Opinion
INDEX NO. 160732/2014
01-13-2021
RADHAMES PAULINO, Plaintiff, v. VERIZON NEW YORK, INC.,435 WEST 50TH LLC,435 WEST 50 PROPERTY OWNER L.P., 435 WEST 50TH STREET CONDOMINIUM, BOARD OF MANAGERS OF 435 WEST 50TH STREET CONDOMINIUM, S&E BRIDGE & SCAFFOLD LLC, Defendant.
NYSCEF DOC. NO. 147 PRESENT: HON. CAROL R. EDMEAD Justice MOTION DATE 07/26/2019 MOTION SEQ. NO. 004
DECISION + ORDER ON MOTION
The following e-filed documents, listed by NYSCEF document number (Motion 004) 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 112, 114, 115, 116, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145, 146 were read on this motion to/for JUDGMENT - SUMMARY. Upon the foregoing documents, it is
ORDERED that the branch of Defendants Verizon New York Inc., 435 West 50th LLC, 435 West 50 Property Owner LP, 435 West 50th Street Condominium, Board of Managgers of 435 West 50th Street Condominium (the "Owner Defendants") and S&E Bridge & Scaffold LLC's ("S&E") motion (Motion Seq. 004), pursuant to CPLR 3212, for summary judgment dismissing Plaintiff's Labor Law claims is granted to the extent that Plaintiff's Labor Law § 200 claims withdrawn as against the Owner Defendants and Labor Law § 241 (6) claims pursuant to Industrial Code Sections 23-1.7(b)(1)(i)-(iii), 23-5.1 (j) and 23-5.3 (e) and the Industrial Code provisions abandoned by Plaintiff are dismissed; and Plaintiff's remaining Labor Law claims are severed and continue against Defendants; and it is further
ORDERED that Plaintiff's cross motion (Motion Seq. 004), pursuant to CPLR 3212, for summary judgment granting Labor Law § 240 (1) as against Owner Defendants is denied.
ORDERED that the Clerk of the Court shall enter judgment accordingly; and it is further
ORDERED that the counsel for Defendants shall serve a copy of this Order with Notice of Entry within twenty (20) days of entry on all parties.
MEMORANDUM DECISION
In this Labor Law action, defendants Verizon New York Inc., 435 West 50th LLC, 435 West 50 Property Owner LP, 435 West 50th Street Condominium, Board of Managers of 435 West 50th Street Condominium (the "Owner Defendants") and S&E Bridge & Scaffold LLC ("S&E") move, pursuant to CPLR 3212, for summary judgment dismissing Plaintiff Radhames Betances Paulino's complaint against them.
Plaintiff partially opposes and simultaneously cross-moves for summary judgment granting his Labor Law § 240 (1) claim as against Owner Defendants.
BACKGROUND FACTS
Defendant 435 West 50th Street LLC is the owner/developer responsible for the construction and/or renovation of the Project site at 435 West 50th Street, New York, New York (NYSCEF doc No. 93). In an agreement dated August 27, 2012, 435 West 50th Street LLC engaged S&E to perform the hoisting and scaffolding portion of the construction work (Id.). In a Staffing Agreement dated April 24, 2014 (the "Staffing Agreement"), S&E engaged non-party Dynamic Services Corp. ("Dynamic") to supply "assigned temporary employees" "to assist in [S&E's] business activities" (NYSCEF doc No. 94). Plaintiff's Deposition Testimony (NYSCEF doc No. 95)
Plaintiff testified that he was hired as a laborer/helper by Dynamic in 2011. On the day of the accident, October 7, 2014, he was assigned by Dynamic to work at the Project site to help take down the scaffolding. The foreman that day, Manuel Payano, instructed him to position himself at the roof of the building to receive frames, scaffold, boards, platforms and crossbars from the workers who were positioned at the scaffolding next to the roof. Plaintiff would organize these materials to bring them down the elevator. At around 10:30 a.m., the workers positioned at the scaffolding were already working three levels lower than the roof. Plaintiff testified that he was then asked by the foreman to "[g]o down and do the scaffold so [Plaintiff] can pick up the materials there." Plaintiff then stepped onto a rung of the scaffold which he approximated to be around 18 inches from the edge of the roof. Plaintiff proceeded to climb down the scaffolding but slipped on the third rung down and fell ten feet below. Plaintiff testified that he did not clip his lanyard onto something while descending as that meant he "had to let go of [one] hand". Manny Payano's Deposition Testimony (NYSCEF doc No. 99)
In Plaintiff's deposition, he testified that the building either had 16 or 17 floors. On the other hand, Payano testified that the building had 18 floors. Other deponents are unsure of how tall the building was at the time of the accident (see e.g., NYSCEF doc No. 133 and 134).
