Opinion
160195/2016
07-03-2019
Donnell PINCKNEY, Plaintiff, v. 701 SEVENTH PROPERTY OWNER, LLC and CNY Group LLC, Defendants.
Plaintiff: Zaremba Brown PLLC, 40 Wall St. Fl 52 New York, NY 10005, By: John Zaremba, Esq., Catherine Michelle Clemens, Esq. Defendant: Cornell Grace, 111 Broadway, Suite 810, New York, NY 10006, By: Prachi Mukesh Ajmera, Esq.
Plaintiff: Zaremba Brown PLLC, 40 Wall St. Fl 52
New York, NY 10005, By: John Zaremba, Esq., Catherine Michelle Clemens, Esq.
Defendant: Cornell Grace, 111 Broadway, Suite 810, New York, NY 10006, By: Prachi Mukesh Ajmera, Esq.
Robert R. Reed, J.
This is an action to recover damages for personal injuries allegedly sustained by a union laborer on October 13, 2016, when, while working at a construction site located at 701 Seventh Avenue, New York, New York (the Premises), he tripped and fell over steel chokers, and also fell from an unsecured ladder.
In motion sequence number 002, plaintiff Donnell Pinckney moves, pursuant to CPLR 3212, for summary judgment in his favor as to liability on the Labor Law §§ 240 (1) and 241 (6) claims against defendants 701 Seventh Property Owner LLC (701) and CNY Group LLC (CNY) (together, defendants).
Defendants cross-move for summary judgment dismissing the complaint against them.
BACKGROUND
On the day of the accident, the Premises was owned by 701. 701 hired CNY to provide general contractor services for a project at the Premises that entailed the construction of a new 39-story hotel (the Project). CNY hired non party Navillus Contracting (Navillus) to build the concrete superstructure of the building. Plaintiff was an employee of Navillus.
Plaintiff's Deposition Testimony
Plaintiff testified that at the time of his two separate, but somewhat related accidents, he was a union laborer employed by Navillus. Navillus was performing concrete superstructure fabrication and installation work at the Premises, which was going to become a Hilton hotel. Plaintiff's work at the Project included transporting materials and cleaning the work site. He was solely directed by a Navillus foreman named "Jimmy" (plaintiff's tr at 25).
Plaintiff explained that the first accident occurred on the 11th floor of the Premises, and the second accident occurred on a ladder between the 10th and 11th floors. To get to his work site on the 11th floor, plaintiff took a hoist to the 9th floor, and then had to climb extension ladders from the 9th floor to the 11th floor. The extension ladders were installed by Navillus employees, who secured the ladders to the 10th and 11th floors with tie wires attached to wooden posts.
Plaintiff described the 11th floor as a 25-foot by 150-foot area with a single room in the middle for the elevator shaft. In addition, "the whole floor" was covered in scaffolding. The scaffolds served to "hold[ ] up the floor above for the concrete" (id. at 82). According to plaintiff, the scaffolds were arranged in straight, "vertical" lines, which created paths between the scaffolds for walking (id. at 83).
The day before the accident, Navillus workers finished stripping plywood forms from newly cured concrete on the 11th floor. Plaintiff's job that day was to sort materials for reuse and to clear trash from the floor. When cleaning, laborers would clear the "paths," so that they would not need to step over anything when they carried materials throughout the floor (id. at 82).On the day of the accident, plaintiff's job was to carry materials, including column clamps, to an area on the 11th floor and to stack them, so that a crane could then lift the materials to the 12th floor for further use.
Plaintiff testified that his first accident occurred after lunch, when, as he was "moving the column clamps to the south side of the building," he "tripped over some chokers" in one of the paths (id. at 79). Plaintiff testified that his foot got caught on a raised part of one of the chokers, which caused him to lose his balance and fall on his hip. He landed on top of his hammer, which was holstered on his right hip. No one witnessed the accident.
