Opinion
No. 2020-05931
05-03-2023
Thomas Bonkoski, appellant, v. Condos Brothers Construction Corp., et al., respondents (and a third-party action).
Edward R. Young (Musman Law, LLC, Elmsford, NY [Marc J. Musman], and Larry Bonchonsky of counsel), for appellant. Kennedys Law, LLP, New York, NY (Elizabeth J. Streelman of counsel), for respondent Condos Brothers Construction Corp. Goldberg Segalla, LLP, Garden City, NY (J. Daniel Velez of counsel), for respondents Sachi Contractors, Inc., BAPS Melville, LLC, and BAPS Northeast Development, Inc.
Edward R. Young (Musman Law, LLC, Elmsford, NY [Marc J. Musman], and Larry Bonchonsky of counsel), for appellant.
Kennedys Law, LLP, New York, NY (Elizabeth J. Streelman of counsel), for respondent Condos Brothers Construction Corp.
Goldberg Segalla, LLP, Garden City, NY (J. Daniel Velez of counsel), for respondents Sachi Contractors, Inc., BAPS Melville, LLC, and BAPS Northeast Development, Inc.
BETSY BARROS, J.P. JOSEPH J. MALTESE JOSEPH A. ZAYAS DEBORAH A. DOWLING, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (William J. Condon, J.), dated May 18, 2020. The order, insofar as appealed from, (1) granted those branches of the motion of the defendant Condos Brothers Construction Corp. which were for summary judgment dismissing the cause of action alleging a violation of Labor Law § 240(1), and so much of the cause of action alleging a violation of Labor Law § 241(6) as was predicated upon 12 NYCRR 23-1.7(b)(1)(i), insofar as asserted against it, (2) denied the plaintiff's motion for summary judgment on the issue of liability on the causes of action alleging violations of Labor Law §§ 200 and 240(1), and common-law negligence, and so much of the cause of action alleging a violation of Labor Law § 241(6) as was predicated upon 12 NYCRR 23-1.7(b)(1)(i), insofar as asserted against the defendants Sachi Contractors, Inc., BAPS Melville, LLC, and BAPS Northeast Development, Inc., and (3) granted those branches of the motion of the defendants Sachi Contractors, Inc., BAPS Melville, LLC, and BAPS Northeast Development, Inc., which were for summary judgment dismissing the causes of action alleging violations of Labor Law §§ 200 and 240(1), and common-law negligence, and so much of the cause of action alleging a violation of Labor Law § 241(6) as was predicated upon 12 NYCRR 23-1.7(b)(1)(i), insofar as asserted against them.
ORDERED that the order is modified, on the law, (1) by deleting the provision thereof granting those branches of the motion of the defendants Sachi Contractors, Inc., BAPS Melville, LLC, and BAPS Northeast Development, Inc., which were for summary judgment dismissing the causes of action alleging a violation of Labor Law § 200 and common-law negligence, and so much of the cause of action alleging a violation of Labor Law § 241(6) as was predicated upon 12 NYCRR 23-1.7(b)(1)(i), insofar as asserted against them, and substituting therefor a provision denying those branches of the motion, (2) by deleting the provision thereof denying that branch of the plaintiff's motion which was for summary judgment on the issue of liability on so much of the cause of action alleging a violation of Labor Law § 241(6) as was predicated upon 12 NYCRR 23-1.7(b)(1)(i) insofar as asserted against the defendants Sachi Contractors, Inc., BAPS Melville, LLC, and BAPS Northeast Development, Inc., and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed from, with one bill of costs to the defendant Condos Brothers Construction Corp., payable by the plaintiff.