Payano testified that he was employed by S&E for approximately 9 years, initially as a laborer and later as a foreman. He confirmed that on the day of the accident, they were disassembling the top of the scaffold. Plaintiff was stationed on the roof and was tasked to receive materials from other workers dismantling the scaffold. Payano further testified that before he stepped away to meet one Robert Fini, he "told [Plaintiff] to come down to the next level so that [the other workers] can continue passing him the material." When asked, Payano confirmed that such was the full extent of his conversation with Plaintiff before he left. As to the other workers, Payano instructed them "to continue dismantling the scaffold." Payano further testified that he later received a call that Plaintiff fell about "two frames" below, each frame measuring about six feet. Payano testified that he instructed "not [Plaintiff] specifically, but to the group" to use the stairs when coming down.
This Proceeding
Plaintiff commenced this action on October 29, 2014 against the Defendants asserting claims for negligence and seeking damages under New York Labor Law §§ 200, 240 (1) and 241 (6).
The Defendants now move, by way of summary judgment, to dismiss Plaintiff's complaint against them in its entirety (Motion Seq. 004). Plaintiff opposes, except as with respect to the dismissal of his Labor Law § 200 claim as against Owner Defendants. Plaintiff simultaneously cross-moves for summary judgment granting his Labor Law 240 (1) claim as against Owner Defendants.
DISCUSSION
Summary judgment is granted when "the proponent makes 'a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact,' and the opponent fails to rebut that showing" (Brandy B. v Eden Cent. School Dist., 15 NY3d 297, [Ct App 2010], quoting Alvarez v Prospect Hosp., 68 NY2d 320, 324 [Ct App 1986]). Once the proponent has made a prima facie showing, 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 AD3d 227, 228 [1st Dept 2006], citing Zuckerman v City of New York, 49 NY2d 557, 562 [Ct App 1980]; see also DeRosa v City of New York, 30 AD3d 323, 325 [1st Dept 2006]). If there is any doubt as to the existence of a triable fact, the motion for summary judgment must be denied (Rotuba Extruders v Ceppos, 46 NY2d 223, 231 [Ct App 1978]; Grossman v Amalgamated Hous. Corp., 298 AD2d 224, 226 [1st Dept 2002]). When the proponent fails to make a prima facie showing, the court must deny the motion, "'regardless of the sufficiency of the opposing papers'" (Smalls v AJI Indus., Inc., 10 NY3d 733, 735 [Ct App 2008] quoting Alvarez, 68 NY2d at 324).
Here, since each side seeks summary judgment, each side bears the burden of making a prima facie showing of entitlement to a judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case (Bellinson Law, LLC v Iannucci, 35 Misc 3d 1217[A], 951 N.Y.S.2d 84, 2012 NY Slip Op 50729[U] [Sup. Ct., N.Y. County 2012], aff d, 102 AD3d 563 [1st Dept 2013], citing Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Once met, this burden shifts to the opposing party who must then demonstrate the existence of a triable issue of fact (Alvarez, supra, Zuckerman v City of New York, 49 N.Y.2d 557 [1980] and Santiago v Filstein, 35 AD3d 184 [1st Dept 2006]).
