part:
"The right to compensation or benefits under this chapter, shall be the exclusive remedy to an employee . . . ."
These sections operate so "that an employee who is entitled to receive compensation benefits may not sue his or her employer in an action at law for the injuries sustained" (Pena v Automatic Data Processing, Inc., 73 AD3d 724, 724 [2d Dept 2010]). "[T]he receipt of workers' compensation benefits is the exclusive remedy that a worker may obtain against an employer for losses suffered as a result of an injury sustained in the course of employment" (Siklas v Cyclone Realty, LLC, 78 AD3d 144, 150 [2d Dept 2010], citing Reich v Manhattan Boiler & Equip. Corp., 91 NY2d 772, 779 ; Hofweber v Soros, 57 AD3d 848, 849 [2d Dept 2008] lv denied 13 NY3d 703 ; Pereira v St. Joseph's Cemetery, 54 AD3d 835, 836 [2d Dept 2008]). Here, it is undisputed that plaintiff received benefits awarded by the Workers' Compensation Board for his injuries; any action against plaintiff's employer is thus barred.
Also, "[t]hese exclusivity provisions also have been applied to shield from suit persons or entities other than the injured plaintiff's direct employer" (Pena, 73 AD3d at 724, citing Fung v Japan Airlines Co., Ltd., 9 NY3d 351, 358-359 ; Thompson v Grumman Aerospace Corp., 78 NY2d 553, 557 ). Moreover, a general employee of one employer may also be a special employee of another employer (Thompson v Grumman Aerospace Corp., 78 NY2d at 557; Spencer v Crothall Healthcare, Inc., 38 AD3d 527, 528 [2d Dept 2007]). "A person may be deemed to have more than one employer for purposes of the Workers' Compensation Law, a general employer and a special employer" (Schramm v Cold Spring Harbor Lab., 17 AD3d 661, 662 [2d Dept 2005]). "A special employee is 'one who is transferred for a limited time of whatever duration to the service of another'" (Fung v Japan Airlines Co, LTD., 9 NY3d 351, 364 , quoting Thompson, 78 NY2d at 557). The action against a special employer is barred, "regardless of the general employer's responsibility to pay the employee's wages and maintain workers' compensation and other benefits (Gonzalez v Ari Fleet, Lt, 25 Misc 3d 1235(A) 2009 NY Slip Op. 52418[U] [Sup Ct, Queens County 2009], affd 83 AD3d 891 [2d Dept 2011], citing Thompson, 78 NY2d at 557; Jaynes v County of Chemung, 271 AD2d 928, 930 [3d Dept 2000], lv denied 95 NY2d 762 ). The receipt of workers' compensation benefits from a general employer precludes an employee from commencing a negligence action against a special employer (see Hofweber, 57 AD3d at 849; Croche v Wyckoff Park Assoc., 274 AD2d 542 [2d Dept 2000]). Lastly, an action against a defendant company is barred if the defendant "establish[es] itself as the alter ego of a plaintiff's employer by demonstrating that one of the entities controls the other or that the two operate as a single integrated entity" (Samuel v Fourth Ave. Assoc., LLC, 75 AD3d 594, 595 [2d Dept 2010]).
This court rejects Metropolitan's argument with respect to special employment. First, the appellate authority states that "a person's categorization as a special employee is usually a question of fact" (Thompson, 78 NY2d at 557). Moreover, the circumstances where special employment is found as a matter of law are not present here (see e.g. Degale-Selier v Preferred Mgt. & Leasing Corp. 57 AD3d 825, 826 [2d Dept 2008] [the appellants failed to submit sufficient evidentiary proof to establish that one was an alter ego of, or engaged in a joint venture with another]). There is no indication that Metropolitan and the property owner were united in interest, part of the same business, alter egos, or the like (cf. Paulino v Lifecare Transp., 57 AD3d 319 [1st Dept 2008] [special employment established where defendant and nonparty employer were all part of a single integrated entity in that they operated under the control of the same parent corporation, shared payroll services and an employee manual, and were covered by the same workers' compensation insurance policy]).
