Opinion
Index 156713/2017
02-07-2022
JORGE MOLINA Plaintiff, v. THE TRUSTEES OF COLUMBIA UNIVERSITY IN THE CITY OF NEW YORK and SKANSKA USA INC, Defendants. Motion Seq. No. 001
HON. SHAWN KELLY JUSTICE
Unpublished Opinion
DECISION + ORDER ON MOTION
HON. SHAWN KELLY JUSTICE
The following e-filed documents, listed by NYSCEF document number (Motion 001) 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68 were read on this motion to/for SUMMARY JUDGMENT
Plaintiff Jorge Molina moves pursuant to CPLR §3212 for summary judgment on his Labor Law §§241(6) and 200 claims. Plaintiff alleges that on April 27, 2017 at about 8:30am, he slipped and fell on water in the scaffold stairwell while performing construction work at the premises owned by Columbia University and located at 605 W. 125th Street. Defendant the Trustees Of Columbia University In The City Of New York owned the premises and Defendant Skanska USA Inc. (collectively "Defendants") was hired to perform the responsibilities of construction manager/general contractor.
Specifically, Plaintiff contends that the construction stairway steps had an accumulation of water on them that caused the plaintiffs accident. Plaintiff argues that he was not provided with safe means of access and that the stairs were regularly exposed to rain that created wet conditions. Defendants oppose Plaintiffs motion and contend that the stairs were designed to prevent the accumulation of water, were inspected daily, and were safe.
Factual Allegations
Deposition of Plaintiff
Plaintiff testified that his foreman at the time of the accident was James Cook (NYSCEF Doc. No. 36). Mr. Molina testified that on the day of the accident he was helping iron workers on the third floor and would access the third floor through the scaffold stairs as the interior building stairs were closed off (Id.). Plaintiff further stated that it had rained sometime that week and that they had had a "rainout" day, meaning work was stopped due to rain (Id.). Plaintiff stated that on the day of the accident, he went up the stairs one time and that the accident occurred when he was on his way down the stairs (Id.). Mr. Molina testified that he slipped on the first set of scaffolding stairs and that his left leg slipped and his right leg got caught between two stairs causing his elbows to jam and his left knee to twist (Id.).
Affidavit of James Cook
Mr. Cook states that at the time of the accident, he was employed by Gabriel Steel as an ironworker general foreman and would supervise Plaintiffs work (NYSCEF Doc. 37). He states that the scaffold stair tower was the only way to go up and down between the floors (Id.). Mr. Cook also states that after the accident, Plaintiff showed him the area the accident occurred, and he observed rain accumulation (Id.). Mr. Cook further states that the scaffold stair tower was exposed to precipitation, and that the water would puddle on the steps creating slippery conditions when it rained (Id.).
Mr. Cook also states that the stair was not properly inspected by the general contractor and should have been cordoned off when there was water accumulation on the steps (Id.). Me states that there was no anti-slip protection on the steps and that Skanska did not inspect the steps properly (Id.). Mr. Cook states that there should have been grip tapes on the steps and the water should have been swept off the steps or a squeegee should have been used (Id.).
Deposition of Clifford Hartnett
Mr. Hartnett testified that he was the safety manager employed by Defendant Skanska USA Inc. (NYSCHF Doc. No. 38). He investigated the accident and created an accident report which was completed on April 28 (Id.). The report lists under contributing factors "slippery surface, not wearing proper boots" (Id.). Mr. Hartnett stated that Mr. Cook provided this information to him verbally. (Id.). He stated that he would do a safety inspection, which included walking the scaffold stairs around 7:00am, every morning (Id.). Mr. Hartnett stated that if he observed a slippery condition on the stairs due to water from rain, he would not allow anyone to use the stairs (Id.). He also stated that Mr. Cook's responsibilities overlapped his own in the sense that they would both inspect the work area for any safety hazards (Id.).
Deposition of Joseph Nasry
Mr. Nasry stated that he is the construction project manager for Columbia University (NYSCEF Doc. No. 39). He stated that at the time of the accident, he would walk the job site on a daily basis, to look to see if there were any unsafe conditions (Id.). Mr. Nasry testified that he would notify Skanska of any unsafe conditions he found (Id.). He stated that Skanska was responsible for making sure there were no safety hazards on the scaffold stair (Id.).