The function of a court in reviewing a motion for summary judgment "is issue finding, not issue determination, and if any genuine issue of material fact is found to exist, summary judgment must be denied" (People ex rel. Cuomo v Greenberg, 95 AD3d 474 [1st Dept 2012]). Where "credibility determinations are required, summary judgment must be denied" (Id.). Thus, on a motion for summary judgment, the court is not to determine which party presents the more credible argument, but whether there exists a factual issue, or if arguably there is a genuine issue of fact (DeSario v SL Green Management LLC, 105 AD3d 421, [1st Dept 2013] [holding given the conflicting deposition testimony as to what was said and to whom, issues of credibility should be resolved at trial]).
Labor Law § 200 and Common Law Negligence
Labor Law § 200 "is a codification of the common-law duty imposed upon an owner or general contractor to provide construction site workers with a safe place to work" (Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 877 [1993]). Cases under Labor Law § 200 fall into two broad categories: those involving injury caused by a dangerous or defective condition at the worksite, and those caused by the manner or method by which the work is performed (Urban v No. 5 Times Sq. Dev., LLC, 62 AD3d 553, 556 [1st Dept 2009]).
While Plaintiff withdrew his Labor Law § 200 claim as against the Owner Defendants, Plaintiff insists that it still has a viable Labor Law § 200 claim against S&E. S&E, however, argues that it acted as Plaintiff's "special employer" and, thus, claims against S&E are barred by the Worker's Compensation Law.
A special employee is one who is transferred for a limited duration to the service of another (Thompson v Grumman Aerospace Corp., 78 N.Y.2d 553, 585 N.E.2d 355, 578 N.Y.S.2d 106 [2d Dep't 1991]). Under the exclusive remedy provision of the Worker's Compensation Law, an employee is barred from bringing a negligence action against the special employer, even though the general employer is responsible for paychecks and benefits (Id.). Personal injury claims by such special employees against special employers are barred by the worker's compensation exclusive remedy as a matter of law. (see Grilikhes v Int'l Tile & Stone Show Expos, 90 AD3d 480, 934 N.Y.S.2d 384 [1st Dept 2011]). While many factors can determine special employment status, "a significant and weighty feature has emerged that focuses on who controls and directs the manner, details and ultimate result of the employee's work" (Bellamy v Columbia Univ., 50 AD3d 160 [1st Dept 2008]).
The Court finds that there are questions of fact surrounding Plaintiff's special employee status. First, while S&E is correct that the Staffing Agreement provides that employees temporarily assigned to S&E, such as Plaintiff, shall be "under [S&E's] supervision", said agreement also states that S&E will "not change Assigned Temporary Employee's job duties without [Dynamic's] express prior written approval...". Second, while Payano supervised Plaintiff on the day of the accident, Plaintiff testified that in the twelve to fifteen days that he had been working at the Project site, he worked under the supervision of another foreman (NYSCEF doc No. 95, at p. 43 [Q: Alright, did you work for Manuel for those twelve to fifteen days? In other words, was he the same foreman for the twelve to fifteen days? A. No. Q. What other foremen were there within those twelve to fifteen days? A. I don't remember. Q. Do you remember how many there were in the twelve to fifteen days? A. There was one and then Manuel worked. Q. Okay, so there were two foremen in the twelve to fifteen days, right? A. Correct"]). There is nothing on the record which shows that this other foreman is from S&E and Plaintiff's deposition did not provide any clarity in this regard. Contrary to S&E's allegation, nowhere in Plaintiff's deposition did he testify that that "Dynamic had no supervisor/foreman on the jobsite at all" (see NYSCEF doc No. 105, at p. 13, referencing Plaintiff's deposition, at p. 163).
