Shaw v. Resnick 75 Park Place, LLC

Supreme Court, Kings CountyNov 16, 2011
28875/08 (N.Y. Sup. Ct. 2011)
28875/082011 N.Y. Slip Op. 52093

28875/08

11-16-2011

Roan Shaw, Plaintiff, v. Resnick 75 Park Place, LLC, Defendants.

Plaintiff Attorney: Bisogno & Meyerson. Defendant Attorney: Smith, Mazure.


Plaintiff Attorney: Bisogno & Meyerson.

Defendant Attorney: Smith, Mazure.

David I. Schmidt, J.

Upon the foregoing papers, defendant/third-party plaintiff Resnick 75 Park Place, LLC, (Resnick) moves for an order, pursuant to CPLR 3212, granting summary judgment dismissing plaintiff's common law negligence and Labor Law §200 and 241 (6) claims as asserted against Resnick. Resnick also moves for summary judgment dismissing third-party defendant Standard Waterproofing Corp.'s (Standard) cross-claims, and seeks summary judgment in its favor on its claims for common law and contractual indemnification and contribution from Standard.

Background

Plaintiff Roan Shaw was employed by Standard as a laborer/roofer. Resnick is the owner of a building located at 75 Park Place in Manhattan. Resnick entered into a contract with Standard to replace the waterproofing on the roof of the building. On the morning of December 11, 2007, plaintiff was working on the roof. The work being performed by plaintiff and his coworkers entailed digging up the old roof and replacing it with a new waterproof roof. Plaintiff had swept water from the area in which he was working before beginning his work. He claims that he was working on his knees on top of roof paper. Plaintiff was sliding insulation board to a co-worker under a water tank when he was caused to slip on the wet roofing paper and strike his head on a metal I-beam support structure on the water tank.

Resnick's Motion

Resnick moves for summary judgment dismissing plaintiff's common law negligence and Labor Law §§200 and 241 (6) claims as asserted against Resnick. Resnick also moves for summary judgment dismissing Standard's cross-claims and seeks summary judgment in its favor on its claims for common law and contractual indemnification and contribution from Standard.

Labor Law §200/Common Law Negligence

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 [1998]; Cyclone Realty, LLC, 78 AD3d 144, 147 [2010]; Aguilera v Pistilli Constr. & Dev. Corp., 63 AD3d 763, 764 [2009]; Chowdhury v Rodriguez, 57 AD3d 121, 127-128 [2008]). 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 [2009]; Chowdhury, 57 AD3d at 127-128; Ortega v Puccia, 57 AD3d 54, 61 [2008]).

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 [2011]; Chowdhury, 57 AD3d at 128; Ortega, 57 AD3d at 61; Azad v 270 5th Realty Corp., 46 AD3d 728, 730 [2007]; see Slikas v Cyclone Realty LLC , 78 AD3d 144, 147 [2010]; see also Fusca v A & S Const., LLC, 84 AD3d 1155, 1155 [2011]; Barillaro v Beechwood RB Shorehaven, LLC, 69 AD3d 543, 544 [2010]; Colon v Bet Torah, Inc., 66 AD3d 731, 732 [2009]; Aguilera, 63 AD3d at 764; Fuchs v Austin Mall Assoc., LLC, 62 AD3d 746, 747 [2009]).

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 [2006], quoting Perri v Gilbert Johnson Enters., Ltd., 14 AD3d 681, 683 [2005]; see also Riccio v Shaker Pine, 262 AD2d 746, 748 [1999]). 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 [2007]; Burkoski v Structure Tone, Inc., 40 AD3d 378, 381 [2007]).

Resnick argues that it is entitled to summary judgment dismissing plaintiff's Labor Law§ 200 and common law negligence claims as it did not create or have notice of the alleged dangerous condition, the wet roof. In support of this position, Resnick points to the testimony of plaintiff, as well as Standard's foreman— both of whom testified that they had not complained of any leaks to Resnick. Additionally, Resnick avers that plaintiff's own testimony reveals that it was his responsibility to sweep water from the roof and that he had, in fact, pushed away the water with a broom prior to his accident. Resnick further points to plaintiff's testimony that at the time of his accident, there was no standing water or puddle on the roof, it was just wet after the water had been swept away. Resnick maintains that there is no definitive evidence regarding where the water came from, pointing to plaintiff's testimony that it had rained the day prior to his accident and also his testimony that the water tank was leaking. Resnick points out that the tank could have been leaking due to the prior days rain and not due to a hole in the tank.

