Opinion
154379/2016
07-31-2020
Stephen FERRARA and Karen Ferrara, Plaintiffs v. PACOLET MILLIKEN ENTERPRISES, INC., 7BP Owner, LLC, Hines 1045 Avenue of the Americas Investors LLC, Hines Consolidated Investments, Inc., Turner Construction Company, JPMorgan Chase & Co., JPMorgan Asset Management Holdings Inc., and Component Assembly Systems, Inc., Defendants
Steven C. November Esq., Raphaelson & Levine Law Firm, P.C., 14 Pennsylvania Plaza, New York, NY 10122, For Plaintiffs Adam C. Del Vecchio Esq., Cullen & Dykman, LLP, 44 Wall Street, New York, NY 10005, For Defendants
Steven C. November Esq., Raphaelson & Levine Law Firm, P.C., 14 Pennsylvania Plaza, New York, NY 10122, For Plaintiffs
Adam C. Del Vecchio Esq., Cullen & Dykman, LLP, 44 Wall Street, New York, NY 10005, For Defendants
Lucy Billings, J.
I. BACKGROUND
Plaintiffs sue to recover damages for personal injuries and lost services sustained on April 2, 2015, when an unsecured ladder fell on Stephen Ferrara, an employee of nonparty Island Diversified, while he was working on premises owned by defendant Hines 1045 Avenue of the Americas Investors LLC (Hines Investors) at 7 Bryant Park, New York County. Defendant Turner Construction Company was the general contractor and defendant Component Assembly Systems, Inc. (CAS), was a drywall subcontractor at the construction site. In a stipulation dated July 2, 2018, plaintiffs discontinued their action against defendants Pacolet Milliken Enterprises, Inc., 7BP Owner, LLC, Hines Consolidated Investments, Inc., JPMorgan Chase & Co., and JPMorgan Asset Management Holdings Inc.
Plaintiffs have moved for summary judgment on the liability of the remaining defendants, Hines Investors, Turner Construction, and CAS, for violation of New York Labor Law § 240(1). C.P.L.R. § 3212(b) and (e). Defendants have moved separately for summary judgment dismissing the complaint. C.P.L.R. § 3212(b). Plaintiffs then cross-moved to amend their verified bill of particulars with a claim that defendants violated 12 N.Y.C.R.R. § 23-1.21(b)(4)(i). C.P.L.R. §§ 3025(b), 3042(b), 3043(c). For the reasons explained below, the court grants plaintiffs' motion in part, defendants' motion in part, and plaintiffs' cross-motion in its entirety.
II. PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT ON THEIR LABOR LAW § 240(1) CLAIM
Plaintiffs claim defendants violated Labor Law § 240(1) because the ladder that struck Ferrara was leaning unsecured against a mechanical room bulkhead wall on an exposed, windy rooftop. Labor Law § 240(1) provides in 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) imposes a nondelegable duty on owners, general contractors, and their agents to provide workers safety devices to protect from the risks of elevated equipment and materials at construction sites. Nicometi v. Vineyards of Fredonia, LLC , 25 NY3d 90, 97 (2015) ; Soto v. J. Crew Inc. , 21 NY3d 562, 566 (2013). The failure to provide safety devices constitutes a per se violation of the statute and subjects the owner Hines Investors and the general contractor Turner Construction to absolute liability, as a matter of law, if that failure proximately caused Ferrara's injury. Saint v. Syracuse Supply Co. , 25 NY3d 117, 124 (2015) ; Nicometi v. Vineyards of Fredonia, LLC , 25 NY3d at 96 ; Soto v. J. Crew Inc. , 21 NY3d at 566.
Where as here plaintiffs allege that a falling object struck Ferrara, they must demonstrate an elevation-related hazard as Labor Law § 240(1) contemplates and a failure to use an adequate safety device. Fabrizi v. 1095 Ave. of the Ams., L.L.C. , 22 NY3d 658, 662 (2014) ; Wilinski v. 334 E. 92nd Hous. Dev. Fund Corp. , 18 NY3d 1, 7 (2011) ; O'Brian v. 4300 Crescent L.L.C. , 180 AD3d 437, 438 (1st Dep't 2020). Liability for a falling object under Labor Law § 240(1) is not limited to falling objects being hoisted or secured, but includes objects falling independently. Quattrocchi v. F.J. Sciame Constr. Corp. , 11 NY3d 757, 758-59 (2008) ; Henningham v. Highbridge Community Hous. Dev. Fund Corp. , 91 AD3d 521, 522 (1st Dep't 2012).