A column clamp is a clamp designed to hold a column form together while the concrete within the form dries and hardens. Chokers, also known as slings, are 10 feet long, two-inch thick metal ropes used with cranes to lift materials.
Plaintiff explained that, earlier in the day, the chokers had been used to lift some materials to the floor above. However, at the time of the accident, the cranes and the chokers were not in use. Plaintiff did not know why the chokers were left out in the open, as they are "usually set to the side after [they are] finished being used" (id. at 88).
Plaintiff testified that he sat on the ground for several minutes after the accident, recovering, and then he spoke with "Jimmy." At this time, plaintiff was able to walk, though with a limp. He then walked to a nearby extension ladder and began climbing down, favoring his left side, because of his injured right hip. Plaintiff testified that while he was climbing down the ladder, "it kinda shimmied from side to side," causing him to slip and fall approximately five feet to the floor below (id. at 111).
Plaintiff believed that the wire that affixed the ladder to the 11th floor landing was loose, which is why the ladder moved from side to side as he climbed down. He believed that use of the ladder throughout the day caused the wire to loosen.
Afterwards, with the assistance of a worker who was nearby, plaintiff was able to exit the construction site. While waiting for an ambulance, he spoke with a site safety supervisor from CNY. Plaintiff never filled out an accident report.
Deposition Testimony of Jan Grimsland (CNY's Vice President of Risk Management)
Jan Grimsland testified that on the day of the accident, he was employed by CNY as a vice president. His duties included procuring insurance, developing safety programs, receiving and submitting claims and overseeing litigation. He explained that CNY was the general contractor for the Project. CNY hired subcontractors, including the site safety manager, non party Infinite Consulting (Infinite). In addition, CNY generally oversaw the trades and insured that the project was built to the proper specifications and on schedule.
Grimsland testified that the 11th floor of the Premises was a "stripping floor ... a floor that's being stripped of wood that's supporting concrete with posts that are supporting the concrete until it cures" (Grimsland tr at 89). He stated that these support posts do not "necessarily" create "specific passageway[s]" on the stripping floor (id. at 89-90).
At his deposition, Grimsland was shown three accident reports; a CNY report, an Infinite report and Navillus's C-2 Worker's Compensation report. As Grimsland did not witness the accident and never spoke with plaintiff, his knowledge of the accident was based solely on the three accident reports, which he acknowledged differ slightly from one another.
Finally, as to the method of storing chokers, Grimsland testified that a choker should be "cleared when it's no longer going to be used and pushed out of the way if it's [in] a walkway" (id. at 70).
Affidavit of Joseph Gagliardi (Navillus's Carpenter Foreman)
In his affidavit, Joseph Gagliardi stated that he was Navillus's carpenter foreman for the Project on the day of the accident, and that he installed the extension ladders on the 10th floor leading to the 11th floor. His duties also included inspecting the ladders every morning before work started at the Project, to make sure that they were "in proper working condition" (Gagliardi aff, ¶ 4). He personally inspected the subject ladder in the morning on the day of the accident and found it to be "stable and secured" (id. at ¶ 7).
The Reports
Navillus's C-2 Workers' Compensation Report
Navillus's "Employer's Report of Work-Related Injury/Illness," commonly known as a C-2 report, is dated October 13, 2016, the date of the accident (the C-2 Report) (notice of cross motion, exhibit H, the C-2 Report). It was prepared and signed by Olan Kenneally, Navillus's project manager. The C-2 Report describes the causes of plaintiff's accidents as follows:
"How did the injury/illness occur? Tripped on a steel sling, landed on hammer (right side) attached to belt on his hip. Walked to ladder, climbed down w/1 leg, slipped 3 rungs from btm"
(id. at 2). The C-2 Report also indicates that, while plaintiff's trip was unwitnessed, a worker "saw him fall from the ladder" (id. at 1).
