The following numbered papers read on this motion by defendants for summary judgment dismissing the complaint.
Notice of Motion–Affidavits–Exhibits 24–37
Answering Affidavits–Exhibits 40
Upon the foregoing papers it is ordered that this motion is granted and the complaint is dismissed.
The plaintiff, an employee of non-party Adam's European Contracting (Adam's), was allegedly injured on September 9, 2013 at PS 104 while he was climbing through the bent iron bars of the fence surrounding the school. Adam's contracted with the New York City School Construction Authority (SCA) to perform construction work at PS 104 a school owned and operated by the defendants City of New York and the New York City Department of Education. Plaintiff commenced this action against the defendants alleging violation of Labor Law § 241(6), § 200 and common law negligence.
Defendants now move for summary judgment dismissing all causes of action on the grounds that they cannot be held liable pursuant to Labor Law § 200 or common law negligence since they did not have the authority to supervise or control the plaintiff nor did they have notice of an allegedly dangerous condition which was a proximate cause of plaintiff's accident.
Labor Law § 200 is a codification of the common-law duty of an owner or contractor to provide employees with a safe place to work (see Comes v. New York State Elec. & Gas Corp ., 82 NY2d 876, 877  ; Costa v. Sterling Equip., Inc. , 123 AD3d 649  ).
"Cases involving Labor Law § 200 fall into two broad categories: namely, those where workers are injured as a result of dangerous or defective premises conditions at a work site, and those involving the manner in which the work is performed" ( Ortega v. Puccia , 57 AD3d 54, 61  ; see Cody v. State of New York , 82 AD3d 925, 926  ; McKee v. Great Atl. & Pac. Tea Co. , 73 AD3d 872, 873  ; Chowdhury v. Rodriguez , 57 AD3d 121, 128  ; Markey v. C.F.M.M. Owners Corp ., 51 AD3d 734, 736  ).
In this case the plaintiff's Labor Law § 200 and common law negligence claims are based upon the claim that there existed two dangerous conditions on the premises. The first being a locked construction gate and the second being the bent iron bars of the iron fence surrounding the school where plaintiff's accident allegedly occurred. Where a claim is based on an alleged dangerous condition on the premises, the property owners may be held liable for a violation of Labor Law § 200 and common law negligence if they either created the dangerous condition or had actual or constructive notice of the dangerous condition that caused the accident (see Ortega v. Puccia , supra at 61; Aguilera v. Pistilli Constr. & Dev. Corp ., 63 AD3d 763, 763  ; Chowdhury v. Rodriguez , supra at 128). To constitute constructive notice, "a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit the defendants to discover and remedy it (see Gordon v. American Museum of Natural History , 67 NY2d 836, 837—838  ; Putnam v. Stout , 38 NY2d 607  ).
In support of their motion the defendants submitted the plaintiff's 50–h hearing testimony, plaintiff's deposition, the deposition of Emmanuel Belizaire defendants' project officer for the project, and the affidavits of Radoslaw Zamaitys, employed by Adam's as foreman and Angelo Cordero, employee of the City of New york as the school's custodial engineer.
Mr. Belizaire testified that he was the only employee of SCA assigned to the project at the school. He further testified that he visited the site twice a week for walk through inspections which lasted two to three hours during the daytime before the workers arrived in the afternoon, but he was not present at the site on the day of the plaintiff's accident. He also testified that the construction site was surrounded by a chain link fence with large gates which was erected and used by the employees of Adam's to access the site. He also testified that the construction gates were locked with a chain and combination locks to which locks he, the super Shabazz Mansab and the foreman Zamaitys, both employees of Adam's, had the combination. Mr. Belizaire also testified that the iron fence with the bent bars surrounded an area which was not part of the construction site and housed the dumpsters used only by the school. There were separate dumpsters in the construction site for use by the construction workers. He also testified that although he was aware of the bent bars of the iron fence which he did not consider as being dangerous, there were never any violations issued, complaints made and never saw anyone use the gap to enter the area.
In his affidavit Angelo Cordero avers that the school's custodial staff had no involvement with the renovations at the school, did not provide any tools or equipment nor have the authority to supervise or control the workers involved in the renovation. He further avers that the school is surrounded by an iron fence with gates which are used for ingress and egress by the staff, school employees and students, however, the construction workers were not permitted to use these gates. The construction workers erected a chain link fence with four gates which they used for ingress and egress. Mr. Cordero further avers that the gates of the chain-link fence had combination locks to which the City custodial staff did not have the combination.
The plaintiff testified that the construction work hours were from 4:00 p.m. to midnight, that his foreman Mr. Zamaitys always drove him to work and home, that on September 9, 2013 he arrived at work between 5:00 and 5:30 p.m. He further testified that the construction gate where he usually entered was open when he arrived. He could not say who or when this gate was closed, but he noticed that at 8:00 p.m. the gate was closed. Plaintiff testified that he only told his foreman, Zamaitys, that the gate was locked, but Zamaitys said nothing. Plaintiff also testified that he did not see anyone else use the gap in the iron fence as an exit. Plaintiff testified that there were other construction gates, but he did not look for an open gate before he tried to squeeze through the opening in the iron fence.
The defendants' evidence is sufficient to establish, prima facie, their entitlement to summary judgment dismissing the plaintiff's Labor Law § 200 and common law negligence claims by demonstrating that the defendants did not create or have actual or constructive notice that the construction gate was closed or that plaintiff, or anyone else, used or was using the gap in the iron fence as a means of ingress/egress from the construction site.
In opposition, the plaintiff failed to submit any evidence to raise a question of fact as to constructive notice.