Ferrara testified at his deposition that, before his injury, the fiberglass extension ladder, 26 feet tall, rested against the mechanical room wall, and the top part of the ladder extended over the top part of the wall about five to six feet. Glen Manno, an employee of nonparty Benso Industries, testified at his deposition that the ladder was unsecured, at a busy worksite on the rooftop, where it was subject to the commonly occurring wind. Although defendants claim that the absence or inadequacy of a safety device did not cause Ferrara's injury, for the very reason that the ladder was tall, heavy just by virtue of its height, upright rather than lying on the ground, and unsecured, the force of gravity on the ladder caused it to fall on Ferrara and injure him. Wilinski v. 334 E. 92nd Hous. Dev. Fund Corp. , 18 NY3d at 9-10 ; Runner v. New York Stock Exch., Inc. , 13 NY3d 599, 604-605 (2009). No evidence indicates plaintiff caused or contributed to his injury. Since defendants fail to demonstrate that the ladder was adequately secured, and the application of gravity caused the ladder to fall and strike plaintiff, both Hines Investors, as the owner of the work site, and Turner Construction, as the general contractor, violated Labor Law § 240(1). Tropea v. Tishman Constr. Corp. , 172 AD3d 450, 451 (1st Dep't 2019) ; Caminiti v. Extell W. 57th St. LLC , 166 AD3d 440, 440 (2018).
The subcontractor CAS, although neither the owner nor the general contractor, still may be liable as the owner's or general contractor's statutory agent under the Labor Law if CAS maintained the authority to control the activity that caused Ferrara's injury. Barreto v. Metropolitan Transp. Auth. , 25 NY3d 426, 434 (2015) ; Walls v. Turner Constr. Co. , 4 NY3d 861, 863-64 (2005) ; Santos v. Condo 124 LLC , 161 AD3d 650, 653 (1st Dep't 2018) ; Coretto v. Extell W. 57th St., LLC , 137 AD3d 677, 678 (1st Dep't 2016). Plaintiffs fail to establish that CAS was Hines Investors' or Turner Construction's statutory agent, however, because they do not demonstrate conclusively that CAS maintained supervisory control over the placement of the ladder or surrounding activity that caused plaintiff's injury. Barreto v. Metropolitan Transp. Auth. , 25 NY3d at 434 ; Ohadi v. Magnetic Constr. Group Corp. , 182 AD3d 474, 476 (1st Dep't 2020) ; Vohra v. Mount Sinai Hosp. , 180 AD3d 503, 503 (1st Dep't 2020) ; Weber v. Baccarat, Inc. , 70 AD3d 487, 488 (1st Dep't 2010). Since plaintiffs fail to meet their burden to demonstrate that CAS was a statutory agent, the court denies plaintiffs summary judgment on their Labor Law § 240(1) claim against CAS. C.P.L.R. § 3212(b).
III. PLAINTIFFS' CROSS-MOTION TO AMEND THEIR BILL OF PARTICULARS
Plaintiffs' failure to identify a regulation on which they rely, 12 N.Y.C.R.R. § 23-1.21(b)(4)(i), in their bill of particulars is not fatal to a claim based on a violation of the regulation if the claim involves no new factual allegations, presents no new theory of liability, and causes no prejudice to defendants. Alarcon v. UCAN White Plains Hous. Dev. Fund Corp. , 100 AD3d 431, 432 (1st Dep't 2012) ; Cordeiro v. TS Midtown Holdings, LLC , 87 AD3d 904, 906 (1st Dep't 2011). In opposition to plaintiffs' cross-motion to amend their bill of particulars to add this regulation, defendants rely on the affidavit by Bernard P. Lorenz P.E. He simply concludes that 12 N.Y.C.R.R. § 23-1.21(b)(4)(i) is inapplicable, however, which is an ultimate legal determination reserved for the court or the jury and not a question on which the court may consider an expert witness' opinion. Morris v. Pavarini Constr. , 9 NY3d 47, 51 (2007) ; Buchholz v. Trump 767 Fifth , 5 NY3d 1, 7 (2005) ; Lopez v. Chan , 102 AD3d 625, 626 (1st Dep't 2013) ; McCoy v. Metropolitan Transp. Auth. , 53 AD3d 457, 459 (1st Dep't 2008).