In opposition, plaintiff argues that he testified that he first noticed the water leaking from the water tank a couple of days before his accident. Thus, he maintains that issues of fact exist as to whether the condition existed for a sufficient time and was readily discoverable so as to place Resnick on constructive notice of the dangerous wet condition of the roof.

Resnick further argues that plaintiff's Labor Law§ 200 claim should be dismissed since Resnick did not exercise supervisory control over plaintiff and did not create the condition complained of. In support of this position, Resnick points to plaintiff's testimony that nobody other than his supervisor at Standard told him how to perform his work as well as his testimony that Standard provided all the tools and equipment that plaintiff utilized at this job. Additional, Resnick points to the testimony of Standard's foreman, Francis Alexander, who testified that he directed the work performed by plaintiff and that Standard supplied all of the equipment and supplies for the job. Mr. Alexander further testified that only he, or other higher ranking Standard employees, could stop the work.

In opposition, plaintiff argues that issues of fact exist regarding whether Resnick breached its duty of care to plaintiff. Plaintiff claims that the water tank was leaking for at least two days prior to his accident and, thus, Resnick was on constructive notice of this dangerous and defective condition of the water tank.

It is well settled that the common-law duty to provide employees with a safe place to work does not extend to hazards that are part of, or inherent in, the very work the employee is to perform or defects that the employee is hired to repair (Hansen v Trustees of the M.E. Church of Glen Cove, 51 AD3d 725 [2008]; see, Kowalsky v Conreco Co., 264 NY 125, [1934];Gurung v Arnav Retirement Trust, 79 AD3d 969 [2010]; Bedneau v New York Hosp. Med. Ctr. of Queens, 43 AD3d 845 [2007] [ court declined to impose common law negligence or Labor Law§ 200 liability where the injured plaintiff slipped and fell on water that had accumulated on the floor of the boiler room during the course of repairing a leaking boiler as a result of the leak]).

Here, the evidence establishes that the plaintiff's purported injuries were caused by the wet condition on the roof and plaintiff's own testimony reveals that it was his responsibility to clear the water away from the area where he was performing the waterproofing (see, Gurung, 79 AD3d at 969, Bedneau, 43 AD3d 845 ;Appelbaum v 100 Church L.L.C., 6 AD3d 310 [2004]; Brugnano v Merrill Lynch & Co., 216 AD2d 18, 627 NYS2d 635).

Accordingly that branch of Resnick's motion seeking summary judgment dismissing plaintiff's common law negligence and Labor Law§ 200 claims is granted and said claims are hereby dismissed.

Labor Law 241 (6)

Resnick argues that plaintiff's Labor Law§ 241 (6) claim should be dismissed as he fails to allege a specific Industrial Code violation that is applicable to the facts of this case.

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 [1998]; Allen v Cloutier Constr. Corp., 44 NY2d 290, 300 [1978] , rearg denied 45 NY2d 776 [1978]). 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 [1993] ; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 503 [1993]).

Labor Law § 241(6) also imposes a non-delegable duty of reasonable care upon owners of premises and general contractors hired to perform renovations "to provide reasonable and adequate protection and safety to the persons" employed in, or lawfully frequenting, all areas in which construction, excavation, or demolition work is being performed. The owner and general contractor are vicariously liable for injuries sustained due to another party's negligence in failing to comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor (see Ross v Curtis-Palmer Hydro-Elec. Co., 81NY2d 494, 501-02 [1993]).

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 [2010] Borowicz v International Paper Co., 245 AD2d 682, 684 [1997]). Here, plaintiff alleges violations of Industrial Code sections 23-1.5, 23-1.7; 23-1.16, 23-1.21.

