Opinion
#2015-041-024 Claim No. 123531 Motion No. M-85642 Motion No. M-85934 Cross-Motion No. CM-85779
03-05-2015
DENNIS PLACE v. THE STATE OF NEW YORK
HACKER MURPHY LLP BY: John F. Harwick, Esq. GOLDBERG SEGALLA LLP By: William H. Baaki, Esq.
Synopsis
Claimant's motion for summary judgment as to defendant's Labor Law § 240 (1) liability is granted where claimant was injured when he fell from an unsecured ladder. Defendant's cross-motion for summary judgment dismissing claimant's Labor Law § 240 (1) claim is denied, but defendant's cross-motion for summary judgment dismissing claimant's Labor Law §§ 200 and 241 (6) claims is granted, except to the extent that claimant's Labor Law § 241 (6) claim based on an alleged violation of 12 NYCRR 23-1.21 (e) (3) survives.
Case information
| UID: | 2015-041-024 |
| Claimant(s): | DENNIS PLACE |
| Claimant short name: | PLACE |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 123531 |
| Motion number(s): | M-85642, M-85934 |
| Cross-motion number(s): | CM-85779 |
| Judge: | FRANK P. MILANO |
| Claimant's attorney: | HACKER MURPHY LLP BY: John F. Harwick, Esq. |
| Defendant's attorney: | GOLDBERG SEGALLA LLP By: William H. Baaki, Esq. |
| Third-party defendant's attorney: | |
| Signature date: | March 5, 2015 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Dennis Place (claimant), according to the amended claim, was injured on September 30, 2013 at approximately 11:30 a.m. when the 16-foot A-frame ladder he was standing on tipped over and fell to the ground. At the time of the accident, claimant was performing demolition work on the sixth floor of Building 5 of the New York State Office Campus located in Albany, New York. Claimant was employed by Sunshine Environmental Services, Inc. ("Sunshine"). Claimant argues that the floor was slippery, that the ladder lacked adequate safety feet, and that he was not provided with adequate safety devices to protect him from falling to the ground when the ladder he was standing on tipped over. It is further alleged in the amended claim that defendant violated Labor Law §§ 200, 240 (1) and 241 (6). Both parties now move or cross-move for summary judgment under one or more of these sections of the Labor Law.
The only difference between the claim and the amended claim is the addition in the amended claim of a paragraph alleging that one or more exemptions to CPLR Article 16 are applicable.
Claimant moves (M-85642) pursuant to CPLR § 3212 for partial summary judgment, alleging that a violation of Labor Law § 240 (1) proximately caused his accident. Defendant opposes claimant's motion and cross-moves (CM-85779) for partial summary judgment dismissing claimant's Labor Law §§ 200 and 241 (6) causes of action. Claimant then moves (M-85934): a) for permission, pursuant to CPLR §§ 3042 and 3043, to amend his bill of particulars to include an additional Labor Law § 241 (6) cause of action based on an alleged violation of 12 NYCRR 23-3.3 (c); b) to further support his motion for summary judgment on the § 240(1) cause of action; and c) to oppose defendant's cross-motion seeking summary judgment dismissing claimant's § 241(6) cause of action. Defendant opposes claimant's most recent motion and files an amended notice of motion (also CM-85779) seeking summary judgment dismissing claimant's Labor Law § 240 (1) cause of action as well as dismissing claimant's Labor Law §§ 200 and 241 (6) causes of action.
The standard for review of these motions is well-established. "A motion for summary judgment should be entertained only after the moving party has established, by competent admissible evidence, that it is entitled to judgment as a matter of law. . . . If the movant meets this initial burden, the opposing party is required to submit evidence which raises a material issue of fact to preclude an award of summary judgment" (Ware v Baxter Health Care Corp., 25 AD3d 863, 864 [3d Dept 2006]).
Once the moving party has satisfied this obligation, the burden shifts and the party opposing the motion must demonstrate by admissible evidence the existence of a factual issue (Svoboda v Our Lady of Lourdes Mem. Hosp., Inc., 31 AD3d 877 [3d Dept 2006]).
Labor Law § 240 (1)Labor Law § 240 (1) provides as follows:
"All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, 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 explained in Rocovich v Consolidated Edison Co. (78 NY2d 509, 513, [1991]), that:
"The legislative purpose behind this enactment is to protect 'workers by placing ultimate responsibility for safety practices at building construction jobs where such responsibility actually belongs, on the owner and general contractor' (1969 NY Legis Ann, at 407), instead of on workers, who 'are scarcely in a position to protect themselves from accident' (Koenig v Patrick Constr. Co., 298 NY 313, 318)."
