Opinion
No. 100620/07.
2013-04-22
James SHIELDS and Eileen Cavanagh, Plaintiffs, v. FIRST AVENUE BUILDERS LLC, Housing Partnership Development Corporation, FSLM Associates LLC and Worthington SpA., Defendants. Worthington SpA., Third–Party Plaintiff, MC & O Masonry, Inc., Third–Party Defendant.
Kane Affidavit, (¶¶ 7, 8).
JOAN A. MADDEN, J.
In this action arising out of a work place accident, defendants First Avenue Builders LLC (“First Avenue”), Housing Partnership Development Corporation (“Housing”) and FSML Associates LLC (“FSML”) move for summary judgment dismissing plaintiffs' claims against them, and. third-party defendant, MC & O Masonry (“MC & O”) submits an affirmation in support of defendants' motion.
By decision and order dated January 14, 2013, this court granted defendant/third party plaintiff Worthington SpA's motion for renewal of its motion for summary judgment and, upon renewal, granted summary judgment dismissing the claims, cross claims and counterclaims against Worthington SpA on the ground that it could not be held liable as a successor of non-party Reinert Manufacturing Company, a now defunct company, that manufactured and designed the concrete pump at issue here.
BACKGROUND
Plaintiffs seek damages for personal injuries sustained by plaintiff James Shields (“Shields”) on October 10, 2006, at construction project located at 40 West 116th Street, New York, NY, when he was cleaning a concrete pump. The concrete pump was manufactured and designed by non-party Reinert Manufacturing Company (“Reinert”), which is no longer in business. The concrete pump was purchased by MC & O as a used piece of equipment and no manufacturer's information or instruction manuals were provided with the pump.
Housing was the owner of the project; First Avenue was the general contractor; and FSLM was the site developer. At the time of the accident, Shields was working as a “mechanic and laborer” for the masonry company, MC & O, under the supervision of Eamon McDonnell (“McDonnell”). Shields was in charge of operating and cleaning the concrete pump which was used to transport concrete from the ground level to higher level of the building. The accident occurred when Shields was using his right hand to clean a portion of the pump known as a swing-tube (also known as the swing pipe or pipe), and the pumping mechanism re-engaged trapping his hand and resulting in the amputation of four of his fingers.
The swing-tube was controlled by a hydraulics mechanism that allowed the swing tube to swing back and forth within the pipe thus pushing the concrete through a series of pipes to higher levels in the building. There was an on and off switch for the hydraulics and a separate pull-stop to shut off the engine of the concrete pump.
At his deposition, Shields testified that on the first day that he operated the pump, McDonnell showed him how to disengage and engage the pump (Shields Dep., at 22). At the time of the accident, the control panel of the pump had an on/off switch used to engage or disengage the pump on the right side; further to the right was a key to turn the motor on; to turn the motor off there was a pull-stop ( Id., at 31–32). There were also two levers on the left side of the control panel; one pushed the concrete out and the other pushed the concrete in. ( Id., at 33).
Shields was expected to clean the pump after operating it and had been shown by McDonnell how to clean it on two occasions ( Id., at 27). On the first occasion Shields used a hose to clean the pump ( Id., at 30). However, the pump did not work properly when Shields cleaned it that way, and McDonnell brought the pump back to Shields and told him that in addition to hosing it down, in order to properly clean that pump, Shields needed to “put [his] hand in and check the groove inside” the swing pipe ( Id., at 27) and that unless the groove was cleaned like that every time there would be problems ( Id., at 30). Shields was not provided with a remote tool or brush to reach the groove, which was located at a weld point that did not fill out evenly which let concrete build up ( Id, at 66–70, 140,141). McDonnell told Shields that when he was cleaning the groove he should “disengage the pump, put [his] hand in, check that groove, make sure it's clean” ( Id., at 62) but made no mention of turning the engine off ( Id., at 63). Previously, McDonnell had instructed Shields to keep the motor on while he hosed out the pump ( Id., at 52). Both the engine and the pump were on when it was being hosed down (54–55). Shields did not move the position of the levers when cleaning the pump.