Metropolitan correctly notes that a key consideration is the purported special employer's right to direct the work and the degree of control exercised over the employee (Thompson, 78 NY2d at 558; Schramm, 17 AD3d at 662). "The most significant factor is who controls and directs the manner, details, and ultimate result of the employee's work" (Schramm, 17 AD3d at 662, citing Thompson, 78 NY2d at 558; Martin v Baldwin Union Free School Dist., 271 AD2d 579, 580 [2d Dept 2000]; Leone v Columbia Sussex Corp., 203 AD2d 430, 431-432 [2d Dept 1994]). Indeed, the record indicates that plaintiff received instructions from Metropolitan agents. Nevertheless, the record also contains indications that the owner's foremen also exercised control over the work performed at the site and gave explicit directions to carpenters such as plaintiff. Accordingly, this court cannot find as a matter of law that Metropolitan controlled the "the manner and details of plaintiff's work and therefore that [defendant] was plaintiff's special employer" (Akins v D.K. Interiors, Ltd., 65 AD3d 946, 946 [1st Dept 2009] [upholding judgment as a matter of law on special employment ground]). Accordingly, an issue of fact exists as to whether plaintiff was Metropolitan's special employee. Metropolitan's motion is thus denied insofar as based on that ground.
"Protected Activities" Under the Labor Law
The court now considers whether plaintiff was involved in a "protected activity" under the Labor Law. Labor Law § 241 (6) imposes a nondelegable duty on owners and contractors to comply with the specific safety rules and regulations set forth in the Industrial Code in connection with construction, demolition or excavation work (Ascencio v Briarcrest at Macy Manor, LLC, 60 AD3d 606, 607 [2d Dept 2009] [emphasis added], citing Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 348 ; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501-502 ; Nagel v D & R Realty Corp., 99 NY2d 98, 102 ; Valdivia v Consolidated Resistance Co. of Am., Inc., 54 AD3d 753, 754 [2d Dept 2008]). Labor Law § 241 (6) is "inapplicable outside the construction, demolition or excavation contexts" (Esposito v New York City Indus. Dev. Agency, 1 NY3d 526, 528 ). A workplace accident that occurs outside of the context of construction, demolition or excavation does not trigger the statute (Nagel, 99 NY2d at 103).
Contrary to defendants' arguments, at a minimum, plaintiff has demonstrated the existence of a triable issue of fact as to whether he was engaged in a protected activity. It is undisputed that plaintiff was tasked with the construction of temporary walls and/or exhibit booths. There is appellate authority explicitly stating that removing and dismantling parts of an exhibition booth at the conclusion of a trade show constitutes protected activities (see e.g. Rutkowski v New York Convention Ctr. Dev. Corp., 146 AD3d 686 [1st Dept 2017] [reversing grant of summary judgment to defendants dismissing Labor Law § 240 claim and Labor Law § 241 (6) claim]). Indeed, in that case, plaintiff's activities were protected because "his specific task at the moment the accident occurred was ancillary to and part of the larger demolition job of dismantling the booths" (id. at 686). It stands to reason, therefore, that herein the plaintiff's activities in connection with the erection of walls/booths also qualifies as protected (see e.g. Martinez v City of New York, 73 AD3d 993, 997 [2d Dept 2010]; see also Vernieri v Empire Realty Co., 219 AD2d 593, 595 [2d Dept 1995] ["courts have generally held that the scope of Labor Law § 241(6) is governed by 12 NYCRR 23—1.4 (b) (13), which defines construction work expansively"]). In sum, plaintiff arguably was involved in the construction/erection of a structure when the accident occurred. A triable issue of fact thus exists as to this question. Accordingly, to the extent that defendants' motions seek dismissal of plaintiff's Labor Law claims on the ground that he was not involved in a "protected activity" when the accident occurred, defendants' motions are, therefore, denied.
According to 12 NYCRR 23—1.4 (b) (13), "Construction work" is defined as: "All work of the types performed in the construction, erection, alteration, repair, maintenance, painting or moving of buildings or other structures, whether or not such work is performed in proximate relation to a specific building or other structure and includes, by way of illustration but not by way of limitation, the work of hoisting, land clearing, earth moving, grading, excavating, trenching, pipe and conduit laying, road and bridge construction, concreting, cleaning of the exterior surfaces including windows of any building or other structure under construction, equipment installation and the structural installation of wood, metal, glass, plastic, masonry and other building materials in any form or for any purpose (emphasis added) [.]"