Courts are required to "liberally construe the statute to effect its purpose of protecting workers" (Hodges v Boland's Excavating & Topsoil, Inc., 24 AD3d 1089, 1091 [3d Dept 2005] lv denied 6 NY3d 710 [2006]).
The Court of Appeals recently reminded, in Dahar v Holland Ladder & Mfg. Co. (18 NY3d 521, 524 [2012], that:
"Labor Law § 240 (1), one of the most frequent sources of litigation in the New York courts, provides rights to certain workers going well beyond the common law. As we have long held, it imposes liability even on contractors and owners who had nothing to do with the plaintiff's accident; and where a violation of the statute has caused injury, any fault by the plaintiff contributing to that injury is irrelevant."
Despite the formidable protections offered workers by Labor Law § 240 (1), "a defendant may establish its entitlement to summary judgment by showing that no statutory violation has occurred and that the sole proximate cause of an accident was plaintiff's own actions" (Deshields v Carey, 69 AD3d 1191, 1192 [3d Dept 2010]).
Claimant alleges that defendant State of New York is liable for his injuries as an owner under Labor Law § 240 (1). In support of his motion for partial summary judgment, claimant annexes a copy of his deposition transcript and a copy of the deposition transcript of his supervisor, David Coleman. During his deposition, claimant testified that at the time of the accident he was standing on the second-to-top step of a 16-foot A-frame ladder, and was using a "sawzall" (a hand held reciprocating saw) to cut and remove pieces of plaster drywall and chicken wire to facilitate asbestos removal. Claimant was employed by Sunshine, the project's general contractor, as an asbestos abatement demolition laborer. Claimant had training and prior experience with asbestos abatement demolition. He received his asbestos "hard card" certification in 2008 or 2009.
Claimant was wearing a Tyvek suit and using equipment owned by Sunshine. Claimant arrived at the job site at approximately 6:30 a.m. and, after receiving his instructions from his Sunshine supervisor, selected a ladder from the multiple ladders owned by Sunshine. He looked at the condition of the ladder selected and did not observe any defects. Claimant set up the ladder making sure that "everything was locked down" and that the footings were set out correctly (claimant's exhibit D, pp 87-88, in support of claimant's motion for summary judgment [M-85642] on his § 240[1] cause of action).
Claimant set up the ladder on the sixth floor in the asbestos abatement area. In this area, the entire floor was sealed with eight mil thick plastic which covered the floor and extended up the walls. In order to abate the asbestos, there had to be a constant water source spraying to keep the asbestos dust down. As a result, the floor was constantly wet and muddy. The condition of the floor was a normal working condition during asbestos abatement.
Claimant testified that he was in the process of cutting down ductwork and plaster ceiling when his supervisor, Dave Coleman, instructed him to cut down a big piece of plaster about 10 feet away from where he was working. To do this, claimant had to reposition the ladder. After repositioning the ladder, claimant testified that:
"I went up [the ladder], started cutting one side. I got down. I could no longer cut anymore. I got down. I moved my ladder back to where I could cut again. So as I started cutting in this side it was so big that it came, fell straight down and kicked my ladder out and sent me flying" (claimant's exhibit D, p 93-94, in support of claimant's motion for summary judgment [M-85642] on his § 240[1] cause of action).
Claimant fell to the ground and landed on top of the cut piece of plaster which was on top of the ladder. According to his supervisor, David Coleman, claimant was, for the most part, a safe worker, but that he had to be told to slow down sometimes. Coleman described the accident as follows:
"Basically, he was on the ladder, he was cutting the piece, it dropped, hit the ladder, slammed the ladder down, he came off the ladder and landed" (claimant's exhibit F, p 21, in support of claimant's motion for summary judgment [M-85642] on his § 240[1] cause of action).
Coleman described the ladder as being a standard 8 or 10-foot A-frame fiberglass ladder. While he did not inspect the ladder, Coleman testified that the ladder, its rungs and its legs were functioning properly, and that it was the piece of plaster that knocked into the ladder that caused the accident. Coleman did not know of anything claimant had done to cause the accident.