At his deposition, McDonnell testified that Shields was present when he purchased the concrete pump (McDonnell Dep., 42) from a “James” (last-name unknown) and that this James told him and Shields that the pump had to be thoroughly cleaned ( Id., at 44). This involved making sure there was no build up of grout around a rubber ring in the swing tube, and James instructed the two of them that “the only way you could do it is go in and put your hand in and feel around the ring” ( Id., at 45). James physically demonstrated how to reach the ring with his hand ( Id., at 46), and Shields indicated that he understood James' instructions. ( Id .). It was important to make sure the ring was cleaned out as it acted as a pivot point of the swing tube and if the grout hardened around the ring it would affect the swing tube ( Id., at 45). Shields, who was there at least partly because of his mechanical expertise, did not give McDonnell any reason not to buy the pump and voiced no objections ( Id., at 159). When McDonnell purchased the pump there were no labels on the pump and there was no instruction manual ( Id., at 66).
McDonnell testified that there were times when he told Shields that he needed to check the ring of the pump and that he needed to put his arm into the tube of the pump to do this ( Id., at 71). He did not tell Shields whether the engine was to be on or off when checking the ring ( Id.), but testified that the engine could be running while the tube was being cleaned ( Id., at 76). There was a “kill switch
” to shut off the hydraulics which “was meant to kill the hydraulics meaning the swing tube and the piston,” ( Id, at 77) and that once this switch was turned off “the engine could still be running, but the machine would be disabled” ( Id.). McDonnell did not instruct Shields to use the kill switch because “I didn't have to [Shields] knew there was a kill switch. He knew the machine” ( Id. 77).
McDonnell subsequently called the switch used to engage and disengage the pump the “disengagement switch” and identified the mechanism used to stop the engine as a “kill switch” ( Id., at 95). However, it is clear that from the record that in this portion of the testimony McDonnell was referring to the on/off switch used to engage and disengage the pump.
Before the accident, one of the pump's hydraulic hoses “busted” ( Id., at 84), and McDonnell stated that Shields, as the mechanic, would have been the one to fix it ( Id., at 85). McDonnell testified that Shields told him after the accident that he believed that the pump did not disengage as it should have because of a build up of pressure ( Id., at 94). McDonnell checked the machine after the accident and noted that the oil would build up for seven or eight seconds after the pump was disengaged and this would cause the tube to swing ( Id., at 93). He did not remember whether this problem occurred when James showed him and Shields how to clean the pump ( Id., at 95), but he testified that James did not tell him about the problem ( Id., at 96) and later testified that he did not know of the problem until after the accident ( Id., at 158).
There were “apparently changes to the pump after the accident” but McDonnell was “not familiar [with them]” ( Id., at 148). McDonnell testified, however, that the switch for the hydraulics was changed after the accident as an additional black button was added but he did not know when it was added or why ( Id, at 165). The pump was used approximately 40 to 50 times after the accident ( Id., at 147), always cleaned in the same way, with someone sticking his hand into the tube, and always without incident ( Id., at 149). However, the person checking the ring to make sure it was clean would turn off the engine before putting their hand into the swing tube ( Id., at 169).
Kevin Tolbert, who is the vice president of construction for L & M Builders and project manager for the project, testified that he was on site at the time of the accident but did not speak with Shields. He did speak with McDonnell, who told him that Shields was on his phone and forgot to “cut off” the pump to clean it as he ought to have (Tolbert Dep., at 15) and that the arm of the pump swings back and forth on a time release if it is not cut off ( Id.). When McDonnell was asked about this exchange in his deposition, he stated that he was “probably just speculated” and that he did not recall saying that Shields was on his phone and forgot to disengage the pump (McDonnell Dep., at 143).
In this action, plaintiffs seek to recover damages for violations of Labor Law sections 240(1), 241(6) and 200. Defendants answered the complaint, and following the completion of discovery, defendants made this motion for summary judgment dismissing the complaint. Plaintiffs consent to the dismissal of the claims under Labor Law §§ 240(1) and 200. Thus, at issue on this motion is whether plaintiffs have a viable claim based on defendants' alleged violation of Labor Law section 241(6).
DISCUSSION
On a motion for summary judgment, the proponent “must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case.” Wingard v. New York Univ. Med. Center, 64 N.Y.2d 851, 852 (1985). Once the proponent has made this showing, the burden of proof shifts to the party opposing the motion to produce evidentiary proof in admissible form to establish that material issues of fact exist which require a trial. Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 324 (1986).
Labor Law section 241(6) provides that “[a]ll 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 section requires owners and contractors at a construction site 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–Electric Co., 81 N.Y.2d 494, 502 (1993).