CNY's Incident Investigation Report
The "Incident Investigation Report," dated October 13, 2016 (the Incident Report) was prepared and signed by Victor Ledesma, a CNY superintendent (notice of cross motion, exhibit H, the Incident Report). The Incident Report indicates that:
"At approximately 2:30 pm [plaintiff] was moving material on the 11th floor when he tripped on slings.... Later he tried to climb down the stairs under his own will when he slipped but did not fall"
(id. at 1).
Infinite's Jobsite Accident Report
Infinite's "Jobsite Incident/Accident Report," is dated October 13, 2016 (the Infinite Report) (notice of cross motion, exhibit H, the Infinite Report). It indicates that plaintiff was stripping lumber prior to the accident when he "tripped over Navillus slings causing him to fall" (id. at 2). The Infinite Report makes no mention of plaintiff's second accident, where he fell off the ladder when it shifted.
DISCUSSION
"[T]he 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 demonstrate the absence of any material issues of fact. Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers" ( Alvarez v. Prospect Hosp. , 68 NY2d 320, 324 [1986] [internal citations omitted] ). Once prima facie entitlement has been established, in order to defeat the motion, the opposing party must " ‘assemble, lay bare, and reveal his [or her] proofs in order to show his [or her] defenses are real and capable of being established on trial ... and it is insufficient to merely set forth averments of factual or legal conclusions’ " ( Genger v. Genger , 123 AD3d 445, 447 [1st Dept 2014], quoting Schiraldi v. U.S. Min. Prods. , 194 AD2d 482, 483 [1st Dept 1993] ). 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 [1978] ).
The Labor Law § 240 (1) Claim
With respect to his fall from the ladder, plaintiff moves for summary judgment in his favor as to liability on the Labor Law § 240 (1) claim against defendants. Defendants cross-move for summary judgment dismissing the same. Labor Law § 240 (1), also known as the Scaffold Law, provides, as relevant:
"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) was designed to prevent those types of accidents in which the scaffold ... 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’ " ( John v. Baharestani , 281 AD2d 114, 118 [1st Dept 2001] [emphasis omitted], quoting Ross v. Curtis-Palmer Hydro-Elec. Co. , 81 NY2d 494, 501 [1993] ). Importantly, Labor Law § 240 (1) "is designed to protect workers from gravity-related hazards ...and must be liberally construed to accomplish the purpose for which it was framed" ( Valensisi v. Greens at Half Hollow, LLC, 33 AD3d 693, 695 [2d Dept 2006] [internal citations omitted] ).
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 NY & 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] ).
Here, plaintiff has established his prima facie entitlement to summary judgment in his favor on the Labor Law § 240 (1) claim against defendants because the ladder shifted while he was climbing down, which caused him to fall to the floor below and become injured. "Whether the device provided proper protection is a question of fact, except when the device collapses, moves, falls, or otherwise fails to support the plaintiff" ( Nelson v. Ciba-Geigy , 268 AD2d 570, 572 [2d Dept 2000] ; Garcia v. Church of St. Joseph of the Holy Family of the City of NY , 146 AD3d 524, 525 [1st Dept 2017] ["Plaintiff's testimony that the ladder shifted as he descended, thus causing his fall, established a prima facie violation of Labor Law § 240 (1)"]; accord Lizama v. 1801 Univ. Assoc., LLC , 100 AD3d 497, 498 [1st Dept 2012] ).
Defendants argue that they are not liable under Labor Law § 240 (1) because plaintiff was the sole proximate cause of his accident, as he improperly "hopped" down the ladder using only one leg. "[T]here can be no liability under section 240 (1) when there is no violation and the worker's actions ... are the ‘sole proximate cause’ of the accident" ( Blake v. Neighborhood Hous. Servs. of NY City , 1 NY3d 280, 290 [2003] ; Robinson v. East Med. Ctr., LP , 6 NY3d 550, 554 [2006] [where a plaintiff's own actions are the sole proximate cause of the accident, there can be no liability under Labor Law § 240 (1) ] ).