The parties agree on most of the pertinent facts. There is no dispute that claimant was engaged in a covered activity at the time of his accident and entitled to the protection from elevated-related injury as required by Labor Law § 240 (1). While the parties disagree on the height of the ladder being used, there is no dispute that claimant fell several feet from a ladder to the ground when the piece of plaster he had just cut fell against the ladder, causing the ladder and claimant to fall. Finally, there is no dispute that the ladder was unsecured and that it was the sole elevation-related safety device provided.
Claimant argues that defendant violated Labor Law § 240 (1), as the only elevation-related safety device provided, an unsecured ladder, failed to protect claimant from falling. Whether a safety device provides the statutorily mandated protection within the meaning of Labor Law § 240 (1) is ordinarily a question of fact "except where the device collapses, slips or otherwise fails to perform its function of supporting the workers and their materials" (Beesimer v Albany Ave./ Rte. 9 Realty, 216 AD2d 853, 854 [3d Dept 1995]).
In support of his motion for partial summary judgment, claimant cites, inter alia, Smith v Pergament Entes. of S. I. (271 AD2d 870, 872 [3d Dept 2000]), in which the injured worker established that the unsecured ladder on which he was standing moved, precipitating his fall, which demonstrated, as a matter of law, that the ladder provided was not so constructed, placed and operated as to give proper protection to the worker. In addition, claimant cites Nimirovski v Vornado Realty Trust Co. (29 AD3d 762 [2nd Dept 2006]), in which the Second Department found that because it was reasonable that pieces of metal from the sign truss a welder was cutting would fall and strike the scaffold upon which the welder was working, causing the scaffold to shake, that the scaffold alone was inadequate to protect the welder and that additional safety devices were necessary to satisfy Labor Law § 240 (1). Claimant further cites Dasilva v A. J. Contr. Co. (262 AD2d 214 [1st Dept 1999]), in which the First Department held that the failure to properly secure a ladder so as to hold it steady and erect while plaintiff was performing demolition work constituted a violation of Labor Law § 240 (1).
Claimant established his prima facie entitlement to summary judgment on his Labor Law 240 (1) cause of action by showing that the unsecured ladder was insufficient to protect him from falling without the use of additional safety devices or measures (see McGill v Qudsi, 91 AD3d 1241 [3d Dept 2012], lv dismissed 19 NY3d 1013 [2012]). Here, claimant testified that he was instructed by his employer to cut down a large section of plaster while standing on the second-to-top rung of an unsecured ladder. Although claimant testified that the ladder was not defective and that it was locked and set up properly, in the absence of some other safety device or precautionary measure, the ladder proved insufficient when the cut piece of plaster hit the ladder and caused the unsecured ladder and the claimant to fall to the ground (see Gordon v Eastern Ry. Supply, 82 NY2d 555 [1993]). Injury was a foreseeable result of work that produced falling debris when working from an elevated position.
In first opposing claimant's motion for summary judgment under Labor Law § 240 (1), defendant argues only that claimant's motion should be denied. Defendant did not initially cross-move for summary judgment under Labor Law § 240 (1). Subsequently, defendant filed an amended notice of cross motion seeking summary judgment in which it asked the Court not only to deny claimant's motion, but to grant summary judgment to defendant, dismissing claimant's Labor Law § 240 (1) cause of action. While the better practice would have been for defendant to include a cross-motion seeking summary judgment under Labor Law § 240 (1) in its original notice of cross-motion, the Court will consider defendant's amended cross-motion, as claimant had the opportunity to respond and as it is well settled that, "[i]f it shall appear that any party other than the moving party is entitled to a summary judgment, the court may grant such judgment without the necessity of a cross-motion" (CPLR 3212 [b]). Accordingly, the Court will consider defendant's arguments not only in opposition to claimant's motion for summary judgment, but in support of a cross-motion on behalf of defendant for summary judgment under Labor Law § 240 (1).
Defendant's first argument is that it is not an owner under the Labor Law because it could not affect safety as it did not have access to the asbestos abatement area. An owner is defined as one "who has an interest in the property and who fulfilled the role of owner by contracting to have work performed for his benefit" (Mangiameli v Galante, 171 AD2d 162, 163 [3d Dept 1991]). In support of its argument that it is not an owner under the Labor Law, defendant relies on three cases: Ogden v City of Hudson Indus. Dev. Agency (277 AD2d 794 [3d Dept 2000]); Campoverde v Liberty, LLC (37 AD3d 275 [1st Dept 2007]); and Moracho v Open Door Family Med. Ctr. Inc. (74 AD3d 657 [1st Dept 2010]).