At the outset, the court notes that Industrial Code section 23-1.5 has been held to be a general provision and thus is not a sufficient basis to support a claim for liability under Labor Law §241 (6) (see Murray v Lancaster Motorsports, Inc., 27 AD3d 1193 [2006]; Fairchild v Servidone Constr Corp, 288 AD2d 665 [2001]). In addition, the following provisions cited by plaintiff are inapplicable to the facts of the instant case: 23-1.16; 23-1.21. Industrial Codes § 23-1.16 is inapplicable because it sets forth safety standards for safety belts, harnesses, tail lines and lifelines, and none of these safety devices were provided to plaintiff. Industrial Code 23-1.21 is inapplicable inasmuch as it relates to ladders and ladder ways which were not involved in the instant case.

Industrial Code §23-1.7(d) states, "employers shall not suffer or permit to suffer an employee to use a floor, passageway, walkway, scaffold, platform or other elevated working surface which is in slippery condition. Ice, snow, water, grease and any other foreign substance which may cause slippery footing shall be removed, sanded or covered to provide safe footing." This section has been held to be sufficiently specific to support a Labor Law §241 (6) claim (see Cafarella v Harrison Radiator Div. of GM, 237 AD2d 936, 937 [1997]; Durfee v Eastman Kodak Co., 212 AD2d 971, 972,[1995] lv dismissed 85 NY2d 968 [1995]). However, Resnick argues that at the time of plaintiff's accident there was no water on the roof; it was just wet after plaintiff had swept away all of the accumulated water. In support of this contention, Resnick points to plaintiff's own deposition testimony to this effect. Additionally, Resnick points to the deposition testimony of Alexander, Standard's foreman . Mr. Alexander testified as follows: (p.p.s. 44-45)

Q.. Did you ever observe any water accumulation on the roof during the time that you were working there?
A. Yes. You always have water there, wipeable water, like if some water spill there you could wipe it with a rag and it dries up.
Q. That would be a Standard Waterproofing employee would do the wiping?
A. Yes.
Q. That would be a Standard Waterproofing rag that would be used to wipe?
A. That's correct.
Q. Is that something you ever discussed with the people that you were responsible for on the roof?
A. Yes. We know the water continually falling, so it is a no problem with us. All you have to do is just wipe it and keep working.
Q. The roof where you were working was opened; correct?
A. Yes.
Q. There would be times when rain would fall? When it would rain?
A. Yes
Q. You told the people that you were responsible for that when that happens they were to wipe the area that they were working?
A. Wipe it and continue working because the roof that we were installing wet doesn't stop us. . .


In opposition, plaintiff contends that Resnick violated section 23-1.7 (d) by causing plaintiff to work on a wet slippery floor. Plaintiff points to his testimony that the water tank which was located on Resnick's property was leaking onto the roof and that this was the cause of his accident. However, the court notes that plaintiff testified that when he fell, there was no accumulation of water present, it was merely wet following his sweeping the water away from the area as required to accomplish his waterproofing duties. Based upon the foregoing, the court finds that in the instant case plaintiff did not slip on a foreign substance contemplated under section 23-1.7 (d) but rather slipped on the wet roof area that was exposed to the elements (see Gielow v Rosa Coplon Home, 251 AD2d 970, 971 [1998]; Scarupa v Lockport Energy Assocs., 245 AD2d 1038 [1997]; see also Gaisor v Gregory Madison Ave., LLC, 13 AD3d 58, 60 [2004] [holding that plaintiff's Labor Law § 241 (6) claim based upon an alleged violation of Industrial Code (12 NYCRR) § 23-1.7 (d), which requires removal of snow and ice so as to provide safe footing, was properly dismissed since the snow on which plaintiff slipped was the very condition he was charged with removing]; Salinas v Barney Skanska Constr. Co., 2 AD3d 619 [2003]; Miranda v City of New York, 281 AD2d 403, 404 [2001];Debowski v. City of New York, 3 Misc 3d 1109A [2004]).

That branch of Resnick's motion seeking summary judgment dismissing plaintiff's Labor Law§ 241 (6) claim as asserted against Resnick is granted. Accordingly, that branch of Resnick's motion seeking summary judgment dismissing Standard's cross-claims, and summary judgment in its favor on its claims for common law and contractual indemnification and contribution from Standard is rendered moot.

The foregoing constitutes the decision, order and judgment of the court.