The plaintiff, a plumbing foreman employed by nonparty Preferred Plumbing & Heating, Inc. (hereinafter Preferred Plumbing), allegedly was injured when he fell into an obscured or partially covered manhole at a construction project on premises owned by the defendants BAPS Melville, LLC, and BAPS Northeast Development, Inc. (hereinafter together the BAPS defendants). The BAPS defendants had retained the defendant Sachi Contractors, Inc. (hereinafter Sachi), as the general contractor for the construction project. Sachi had retained Preferred Plumbing to perform plumbing work on the project, and had retained the defendant Condos Brothers Construction Corp. (hereinafter Condos) to perform drainage work, including installing manholes. The plaintiff commenced this action to recover damages for personal injuries against Sachi, the BAPS defendants, and Condos, alleging violations of Labor Law §§ 200, 240(1), and 241(6), and common-law negligence. In an order dated May 18, 2020, the Supreme Court, inter alia, granted those branches of the motion of Condos which were for summary judgment dismissing the cause of action alleging a violation of Labor Law § 240(1), and so much of the cause of action alleging a violation of Labor Law § 241(6) as was predicated upon 12 NYCRR 23-1.7(b)(1)(i), insofar as asserted against it, denied the plaintiff's motion for summary judgment on the issue of liability on the causes of action alleging violations of Labor Law §§ 200 and 240(1), and common-law negligence, and so much of the cause of action alleging a violation of Labor Law § 241(6) as was predicated upon 12 NYCRR 23-1.7(b)(1)(i), insofar as asserted against Sachi and the BAPS defendants, and granted those branches of the motion of Sachi and the BAPS defendants which were for summary judgment dismissing the causes of action alleging violations of Labor Law §§ 200 and 240(1), and common-law negligence, and so much of the cause of action alleging a violation of Labor Law § 241(6) as was predicated upon 12 NYCRR 23-1.7(b)(1)(i), insofar as asserted against them. The plaintiff appeals.
We affirm the granting of those branches of the motion of Condos which were for summary judgment dismissing the cause of action alleging a violation of Labor Law § 240(1), and so much of the cause of action alleging a violation of Labor Law § 241(6) as was predicated upon 12 NYCRR 23-1.7(b)(1)(i), insofar as asserted against it, but on different grounds from those relied upon by the Supreme Court. The express terms of Labor Law §§ 240(1) and 241(6) provide that "the nondelegable duties imposed by those statutes apply only to 'contractors and owners and their agents'" (Krajnik v Forbes Homes, Inc., 120 A.D.3d 902, 904; see Blake v Neighborhood Hous. Servs. of N.Y. City, 1 N.Y.3d 280, 293). "To hold a defendant liable as an agent of the general contractor or owner for violations of Labor Law §§ 240(1) and 241(6), there must be a showing that it had the authority to supervise and control the work that brought about the injury" (Fiore v Westerman Constr. Co., Inc., 186 A.D.3d 570, 571; see Blake v Neighborhood Hous. Servs. of N.Y. City, 1 N.Y.3d at 293; Russin v Louis N. Picciano & Son, 54 N.Y.2d 311, 318; Bakhtadze v Riddle, 56 A.D.3d 589, 590). Here, Condos established, prima facie, that it was not an agent of either Sachi or the BAPS defendants at the time of the plaintiff's accident with evidence that its supervision responsibilities on the worksite were limited to those times when its work was in progress, and that it had left the worksite several weeks prior to the plaintiff's accident after completing its work to the satisfaction of both Sachi and an inspector from the Town of Huntington (see Fiore v Westerman Constr. Co., Inc., 186 A.D.3d at 571-572). In opposition, the plaintiff failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324).
The Supreme Court properly granted that branch of the motion of Sachi and the BAPS defendants which was for summary judgment dismissing the cause of action alleging a violation of Labor Law § 240(1) insofar as asserted against them. Labor Law § 240(1) "imposes upon owners and general contractors, and their agents a nondelegable duty to provide workers proper protection from elevation-related hazards" (Zoto v 259 West 10, LLC, 189 A.D.3d 1523, 1524, citing Ross v Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 500; see McCarthy v Turner Constr., Inc., 17 N.Y.3d 369, 374). The statute "was designed to prevent those types of accidents in which the scaffold, hoist, stay, ladder or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person" (Ross v Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d at 501 [emphasis omitted]). "Not every gravity-related injury is within the ambit of Labor Law § 240(1)" (Carey v Five Bros., Inc., 106 A.D.3d 938, 940). "'Whether a plaintiff is entitled to recovery under Labor Law § 240(1) requires a determination of whether the injury sustained is the type of elevation-related hazard to which the statute applies'" (Toalongo v Almarwa Center, Inc., 202 A.D.3d 1128, 1130, quoting Wilinski v 334 E. 92nd Hous. Dev. Fund Corp., 18 N.Y.3d 1, 7).
Here, Sachi and the BAPS defendants established, prima facie, that the plaintiff's injuries, though the result of a fall, did not result from an elevation-relation hazard encompassed by Labor Law § 240(1) (see Rocovich v Consolidated Edison Co., 78 N.Y.2d 509, 514; Carey v Five Bros., Inc., 106 A.D.3d 938, 940; Masullo v City of New York, 253 A.D.2d 541, 542; cf. Piccone v Metropolitan Tr. Auth., 205 A.D.3d 628). In opposition, the plaintiff failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 N.Y.2d at 324). For the same reason, the Supreme Court properly denied that branch of the plaintiff's motion which was for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1) insofar as asserted against Sachi and the BAPS defendants.