In opposition to plaintiff's motion and in support of their own motion for summary judgment dismissing the section 240 (1) claim, defendants rely entirely on the C-2 Report, which states that plaintiff climbed down the ladder using only one leg. However, as the C-2 Report fails to refute plaintiff's testimony that the accident was caused by the shifting of the ladder, it fails to create a triable issue of fact that plaintiff's purported improper descent down the ladder was the sole proximate cause of the accident (see Garcia v. Church of St. Joseph of the Holy Family of the City of NY , 146 AD3d at 526 ; Hoffman v SJP TS, LLC , 111 AD3d 467, 467 [1st Dept 2013] [a plaintiff cannot be the sole proximate cause of his accident where the defendants "failed to provide an adequate safety device in the first instance"]; see also Nimirovski v. Vornado Realty Trust Co. , 29 AD3d 762 [2d Dept 2006] ).
In any event, the alleged negligence on plaintiff's part — i.e., climbing down the ladder with only one leg — goes to comparative fault, and comparative fault is not a defense to a Labor Law § 240 (1) cause of action, because the statute imposes absolute liability once a violation is shown ( Bland v. Manocherian , 66 NY2d 452, 460 [1985] ; Melito v. ABS Partners Real Estate, LLC , 129 AD3d 424, 425 [1st Dept 2015] ). "[W]here the owner or contractor has failed to provide adequate safety devices to protect workers from elevation-related injuries and that failure is a cause of plaintiff's injury, [n]egligence, if any, of the injured worker is of no consequence" ( Hernandez v. Bethel United Methodist Church of NY , 49 AD3d 251, 253 [1st Dept 2008] [internal quotation marks and citations omitted] ).
It should be noted that defendants' reliance on Gagliardi's statement that the ladder and its ties were stable and secure in the morning is of no moment. The accident occurred at approximately 2:30 in the afternoon — after hours of workers using it for ingress/egress from the 11th floor — not in the morning. Moreover, Gagliardi does not state whether he inspected the ladder after plaintiff's accident, or whether the ladder was stable at that time or whether its ties were sufficiently secure to keep the ladder from shifting.
Thus, plaintiff is entitled to summary judgment in his favor on the Labor Law § 240 (1) claim against defendants, and defendants are not entitled to summary judgment dismissing the same.
The Labor Law § 241 (6) Claim
Plaintiff moves for summary judgment in his favor on the Labor Law § 241 (6) claim against defendants with respect to liability as to both of his accidents. Defendants cross-move for summary judgment dismissing said claim against them.
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. L.A. Wenger Contr. Co. , 91 NY2d 343, 348 [1998] [citation omitted]; see also Ross, 81 NY2d at 501—502 ). Importantly, 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 NY2d at 505 ). Such violation must be a proximate cause of the plaintiff's injuries ( Annicaro v. Corporate Suites, Inc. , 98 AD3d 542, 544 [2d Dept 2012] ).
Initially, although plaintiff lists multiple violations of the Industrial Code in the bill of particulars, with the exception of sections 23-1.7 (e) (1) and (2), 23-1.7 (f), 23-1.21 (b) (4) (I), 23-2.1 (a) (1), and 23-3.3 (k) (1) (ii), plaintiff does not move for summary judgment in his favor as to those alleged violations, nor does he oppose their dismissal. Therefore, the court deems these uncontested provisions abandoned. Thus, defendants are entitled to summary judgment dismissing those parts of plaintiff's Labor Law § 241 (6) claim predicated on the abandoned provisions (see Kempisty v. 246 Spring St., LLC , 92 AD3d 474, 475 [1st Dept 2012] ).
Plaintiff's First Accident
As to plaintiff's trip and fall over the steel choker, plaintiff asserts alleged violations of Industrial Code sections 23-1.7 (e) (1) and (2), 23-2.1 (a) (1) and 23-3.3 (k) (1) (ii).