S&E argues that the facts of this case align with those presented in Grilikhes v International Tile & Stone Show Expos, 90 AD3d 480 [1st Dept 2011] and McMahon v Cohen Bros. Realty Corp., 150 AD3d 480 [1st Dept 2017]. The Court finds otherwise. In Grilikhes, special employment was established as the plaintiff-carpenter was supervised exclusively by Metropolitan Exposition Services ("MES"). A MES Representative testified that "every single one of those [union] employees [was] ours to do whatever we want with in terms of, we decide how many hours they're going to work, what section they're going to work in." Here, S&E was contractually bound not to change a temporary employee's job duties without Dynamic's approval. Moreover, as the record is not clear who was the other foreman Plaintiff worked for at the Project site, the Court cannot conclude that S&E had exclusive control of Plaintiff's work. The facts of McMahon are also distinguishable. There, the defendant was found to be a special employer as it "interviewed and hired plaintiff, whose work as an engineer was in furtherance of defendant's operation and maintenance of the building, and defendant had the authority to terminate plaintiff's employment, which it ultimately exercised. Defendant provided plaintiff with the materials and equipment he needed to perform his work, and directed, supervised and controlled plaintiff's work." These facts are just not present here. Dynamics hired Plaintiff and it is not clear who can terminate his employment. There are also questions of fact as to whom provided Plaintiff with materials and equipment. While Plaintiff testified that his harness was handed to him at the jobsite, the record is equivocal as to whether this harness was owned by S&E. Portions of Plaintiff's deposition raise a question of fact in this regard as Plaintiff testified that Dynamic provided his lanyard (NYSCEF doc No. 95, p. 78:15 to 79:4) and further confirmed that Dynamic had a place at the Project site where it kept its equipment and tools (NYSCEF doc No. 95, 46:21-24).
Other than the "special employment" defense, S&E did not advance any other argument to support a dismissal of Plaintiff's Labor Law § 200 and common law negligence claim as against it. Therefore, this branch of Defendants' motion is denied.
Labor Law § 240 (1)Labor Law § 240 (1) provides, in relevant part:
"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."
The Court of Appeals has held that this duty to provide safety devices is nondelegable (Gordon v Eastern Ry. Supply, 82 NY2d 555, 559 [1993]), and that absolute liability is imposed where a breach has proximately caused a plaintiff's injury (Bland v Manocherian, 66 NY2d 452, 459 [1985]). A statutory violation is present where an owner or general contractor fails to provide a worker engaged in section 240 activity with "adequate protection against a risk arising from a physically significant elevation differential" (Runner v New York Stock Exch., Inc., 13 NY3d 599, 603 [2009]). Where a violation has proximately caused a plaintiff's injuries, owners and general contractors are absolutely liable "even if they do not have a continuing duty to supervise the use of safety equipment" (Matter of East 51st St. Crane Collapse Litig., 89 AD3d 426, 428 [1st Dept 2011]).
A. Defendants' summary motion to dismiss Plaintiff's Labor Law 240 (1) Claim
Defendants argue that Plaintiff's Labor Law § 240 (1) claim must be dismissed as Plaintiff was the sole proximate cause of his injuries and Plaintiff is a recalcitrant worker who is not protected under the statute (NYSCEF doc No. 105, pp. 9-15). In support, Defendants argue that Plaintiff chose not to secure his harness without excuse and chose to ignore his foreman's instruction to use the stairs, not the scaffold frames, to descend (Id.).
Where a plaintiff's own actions are the sole proximate cause of the accident, there can be no liability (Cahill v. Triborough Bridge & Tunnel Author, 4 NY.3d 35_[2004]; Blake v Neighborhood Hous. Services of New York City, Inc., 1 NY3d 280_[2003]). If adequate safety devices are provided and the worker either chooses not to use them or misuses them, then liability under 240(1) does not attach (Cherry, 66 AD3d at 236). It "is conceptually impossible for a statutory violation (which serves as a proximate cause for a plaintiff's injury) to occupy the same ground as a plaintiff's sole proximate cause for the injury" (Blake, 1 NY3d at 290) Thus, if a statutory violation is a proximate cause of an injury, the plaintiff cannot be solely to blame for it (id.; see also Klapa v O & Y Liberty Plaza Co., 218 AD2d 635, 636, 631 N.Y.S.2d 21 [1st Dept 1995] [because plaintiff demonstrated that the failure to provide guardrails was a failure to give "proper protection" under Labor Law 240(1), plaintiff's contributory negligence is irrelevant]).