The cases cited by defendant are readily distinguishable. In Ogden, the defendant was found not to be liable as an owner under the Labor Law as it had nothing to do with contracting the work, did not give anyone permission to conduct activities on the subject property on its behalf, had nothing to do with the subject project, and had no control over the manner in which the project was performed.
In Campoverde, the owner of a building was held not liable under the Labor Law where in the wake of 9/11/01 environmental damage, the New York City Department of Environmental Protection (DEP) evacuated the owner's building to perform decontamination work, hired the injured worker's employer, and no one except DEP employees and contractors were allowed on the premises where the accident occurred. Reliance on the holding in Campoverde, however, was found to be misplaced as the holding therein was based on the unusual circumstances following the 9/11/01 terrorist attack (see Moracho, 74 AD3d at 658).
Finally, defendant cites Moracho, which fails to support its position. In Moracho, the general contractor was found to be liable under the Labor Law as it selected plaintiff's employer, an asbestos abatement company, provided the asbestos abatement company with access to the accident site, received daily reports from the asbestos company and had access to the site before the asbestos abatement began.
In the present case, the State owned the building, contracted with claimant's employer, the general contractor, and received daily reports regarding the work being performed. In addition, defendant had access to the building before the asbestos abatement began and had some access to the established worksite through the New York State Department of Labor. The Court finds that the defendant is an owner within the meaning of the Labor Law (see Perez v Society of N. Y. Hosp., 225 AD2d 467 [1st Dept 1996]). Any other conclusion would subvert the well-established principle "that the statutory duty [under Labor Law § 240 (1)] is nondelegable. It does not require that the owner exercise supervision or control over the worksite before liability attaches" (Gordon, 82 NY2d at 560).
Defendant further argues that claimant failed to make a prima facie showing of entitlement to summary judgment. Defendant argues that the ladder was not defective and that it was properly set. The Court agrees with defendant that not every fall from a ladder, in and of itself, establishes that the ladder did not provide appropriate protection (see Blake v Neighborhood Hous. Servs. of N. Y. City, 1 NY3d 280 [2003]). Here, however, the ladder provided did not protect claimant from the elevation-related risks associated with the work being performed by the claimant at the time of his accident (see generally McGill, 91 AD3d at 1242-1243; Dasilva, 262 AD2d at 214), and no additional safety devices were provided to protect claimant (see Gilbert v Albany Med. Ctr., 9 AD3d 643 [3d Dept 2004]; Quinlan v Eastern Refractories Co. 217 AD2d 819 [3d Dept 1995]; Gordon, 82 NY2d at 561).
Defendant additionally argues that claimant failed to make a prima facie showing of entitlement to summary judgment as he failed to identify any other safety device besides the ladder which should have been provided to prevent the accident. Contrary to defendant's position, claimant is not "required to prove what additional safety devices would have prevented [claimant's] injury" (Cody v State of New York, 52 AD3d 930, 931 [3d Dept 2008]).
Finally, defendant argues that claimant's act of cutting off too large a piece of plaster was the sole proximate cause of his injury. Claimant responds that defendant's sole proximate cause argument, as well as a recalcitrant worker defense were raised for the first time in its reply affidavit and, therefore, should not be considered. "[R]eply papers are intended to address contentions raised in opposition to the motion and not to introduce new arguments in support of the motion" (N.A.S. Partnership v Kligerman, 271 AD2d 922 [3d Dept 2000]). Defendant insists, however, that these argument were raised in its initial motion papers. As an example, defendant refers to Attorney Baaki's October 15, 2014 affidavit in which it is stated that claimant's "conduct was the sole proximate cause of the accident" (see Baaki affidavit, ¶ 29). The Court does not find that this simple reference in an attorney's affidavit is sufficient to raise either defense. Accordingly, the Court declines to consider defendant's sole proximate cause or recalcitrant worker defenses, raised for the first time in its reply papers.
Even so, neither defense, even if either had been properly raised, is enough to defeat claimant's entitlement to summary judgment. Assuming, arguendo, that the piece of plaster cut by claimant was too large, such action would, at most, constitute contributory negligence which is not a defense to a Labor Law § 240 (1) cause of action (Gordon, 82 NY2d at 562).