Industrial Code 23-1.7 (e) (1)
Industrial Code 12 NYCRR 23-1.7 (e) (1) provides, in pertinent part:
"(e) Tripping and other hazards.
I. Passageways. All passageways shall be kept free from ... debris and from any other obstructions or conditions which could cause tripping.
Initially, section 23-1.7 (e) (1) is sufficiently specific to sustain a claim under Labor Law § 241 (6) ( Boss v. Integral Constr. Corp. , 249 AD2d 214, 215 [1st Dept 1998] ).
Plaintiff argues that section 23-1.7 (e) (1) applies to the facts of this case because the area where his first accident occurred was a passageway, and because the steel choker was an obstruction that caused him to trip. In opposition, defendants argue that section 23-1.7 (e) (1) does not apply because the area where plaintiff tripped did not constitute a passageway.
"While the term ‘passageway’ is not defined in the Industrial Code, 'courts have interpreted the term to mean a defined walkway or pathway used to traverse between discrete areas as opposed to an open area" ( Prevost v. One City Block, LLC , 155 AD3d 531, 535 [1st Dept 2017], quoting Steiger v. LPCiminelli, Inc. , 104 AD3d 1246, 1250 [4th Dept 2013] ).
Here, plaintiff testified that at the time of the accident, the entirety of the 11th floor was covered in scaffolds, which served to "hold[ ] up the floor above for the concrete" while the concrete was poured and allowed to cure (plaintiff's tr at 82). According to plaintiff, these scaffolds were arranged in straight lines throughout the 11th floor, which created defined passageways where workers were able to walk.
Courts have held that passageways may be constructed by large piles of construction materials or large piles of debris (see Aragona v. State of New York , 147 AD3d 808, 808 [2d Dept 2017] [plaintiff established the existence of a passageway through testimony and photographic evidence showing that he was required to walk through a two-to-three foot wide corridor "created by lumber and construction material"]; Lois v Flintlock Constr. Servs., LLC , 2014 NY Slip Op 33421 [U], *2 [Sup Ct, Bronx County 2014], aff'd 137 AD3d 446, 447 [1st Dept 2016] [plaintiff established the existence of a passageway where he testified that he was required to walk between two eight-foot by 15-foot piles of debris made of broken concrete, wood and nails covered by tarps] ). A corridor created by rows of scaffolds is no different. Plaintiff testified that the scaffolds were set up in such a way that he had to follow a path between them to get from one part of the floor to another. Accordingly, plaintiff has established that at the time of the first accident, he was within a passageway as contemplated by section 23-1.7 (e) (1).
In contrast, Grimsland's testimony that there were not "necessarily" "specific passageway[s]" on the 11th floor and that the area where plaintiff tripped and fell "may not have been a passageway" (id. at 87, 88-89) is speculative and equivocal. Moreover, Grimsland did not testify that he was familiar with the layout of the 11th floor on the day of plaintiff's accident, nor did he testify that he ever visited the 11th floor. Therefore, his testimony does not establish a question of fact that would defeat plaintiff's motion for summary judgment (see IDX Capital, LLC v. Phoenix Partners Group , LLC 83 AD3d 569, 570 [1st Dept 2011], affd 19 NY3d 850 [2012] ["only the existence of a bona fide issue raised by evidentiary facts, not one based on conclusory or speculative allegations, will suffice to defeat a motion for summary judgment"] ).
Thus, plaintiff is entitled to summary judgment in his favor on that part of the Labor Law § 241 (6) claim based on a violation of Industrial Code 12 NYCRR 23-1.7 (e) (1), and defendants are not entitled to summary judgment on their cross motion to dismiss the same.
Industrial Code 12 NYCRR 23-1.7 (e) (2)
Industrial Code 12 NYCRR 23-1.7 (e) (2) provides in pertinent part:
(2) Working Areas. The parts of floors, platforms and similar areas where persons work or pass shall be kept free from accumulations of dirt and debris and from scattered tools and materials and from sharp projections insofar as may be consistent with the work being performed."
