Plaintiff Counsel: Gorayeb & Associates. Defendants Counsel: Barry, McTiernan & Moore. WIlson, Elser, Moskowitz.
Plaintiff Counsel: Gorayeb & Associates.
Defendants Counsel: Barry, McTiernan & Moore. WIlson, Elser, Moskowitz.
David I. Schmidt, J.
The following papers numbered 1 to 8read on this motion and cross motion:
Notice of Motion/Order to Show Cause/
Petition/Cross Motion and
Affidavits (Affirmations) Annexed1-2 , 4-6
Opposing Affidavits (Affirmations)7,8
Reply Affidavits (Affirmations)7,8
Other PapersMemorandum of Law3
Upon the foregoing papers, defendants 205-209 East 57th Street Associates, LLC and Bovis Lend Lease LMB Inc. (Bovis) , move, pursuant to CPLR 3212, for an order granting summary judgment dismissing plaintiff Anthony Parker's complaint, including all Labor Law §§240 (1) ; 241 (6); and 200 and common law negligence claims. Plaintiff cross-moves for partial summary judgment in his favor on his Labor Law §§ 240 (1) and 241 (6) claims.
Plaintiff admits that his cross motion is untimely, but argues that it must be considered as it is based upon the same arguments made in a timely motion. Although a motion for summary judgment must be made within 120 days after a note of issue is filed (CPLR 3212[a]; Brill v City of New York, 2 NY3d 648 ), an untimely motion or cross-motion for summary judgment may be considered if a timely motion for summary judgment was made on nearly identical grounds (Grande v Peteroy, 39 AD3d 590 ). As defendants' timely summary judgment motion seeks dismissal of all plaintiff's Labor Law claims, the court will consider plaintiff's motion seeking summary judgment in his favor on the issue of liability for those same claims.
Plaintiff was employed by L. Martone and Sons Inc., (Martone) as a roofer. On June 20, 2006 he was working at a building that was being constructed at 57th Street and Third Avenue in Manhattan. Defendant 205-209 East 57th Street Associates is the owner of the premises and Bovis was the general contractor for the project. On June 20, 2006 plaintiff was instructed by Martone foreman, Timothy Drew, to finish flashing work on the lower roof located on the 39th or 40th floor. When plaintiff had completed that task he went to find Drew, who was working on the upper roof, to get further instructions as to what task to perform next.Plaintiff, in his affidavit in support of his cross motion, states that he was attempting to access the upper roof to find Mr. Drew. In order to do this he walked up a staircase inside the building which led him to a hallway. He walked through the hallway to an open door. He states that immediately adjacent to the hallway and immediately inside this door was supposed to be a metal grating/platform, which was approximately three feet long and three feet wide that workers could walk on and then walk down two or three steps to the roof. However, on this day, when plaintiff walked through the door he immediately fell approximately three feet down onto the roof because the metal grating/platform had been removed.
Defendants move for an order granting summary judgment dismissing plaintiff's complaint, including all claims under Labor Law §§240 (1), 241 (6), and 200 and common law negligence.
Labor Law §200/Common Law Negligence
Defendants argue that they did not exercise any supervisory control over the injury producing activity and, thus, plaintiff's claims under Labor Law§ 200 and common law negligence must be dismissed. Specifically, they contend that plaintiff was not injured in the performance of his work inasmuch as he had finished his assignment and went up to the roof to find his supervisor to obtain a new assignment. More importantly, defendants argue that they did not exercise any control, direction or supervision of plaintiff's work or how this work was to be performed. Defendants also maintain that they had no actual or constructive notice that anyone would be injured on the upper roof following the removal of the metal grate. In support of this contention they point to the deposition testimony of John Hyers, defendants' site supervisor, who testified that he personally inspected the area to ensure that it was properly cautioned off. He testified that he observed a barricade of 2 x 4s placed in a cross shape with caution tape in the corridor leading to the door through which plaintiff fell, and that he also observed two DOT cones placed in front of the 2x4s.