"Cases upholding the so-called 'recalcitrant worker' defense exemplify this rule" (Cahill, supra). The recalcitrant worker defense "is . . . limited to circumstances where a worker is injured as a result of his/her refusal to use available safety devices" (Landgraff v 1579 Bronx River Ave., LLC, 15 AD3d 200, 202, 790 N.Y.S.2d 5 [1st Dept 2005]). And, an owner who has provided safety devices is not liable for failing to "insist that a recalcitrant worker use the devices" (Cahill, 4 NY3d at 39 [plaintiff received specific instructions to use a safety line while climbing, and chose to disregard those instructions], citing Smith v Hooker Chems. & Plastics Corp. (89 AD2d 361, 365, 455 N.Y.S.2d 446 [4th Dept 1982]).
Nevertheless, "the controlling question" "is not whether plaintiff was 'recalcitrant,' but whether a jury could have found that [the worker's] own conduct, rather than any violation of Labor Law § 240(1), was the sole proximate cause of his accident" (Cahill, 4 NY3d at 39-40) (noting that in Blake, "[e]ven when a worker is not 'recalcitrant' ... there can be no liability under section 240(1) when there is no violation and the worker's actions (here, his negligence) are the 'sole proximate cause' of the accident" (1 N.Y.3d at 290, 771 N.Y.S.2d 484, 803 N.E.2d 757).)
Here, the Defendants failed to establish that the devices provided to Plaintiff - the harness and lanyard - constituted adequate safety devices as a matter of law. The length of Plaintiff's lanyard was limited (NYSCEF doc No. 95, pp. 195-196) and Plaintiff confirmed that had he used it, he would have to reattach it every time he would hit a barrier or a step while descending (Id., p. 198:10-13). Plaintiff further testified that re-attaching his lanyard would leave him with just on hand to hold onto the scaffolding frames (Id., p. 108:9-12). Defendants failed to establish that having Plaintiff use his one hand to tie his lanyard and one hand to hold onto the scaffold frames is a safe practice, especially in light of Payano's testimony that they started removing the netting below even before Plaintiff came down (NYSCEF doc No. 99, p. 97:6-14).
Defendants further argue that Plaintiff could have used the scaffold stair tower, instead of climbing down the scaffold frames. Plaintiff counters that he had no access to the stairs. The Court has carefully reviewed Plaintiff's deposition and finds that there are questions of fact as to whether Plaintiff had access to the scaffold stair tower at the time of the accident. While Plaintiff confirmed that the stair tower was available for workers to use on October 7, 2014 (NYSCEF doc No. 182-183), Plaintiff also testified that when he was asked to come down, the stair tower was no longer accessible from the roof as the scaffold platforms through which he can walk had already been removed (Id., pp. 184-187). Payano's deposition does not shed light on this factual question. Payano testified that a platform had been moved down but initially could not confirm whether such platform led to the stairs (NYSCEF doc No. 99, 71:14-19). Later he confirmed that the platform that was removed was not part of that Plaintiff would have stepped on when climbing down (Id., 164:4-10). Given the conflicting deposition testimonies of Plaintiff and Payano, the issue of who is more credible should be resolved at trial (DeSario, supra).
As Defendants failed to make a prima facie showing that Plaintiff was the sole proximate cause of his injuries, the Court now turns to the issue of recalcitrance.