Moreover, defendant has failed to establish a recalcitrant worker defense. This defense requires that defendant show that claimant "had adequate safety devices available; that he knew both that they were available and that he was expected to use them; that he chose for no good reason not to do so; and that had he not made that choice he would not have been injured" (Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35, 40 [2004]; Gallagher v New York Post, 14 NY3d 83 [2010]). Here, defendant has failed to show any of the elements of a recalcitrant worker defense.
Finally, in support of its amended cross-motion for summary judgment under Labor Law § 240 (1), defendant essentially relies on three cases: Roberts v General Elec. Co., 97 NY2d 737 [2002]; Maldonado v AMMM Props. Co., 107 AD3d 954 [2d Dept 2013]; and Atkinson v State of New York, 20 AD3d 739 [3d Dept 2005]). These three are falling object cases, in which it was held that Labor Law § 240 (1) did not apply, as it was not established that the falling object fell while being hoisted or secured. Moreover, the court in Atkinson found an insufficient height differential between the claimant and the falling object to sustain a Labor Law § 240 (1) claim and concluded that the accident therein was the result of a general hazard associated with a construction project (id., at 741). None of the cases cited by defendant involve a falling worker who, like the claimant here, had not been provided with an adequate safety device to protect him from the elevation-related risk of falling eight to sixteen feet to the floor below.
Accordingly, claimant's motion for summary judgment under Labor Law § 240 (1) is granted and defendant's amended cross-motion for summary judgment under Labor Law § 240 (1) is denied.
Labor Law § 241 (6)Defendant cross-moves for summary judgment (CM-85779) to dismiss all allegations of liability under Labor Law § 241 (6) which governs construction, excavation and demolition work. Labor Law § 241 (6) provides that:
"All contractors, owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, 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. The commissioner may make rules to carry into effect the provisions of this subdivision, and the owners and contractors and their agents for such work, except owners of one and two- family dwellings who contract for but do not direct or control the work, shall comply therewith."
Labor Law § 241 (6) imposes a nondelegable duty on owners and contractors to "provide reasonable and adequate protection and safety" for covered workers (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501-502 [1993]; Lynch v 99 Washington, LLC, 80 AD3d 977, 978 [3d Dept 2011]).
"In order to state a claim under section 241 (6), a plaintiff must allege that the property owners violated a regulation that sets forth a specific standard of conduct and not simply a recitation of common-law safety principles" (St. Louis v Town of N. Elba, 16 NY3d 411, 414 [2011]; see Ross, 81 NY2d at 502; Ares v State of New York, 80 NY2d 959, 960 [1992]).
Rizzuto v L. A. Wenger Contr. Co. (91 NY2d 343, 350 [1998]), explains that:\
"[O]nce it has been alleged that a concrete specification of the [State Industrial] Code has been violated, it is for the jury to determine whether the negligence of some party to, or participant in, the construction project caused plaintiff's injury. If proven, the general contractor (or owner, as the
case may be) is vicariously liable without regard to his or her fault ... An owner or general contractor may, of course, raise any valid defense
to the imposition of vicarious liability under section 241 (6), including contributory and comparative negligence."
Before addressing the individual regulations of the Industrial Code relied upon by claimant that form the basis of his Labor Law § 241 (6) cause of action, the Court will address claimant's motion to amend or supplement his bill of particulars (M-85934) to include an allegation of liability under Labor Law § 241 (6) based on a violation of 12 NYCRR § 23-3.3 (c). Claimant bases his motion on CPLR 3042 (b) and on CPLR 3043 (b).
Pursuant to CPLR 3043 (b), "[a] party may serve a supplemental bill of particulars with respect to claims of continuing special damages and disabilities without leave of court at any time, but not less than thirty days prior to trial." Defendant argues that this rule is inapplicable. The Court agrees. Claimant is not attempting to add or supplement his bill of particulars with respect to special damages or disabilities.
Pursuant to CPLR 3042 (b), "a party may amend the bill of particulars once as of course prior to the filing of a note of issue." Claimant filed his note of issue and certificate of readiness on September 15, 2014, and approximately two months later, on November 13, 2014, filed his motion to amend. Because claimant filed his motion to amend after he filed his note of issue and certificate of readiness, this section of the CPLR is inapplicable.