In opposition, plaintiff argues that Bovis directed that the metal grating be removed. Bovis also points to Hyers' testimony in which Hyer states that he and the Martone foreman had discussed the need to remove the gate in order to finish the roof work. Hyers further testified that he directed the foreman to make sure the area was secure and closed off. Plaintiff maintains that Bovis therefore directed that this unsafe condition be created and did nothing to ensure compliance with the Labor Law and/or the Industrial Code. Plaintiff points out that the contract between the owner and Bovis required Bovis to be responsible for site safety and points out that Hyers testified that he did daily walk throughs of the site. Accordingly, plaintiff argues that a question of fact exists as to whether Bovis created the unsafe condition. Plaintiff also maintains that Bovis had constructive notice inasmuch as they directed the removal of the grate.
Labor Law §200 provides, in relevant part, that "[a]ll places to which this chapter applies shall be so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein or lawfully frequenting such places." Section 200 is "a codification of the common-law duty imposed upon an owner or general contractor to maintain a safe construction site" (Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 352 ; Cyclone Realty, LLC, 78 AD3d 144, 147 ; Aguilera v Pistilli Constr. & Dev. Corp., 63 AD3d 763, 764 ; Chowdhury v Rodriguez, 57 AD3d 121, 127-128 ). Cases involving Section 200 generally fall into two categories: those involving the manner in which the work giving rise to plaintiff's injuries was performed and those where workers were injured as a result of dangerous or defective conditions at a work site (see LaGiudice v Sleepy's, Inc., 67 AD3d 969, 972 ; Chowdhury, 57 AD3d at 127-128; Ortega v Puccia, 57 AD3d 54, 61 ).
Where a premises condition is at issue, a property owner is liable under Labor Law § 200 when the owner created the dangerous condition causing an injury or when the owner failed to remedy a dangerous or defective condition of which he or she had actual or constructive notice (see Reyes v Arco Wentworth Mgt. Corp., 83 AD3d 47 ; Chowdhury, 57 AD3d at 128; Ortega, 57 AD3d at 61; Azad v 270 5th Realty Corp., 46 AD3d 728, 730 ; see Slikas v Cyclone Realty LLC , 78 AD3d 144, 147 ; see also Fusca v A & S Const., LLC, 84 AD3d 1155, 1155 ; Barillaro v Beechwood RB Shorehaven, LLC, 69 AD3d 543, 544 ; Colon v Bet Torah, Inc., 66 AD3d 731, 732 ; Aguilera, 63 AD3d at 764; Fuchs v Austin Mall Assoc., LLC, 62 AD3d 746, 747 ;). "Moreover, if a reasonable inspection would have disclosed the dangerous condition, the failure to make such an inspection constitutes negligence and may make the owner liable for injuries proximately caused by the condition" (Colon, 66 AD3d at 732; see also White v Village of Port Chester, 84 AD3d 946, 946 ; Astarita v Flintlock Constr. Servs., LLC, 69 AD3d 888, 889 ).
It is well established that an owner or general contractor's " [g]eneral supervisory authority at a work site for the purpose of overseeing the progress of the work and inspecting the work product is insufficient to impose liability for common-law negligence and under Labor Law § 200'" (Natale v City of New York, 33 AD3d 772, 773 , quoting Perri v Gilbert Johnson Enters., Ltd., 14 AD3d 681, 683 ; see also Riccio v Shaker Pine, 262 AD2d 746, 748 ). The mere retention of inspection privileges and the fact that a defendant inspects the work site and was authorized to stop the work in the event that it observed any unsafe condition is insufficient to establish liability (see Capolino v Judlau Contr., Inc., 46 AD3d 733, 735 ; Burkoski v Structure Tone, Inc., 40 AD3d 378, 381 ). Here, defendants have submitted evidence establishing lack of supervision of, or control over, plaintiff's work. They point to plaintiff's own testimony that he received all his instruction relating to his work from his employer, and that nobody from defendant Bovis ever told him how to do his work .
However, plaintiff contends that this is a case that goes to notice and argues that Bovis directed that the metal grate be removed and, thus, created the dangerous condition.