Section 23-1.7 (e) (2) is sufficiently specific to sustain a claim under Labor Law § 241 (6) ( Boss v. Integral Constr. Corp. , 249 AD2d at 215 ).
Initially, it is uncontested that the location of plaintiff's accident is a work area as contemplated by this Industrial Code section. In addition, plaintiff argues that the steel choker on the ground constituted a scattered tool and/or material that should have been properly stowed elsewhere.
That said, defendants argue that section 23-1.7 (e) (2) does not apply to plaintiff's accident because the choker was integral to ongoing hoist work at the Project, and any dirt, debris, tools or materials that are an "integral part" of the work being performed would not be a violation of section 23-1.7 (e) (2) (see Solis v. 32 Sixth Ave. Co. LLC, 38 AD3d 389, 390 [1st Dept 2007] [debris covering scaffold "resulted directly from the masonry work plaintiff and his coworker were performing, and thus constituted an integral part of that work"] ). The relevant inquiry is whether the debris or material was a part of work that was ongoing at the time of plaintiff's accident ( Rossi v. 140 W. JV Mgr, LLC , 171 AD3d 668, 668 [1st Dept 2019] [debris "consisting of cables ... was not inherent in, or an integral part of, the work being performed by either plaintiff electrician or [defendant contractor] at the time of the accident"]; see also Tighe v. Hennegan Constr. Co., Inc. , 48 AD3d 201, 202 [1st Dept 2008] [readily observable demolition debris that accumulated as a result of demolition "was not inherent in the work being performed by plaintiff, an electrician, at the time of the accident"]; accord Lois v. Flintlock Constr. Servs., LLC, 137 AD3d at 448 ).
Here, plaintiff testified that at the time of the accident, no hoisting operations were underway in the area where he tripped and fell, and that the choker had just been left in a pile on the floor. In addition, Grimsland testified that, when not in use, chokers should be "cleared" and "pushed out of the way" (Grimsland tr at 69). Accordingly, the steel chokers that plaintiff tripped on were scattered tools that were improperly left on the floor in the middle of a work area, rather than material integral to work being performed ( Rossi v. 140 W. JV Mgr, LLC , 171 AD3d at 668 ).
Thus, plaintiff is entitled to summary judgment in his favor on the Labor Law § 241 (6) claim based on a violation of Industrial Code 12 NYCRR 23-1.7 (e) (2), and defendants are not entitled to summary judgment on their cross motion to dismiss the same.
Industrial Code 12 NYCRR 23-2.1 (a) (1)
Industrial Code section 23-2.1 governs maintenance and housekeeping. Section 23-2.1 (a) (1) provides, as follows:
"(a) Storage of materials and equipment.
(1) All building materials shall be stored in a safe and orderly manner. Material piles shall be stable under all conditions and so located that they do not obstruct any passageway, walkway, stairway or other thoroughfare."
Section 23-2.1 (a) (1) is sufficiently specific to sustain a claim under Labor Law § 241 (6) ( Scannell v. Mt. Sinai Med. Ctr. , 256 AD2d 214, 215-216 [1st Dept 1998] ).
Initially, as discussed above, plaintiff's accident occurred in a passageway, so this section may be applicable to his accident on this ground. That said, plaintiff tripped over a steel choker, a piece of equipment used with a crane to lift objects from one floor to another. As a piece of equipment does not constitute building materials, or a material pile, the steel choker falls outside the scope of this Industrial Code provision.
Thus, defendants are entitled to summary judgment dismissing that part of the section 241 (6) claim based on an alleged violation of Industrial Code section 23-2.1 (a) (1), and plaintiff is not entitled summary judgment in his favor on the same.
Industrial Code 12 NYCRR 23-3.3 (k) (1) (ii)
Industrial Code section 23-3.3 governs demolition performed by hand. Section 23-3.3 (k) (1) (ii) provides, in pertinent part, as follows:
"(k) Storage of materials.