Claimant, in actuality, seeks leave to amend his bill of particulars. "[L]eave to amend pleadings pursuant to CPLR 3025 (b) is to be freely given in the exercise of the trial court's discretion, provided there is no prejudice to the nonmoving party and that the amendment is not plainly lacking in merit" (Sabol & Rice v Poughkeepsie Galleria Co., 175 AD2d 555, 556 [3d Dept 1991]).
While defendant opposes claimant's motion to amend, it cannot and does not show any prejudice. Although claimant neglected to include a violation of Industrial Code 12 NYCRR 23-3.3 (c) in his bill of particulars, regulation 23-3.3 was listed in the amended claim. Moreover, defendant specifically addressed regulation 23-3.3 (c) in its memorandum of law, filed with its cross-motion for summary judgment on October 16, 2014, almost two months before claimant moved to amend. Thus, defendant cannot persuasively argue prejudice, as it was aware at the time of filing its cross-motion for summary judgment that claimant was alleging that defendant violated at least one section of regulation 23-3.3. Nor does the Court find that the proposed amendment lacks merit, as regulation 23-3.3 governs ladders and ladderways. Finally, no new factual allegations or theories of liability would be involved if the amendment is allowed. Accordingly, claimant's motion for permission to amend his bill of particulars to include an alleged violation of 12 NYCRR 23-3.3 (c) is granted.
In the amended claim, claimant alleges a violation of 12 NYCRR §§ 23-3.3, 23-1.21, and 23-2.1. In his bill of particulars, claimant alleges a violation of 12 NYCRR §§ 23-1, 23-2, 23-5, 23-5.1, and, by amendment, 23-3.3. These regulations contain innumerable subsections, some of which are clearly inapplicable. Attorney Harwick's affidavit sworn to on November 11, 2014 was offered in support of claimant's motion to amend his bill of particulars, in further support of claimant's motion for summary judgment, and in opposition to defendant's cross-motion for summary judgment on claimant's § 241 (6) cause of action. In his affidavit, claimant's counsel Harwick limits the bases of claimant's Labor Law § 241 (6) cause of action to an alleged violation of three specific Industrial Code regulations: 23-3.3 (c), 23-1.21 (e), and 23-1.21 (b) (4) (ii). Claimant's failure to address the remaining Industrial Code regulations listed in the amended claim and in his bill of particulars indicates that claimant has abandoned them as a basis for liability (Perez v Folio House, Inc., 123 AD3d 519 [1st Dept 2014]). The Court will therefore address the only three Industrial Code regulations which remain at issue: 12 NYCRR 23-1.21 (e), 23-1.21 (b) (4) (ii), and 23-3.3 (c).
For example, regulation 23-5.1 cited by claimant in his bill of particulars is entitled "General provisions for all scaffolds." Claimant was not injured while working on a scaffold or while erecting or deconstructing a scaffold. This section of the Industrial Code is manifestly inapplicable.
In the affidavit of claimant's counsel sworn to November 11, 2014, it is alleged that defendant violated 12 NYCRR 23-1.21 (e), and more specifically subsection 23-1.21 (e) (3). This regulation states:
"§23-1.21 Ladders and ladderways
(e) Stepladders
(3) Stepladder footing. Standing stepladders shall be used only on firm, level footings. When work is being performed from a step of a stepladder 10 feet or more above the footing, such stepladder shall be steadied by a person stationed at the foot of the stepladder or such stepladder shall be secured against sway by mechanical means."