A worker is recalcitrant when safety devices are "readily available at the work site, albeit not in the immediate vicinity of the accident, and plaintiff knew he was expected to use them but for no good reason chose not to do so, causing an accident" (Gallagher v New York Post, 14 NY3d 83 [2010]). Here, Defendants failed to demonstrate that Plaintiff disobeyed an instruction to use his harness and lanyard when climbing down the scaffold [see NYSCEF doc No. 95, p. 210 ["Q. Did you ever use the harness prior to the accident to climb up or down the scaffold? A. I was never told"]). Even if Plaintiff was given such instruction, Defendants failed to show that Plaintiff was without good reason not to use them considering that Plaintiff insists that re-attaching his lanyard while descending will leave him with just one hand to hold onto the scaffold frames. The Court also finds that the evidentiary record does not show that Plaintiff disobeyed a specific instruction to use the scaffold stair tower. In Plaintiff's version of the facts, he was actually told by Payano to come down through the scaffold frames (NYSCEF doc No. 95, 117 [Q. When Manny told you to come down, did he specifically tell you to climb down the scaffold? A. Yes"]). Even if the Court takes Payano's testimony as true, his statement that he gave instructions to "[n]ot [Plaintiff] specifically, but [] the group" to use the stairs is not specific and equivocal enough to sustain a recalcitrant worker defense. Moreover, even assuming Payano told Plaintiff to use the stairs when going from one level to the other, he did not say when he made such instruction. Payano confirmed in his testimony that telling Plaintiff "to come down to the next level so that [the other workers] can continue passing him the material" was the full extent of his conversation with Plaintiff before the accident happened.
Finally, Defendants argue in passing that Plaintiff could have used the elevator to come down to the 16th floor (NYSCEF doc No. 136, p. 12, NYSCEF doc No. 146, p. 8). The evidentiary record, however, is not clear whether Plaintiff could have done so. Plaintiff testified that on the day of the accident the floor leading to the 16th floor from the elevator "was full of computers" (NYSCEF doc No. 95, pp. 117-120).
Based on the foregoing, the branch of Defendants' motion seeking dismissal of Plaintiff's Labor Law 240 (1) claim is denied.
B. Plaintiff's cross-motion for summary judgment granting his Labor Law 240 (1) claim
Plaintiff simultaneously cross-moves for summary judgment granting his Labor Law 240 (1) as against Owner Defendants. Plaintiff submits that a finding of liability is proper as he fell through an "unprotected opening" when the scaffold platform was removed (NYSCEF doc No. 120, pp. 20-27). Owner Defendants oppose, arguing that Plaintiff did not fall through an unprotected opening as Plaintiff intended to descend the entire length of the scaffold frame to position himself there. Moreover, Owner Defendants maintain that Plaintiff was provided with proper safety devices under Labor Law 240 (1).
Not every worker who falls at a construction site is afforded the protections of Labor Law § 240 (1), and "a distinction must be made between those accidents caused by the failure to provide a safety device . . . and those caused by general hazards specific to a workplace" (Makarius v Port Auth. of N.Y. & N. J., 76 AD3d 805, 807 [1st Dept 2010]). Instead, liability "is contingent upon the existence of a hazard contemplated in section 240 (1) and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein" (Narducci v Manhasset Bay Assoc., 96 NY2d 259, 267 [2001]). Therefore, to prevail on a section 240 (1) claim, a plaintiff must show that the statute was violated, and that this violation was a proximate cause of the plaintiff's injuries (Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35, 39 [2004]).
The Court of Appeals in Runner v New York Stock Exch., Inc., 13 NY3d 599, 895 (2009) explained that the dispositive inquiry is not "whether the injury resulted from a fall . . . [r]ather, the single decisive question is whether plaintiff's injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential" (id. at 603).