(1) General.
(ii) ... All materials shall be safely piled in such locations as will not interfere with any work operations nor present any hazard to any person employed at or frequenting the demolition site."
Section 23-3.3 (k) (1) (ii) has been held to be sufficiently specific to support a section 241 (6) claim ( Randazzo v. Consolidated Edison Co. of NY , 271 AD2d 667, 668 [2d Dept 2000] ).
Here, as there is no indication in the record that there was any demolition underway at the time of the accident, this provision is inapplicable to the instant case. Thus, defendants are entitled to summary judgment dismissing that part of the section 241 (6) claim based on an alleged violation of Industrial Code section 23-3.3 (k) (1) (ii), and plaintiff is not entitled to summary judgment in his favor on such claim.
The Second Accident
As to plaintiff's fall from the ladder, plaintiff alleges that Industrial Code sections 23-1.7 (f) and 23-1.21 (b) (4) (i) apply to the facts of this case.
Industrial Code 12 NYCRR 23-1.7 (f)
Industrial Code 12 NYCRR 23-1.7 (f) provides in pertinent part, as follows:
"(f) Vertical passage. Stairways, ramps or runways shall be provided as the means of access to working levels above or below ground except where the nature or the progress of the work prevents their installation in which case ladders or other safe means of access shall be provided."
Initially, section 23-1.7 (f) is sufficiently specific to support a Labor Law § 241 (6) claim (see Miano v. Skyline New Homes Corp. , 37 AD3d 563, 565 [2d Dept 2007] ; Atkins v. Baker, 247 AD2d 562, 562 [2d Dept 1998] ).
Here, it is uncontested that a ladder was provided as a means of access from the 10th to the 11th floor. However, because it shifted, causing plaintiff to fall, the ladder was not a safe means of access to the 11th floor. Accordingly, defendants violated this Industrial Code provision, and such violation was a proximate cause of plaintiff's accident. Thus, plaintiff is entitled to summary judgment in his favor on that part of the Labor Law § 241 (6) claim based on a violation of Industrial Code 12NYCRR 23-1.7 (f), and defendants are not entitled to dismissal of the same.
Industrial Code 12 NYCRR 23-1.21 (b) (4) (i)
Industrial Code 12 NYCRR 23-1.21 (b) (4) governs the installation and use of portable ladders. It provides, in pertinent part, as follows:
"(i) Any portable ladder used as a regular means of access between floors or other levels in any building ...shall be nailed or otherwise securely fastened in place."
Initially, section 23-1.21 (b) (4) (i) is sufficiently specific to support a Labor Law § 241 (6) claim (see Kinsler v. Lu-Four Assoc. , 215 AD2d 631, 632 [2d Dept 1995] ).
Here, testimony establishes that a portable extension ladder was used as a regular means of access between the 10th and 11th floor of the Premises. In addition, the record reflects that the ladder, though not nailed in place, was secured with a tie wire. Plaintiff testified that the tie wire was loose, which allowed the ladder to shift from side to side which, in turn, caused him to fall. Accordingly, plaintiff established that defendants violated section 23-1.21 (b) (4) (1).
In opposition, defendants failed to raise a triable issue of fact as to whether the ladder was, in fact, securely fastened in place. Gagliardi's affidavit — which states that the ladder was secure in the morning — does not establish that the ladder was sufficiently secured at the time of the accident so as to prevent it from shifting. Nor does Gagliardi state that he checked the ladder after the accident, or what condition the ladder was in at that time.
Thus, plaintiff is entitled to summary judgment in his favor on that part of the Labor Law § 241 (6) claim based on a violation of Industrial Code 12 NYCRR 23-1.21 (b) (4) (i), and defendants are not entitled to summary judgment dismissing the same.