Affidavit of Brandon Andujar
Mr. Andujar stated that he was working as a Journeyman Iron Worker and had Jorge Molina working with him as an apprentice for the bolt up gang (NYSCEF Doc. No. 40). He stated that he had slipped on the same scaffolding as Mr. Molina earlier the morning of Mr. Molina's accident and cut his right shin open and it was bleeding (Id.). Mr. Andujar stated that, "[e]veryone was slipping on that damn scaffold" (Id.). Mr. Andujar further stated that he went and spoke to the shop steward Chester Goodleaf, a foreman named Vinny, and the general foreman James Cook, and told them what happened to him and that other guys had been slipping and falling and it wasn't safe (Id.). lie stated that to he was basically told to stop complaining and get back to work (Id.). Mr. Andujar did not see the accident but said that Mr. Molina told him that he was coming down the scaffold on the third lloor and the scaffold was wet and he slipped and fell and tweaked his knee real bad (Id.). Mr. Andujar also stated that the scaffolding was not OSHA compliant because '"there is supposed to be treads, like traction treads, which would keep people from slipping but it didn't have them" (Id.). Mr. Andujar concludes that poor supervision and unsafe conditions caused Mr. Molina to get injured that day (Id.).
Report and Affidavit of Douglas Miller, Plaintiffs Expert
Mr. Miller is the president of Occupational Safety Consultants, an occupational safety consulting company, which works to manage and mitigate risks for clients in the construction industry (NYSCEF Doc. No. 42). Mr. Miller states that in his opinion, the defendants were in violation of Industrial Code §23-1.7(d) which states: "Employers shall not suffer or permit any employee to use a floor, passageway, walkway, scaffold, platform or other elevated working surface which is in a 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." (NYSCEF Doc. No. 42). He further states that the scaffold access tower was the only means of access between floors and Mr. Molina was required to use the scaffold access tower where water had accumulated and was not removed, causing the slippery condition which led to his incident and subsequent injuries (NYSCEF Doc. No. 42).
Mr. Miller concludes that the fact that the defendants failed to maintain the scaffold free from water accumulation and that it was the only means of access and egress from upper floors is indication that the defendants did not operate in such a manner as to provide reasonable care to all persons employed (NYSCEF Doc. No. 42). Further, he states that defendants provided the Plaintiff with a scaffold access tower and inspected it daily, but failed to maintain the scaffold stairway throughout the workday causing the development of a slippery condition which the Plaintiff and his co-workers were exposed (NYSCEF Doc. No. 42).
Report and Affidavit of David Glabe, Defendants' Expert
Mr. Glabe is a certified instructor regarding the use of scaffolding, fall protection, stairways and staircases for use at construction sites including the stairway at issue in this case (NYSCEF Doc. No. 50). He has been retained internationally as a consultant to the construction industry specializing in temporary and permanent structures, including scaffolding, stairways/staircases for use at construction sites including the type of construction stairway at issue in this case (NYSCEF Doc. No. 50).
Mr. Glabe states that the construction stairway at issue here was specifically designed for both indoor and outdoor work and was equipped with safety features that provide for both water drainage (openings on the treads) from the treads of the stairway, as well as for grip on the treads (raised openings for traction) (NYSCEF Doc. No. 50).
Mr. Glabe further states that Mr. Miller s opinion that the accident was caused by water that "accumulated" on the stairs is not correct as it would have been physically impossible for there to have been an "accumulation" of water on the stairs, since water would have been eliminated from the stairs through the numerous small openings on each step (NYSCEF Doc. No. 50). He further states that the subject stairway was appropriate for use in both indoor and outdoor environments and based upon his training, knowledge and experience, this type of stairway is used in many types of construction and is designed to be used outdoors where it can be exposed to wet weather conditions (NYSCEF Doc. No. 50).
Mr. Glabc states that the stairway is designed to provide adequate traction and is also designed in compliance with applicable industry standards and regulation (NYSCEF Doc. No. 50). Additionally, Mr. Glabe states that there is no regulation or standard that specifies that additional anti-slip protection is required and that it is clear that the stairway was equipped with holes designed for the very purposes of drainage of water to prevent accumulation - in fact, there were 40 such raised openings on each and every stair (NYSCEF Doc. No. 50). He concludes that the accumulation of water beyond a negligible amount on the flat surface of the stair treads would have been physically impossible (NYSCEF Doc. No. 50).
In his professional opinion, Mr. Glabe finds that the subject construction stairway provided proper protection, was reasonably safe and that the defendants did not violate Labor Law §200 or Labor Law §241(6) (NYSCEF Doc. No. 50).