“The duty to comply with the Commissioner's safety rules, which are set out in the Industrial Code, is nondelegable.” Misicki v. Cardonna, 12 NY3d 511, 515 (2009). Thus, “to the extent that a plaintiff has asserted a viable claim under Labor Law section 241(6), he need not show that defendants exercised supervision or control over the worksite in order to establish a right to recovery.” Id. At the same time, however, a violation of 241(6) does not result in “absolute liability irrespective of the absence of a negligent act which caused the injury [but rather] imposes a nondelegable duty upon an owner or general contractor to respond in damages from injuries sustained due to another party's negligence ...” Ruzzuto v. Wenger Construct. Co., 91 N.Y.2d 343, 349–350 (1998)(emphasis in original).
Furthermore, “only a violation of the State Industrial Code and regulations promulgated by the State Commissioner of Labor may serve as a basis for liability under that statutory section” Heller v. 83rd Street Investors Ltd. Partnership, 228 A.D.2d 371, 372 (1st Dept), lv denied88 N.Y.2d 815 (1996); see also Messina v. City of New York, 300 A.D.2d 121 (1st Dept 2002). A violation of a section of the Industrial Code is only “some evidence of negligence .” Ruzzuto v. Wenger Construct. Co., 91 N.Y.2d at 351. In addition, “[c]ontributory and comparative negligence are valid defenses to a section 241(6) claim.” Misicki v. Cardonna, 12 NY3d at 515. Moreover, “the particular provision relied upon by a plaintiff must mandate compliance with concrete specifications and not simply declare general safety standards or reiterate common-law principles.” Misicki v. Cardonna, 12 NY3d at 515 (2009)(internal citation and quotations omitted).
In support of their section 241(6) claim, plaintiffs allege that defendants violated Industrial Code section 23–9.2(a)(maintenance of power-operated equipment) and (d) (guarding of moving parts of equipment), and section 23–9.11(d)(guarding of flywheels).
Plaintiffs do not oppose the motion insofar as defendants argue that Industrial Code sections 23–1.5(a), 23–9.2(b), 23–9.11(e), 23–19.2(b), 23–19.2(j), 23–19.3 and 23–19.8(a) alleged in plaintiffs' Verified Bill of Particulars do not provide a basis for liability. With respect to section 23–9.2(b), although one of plaintiffs' experts discusses this section in her affidavit, plaintiffs do not mention it in their opposition papers. In any event, this section, which provides that power operated equipment shall be operated safely and by trained persons is not sufficiently specific to provide a predicate for liability under section 241(6). See Scott v. Westmore Fuel Co., Inc., 96 AD3d 520, 521 (1st Dept 2012).. To the extent plaintiffs argue that 29 CFR §§ 1926.20(b)(2), 1926.702(j)(1) and (2) provide a basis for liability such argument is unavailing as it is well established that OSHA regulations do not impose a non-delegable duty on an owner or general contractor and therefore may not be used as a predicate for a Labor Law section 241(6) claim. Rizzuto v. L.A. Wenger Contracting Co., Inc., 91 N.Y.2d at 350.
Subsection (a) of 23.9.2 of the Industrial Code, entitled Power–Operated Equipment, provides, in relevant part that:
(a) Maintenance. All power-operated equipment shall be maintained in good repair and in proper operating condition at all times. Sufficient inspections of adequate frequency shall be made of such equipment to insure such maintenance. Upon discovery, any structural defect or unsafe condition in such equipment shall be corrected by necessary repairs or replacement. The servicing and repair of such equipment shall be performed by or under the supervision of designated persons. Any servicing or repairing of such equipment shall be performed only while such equipment is at rest.
With respect to section 23–9.2(a), the Court of Appeals has held that of the first three sentences of this section, only the third sentence, which requires employers to make necessary repairs “upon discovery [of] or actual notice of [any] structural defect or unsafe condition” is sufficiently specific to provide a basis for liability under section 241(6). See Misicki v. Caradonna, 12 NY3d 511, 520–521 (2009). Defendants argue that there is no liability under the standard in Misicki supra, as there is no evidence that the defendants or MC & O had actual notice of a structural defect or unsafe condition in connection with the concrete pump prior to the accident, and that, in particular, the record shows that it was only after the accident that MC & O discovered after testing the pump that the pump would re-engage about seven or eight seconds after the hydraulics for the pump were turned off.
In further support of defendants' motion, MC & O submits the affidavit of Dr. Ali Sadegh, a mechanical and bio-mechanical engineer and accident reconstructionist, who opines the accident was caused by Shield's failure to turn off the hydraulic pump before inserting his hand into the tube.