The Common-Law Negligence and Labor Law § 200 Claims
Defendants move for summary judgment dismissing the common-law negligence and Labor Law § 200 claims as against them. 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" ( Singh v. Black Diamonds LLC , 24 AD3d 138, 139 [1st Dept 2005], citing Comes v. New York State Elec. & Gas Corp. , 82 NY2d 876, 877 [1993] [other citation omitted] ). Labor Law § 200 (1) states, in pertinent part, as follows:
"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."
There are two distinct standards applicable to section 200 cases, depending on the kind of situation involved: (1) when the accident is the result of the means and methods used by a contractor to do its work; and (2) when the accident is the result of a dangerous condition that is inherent in the premises (see McLeod v. Corporation of Presiding Bishop of Church of Jesus Christ of Latter Day Sts. , 41 AD3d 796, 797-798 [2d Dept 2007] ; see also Griffin v. New York City Tr. Auth. , 16 AD3d 202, 202 [1st Dept 2005] ).
"Where a plaintiff's claims implicate the means and methods of the work, an owner or a contractor will not be held liable under Labor Law § 200 unless it had the authority to supervise or control the performance of the work" ( LaRosa v. Internap Network Servs. Corp. , 83 AD3d 905, 909 [2d Dept 2011] ). Specifically, "liability can only be imposed against a party who exercises actual supervision of the injury-producing work" ( Naughton v. City of New York , 94 AD3d 1, 11 [1st Dept 2012] ; see also Hughes v. Tishman Constr. Corp. , 40 AD3d 305, 311 [1st Dept 2007] [liability under a means and methods analysis "requires actual supervisory control or input into how the work is performed"] ).
However, where an injury stems from a dangerous condition on the premises, an owner may be liable in common-law negligence and " ‘under Labor Law § 200 when the owner created the dangerous condition causing an injury or when the owner failed to remedy a dangerous or defective condition of which he or she had actual or constructive notice’ " ( Mendoza v. Highpoint Assoc., IX, LLC , 83 AD3d 1, 9 [1st Dept 2011], quoting Chowdhury v. Rodriguez , 57 AD3d 121, 128 [2d Dept 2008] ).
Here, plaintiff's first accident was caused when he tripped over a steel choker that was improperly left lying on the ground in the middle of a passageway. Accordingly, plaintiff's first accident was caused by the means and methods of the work at the Project — i.e., the manner in which the choker was stored while not in use. The second accident was caused when an improperly secured ladder shifted, causing plaintiff to fall. Accordingly, the second accident was also caused by the means and methods of the work at the Project — i.e., the manner that the ladder was installed and maintained.
There is no evidence in the record that defendants supervised or controlled the operation of the crane and its attendant steel chokers, or that they supervised or controlled the installation or maintenance of the ladder. In opposition, plaintiff does not raise a question of fact that would preclude summary judgment on this issue.
Thus, defendants are entitled to summary judgment dismissing the common-law negligence and Labor Law § 200 claims as against them.
The court has considered the parties' remaining arguments and finds them to be unpersuasive.
CONCLUSION & ORDER
For the foregoing reasons, it is hereby
ORDERED that plaintiff Donnell Pinckney's motion, pursuant to CPLR 3212, for summary judgment in his favor against defendants 701 Seventh Property Owner LLC and CNY Group LLC (collectively defendants) is granted on the Labor Law § 240 (1) claim, as well as those Labor Law § 241 (6) claims predicated on alleged violations of Industrial Code 12 NYCRR 23-1.7 (e) (1) and (2), 23-1.7 (f), and 23-1.21 (b) (4) (i), and the motion is otherwise denied; and it is further
ORDERED that defendants' cross motion, pursuant to CPLR 3212, for summary judgment dismissing the complaint is granted to the extent of dismissing the common-law negligence and Labor Law § 200 claims and those Labor Law § 241 (6) claims predicated on alleged violations of Industrial Code 12 NYCRR 23-2.1 (a) (1), and 23-3.3 (k) (1) (ii), as well as those Industrial Code sections deemed abandoned, and the cross motion is otherwise denied.