Defendants witness, John Hyers, testified that he and the Martone foreman discussed the need to remove the grate in order to finish the roofing work. Hyers testified that he directed the foreman to make sure the area was secure and closed off. He further testified that he personally observed that two crossed 2x4s with caution tape blocked the hallway leading to the door that plaintiff entered and ultimately fell through. He also testified that some cones had been placed in the area as well and that the barricades were placed five to eight feet in front of the doorway for a few hours previous to the accident. Additionally, defendants point to the testimony of Martone's foreman Timothy Drew, who likewise testified that he had placed the barricades at the stairwell leading to the gate approximately 30 to 45 minutes prior through the plaintiff's accident.
With respect to the Labor Law § 200 and common-law negligence causes of action, plaintiff has adduced evidence that defendants had constructive knowledge of the dangerous condition that allegedly caused his injuries. This showing precludes an award of summary judgment in the defendants' favor as to those causes of action (see Nasuro v PI Assoc., LLC, 49 AD3d 829, 831  [court denied defendant's summary judgment dismissing plaintiff's Labor Law 200 claim where it failed to eliminate all triable issues of fact as to whether it had actual or constructive notice of the allegedly dangerous condition which caused the plaintiff's injuries]; Fernez v Kellogg, 2 AD3d 397, 399 [ 2003] [court denied defendant's motion for summary judgment dismissing plaintiff's Labor Law §200 claim where plaintiff was injured when he fell into an unguarded excavation created by a groundskeeper on the property at the direction of said defendant]; Lehner v Dormitory Auth. of State of NY, 221 AD2d 958, 959 ; see also Barillaro, 69 AD3d at 544; Bridges v Wyandanch Community Dev. Corp., 66 AD3d 938, 940 ; Colon, 66 AD3d at 732; Aguilera, 63 AD3d at 764; Wynne v State of New York, 53 AD3d 656, 657 ; Lane v Fratello Constr. Co., 52 AD3d 575, 576 ; Samiani v New York State Elec. & Gas Corp., 199 AD2d 796, 797 ).
Based upon the foregoing, that branch of defendants' motion seeking summary judgment dismissing plaintiff's Labor Law §200 and common law negligence claims is denied.Labor Law §240 (1)
Defendants also seek summary judgment dismissing plaintiff's claim as based upon Labor Law §240 (1). Plaintiff cross-moves for the same relief on the same claim in his favor. Labor Law § 240(1) affords protection to construction site workers who are exposed to elevation-related hazards (see generally, Blake v Neighborhood Housing Services of New York City, Inc., 1 NY3d 280, 287—290 ). Specifically, § 240(1) provides, in pertinent part, that:
"All contractors and owners and their agents ... in the erection, demolition, repairing, altering, painting, cleaning, or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed."Labor Law § 240(1) requires property owners and contractors to furnish or cause to be furnished safety devices, such as ladders and scaffolds, which are "so constructed, placed and operated as to give proper protection" to workers. Moreover, "the duty imposed by Labor Law § 240(1) is nondelegable and . . . an owner or contractor who breaches that duty may be held liable in damages regardless of whether it has actually exercised supervision or control over the work" (Ross v Curtis—Palmer Hydro—Electric Co., 81 NY2d 494, 500 ; see also Haimes v New York Tel. Co., 46 NY2d 132, 136—137 ). Finally, the statute is to be construed as liberally as possible in order to accomplish its protective goals (see Martinez v City of New York, 93 NY2d 322, 326 ). In order for a plaintiff to demonstrate entitlement to summary judgment on an alleged violation of Labor Law § 240(1), he must establish that there was a violation of the statute, which was the proximate cause of the worker's injuries (see Blake, 1 NY3d at 289). "The statute is designed to protect workers from gravity-related hazards such as falling from a height, and must be liberally construed to accomplish the purpose for which it was framed [internal citations omitted]" (Valensisi v Greens at Half Hollow, LLC, 33 AD3d 693, 695 ).
Defendants argue that plaintiff's Labor Law §240 (1) claim must be dismissed as he was not required to work in an area with a height differential and that his own testimony revealed that his job did not require the use of safety harnesses. Additionally, defendants argue that plaintiff was not even working at the time of his accident but was merely attempting to obtain his next set of instructions. As to this contention, the court notes that in Beharry v Public Stor., Inc., 36 AD3d 574 , Labor Law §240 (1) liability was found in a case involving a worker injured while returning from a coffee break who fell through a metal decking between two floors and "went straight through" to the first floor. Accordingly, the court finds this argument lacks merit.