The court denies plaintiff's motion insofar as it seeks partial summary judgment on the issue of liability with respect to his Labor Law § 241 (6) claims. Labor Law § 241 states, in applicable part, as follows: "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 of one and two-family dwellings who contract for but do not direct or control the work, shall comply therewith."
Labor Law § 241 (6) imposes a nondelegable duty on owners and contractors to comply with the specific safety rules and regulations set forth in the Industrial Code in connection with construction, demolition or excavation work (Ascencio v Briarcrest at Macy Manor, LLC, 60 AD3d 606, 607 [2d Dept 2009], citing Rizzuto, 91 NY2d at 348; Ross, 81 NY2d at 501-502; Nagel, 99 NY2d at 102; Valdivia, 54 AD3d at 754). "To support a cause of action under Labor Law § 241 (6), a plaintiff must demonstrate that his injuries were proximately caused by a violation of an Industrial Code provision that is applicable under the circumstances of the accident" (Rivera v Santos, 35 AD3d 700, 702 [2d Dept 2006], citing Ross, 81 NY2d at 502; Ares v State of New York, 80 NY2d 959, 960 ; Adams v Glass Fab, 212 AD2d 972 [4th Dept 1995]). A sustainable Labor Law § 241 (6) claim requires the allegation that defendants violated a provision of the Industrial Code that contains "concrete specifications" (Ramcharan v Beach 20th Realty, LLC, 94 AD3d 964, 966 [2d Dept 2012], citing Misicki v Caradonna, 12 NY3d 511, 515 ; see also Ross, 81 NY2d 494 ) and "mandates a distinct standard of conduct, rather than a general reiteration of common-law principles" (Rizzuto, 91 NY2d at 351).
Plaintiff's latest supplemental bill of particulars includes two subsections of Industrial Code § 23-1.13 ("Electrical hazards"), specifically:
"(3) Investigation and warning. Before work is begun the employer shall ascertain by inquiry or direct observation, or by instruments, whether any part of an electric power circuit, exposed or concealed, is so located that the performance of the work
may bring any person, tool or machine into physical or electrical contact therewith. The employer shall post and maintain proper warning signs where such a circuit exists. He shall advise his employees of the locations of such lines, the hazards involved and the protective measures to be taken.
"(4) Protection of employees. No employer shall suffer or permit an employee to work in such proximity to any part of an electric power circuit that he may contact such circuit in the course of his work unless the employee is protected against electric shock by de-energizing the circuit and grounding it or by guarding such circuit by effective insulation or other means. In work areas where the exact locations of underground electric power lines are unknown, persons using jack hammers, bars or other hand tools which may contact such power lines shall be provided with insulated protective gloves, body aprons and footwear."
At a minimum, appellate authority states that § 23-1.13 (b) (4) is sufficiently specific to sustain a Labor Law § 241 (6) claim (Lorefice v Reckson Operating Partnership, L.P., 269 AD2d 572, 572-573 [2d Dept 2000]; see also Snowden v New York City Tr. Auth., 248 AD2d 235, 236 [1st Dept 1998]). Moreover, since the main allegation is that plaintiff received an electrical shock, precipitating the accident, this section applies to the instant facts. Viewing the record in the light most favorable to plaintiff, he came "into contact with an electric power circuit" and was not "protected against electric shock by de-energizing the circuit and grounding it or by guarding such circuit by effective insulation or other means" (id. [internal quotations omitted]). Contrary to defendants' arguments, plaintiff has thus demonstrated a sustainable Labor Law § 241 (6) claim (id.). Defendants arguments to the contrary lack merit and their motions are, therefore, denied insofar as they seek summary judgment dismissing the Labor Law § 241 (6) claims.
The court reiterates that Labor Law § 241 (6) applies to owners, contractors and agents, rendering them vicariously liable for Industrial Code violations without regard to fault. Thus, it is not a defense for a defendant to assert that it was not responsible for electrical work. Also, any argument that an expert opinion is necessary lacks merit; the Appellate Division in Lorefice (269 AD2d 572 [2d Dept 2000]) sustained a Labor Law § 241 (6) claim without any reference to experts.