Engineer Lorenz's conclusions do not rebut the relevant factors: that plaintiffs' reliance on 12 N.Y.C.R.R. § 23-1.21(b)(4)(i) involves no new factual allegations, raises no new theories of liability, and causes no prejudice to defendants. Galvez v. Columbus 95th St. LLC , 161 AD3d 530, 532 (1st Dep't 2018) ; Flynn v. 835 6th Ave. Master L.P. , 107 AD3d 614, 614 (1st Dep't 2013) ; Alarcon v. UCAN White Plains Hous. Dev. Fund Corp. , 100 AD3d at 432. Therefore the court permits the amendment to plaintiffs' bill of particulars. C.P.L.R. §§ 3025(b), 3042(b), 3043(c).
IV. DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
A. CAS's Statutory Agency
As set forth above, CAS may be liable as Hines Investors' or Turner Construction's statutory agent under Labor Law §§ 200, 240(1), and 241(6) if the subcontractor maintained the authority to control the activity that caused plaintiff's injury. Barreto v. Metropolitan Transp. Auth. , 25 NY3d at 434 ; Walls v. Turner Constr. Co. , 4 NY3d at 863-64 ; Santos v. Condo 124 LLC , 161 AD3d at 653 ; Coretto v. Extell W. 57th St., LLC , 137 AD3d at 678. Defendants contend that CAS lacked control over plaintiff's activity, pointing to his testimony that he received instructions only from Island Diversified's foreman. Since the unsecured ladder caused plaintiff's injury, however, the pertinent inquiry is control over placement of the ladder. The extension ladder that struck plaintiff bore the marking "CAS." Octavio Vozilla, CAS's superintendent, at his deposition did not know whether CAS had brought extension ladders to the work site, but did testify that CAS marked its ladders with the letters "CAS" and that subcontractors were not permitted to use each other's ladders. Given this evidence, defendants fail to demonstrate that CAS lacked control over the ladder and its placement and thus fail to establish that CAS was not a statutory agent.
Labor Law § 241 provides in part that:
All contractors and owners and their agents, ...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.
Labor Law § 241(6) imposes a nondelegable duty on owners, general contractors, and their statutory agents to provide reasonable and adequate protection for workers and to comply with specific safety regulations promulgated under the statute. St. Louis v. Town of N. Elba , 16 NY3d 411, 413 (2011) ; Balbuena v. IDR Realty LLC , 6 NY3d 338, 361 n.8 (2006) ; Comes v. New York State Elec. & Gas Corp. , 82 NY2d 876, 878 (1993) ; Ross v. Curtis-Palmer Hydro-Elec. Co. , 81 NY2d 494, 502-503 (1993). To establish liability under Labor Law § 241(6), plaintiffs must show that defendants violated an applicable regulation with "a specific, positive command," as opposed to an unspecific safety requirement. Nostrom v. A.W. Chesterton Co. , 15 NY3d 502, 507 (2010) ; Morris v. Pavarini Constr. , 9 NY3d at 50. At oral argument plaintiffs conceded that 12 N.Y.C.R.R. §§ 23-1.5(c)(3) and 23-1.21(b)(4)(iv) and (v) are inapplicable, but claimed a violation of 12 N.Y.C.R.R. § 23-1.21(b)(4)(i), which the court now has permitted plaintiffs to include in their bill of particulars.
12 N.Y.C.R.R. § 23-1.21(b)(4)(i) provides that:
Any portable ladder used as a regular means of access between floors or other levels in any building or other structure shall be nailed or otherwise securely fastened in place. Such a ladder shall extend at least 36 inches above the upper floor, level or landing or handholds shall be provided at such upper levels to afford safe means of access to or egress from the ladder. Such a ladder shall be inclined a maximum of three inches for each foot of rise.