Moreover, defendants' contend that they took numerous and extensive precautions to caution off the stairway, including instructing the plaintiff not to use the stairway in question and that an alternate stairway was to be used, and placing 2x4s and cautionary tape in the area leading up to the doorway. Defendants assert that plaintiff chose to disregard the instruction to not use that stairway and that his injuries were solely caused by his own negligence in disregarding the extensive precautions taken by defendants to prevent workers from using the subject staircase. In support of their motion, defendants point to various cases in which summary judgment was granted to defendants dismissing a plaintiff's Labor Law §240 (1) claim which, they contend, are similar to the case at bar. Specifically they point to Rocovich, 78, NY2d 514  [plaintiff slipped and fell into trough which was 18 to 36 inches wide and 12 inches deep, court held that fact that he was required to work in are near trough not sufficient to demonstrate that the work he was perform constituted and elevation related hazard. They also point to Piccuillo v Bank of New York Company, Inc., 277 AD2d 93 , in which court granted defendants motion for summary judgment where it found that plaintiff electrician's fall in 12 inch wide, eight feet deep hole used to provide access to wiring and ducts in the floor was not due to defendants failure to provide or erect safety devices in response to an elevated height risk. Defendants further point to Alvia v Teman Electrical Contracting Inc., 287 AD2d 421  where court held that a 12 inch wide 16 inch deep hole that plaintiff fell into did not present an elevated height risk for which protected devices under Labor Law §240 (1). Defendants argue, that similar to the cases they cited, the protections afforded under Labor Law §240 are not applicable here since plaintiff was not engaged in work at the time of the incident, was not required to work at an elevated height and plaintiff himself testified that his job did not require the use of a safety harness.
In opposition, and in support of his cross motion, plaintiff argues that his fall through an unprotected opening requires the granting of summary judgment in his favor on his Labor Law §240 (1) claim. Plaintiff argues that the cases cited by defendants are distinguishable from the facts of his case because they did not involve a fall from an elevation related risk. Instead, plaintiff maintains that Beharry v Public Storage, inc., 36 AD3d 574  is dispositive. Beharry involved a plaintiff who sustained injuries after "ascending a flight of unfinished stairs from the second floor to the third floor, he stepped on the "metal decking" or the "intermediate platform" between the two floors and "went straight through" to the first floor." The Beharry court imposed Labor Law§ 240 (1) liability holding that the metal decking was a safety device within the meaning of Labor Law § 240(1) which failed to prevent plaintiff from falling through to the floor below.
"[T]he single decisive question [in determining whether Labor Law § 240(1) is applicable] is whether plaintiff's injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential" (Runner v New York Stock Exch. Inc., 13 NY3d 599, 603, ; see Jara v New York Racing Assn., Inc., 2011 NY Slip Op 5670, 2; La Veglia v St. Francis Hosp., 78 AD3d 1123, 1127 ).
Here the court finds that plaintiff has established his prima facie entitlement to summary judgment on the issue of liability pursuant to Labor Law § 240 (1) by submitting evidence that he fell through an uncovered opening, that no safety device was in place to protect him from the uncovered opening and that this violation was the proximate cause of the injuries he allegedly sustained (see Valensisi v Greens at Half Hollow, LLC, 33 AD3d 693, 695 ; Miller v Weeden, 7 AD3d 684, 685-686  [court imposed Labor Law § 240 (1) liability where plaintiff fell from the ground floor to the basement through an uncovered opening and that no safety device was in place to protect him from the uncovered opening and that this violation was the proximate cause of the injuries he allegedly sustained]; Brandl v Ram Builders, 7 AD3d 655  [plaintiff fell through unprotected opening from the first floor into the basement]; Perkins v Ken Lowentheil & Daughters, Inc., 282 AD2d 510, 511 ; John v Baharestani, 281 AD2d 114, 117 ; Carpio v Tishman Construction Corp. of New York, 240 AD2d 234, 235  ["Plaintiff's partial fall through a hole at a construction site can hardly be characterized as only tangentially related to the effects of gravity."]). Accordingly, the court finds that plaintiff has met his burden of establishing that Labor Law §240 (1) applied and was violated. The burden now shifts to the opposing defendants to raise a question of fact.