Here, Plaintiff does not allege that his work of receiving materials passed on to him by workers positioned at the scaffold exposed him to an elevation-related risk; rather, Plaintiff's argument is that being asked to come down from the roof to the 16th floor through the scaffold frames involved extraordinary elevation risk. As there are discrepancies in the deposition testimony of the parties as to whether Plaintiff should have climbed down the scaffold frames in the first place, instead of taking the stairs which Defendants insist was available and accessible to Plaintiff at the time of his accident, the Court finds that there are triable issues of fact as to whether Plaintiff's task exposed him to any elevation-related risk. Therefore, Plaintiff's cross-motion for summary judgment granting his Law 240 (1) as against Owner Defendants is denied.
Labor Law § 241(6)Labor Law § 241 (6) provides, in relevant part:
"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."
It is well settled that this statute requires owners and contractors and their agents "to 'provide reasonable and adequate protection and safety' for workers and to comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor" (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501-502 [1993], quoting Labor Law § 241 [6]). While this duty is nondelegable and exists "even in the absence of control or supervision of the worksite" (Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 348-349 [1998]), "comparative negligence remains a cognizable affirmative defense to a section 241 (6) cause of action" (St. Louis v Town of N. Elba, 16 NY3d 411, 414 [2011]).
To maintain a viable claim under Labor Law § 241 (6), plaintiffs must allege a violation of a provision of the Industrial Code that requires compliance with concrete specifications (Misicki v Caradonna, 12 NY3d 511, 515 [2009]). The Court of Appeals has noted that "[t]he Industrial Code should be sensibly interpreted and applied to effectuate its purpose of protecting construction laborers against hazards in the workplace" (St. Louis, 16 NY3d at 416).
While Plaintiff initially alleged violation of a number of Industrial Code sections, his Cross-Motion and Opposition was limited to 12 NYCRR §§ 23-1.7(b)(1)(i)-(iii), 23-5.1(h), 23- 5.1(j), 23-5.3(e) and 23-5.3(f). Therefore, all of Plaintiff's claims relating to Industrial Code violations, other than those discussed in his Cross-Motion and Opposition, are dismissed as abandoned (see Perez v Folio House, Inc., 123 AD3d 519, 520 [1st Dept 2014] [failure to address claims indicates an intention to abandon them as bases of liability]).
Industrial Code 23-1 .7(b)(1)(i),(ii) and (iii)
Section 23-1.7(b)(1)(i),(ii) and (iii) provide as follows:
(1) Hazardous openings.
(i) Every 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 constructed and installed in compliance with this Part (rule).
(ii) Where free access into such an opening is required by work in progress, a barrier or safety railing constructed and installed in compliance with this Part (rule) shall guard such opening and the means of free access to the opening shall be a substantial gate. Such gate shall swing in a direction away from the opening and shall be kept latched except for entry and exit.
(iii) Where employees are required to work close to the edge of such an opening, such employees shall be protected as follows:
(a) Two-inch planking, full size, or material of equivalent strength installed not more than one floor or 15 feet, whichever is less, beneath the opening; or
(b) An approved life net installed not more than five feet beneath the opening; or
(c) An approved safety belt with attached lifeline which is properly secured to a substantial fixed anchorage.
The term "hazardous opening" is not defined in 12 NYCRR 23-1.7 (b)(1). The interpretation of an Industrial Code regulation and determination as to whether a particular condition is within the scope of the regulation present questions of law for the court (Messina v City of New York, 300 AD2d 121, 123 [1st Dept 2002]).
Reading the regulation as a whole, it was not intended to apply to the alleged "opening" in this case. "As its heading reflects, 12 NYCRR 23-1.7 (b) establishes rules for protection against "[f]alling hazards." The safety measures required--planking installed below the opening, safety nets, harnesses and guard rails--all bespeak of protections against falls from an elevated area to a lower area through openings large enough for a person to fit." (Messina, supra, at 123-24) Taking Plaintiff's version of the facts, he intended to climb down the scaffold frames from the roof to the 16th floor - something he could not have done had there been safety nets and harness in between. Thus, nowhere in Plaintiff's deposition did he say that Defendants should have guarded the "open" scaffold frames as Plaintiff himself insists that it was only way for him to come down to the 16th floor. Therefore, Plaintiff's claim under 12 NYCRR 23-1.7 (b) should be dismissed.