This court must nevertheless deny plaintiff's motion for partial summary judgment on the issue of Labor Law § 241 (6) liability. Contrary to plaintiff's arguments, even if a violation of the Industrial Code has been established, such a violation is merely some evidence of negligence, and it is for the trier of fact to determine the cause of plaintiff's injury (Rizzuto, 91 NY2d at 351). Indeed, "where such a violation is established, it does not conclusively establish a defendant's liability as a matter of law, but constitutes some evidence of negligence and thereby reserve[s], for resolution by a jury, the issue of whether the equipment, operation or conduct at the worksite was reasonable and adequate under the particular circumstances" (Seaman v Bellmore Fire Dist., 59 AD3d 515, 516 [2d Dept 2009] [internal quotation marks omitted], quoting Rizzuto, 91 NY2d at 351; see also Long v Forest-Fehlhaber, 55 NY2d 154, 160 ; Daniels v Potsdam Cent. School Dist., 256 AD2d 897, 898 [3d Dept 1998]). Even a prima facie showing of an Industrial Code violation does not necessarily entitle a plaintiff to partial summary judgment on the issue of Labor Law § 241 (6) liability (see e.g. Lorefice, 269 AD2d at 573 ["Although the plaintiffs established a prima facie violation of 12 NYCRR 23-1.13 (b) (4) by the defendant, there are triable issues of fact as to the defendant's liability"]). Lastly, the question of whether a violation of the Industrial Code proximately caused injury to a worker lies with the trier of fact (Rizzuto, 91 NY2d at 351; see also Johnson v Flatbush Presbyt. Church, 29 AD3d 862 [2d Dept 2006]; Reinoso v Ornstein Layton Mgt., Inc., 19 AD3d 678, 679 [2d Dept 2005]; Perri v Gilbert Johnson Enters., Ltd., 14 AD3d 681, 684 [2d Dept 2005]). For these reasons, plaintiff is not entitled to summary judgment with respect to Labor Law § 241 (6); his motion is thus denied. Labor Law § 240 (1) , Labor Law § 200, Common-Law Negligence and Cross Claims
Additionally, there exist the previously-mentioned questions of fact: whether plaintiff is a special employee of a defendant, whether each defendant is an owner, contractor or agent thereof for Labor Law purposes and whether plaintiff was engaged in a "protected activity" within the scope of the Labor Law. --------
Plaintiff has not opposed defendants' motions with respect to his Labor Law § 240 (1), Labor Law § 200 and common-law negligence claims. Since uncontested allegations are deemed admitted in the context of motion practice (see e.g. Tortorello v Carlin, 260 AD2d 201, 206 [1st Dept 1999], citing Costello Assocs. v Standard Metals Corp., 99 AD2d 227, 229 [1st Dept 1984] appeal dismissed 62 NY2d 942 ), dismissal of his Labor Law § 240 (1), Labor Law § 200 and common-law negligence claims has been, in effect, conceded by plaintiff.
Neither defendant has addressed cross claims in their papers, other than to say that once the main claims are dismissed, the cross claims should also be dismissed. Accordingly, since this court does not dismiss all direct claims, this court will not dismiss cross claims. Any remaining arguments lack merit. Accordingly, it is
ORDERED that the motion of defendant Messe Frankfurt Incorporated for summary judgment is granted solely to the extent that plaintiff's Labor Law § 240 (1), Labor Law § 200 and common-law negligence claims are dismissed, and is otherwise denied, and it is further
ORDERED that the motion of defendant Metropolitan Exposition Services, Inc. for summary judgment is granted solely to the extent that plaintiff's Labor Law § 240 (1), Labor Law § 200 and common-law negligence claims are dismissed, and is otherwise denied, and it is further
ORDERED that the cross motion of plaintiffs James Lewis and Michelle Lewis for partial summary judgment is denied in its entirety.
The foregoing constitutes the decision and order of the court. ENTER: _________________________ Carl J. Landicino J.S.C.