In that regard, defendants argue that plaintiff's cross motion for summary judgment in his favor on his Labor Law §240 (1) claim must be denied as plaintiff has failed to eliminate triable issues of fact, specifically regarding plaintiff's failure to obey the instruction of Timothy Drew regarding the subject stairwell. Defendants argue that the recalcitrant worker defense to the strict liability imposed pursuant to Labor Law§ 240 (1) is applicable to situations where a plaintiff receives specific instructions and disregards them (see Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35 ). Specifically, a recalcitrant worker defense requires proof that a plaintiff disobeyed an immediate specific instruction to use an actually available safety device provided by the employer or to avoid using a particular unsafe device (see Santo v Scro, 43 AD3d 897, 898—899; Wall v Turner Constr. Co., 10 AD3d 261, 262 , aff'd 4 NY3d 861 ; Jastrezebski v North Shore School Distr., 223 AD2d 677 , aff'd 88 NY2d 946 ; Andino v BFC Partners, 303 AD2d 338, 340 ).
In Cahill there was extensive testimony regarding instructions on the use of safety lines to the employee, and evidence of how the safety line should have been used to protect the employee. In Cahill, the Court found that the plaintiff was "recalcitrant", but determined that such finding was not the controlling question, but rather, the issue to be determined was whether a jury could find that the employees own conduct was the sole proximate cause of his accident (Id. at 39-40).
Moreover, it has been held that "[i]f proximate cause can be a question of fact when an employee refuses to use the supplied safety device or when an employee makes a choice to not use the safety devices provided, then a directive not to perform the work that puts the employee within the parameters of Labor Law § 240 (1) due to a dangerous condition may also raise a question of fact on proximate cause for a jury to determine" (see Wonderling v CSX Transportation, Inc.,34 AD3d 1244 affmg 11 Misc 3d 1061A;; Cahill, at 40; Montgomery v Federal Express Corp., 4 NY3d 805, 806 ; Blake at 290-91; Tronolone v Praxair, Inc., 22 AD3d 1031 ).
Here, the court finds that defendants have raised a triable issue of fact on the recalcitrant worker defense. Defendants rely upon the deposition testimony of Timothy Drew, the Martone foreman, whose deposition testimony at pages 16-17, reveals as follows:
Q.On the day of the accident, was there any kind of morning meeting that you had with your workers?Plaintiff testified that Mr. Drew had spoken about removing the metal grate and he thinks he mentioned it that morning, but testified that Drew did not say when he was going to do it. However, in his affidavit in support of his cross motion plaintiff states that he was never given any instructions or warnings that the metal grate was going to be removed and was never told not to use the staircase leading to that area.
A.Pertaining to what?
Q.Pertaining to what they would be doing during the course of that day.
A.Yes what work was going to proceed.
Q.Was there any discussion, at all, as to putting any kind of barricades up on the roof?
A.I said that I was going to do it, yes.
Q.Did you describe what you were going to do?
A.I told them I was going to put cones.
A.And a wood barrier.
Q:Approximately what time of day did you tell them this?
He further testified at pages 23-24 as follows:
Q:Did there come a point in time that you came down to the lower roof?
Q.For what purpose did you come down to the lower roof?
A.To remind everyone now to go upstairs and to use the other stairwell.
Q.Was Mr. Parker present when you made that comment?
Q.Do you know if he was on a cell phone when you made that comment?
A.He had it in his hand.
The court finds that issues of fact have been raised by defendants regarding whether plaintiff was a recalcitrant worker and whether plaintiff's own actions were the sole proximate cause of his injuries. Moreover, as there is conflicting testimony regarding the presence of barricades indicating that it was unsafe for people to enter the stairwell, plaintiff testified that he did not see any safety cones, warning tape or warning signs while the representative of Bovis testified that he observed these safety measures in place and Drew testified that he personally placed said safety precautions and warned plaintiff not to utilize the stairwell in question creates questions of fact that preclude the granting of summary judgment to either party on the issue of Labor Law §240 (1) liability. Accordingly, that branch of defendants' motion seeking summary judgment dismissing plaintiff's Labor Law §240 (1) complaint is denied. Likewise, plaintiff's cross motion seeking summary judgment on the issue of Labor Law §240 (1) liability in his favor is denied.