Rather, plaintiff claims, relying upon on Niewojt v. Nikko Constr. Corp ., 139 AD3d 1024 (2016), that that the bent bars of the iron fence constitute a separate defective condition which was a proximate casue of the accident as it was foreseeable that plaintiff would try to exit via the opening in the iron fence.
The plaintiff's reliance on Niewojt is misplaced. The plaintiff in Niewojt was locked into the school's stadium and climed over the fence only after he made a search for an alternate exit and after calling for help. Here, the plaintiff testified that he made no effort to find an open construction gate nor ask his foreman to open the gate or to give plaintiff the combination to the lock before attempting to squeeze through the gap in the iron fence.
In reply, the defendants established that the bent bars of the iron fence was not the proximate cause of the plaintiff's accident. Although the issue of proximate cause is generally one for the jury (see Derdiarian v. Felix Contr. Corp ., 51 NY2d 308, 314–315  ), liability may not be imposed upon a party who merely furnished the condition or occasion for the occurrence of an event, but was not one of its causes (see Castillo v. Amjack Leasing Corp ., 84 AD3d 1298  ). The evidence established that the sole proximate cause of the plaintiff's accident was his action in attempting to exit the school grounds by squeezing through the bent bars of the iron fence rather than using one of the other three construction gates or asking his foreman to open the construction gate. When a worker is faced with an ordinary and obvious hazards of his employment such as a locked exit, and has the time and other resources, e.g. other exits, to enable him to proceed safely, he may not hold others responsible if he elects to proceed so incautiously as to injure himself (see Wagner v. Wody , 98 AD3d 965, 966  ; Abbadessa v. Ulrik Holding , 244 AD2d 517, 518  ).
Accordingly, the defendants' motion to dismiss the plaintiff's claims based upon Labor Law § 200 and common law negligence is granted.
Defendants also move for summary judgment dismissing the plaintiff's Labor Law § 241(6) on the ground that plaintiff failed to allege the violation of any safety rules and regulations set forth in the New York Industrial Code.
Labor Law § 241(6) imposes a non-delegable duty upon owners, general contractors and their agents to provide reasonable and adequate protection and safety to persons employed in construction, excavation or demolition work and to comply with the safety rules and regulations promulgated by the Commissioner of the Department of Labor (see Rizzuto v. L.A. Wenger Construction Co. , 91 NY2d 343, 348  ; Ross v. Curtis Palmer Hydro–Electric Co. , 81 NY2d 494, 501  ). To prevail on a Labor Law § 241(6) claim, a plaintiff must establish a violation of a New York State Industrial Code which contains a specific, positive command applicable to the circumstances of the accident, that such violation was a proximate cause of his injuries (see Rizzuto v. L.A. Wenger Construction Co. , supra; Ross v. Curtis Palmer Hydro–Electric Co. , supra; Forschner v. Jucca Co. , 63 AD3d 996  ).
Although it is undisputed that the plaintiff did not set forth the specific sections of the Industrial Code he relies upon to support his Labor Law § 241(6) claim in either his Verified Complaint or Verified Bill of Particulars. The failure to so is not fatal to such a claim (see Klimowicz v. Powell Cove Assoc., LLC , 111 AD3d 605, 606  ; Galarraga v. City of New York , 54 AD3d 308, 310  ) where, as here, no new factual allegations or theories of liability are raised, the defendant had knowledge of the facts and circumstances of the plaintiff's claim and had an opportunity to conduct discovery regarding this claim, and defendants have failed to demonstrate any actual prejudice resulting from the delay in pleading. Under such circumstances the court may consider the alleged Industrial Code violations raised for the first time in opposition to a summary motion or may, sua sponte, grant plaintiff leave to amend his or her bill of particulars to add such allegations (see Edenwald Contr. Co. v. City of New York , 60 NY2d 957, 959  ; Klimowicz v. Powell Cove Assoc., LLC , supra at 607; Latino v. Nolan and Taylor–Howe Funeral Home , 300 AD2d 631, 633–634  ; Kelleir v. Supreme Indus. Park , 293 AD2d 513, 514  ).
In opposition to the defendants' motion the plaintiff relies on Industrial Code 12 NYCRR 23–3.3(f) and 12 NYCRR 23–1.7(e) (1)(2) and contends that the facts alleged in his Notice of Claim together with his testimony at the 50–h hearing and deposition are sufficient to put the defendants on notice of the substance of the plaintiff's claims. Even if the plaintiff's factual allegations are sufficient to provide defendants with notice of his claim, the Industrial Code provisions upon which plaintiff relies are inapplicable to the facts of this case and insufficient to support his Labor Law § 241(6) claim.
Industrial Code 12 NYCRR 23–3.3 is entitled Demolition by Hand. Subdivision 23–3.3(f) requires safe access to floors and access to and egress from a building under demolition so as to protect workers from the hazzards of falling objects during demolition. This provision is inapplicable inasmuch as plaintiff was not exposed to falling objects during demolition as there was no demolition being performed in and around the area where plaintiff's accident occurred.
The provisions of 12 NYCRR 23–1.7 (e) (1) applies to passageways and 12 NYCRR 23–1.7 (e) (2) relates to "[t]he parts of floors, platforms and similar areas where persons work or pass" and requires that these areas be kept free from obstructions or debris or conditions which could cause tripping. Neither the construction gate nor the iron fence is a floor, platform, passageway or similar working surface within the purview of these regulations and the plaintiff did not trip or fall due to debris, scattered tools or materials. Here, the plaintiff claims to have fallen when he hit a metal bar with his knee as he was squeezing through the bent bars of the iron gate.
Accordingly, the defendants' motion to dismiss the plaintiff's Labor Law § 241(6) is granted.