Analysis
'"The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case'" (Santiago v Filslein, 35 A.D.3d 184, 185-186 11st Dept 2006], quoting Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985]). The burden then shifts to the motion's opponent to "present evidentiary facts in admissible form sufficient to raise a genuine, triable issue of fact" (Mazurek v Metropolitan Museum of Art, 27 A.D.3d 227, 228 [1st Dept 2006], citing Zuckerman v City of New York, 49 N.Y.2d 557, 562 [1980]; see also DeRosa v City of New York, 30 A.D.3d 323, 325 [1st Dept 2006]). The evidence presented in a summary judgment motion must be examined in the "light most favorable to the party opposing the motion" (Udoh v Inwood Gardens, Inc., 70 A.D.3d 563 lsl Dept 20101) and bare allegations or conclusory assertions are insufficient to create genuine issues of fact (Rotuba Extruders v Ceppos, 46 N.Y.2d 223, 231119781).
Further, issues of credibility are not to be resolved on summary judgment (see Alvarez v New York City How. Auth., 295 A.D.2d 225, 226, 744 N.Y.S.2d 25 [ 1st Dept 20021).
Labor Law §200Labor Law §200 is a codification of the common law duty imposed upon an owner or general contractor to provide construction site workers with a reasonably safe place to work (see Comes v NY State Elec. & Gas Coro., 82 N.Y.2d 876 11993 ]; Lombard/ v Stout, 80 N.Y.2d 290, 590 N.Y.S.2d 55, 604 N.E.2d 117 [1992]). Cases involving Labor Law §200 fall into two broad categories: namely, those where workers arc injured as a result of dangerous or defective premises conditions at a worksite, and those involving the manner in which the work is performed (Ortega v Puccia, 57 A.D.3d 54, 61, 866 N.Y.S.2d 323, 329 [2008]).
A general contractor may be held liable under Labor Law §200 where they have control over the work site and the general contractor either created or had actual notice of the dangerous condition that caused the plaintiff to fall (see Bridges v Wyandanch Community Dev. Corp., 66 A.D.3d 938 [2d Dept 2009]; Murchy v Columbia University, 4 A.D.3d 200 [1st Dept 2004]). "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 defendant's employees to discover and remedy it" (Gordon v American Museum of Natural History, 67 N.Y.2d 836, 837 [ 1986]). "The notice must call attention to the specific defect or hazardous condition and its specific location, sufficient for corrective action to be taken" (Mitchell v New York Univ., 12 A.D.3d 200, 201 [1st Dept 2004]). However, a '"general awareness' is legally insufficient to charge defendants with constructive notice of the specific condition that resulted in plaintiffs injuries" (Solazzo v New York City Tr. Auth., 21 A.D.3d 735, 736 [1st Dept 2005], affd 6 N.Y.3d 734 [2005]).
Though Plaintiff meets his burden on summary judgment, in opposition Defendants raise sufficient issues of material fact as to whether the construction stairs at issue were properly equipped with holes for drainage of water that prevented accumulation of water and were equipped with tread grips that provided with a reasonably safe workplace.
Labor Law §241(6)Labor Law § 241(6) provides, in pertinent part, as follows:
"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, [and] equipped ... 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 of reasonable care upon owners and contractors '"to provide reasonable and adequate protection and safety' to persons employed in, or lawfully frequenting, all areas in which construction, excavation or demolition work is being performed" (Rizzuto v LA. Wenger Conlr. Co., 91 N.Y.2d 343, 348 [1998] [emphasis added]; see also Ross v Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494. 501-502 [1993]).
Further, to sustain a Labor Law §241(6) claim, it must be shown that the defendant violated a specific, "concrete" implementing regulation of the Industrial Code, rather than a provision containing only generalized requirements for worker safety (Ross, 81 N.Y.2d at 505). Such violation must be a proximate cause of the plaintiffs injuries (Annicaro v Corporate Suites, Inc., 98 A.D.3d 542, 544 [2d Dcpt 2012]; Rossi v 140 W. .JV Manager LLC, 58 Misc.3d 1215(A), 95 N.Y.S.3d 126 [NY Sup Ct 2018], affd, 171 A.D.3d 668, 99 N.Y.S.3d 38 [2019]).
Plaintiff alleges that Defendants violated New York Industrial Code Rule 23-1.7(d), which states the following:
(d) Slipping hazards. Employers shall not suffer or permit any employee to use a floor, passageway, walkway, scaffold, platform or other elevated working surface which is in a slippery condition. Ice, snow, water, grease and any other foreign substance which may cause slippery footing shall be removed, sanded or covered to provide sale footing
Plaintiff has met his prima facie burden, however in opposition Defendants have raised a question of fact as to whether the subject construction stairway the Plaintiff claims to have slipped on was constructed, equipped, and maintained as to provide reasonable and adequate protection and safety to the workers on the construction site. There is a material question of fact as to whether the holes on the scaffold were adequate to allow water to drain from the stairs and further, there remain questions of credibility precluding a finding on summary judgment.
Accordingly, it is hereby
ORDERED that plaintiffs motion for summary judgment is denied.