Defendant, in seeking summary judgment, argues that claimant's cause of action under Labor Law § 241 (6) for an alleged violation of 12 NYCRR 23-1.21 (e) (3) should be dismissed as it is inapplicable, because claimant was not working from a step of a stepladder 10 feet or more above the footings. In the amended claim, it is alleged that claimant was standing on the second-to-top step of a 16-foot A-frame ladder. In support of its cross-motion seeking, inter alia, summary judgment on claimant's § 241(6) cause of action, defendant refers to the affidavit of Russell Buell, owner of Sunshine, sworn to November 17, 2014. In his affidavit, Mr. Buell states that Sunshine did not own a 16-foot step ladder and that claimant was using either a 10 or a 12-foot ladder, as those were the largest step ladders owned by Sunshine. This affidavit is to be compared with the deposition testimony of Sunshine's supervisor David Coleman and with the claimant's deposition testimony and affidavit. Mr. Coleman testified that claimant was standing on either an 8 or a 10-foot ladder (claimant's exhibit F, p 28, in support of claimant's motion for summary judgment [M-85642] on his § 240 [1] cause of action). Claimant testified at his deposition (claimant's exhibit D, p 95, in support of claimant's motion for summary judgment [M-85642] on his § 240[1] cause of action) and stated in his affidavit, sworn to November 6, 2014 (claimant's exhibit B, in support of claimant's additional motion [M-85934] seeking various relief), that he was working from the second-to-top rung of a 16-foot stepladder. Finally, defendant submitted an affidavit of Martin Mahar, a Sunshine employee, sworn to December 3, 2014. Mr. Mahar stated that the ladder used by claimant was a 10-foot ladder (see affidavit of Mahar, annexed to Attorney Baaki's reply affidavit sworn to December 9, 2014 as exhibit A). It is impossible to determine at this juncture whether claimant was working from a step 10 feet or more above the footings without knowing the size of the ladder being used. Given that an obvious question of fact exists involving a relevant, if not determinative, issue related to liability, it cannot be said that defendant is entitled to judgment as a matter of law on this point. Accordingly, defendant's cross-motion for summary judgment dismissing claimant's Labor Law § 241 (6) cause of action based on an alleged violation of 12 NYCRR 23-1.21 (e) (3) is denied.
12 NYCRR 23-1.21 (b) (4) (ii)Claimant also alleges that defendant violated 12 NYCRR 23-1.21 (b) (4) (ii) which states:
"§ 23-1.21 Ladders and ladderways
(b) General requirements for ladders.
(4) Installation and use.
(ii) All ladder footings shall be firm. Slippery surfaces and insecure objects such as bricks and boxes shall not be used as ladder footings."
Defendant seeks summary judgment to dismiss claimant's Labor Law § 241 (6) cause of action to the extent it is based on an alleged violation of 12 NYCRR 23-1.21 (b) (4) (ii), arguing that the ladder was not defective, that claimant had testified that he had properly set up the ladder and that there was no evidence that the floor underneath the ladder was slippery (see Croussett v Chen, 102 AD3d 448 [1st Dept 2013]; Campos v E. 86th St. Owners Corp., 117 AD3d 593 [1st Dept 2014]). Here, defendant has made a prima facie showing of entitlement to summary judgment.
Claimant opposes defendant's cross-motion and argues that defendant violated 12 NYCRR 23-2.1 (b) (4) (ii) by allowing the use of a ladder on a wet, slippery floor. Claimant offers his own affidavit sworn to November 6, 2014 (claimant's exhibit B, in support of claimant's additional motion (M-85934) seeking various relief) to support his opposition. In his affidavit, claimant states that the floors were covered with wet plastic and that the wet plastic on the floor under the ladder was slippery. Claimant and Sunshine's supervisor David Coleman both testified at their depositions that there has to be a continuous spray to keep the dust down during asbestos abatement. As a result, the plastic on the floor in such situations is commonly damp and slippery. There is no evidence, however, that the ladder from which claimant fell slipped. In fact, claimant never states that the ladder slipped. Rather, claimant states in his affidavit that the ladder "fell out from under me when it was struck by a piece of falling debris" and "A piece of the plaster ceiling did fall and crash into my unsecured ladder, precipitating my fall and injuries." Thus, even if the floor was slippery, there is no evidence that a violation of this regulation proximately caused or contributed to claimant's injury, as there is no evidence that the ladder slipped. Claimant has failed to raise a question of fact sufficient to defeat summary judgment on this point. Accordingly, defendant's cross-motion for summary judgment to dismiss claimant's Labor Law § 241 (6) cause of action based on an alleged violation of 12 NYCRR 23-1.21 (b) (4) (ii) is granted.
Claimant alleges that defendant also violated 12 NYCRR 23-3.3 (c) which states:
"§ 23-3.3 Demolition by hand.
(c) Inspection. During hand demolition operations, continuing inspections shall be made by designated persons as the work progresses to detect any hazards to any person resulting from weakened or deteriorated floors or walls or from loosened material. Persons shall not be suffered or permitted to work where such hazards exist until protection has been provided by shoring, bracing or other effective means."
