Opinion
2013-08-21
Shawn ROSS, respondent, v. DD 11TH AVENUE, LLC, et al., appellants.
Cornell Grace, P.C., New York, N.Y. (Keith D. Grace and Sam Baharvar of counsel), for appellants. Mark E. Weinberger, P.C., Rockville Centre, N.Y. (Marc Musman of counsel), for respondent.
Cornell Grace, P.C., New York, N.Y. (Keith D. Grace and Sam Baharvar of counsel), for appellants. Mark E. Weinberger, P.C., Rockville Centre, N.Y. (Marc Musman of counsel), for respondent.
RUTH C. BALKIN, J.P., JOHN M. LEVENTHAL, JEFFREY A. COHEN, and ROBERT J. MILLER, JJ.
In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Pineda–Kirwan, J.), entered June 12, 2012, as denied those branches of their motion which were for summary judgment dismissing the causes of action alleging violations of Labor Law §§ 240(1) and 241(6) insofar as predicated on an alleged violation of 12 NYCRR 23–2.2(a), and dismissing the complaint insofar as asserted against the defendants Steven Charno, doing business as DD 11th Avenue, LLC, and Eleventh Avenue, L.P.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The plaintiff, an employee of a superstructure contractor, was allegedly injured while stripping wooden forms that had served as frames into which concrete had been poured to form the reinforced concrete columns of a building under construction. The plaintiff testified at his deposition that the accident occurred after he had plied a piece of wooden form from the concrete column and placed it on the floor. As he stood up, a separate piece of the form situated above the piece he had just removed suddenly fell off of the column, striking him in the face. The plaintiff commenced this action to recover damages for personal injuries, alleging causes of action to recover damages for common-law negligence and violations of Labor Law §§ 200, 240(1), and 241(6).
Labor Law § 240(1) requires property owners and contractors to provide workers with “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 the workers (Labor Law § 240[1] ). The purpose of the statute is to protect against “such specific gravity-related accidents as falling from a height or being struck by a falling object that was improperly hoisted or inadequately secured” ( Ross v. Curtis–Palmer Hydro–Elec. Co., 81 N.Y.2d 494, 501, 601 N.Y.S.2d 49, 618 N.E.2d 82;see Wilinski v. 334 E. 92nd Hous. Dev. Fund Corp., 18 N.Y.3d 1, 7, 935 N.Y.S.2d 551, 959 N.E.2d 488;Misseritti v. Mark IV Constr. Co., 86 N.Y.2d 487, 490, 634 N.Y.S.2d 35, 657 N.E.2d 1318). However, not every object that falls on a worker gives rise to the extraordinary protections of Labor Law § 240(1) ( see Narducci v. Manhasset Bay Assoc., 96 N.Y.2d 259, 267, 727 N.Y.S.2d 37, 750 N.E.2d 1085). Thus, in order to recover damages for violation of the statute, the “plaintiff must show more than simply that an object fell causing injury to a worker” ( Narducci v. Manhasset Bay Assoc., 96 N.Y.2d at 268, 727 N.Y.S.2d 37, 750 N.E.2d 1085). A plaintiff must show that, at the time the object fell, it was “being hoisted or secured” ( Narducci v. Manhasset Bay Assoc., 96 N.Y.2d at 268, 727 N.Y.S.2d 37, 750 N.E.2d 1085) or “required securing for the purposes of the undertaking” ( Outar v. City of New York, 5 N.Y.3d 731, 732, 799 N.Y.S.2d 770, 832 N.E.2d 1186;see Quattrocchi v. F.J. Sciame Constr. Corp., 11 N.Y.3d 757, 758, 866 N.Y.S.2d 592, 896 N.E.2d 75). The plaintiff must also show that the object fell “because of the absence or inadequacy of a safety device of the kind enumerated in the statute” ( Narducci v. Manhasset Bay Assoc., 96 N.Y.2d at 268, 727 N.Y.S.2d 37, 750 N.E.2d 1085).
The defendants failed to establish their prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging a violation of Labor Law § 240(1). The evidence submitted by the defendants in support of their motion did not establish “the absence of a causal nexus between the worker's injury and a lack or failure of a device prescribed by section 240(1)” ( Wilinski v. 334 E. 92nd Hous. Dev. Fund Corp., 18 N.Y.3d at 9, 935 N.Y.S.2d 551, 959 N.E.2d 488, citing Misseritti v. Mark IV Constr. Co., 86 N.Y.2d at 490–491, 634 N.Y.S.2d 35, 657 N.E.2d 1318;see Narducci v. Manhasset Bay Assoc., 96 N.Y.2d at 268, 727 N.Y.S.2d 37, 750 N.E.2d 1085). The plaintiff's deposition testimony, which was submitted by the defendants in support of their motion, presents a triable issue of fact as to whether the piece of form fell on the plaintiff “because of the absence or inadequacy of a safety device of the kind enumerated in the statute” ( Narducci v. Manhasset Bay Assoc., 96 N.Y.2d at 268, 727 N.Y.S.2d 37, 750 N.E.2d 1085;see Wilinski v. 334 E. 92nd Hous. Dev. Fund Corp., 18 N.Y.3d at 9, 935 N.Y.S.2d 551, 959 N.E.2d 488;Charney v. LeChase Constr., 90 A.D.3d 1477, 1479, 935 N.Y.S.2d 392). Contrary to the defendants' contention, the securing of pieces of form to the column would not have been “contrary to the objectives of the work plan” ( Salazar v. Novalex Contr. Corp., 18 N.Y.3d 134, 140, 936 N.Y.S.2d 624, 960 N.E.2d 393), as the plaintiff testified that the forms were cut into sections and that he was removing a different section than the one that fell on him.