Labor Law §241(6) imposes absolute liability on owners and contractors for violation of its provisions, but only when such violation is the proximate cause of a worker's injury (Rizzuto v L.A. Wenger Contracting Co., Inc., 91 NY2d 343 ; Allen v Cloutier Constr. Corp., 44 NY2d 290, 300  , rearg denied 45 NY2d 776 ). Section 241(6) places a non-delegable duty upon owners and contractors to "provide reasonable and adequate protection and safety" for their workers in accordance with established rules and regulations (see Comes v New York State Elec. and Gas Corp., 82 NY2d 876, 878  ; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 503 ).
In order to support a claim pursuant to this section, a plaintiff must allege that a concrete and "specific" provision of the Industrial Code has been violated; an allegation that a "general safety" standard has been violated will not support a Labor Law §241(6) claim" (Rizzuto, 91 NY2d at 349-350; Ross, 81 NY2d at 505; Fusca v A & S Constr., LLC, 2011 NY Slip Op 4414; Shaw v RPA Assoc., LLC, 75 AD3d 634, 637  Borowicz v International Paper Co., 245 AD2d 682, 684 ). Here, plaintiff alleges violations of Industrial Code sections 23-1.2, 23-1.3, 23-1.5, 23-1.5 (a), 23-1.7 (b) (1) (I) (ii) (iii), 23-1.15, 23-1.16, 23-1.17, 23-1.30 and 23-3.3 (j). At the outset, the court notes that following Industrial Code sections cited by plaintiff have been held to be general provisions and thus are not a sufficient basis to support a claim for liability under Labor Law §241 (6): 23-1.2; 23-1.3;23-1.5 and 23-1.5 (a). In addition, the following provisions cited by plaintiff are inapplicable to the facts of the instant case: 23-1.6; 23-1.15; 23-1.17; 23-1.30; and 23-3.3 (j).
On March 14, 2011, this court issued a short form order granting that branch of defendants' motion for summary judgment in its favor dismissing plaintiff's Labor Law§ 241 (6) claim as predicated upon a violation of Industrial Code section 23-1.7 (f). The short form order also contingently granted that branch of plaintiff's cross motion seeking summary judgment in his favor on his Labor Law §241 (6) claim as predicated upon a violation of Industrial Code section 23-1.7 (b) (1). However, the court allowed defendants time to present further case law on this issue.
Industrial Code 23-1 (b) (I) provides that "[e]very hazardous opening into which a person may step or fall shall be guarded by a substantial cover fastened in place or by a safety railing constructed and installed in compliance with this Part (rule).
In support of their position that they did not violate Industrial Code §23-1 (b) (1) defendants argue that there was a two feet by four feet wooden plank and yellow caution tape placed in front of the doors and thus this was, as a matter of law, a "substantial cover fastened in place." Defendants point to the case of Godoy v Baisley Lumber Corporation, 40 AD3d 920  in which the court ruled that this section was inapplicable because there was evidence submitted that there was a two feet by four feet wooden plank across the door and yellow caution tape placed in front of the door.
However, plaintiff points out in support of his cross motion that the Bovis' representative Hyers testified that when he observed the 2 x4s that were used to block access to the stairwell they were not affixed to anything but rather were placed leaning against the wall. Additionally, Drew himself testified that he was the person who placed the 2 x 4s and that he placed it leaning against the wall and did not affix it to the wall. The court notes that here, the record is clear that there was nothing that was fastened in place to protect plaintiff from falling into the unguarded opening. Accordingly, that branch of plaintiff's motion seeking summary judgment in his favor on his Labor Law §241 (6) claim as based upon a violation of Industrial Code §23-1.5 (b) is granted.
The foregoing constitutes the decision and order of the court.
J. S. C.