12 N.Y.C.R.R. § 23-1.21(b)(4) is sufficiently specific to support a Labor Law § 241(6) claim. Haimes v. New York Tel. Co. , 46 NY2d 132, 134 n.2 (1978) ; Stankey v. Tishman Constr. Corp. of NY , 131 AD3d 430, 431 (1st Dep't 2015) ; Estrella v. GIT Indus., Inc. , 105 AD3d 555, 555 (1st Dep't 2013) ; Blair v. Cristani , 296 AD3d 471, 472 (2d Dep't 2002). No evidence demonstrates that the portable ladder that fell on Ferrara and that was used as the only means of access between the building roof and the mechanical room roof on the building structure was "nailed or otherwise securely fastened in place." 12 N.Y.C.R.R. § 23-1.21(b)(4)(i). Neither Lorenz nor any other evidence indicates that the ladder was tied or otherwise fastened to the bulkhead or that any blocks were placed to prevent the ladder from slipping or tipping. Given Ferrara's testimony that the ladder extended approximately 20 feet from the building roof to the mechanical room roof, no evidence demonstrates that the ladder footing was no more than 60 inches from the mechanical room wall, such that the ladder was inclined no more than "three inches for each foot of rise." Id.
Finally, defendants fail to demonstrate that this regulatory provision applies only when a person is using a ladder. The plain terms of paragraph (4)(i), which apply to "Installation and use" (emphasis added), are not so limited. Nor are there any prefatory terms in subdivision (b) that limit its application to when persons are using a ladder. In fact paragraph (4)(iv) is limited to "When work is being performed from ladder rungs between six and 10 feet above the ladder footing" and (4)(v) to "while work is being performed from such ladder," confirming that (4)(i), which is not so qualified, is not so limited.
Consequently, the court denies defendants summary judgment dismissing plaintiffs' Labor Law § 241(6) claim to the extent that the claim is based on 12 N.Y.C.R.R. § 23-1.21(b)(4)(i). Gjeka v. Iron Horse Transp., Inc. , 151 AD3d 463, 464-65 (1st Dep't 2017) ; Ortega v. Everest Realty LLC , 84 AD3d 542, 544-45 (1st Dep't 2011) ; Walker v. Metro-North Commuter R.R. , 11 AD3d 339, 340-41 (1st Dep't 2004). The court grants defendants summary judgment dismissing plaintiffs' Labor Law § 241(6) claim to the extent that the claim is based on any other regulatory provisions. C.P.L.R. § 3212(b) and (e).
Defendants contend that plaintiffs' claims for violation of Labor Law § 200 and for negligence must be dismissed because defendants did not control or supervise Ferrara's work and the ladder that struck him was not a dangerous condition. Labor Law § 200 is a codification of an owner's and a general contractor's duty to provide a safe workplace. Rizzuto v. L.A. Wegner Contr. Co. , 91 NY2d 343, 352 (1998) ; Comes v. New York State Elec. & Gas Corp. , 82 NY2d at 877 ; Lopez v. Dagan , 98 AD3d 436, 440-441 (1st Dep't 2012). Labor Law § 200(1) provides in part that:
All 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. All machinery, equipment, and devices in such places shall be so placed, operated, guarded, and lighted as to provide reasonable and adequate protection to all such persons.
Plaintiffs' claims arise from a dangerous condition on the premises: an unsecured extension ladder used by workers to ascend and descend between the building roof and the mechanical room roof. Therefore defendants' liability depends on whether defendants created the dangerous condition that caused Ferrara's injury or failed to remedy the dangerous condition of which they received actual or constructive notice. Jaycoxe v. VNO Bruckner Plaza, LLC , 146 AD3d 411, 412 (1st Dep't 2017) ; Maggio v. 24 W. 57 APF, LLC , 134 AD3d 621, 626 (1st Dep't 2015) ; Cevallos v. Morning Dun Realty, Corp. , 78 AD3d 547, 549 (1st Dep't 2010). Constructive notice of a dangerous condition depends on whether it was visible long enough for it to be observed and remedied. Lopez v. Dagan , 98 AD3d at 438.