Defendant argues in its application for summary judgment that claimant's Labor Law §241 (6) cause of action, to the extent it is based on an alleged violation of 12 NYCRR 23-3.3 (c), should be dismissed as this regulation is inapplicable. The Court agrees. Regulation 23-3.3 (c) requires continuing inspections to detect unguarded floors, walls and loosened materials (Card v Cornell Univ., 117 AD3d 1225 [3d Dept 2014]). The loosened material referred to in the regulation must be material loosened by the progress of the demolition. This regulation does not encompass material which was loosened deliberately (Garcia v 225 E. 57th St. Owners, Inc., 96 AD3d 88 [1st Dept 2012]). Here, claimant's injuries were not caused by structural instability that could have been noticed and addressed by continuing inspections, but by the intentional cutting of a piece of plaster which fell and hit the ladder, causing it to fall. This regulation is inapplicable to the facts in this case (Bolster v Eastern Bldg. & Restoration, Inc., 96 AD3d 1123 [3d Dept 2012]; see also Garcia v Market Assoc., 123 AD3d 661 [2d Dept 2014]; Vega v Renaissance 632 Broadway, LLC, 103 AD3d 883 [2d Dept 2013]; Garcia, 96 AD3d at 91-92). Accordingly, defendant's cross-motion for summary judgment to dismiss claimant's Labor Law § 241 (6) cause of action based on an alleged violation of 12 NYCRR 23-3.3 (c) is granted.
Defendant also cross-moves for summary judgment to dismiss claimant's Labor Law § 200 cause of action. Section 200 of the Labor Law is a codification of the common law duty to provide workers with a safe place to work (Rizzuto v L. A. Wenger Contr. Co., 91 NY2d 343 [1998]; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494 [1993]). Where, as here, the alleged dangerous condition arises from the contractor's methods and defendant exercises no supervisory control over the manner in which the work was performed, no liability under the common law or Labor Law § 200 attaches (Comes v New York State Elec. & Gas Corp., 82 NY2d 876 [1993]). Further, "Claimant does not oppose the Labor Law Section 200 motion" (see Attorney Harwick's affidavit sworn to November 11, 2014, ¶ 78). Accordingly, defendant's cross-motion for summary judgment to dismiss claimant's Labor Law § 200 cause of action is granted.
In sum, claimant's motion for summary judgment ( M-85642) under Labor Law § 240 (1) is granted, and defendant's amended cross-motion for summary judgment ( CM-85779) seeking dismissal of claimant's Labor Law § 240 (1) cause of action is denied. Claimant's motion to amend his bill of particulars (M-85934) to include regulation 12 NYCRR 23-3.3 (c) as a basis of his Labor Law § 241 (6) cause of action is granted. Defendant's cross-motion for summary judgment (CM-85779) seeking dismissal of claimant's Labor Law § 241 (6) cause of action is denied in part and granted in part. It is denied to the extent that claimant's Labor Law § 241 (6) cause of action based on an alleged violation of 12 NYCRR 23-1.21 (e) (3) survives. It is otherwise granted, dismissing claimant's § 241 (6) cause of action based upon alleged defendant violations of 12 NYCRR 23-1.21 (b) (4) (ii) and 12 NYCRR 23-3.3 (c). Defendant's cross-motion for summary judgment (CM-85779) seeking dismissal of claimant's Labor Law § 200 cause of action is granted.
March 5, 2015
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
Papers considered:
1. Notice of Motion No. M-85642, filed September 12, 2014;
2. Affidavit of John F. Harwick, Esq., sworn to September 11, 2014, and annexed exhibits;
3. Notice of Cross-Motion No. CM-85779, filed October 16, 2014;
4. Affidavit of William H. Baaki, Esq., sworn to October 15, 2014, and annexed exhibits;
5. Defendant's Memorandum of Law, dated October 15, 2014;
6. Notice of Motion No. M-85934, filed November 13, 2014;
7. Affidavit of John F. Harwick, Esq., sworn to November 11, 2014, and annexed exhibits;
8. Amended Notice of Cross-Motion No. CM-85779, filed November 18, 2014;
9. Affidavit of William H. Baaki, Esq., sworn to November 18, 2014, and annexed exhibits;
10. Affidavit of Russell Buell, sworn to November 17, 2014;
11. Reply Affidavit of John F. Harwick, Esq., sworn to December 3, 2014, and annexed exhibits;
12. Reply Affidavit of William H. Baaki, Esq., sworn to December 9, 2014, and annexed exhibits; and,
13. Sur-Reply Affirmation of John F. Harwick, Esq., dated December 19, 2014.