"Labor Law § 200 is a codification of the common-law duty of property owners, contractors, and their agents to provide workers with a safe place to work" (Doto v Astoria Energy II, LLC, 129 A.D.3d 660, 663; see Rizzuto v L.A. Wenger Contr. Co., 91 N.Y.2d 343, 352). "Where a plaintiff's injuries are alleged, as here, to arise from a dangerous condition on the premises, a defendant may be liable under Labor Law § 200 if it 'either created the dangerous condition that caused the accident or had actual or constructive notice of the dangerous condition'" (Miller v R.L.T. Props., Ltd., 206 A.D.3d 648, 650, quoting Rojas v Schwartz, 74 A.D.3d 1046, 1047; see Alberici v Gold Medal Gymnastics, 197 A.D.3d 540, 543; Carey v Five Bros., Inc., 106 A.D.3d at 940). "A defendant has constructive notice of a hazardous condition on property when the condition is visible and apparent, and has existed for a sufficient length of time to afford the defendant a reasonable opportunity to discover and remedy it" (Hamm v Review Assoc., LLC, 202 A.D.3d 934, 937; see Nicoletti v Iracane, 122 A.D.3d 811, 812).
Here, Sachi and the BAPS defendants failed to establish, prima facie, that they lacked actual or constructive notice of the allegedly dangerous condition of the manhole, as the evidence they submitted in support of their motion did not eliminate triable issues of fact as to whether the allegedly dangerous condition of the manhole should have been discovered upon a reasonable inspection (see Miller v R.L.T. Props., Ltd., 206 A.D.3d 648; Nicoletti v Iracane, 122 A.D.3d 811; Carey v Five Bros., Inc., 106 A.D.3d at 940). Accordingly, the Supreme Court should have denied those branches of the motion of Sachi and the BAPS defendants which were for summary judgment dismissing the causes of action alleging a violation of Labor Law § 200 and common-law negligence insofar as asserted against them (see Winegrad v v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853). For the same reason, the court properly denied those branches of the plaintiff's motion which were for summary judgment on the issue of liability on the causes of action alleging a violation of Labor Law § 200 and common-law negligence insofar as asserted against Sachi and the BAPS defendants.
To establish liability under Labor Law § 241(6), a plaintiff must "establish the violation of an Industrial Code provision which sets forth specific safety standards," and which "is applicable under the circumstances of the case" (Aragona v State of New York, 147 A.D.3d 808, 809). Industrial Code (12 NYCRR) § 23-1.7(b)(1)(i) states, in relevant part, 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."
Here, the plaintiff established, prima facie, that 12 NYCRR 23-1.7(b)(1)(i) was violated with evidence that the manhole had a hazardous opening large enough for a worker to fall through (cf. Carey v Five Bros., Inc., 106 A.D.3d at 940; Barillaro v Beechwood RB Shorehaven, LLC, 69 A.D.3d 543; Rice v Board of Educ. of City of N.Y., 302 A.D.2d 578, 579; Alvia v Teman Elec. Contr., 287 A.D.2d 421, 422), and lacked a covering sufficient to prevent a worker from doing so (see Alonzo v Safe Harbors of the Hudson Hous. Dev. Fund Co., Inc., 104 A.D.3d 446, 447, 450; see also Restrepo v Yonkers Racing Corp., Inc., 105 A.D.3d 540, 541). In opposition, Sachi and the BAPS defendants failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 N.Y.2d at 324). Contrary to the contentions of Sachi and the BAPS defendants, their evidence that a concrete cover had been placed over the manhole at some point prior to the plaintiff's accident failed to raise a triable issue fact as to whether the covering was sufficiently substantial, as there is no dispute that the covering was either missing or broken at the time of the plaintiff's accident (see Restrepo v Yonkers Racing Corp., Inc., 105 A.D.3d at 541). Accordingly, the Supreme Court should have granted that branch of the plaintiff's motion which was for summary judgment on the issue of liability on so much of the cause of action alleging a violation of Labor Law § 241(6) as was predicated upon 12 NYCRR 23-1.7(b)(1)(i) insofar as asserted against Sachi and the BAPS defendants. For the same reasons, the court should have denied that branch of the motion of Sachi and the BAPS defendants which was for summary judgment dismissing so much of the cause of action alleging a violation of Labor Law § 241(6) as was predicated upon 12 NYCRR 23-1.7(b)(1)(i) insofar as asserted against them.
BARROS, J.P., MALTESE, ZAYAS and DOWLING, JJ., concur.