Various witnesses' deposition testimony raises a factual question whether Turner Construction received at least constructive, if not actual, notice of the ladder's dangerous placement. Randy Brzezinski, a Turner Construction superintendent, testified that he was on the roof weekly and walked through the building daily. Frank Sceri, Turner Construction's fire safety manager, testified that he walked through the work site multiple times daily and was authorized to stop work if he observed an unsafe condition. Vozilla, CAS's foreman, testified that Turner Construction supervised all the subcontractors at the site. Manno observed the unsecured ladder in the same place, leaning against the wall, for many days and observed Turner Construction employees ascending and descending it. Jack Grandine, an Island Diversified employee, testified that he also had observed the unsecured ladder in the same place for weeks and observed Turner Construction employees on the roof, so that they were aware that the area was windy. William Hall, an Island Diversified foreman, testified that superintendents who must have been from Turner Construction were walking around on the roof on the day of Ferrara's injury. This testimony indicating the regular presence of Turner Construction's employees, including its supervisory employees, on the roof raises a factual issue whether Turner Construction received at least constructive, if not actual, notice of the unsecured ladder. Spencer v. Term Fulton Realty Corp. , 183 AD3d 441, 442 (1st Dep't 2020) ; DeMercurio v. 605 W. 42nd Owner LLC , 172 AD3d 467, 467-68 (1st Dep't 2019) ; Pereira v. New Sch. , 148 AD3d 410, 412 (1st Dep't 2017) ; Rainer v. Gray-Line Dev. Co., LLC , 117 AD3d 634, 635 (1st Dep't 2014).
Regarding CAS, Ferrara testified that, after his injury, he noticed "CAS" written on the ladder, indicating that it belonged to CAS. Vozilla testified that he was at the work site once or twice per week and walked through the site every week or two weeks. Robert Torrieri, CAS's corporate safety director, testified at his deposition that CAS's foreman was at the work site every day. This further testimony, combined with the testimony by both Manno and Ferrara that they had observed the ladder in the same location for days leading up to Ferrara's injury, also leave factual issues regarding CAS's actual or at least constructive notice. Spencer v. Term Fulton Realty Corp. , 183 AD3d at 442 ; DeMercurio v. 605 W. 42nd Owner LLC , 172 AD3d at 467-68 ; Pereira v. New Sch. , 148 AD3d at 412 ; Rainer v. Gray-Line Dev. Co., LLC , 117 AD3d at 635.
Plaintiffs fail, however, to rebut Hines Investors' showing, through the affidavit by its Vice President of Construction, that the owner lacked notice of the unsecured ladder. At oral argument plaintiffs conceded that no evidence indicates Hines Investors inspected the premises and that it is not liable based on Labor Law § 200 or negligence. Therefore the court denies defendants summary judgment dismissing plaintiffs' Labor Law § 200 and negligence claims against Turner Construction and CAS, but grants summary judgment dismissing those claims against Hines Investors. C.P.L.R. § 3212(b) and (e).
V. CONCLUSION
For the reasons explained above, the court grants plaintiffs' (1) motion for summary judgment on their claim for violation of Labor Law § 240(1) against defendants Hines 1045 Avenue of the Americas Investors LLC and Turner Construction Company and (2) cross-motion to amend plaintiffs' verified bill of particulars to add a violation of 12 N.Y.C.R.R. § 23-1.21(b)(4)(i). C.P.L.R. §§ 3025(b), 3042(b), 3043(c), 3212(b) and (e). The court also grants defendants' motion to the extent of dismissing (1) so much of plaintiffs' Labor Law § 241(6) claim as is based on violation of 12 N.Y.C.R.R. § 23-1.5(c)(3) or § 23-1.21(b)(4)(iv) and (v) and (2) plaintiffs' Labor Law § 200 and negligence claims against Hines 1045 Avenue of the Americas Investors LLC. C.P.L.R. § 3212(b) and (e). The court otherwise denies the motions. This decision constitutes the court's order and judgment. The Clerk shall enter a judgment accordingly.