Although a plaintiff asserting a Labor Law § 241(6) cause of action must allege a violation of a specific provision of the Industrial Code ( see Ross v. Curtis–Palmer Hydro–Elec. Co., 81 N.Y.2d at 503, 601 N.Y.S.2d 49, 618 N.E.2d 82;Kowalik v. Lipschutz, 81 A.D.3d 782, 783, 917 N.Y.S.2d 251;Samuel v. A.T.P. Dev. Corp., 276 A.D.2d 685, 686, 714 N.Y.S.2d 729), a failure to identify the Industrial Code provision in the complaint or bill of particulars is not fatal to such a claim ( see Galarraga v. City of New York, 54 A.D.3d 308, 310, 863 N.Y.S.2d 47;Kelleir v. Supreme Indus. Park, 293 A.D.2d 513, 513–514, 740 N.Y.S.2d 398;Noetzell v. Park Ave. Hall Hous. Dev. Fund Corp., 271 A.D.2d 231, 231, 705 N.Y.S.2d 577). The plaintiff's belated allegation of a violation of 12 NYCRR 23–2.2(a) involved no new factual allegations, raised no new theories of liability, and caused no prejudice to the defendants ( see Kelleir v. Supreme Indus. Park, 293 A.D.2d at 513–514, 740 N.Y.S.2d 398;Noetzell v. Park Ave. Hall Hous. Dev. Fund Corp., 271 A.D.2d at 231, 705 N.Y.S.2d 577;see also O'Connell v. Consolidated Edison Co. of N.Y., 276 A.D.2d 608, 610, 714 N.Y.S.2d 328). The defendants were put on sufficient notice, through the plaintiff's bill of particulars and deposition testimony, that the Labor Law § 241(6) cause of action related to inadequately secured forms. Thus, the plaintiff's failure to seek leave of court to supplement his bill of particulars is not fatal to his Labor Law § 241(6) cause of action ( see Kelleir v. Supreme Indus. Park, 293 A.D.2d at 514, 740 N.Y.S.2d 398;Balsamo v. City of New York, 287 A.D.2d 22, 27, 733 N.Y.S.2d 431).
Section 23–2.2(a) of the Industrial Code (12 NYCRR 23–2.2[a] ), which relates to forms used in concrete work, has been held to be a proper predicate for a Labor Law § 241(6) cause of action ( see Corsaro v. Mt. Calvary Cemetery, 227 A.D.2d 957, 957–958, 643 N.Y.S.2d 853). In the absence of any expert opinion addressing the issue of whether 12 NYCRR 23–2.2(a) applies where the forms are in the process of being stripped, the defendants, as the proponents of the motion, did not establish their prima facie entitlement to judgment as a matter of law dismissing the Labor Law § 241(6) cause of action to the extent that it was premised upon an alleged violation of 12 NYCRR 23–2.2(a) ( see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642;Giordano v. Forest City Ratner Cos., 43 A.D.3d 1106, 842 N.Y.S.2d 552).
The defendants also failed to establish, prima facie, that the defendants Steven Charno, doing business as DD 11th Avenue, LLC (hereinafter Charno), and Eleventh Avenue, L.P., were neither owners, general contractors, nor the statutory agents of owners or general contractors within the meeting of the Labor Law. The bald, conclusory statement that those defendants were improperly named as defendants as they were not owners, construction managers, or contractors on the project, as set forth in the affirmation of the defendants' counsel, was not based on personal knowledge and, thus, was insufficient to make a prima facie showing of entitlement to judgment as a matter of law ( see Mikelatos v. Theofilaktidis, 105 A.D.3d 822, 962 N.Y.S.2d 693;Carthans v. Grenadier Realty Corp., 38 A.D.3d 489, 832 N.Y.S.2d 234).
Therefore, the Supreme Court properly denied those branches of the defendants' motion which were for summary judgment dismissing the causes of action alleging violations of Labor Law § 240(1) and Labor Law § 241(6) insofar as predicated on an alleged violation of 12 NYCRR 23–2.2(a), and dismissing the complaint insofar as asserted Charno and Eleventh Avenue, L.P., regardless of the sufficiency of the plaintiff's opposition papers ( seeCPLR 3212[b]; Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d at 851, 487 N.Y.S.2d 316, 476 N.E.2d 642;Friends of Animals v. Associated Fur Mfrs., 46 N.Y.2d 1065, 1067, 416 N.Y.S.2d 790, 390 N.E.2d 298;Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).