Industrial Code Section 23-5 .1(h)
Section 23-5.1(h) provides that "[e]very scaffold shall be erected and removed under the supervision of a designated person."
The Court finds this provision inapplicable. Payano, S&E's foreman, was on site on the day of the accident. He testified that he had to step away just right before the accident to meet with Mr. Fini to "sp[eak] about work" like "where [Mr. Fini] would like [S&E] to disassemble the scaffold or if [Mr. Fini] wanted [S&E] to move a material]" (NYSCEF doc No. 99, p. 25). Moreover, even if Mr. Payano was away at the time of the accident, the evidentiary record does not reflect that it was the proximate cause of Plaintiff's accident. Therefore, Plaintiff's claim under 12 NYCRR 23-5.1 (h) should be dismissed.
Industrial Code Sections 23-5 .1(j) and 23-5.3(e)
Section 23-5.1(j) provides that "[t]he open sides of all scaffold platforms [] shall be provided with safety railings constructed and installed in compliance with this Part (rule)" Section 23-5.3€, on the other hand, provides that "[s]afety railings constructed and installed in compliance with this Part (rule) shall be provided for every metal scaffold."
While Plaintiff alleges that the scaffold in this case lacked safety railings, Defendants are correct that the photograph's submitted to this Court depict otherwise (see NYSCEF doc No. 96- 98 and 123). Therefore, Plaintiff's claims under 12 NYCRR 23-5.1 (j) and 23-5.3 (e) should be dismissed.
Industrial Code Section 23-5 .3 (f)
Section 23-5.3(f) provides that "[l]adders, stairs or ramps shall be provided for access to and egress from the platform levels of metal scaffolds which are located more than two feet above or below the ground, grade, floor or other equivalent level."
Defendants argue that Plaintiff's claim under this provision should be dismissed as a stairway connecting one level of the scaffold to another was present at the time of the accident. Plaintiff, however, claims he had no access to the scaffold stair tower the platform he needed to step on to get to it was removed.
The conflicting deposition testimony on record raises an issue of fact as to whether Plaintiff had access to the stair tower at the time of his accident. Therefore, Defendants are not entitled to dismissal of the part of Plaintiffs' Labor Law 241 (6) claim predicated on an alleged violation of Industrial Code 23-5.3(f) and the branch of Plaintiff's 241 (6) claim predicated on this section of is severed and continues against Defendants.
CONCLUSION
Based on the foregoing, it is hereby
ORDERED that the branch of Defendants Verizon New York Inc., 435 West 50th LLC, 435 West 50 Property Owner LP, 435 West 50th Street Condominium, Board of Managers of 435 West 50th Street Condominium (the "Owner Defendants") and S&E Bridge & Scaffold LLC's ("S&E") motion (Motion Seq. 004), pursuant to CPLR 3212, for summary judgment dismissing Plaintiff's Labor Law claims is granted to the extent that Plaintiff's Labor Law § 200 claims withdrawn as against the Owner Defendants and Labor Law § 241 (6) claims pursuant to Industrial Code Sections 23-1.7(b)(1)(i)-(iii), 23-5.1 (j) and 23-5.3 (e) and the Industrial Code provisions abandoned by Plaintiff are dismissed; and Plaintiff's remaining Labor Law claims are severed and continue against Defendants; and it is further
ORDERED that Plaintiff's cross motion (Motion Seq. 004), pursuant to CPLR 3212, for summary judgment granting Labor Law § 240 (1) as against Owner Defendants is denied.
ORDERED that the Clerk of the Court shall enter judgment accordingly; and it is further
ORDERED that the counsel for Defendants shall serve a copy of this Order with Notice of Entry within twenty (20) days of entry on all parties. 1/13/2021
DATE
/s/ _________
CAROL R. EDMEAD, J.S.C.