Plaintiffs counter that the record shows that Shield's injuries were caused by a previously identified and unremedied structural defect or unsafe condition with the pump, and that as long as plaintiffs' employer MC & O had notice of such unsafe condition such notice can be imputed to the direct defendants for the purpose of finding liability under section 241(6). In support of their position that MC & O had actual notice of a structural defect and/or unsafe condition, defendants point to McDonnell's testimony that he was told by the prior owner of the machine that in order to operate the pump properly, the rubber ring in the swing tube needed to be cleaned manually after every use with the engine running or the machine would become blocked and not operate. Plaintiffs assert that MC & O was thus aware of a structural defect and/or dangerous condition with the machine which allowed the build-up of grout around the ring or defective weld at the location of the ring thus exposing the worker to a dangerous condition of cleaning the pump with the worker's hand in a moving machine. They also argue that cleaning the machine with the engine running violated that last sentence of section 23–9.2(a), which requires that the servicing and/or repairing of equipment like the concrete pump “shall be performed only while such equipment is at rest.”
In further support of their position, plaintiffs submit the affidavits of Steven Kane, a safety engineer, and Kathleen Hopkins, a construction site safety expert.
Mr. Kane inspected the concrete pump, and the documentary evidence in this action. Mr. Kane states that in his opinion, to a reasonable degree of engineering certainty, that:
the design of the Reinert concrete pump was structurally defective in that [Reinert] located a groove in the pumping system that was impossible to clean without endangering workers. Grooves, notches, or other discontinuities in contact with concrete are well known sites for accumulation of concrete and difficult to clean. Failing to clean these sites of all concrete residue will result in further obstruction to the concrete flow, eventually chocking it off completely. The proper design of the machine would have included two very important safety features. First the design needed an interlock on the machine that if the hopper cover was raised to allow cleaning of the hopper and pump outlet opening, it would prevent hazardous movement.... The second safety feature the machine lacked was a proper cleaning method. It is never good design or practice to design a machine that requires the insertion of a body part into an area where it may encounter a moving part. Proper design of this machine would have been to allow the machine to separate at the location behind the hopper to permit easy access.
Kane Affidavit, (¶¶ 7, 8).
Ms. Hopkins who reviewed the various evidence in this action as well as Mr. Kane's affidavit, opines, inter alia that “the grout pump was defectively designed in that the swing tubes had to be cleaned out manually by inserting a hand within the tubes while the machine was still running” (Hopkins Affidavit, ¶ 12). In support of her conclusion, Hopkins notes that on its website Reinert stated that it redesigned its concrete pump to avoid the build-up of grout. She also opines that cleaning of the pump constituted “servicing” within the meaning of the final sentence of section 23 .9.2(a) “in that the hopper and grout pumping mechanisms had to be thoroughly water hosed and cleaned and inspected and the interior two swing tubes had to be manually felt” ( Id., ¶ 16).
In reply, defendants argue that there is no evidence that defendants had notice of any structural defect or dangerous condition, and that the defects identified by plaintiffs regarding the proper cleaning method and the lack of an interlock mechanism are design defects relevant to products liability claims but not addressed by the State Industrial Code. Moreover, defendants argue that the record shows that Shields used the cleaning method without incident prior to the accident, and there is no evidence that MC & O or the defendants had prior notice of any defect due to the lack of an interlock mechanism. Defendants further assert that the issue of whether the Industrial Code applies is an issue of law for the court and the use of expert affidavits is improper.
Defendants also argue that Ms. Hopkins affidavit should not be considered as it was not timely disclosed and was notarized in New Jersey and lacks a certificate of conformity. These arguments are unavailing. Even assuming that plaintiffs failed to timely identify Ms. Hopkins as an expert the court may consider her affidavit since there is no indication that any such failure “was intentional or willful and there is no showing of prejudice” to defendants. Hernandez–Vega v. Zwanger–Pesiri Radiology Group, 39 AD3d 710, 711 (2d Dept 2007); see also Alston v. New York City Transit Authority., 23 AD3d 239 (1st Dept 2005). Next, the absence of a certificate of conformity as required under CPLR § 2309(c) is “a mere irregularity and not a fatal defect.” Matapos Tech. Ltd. v. Compania Andina de Comercio Ltda, 68 AD3d 672, 673 (1st Dept 2009); see also Hall v. Elrac, Inc., 79 AD3d 427 (1st Dept 2010); compare Scott v. Westmore Fuel Co. Inc., 96 AD3d at 521.
Under the circumstances here, the court finds that there are triable issues of fact as to whether MC & O had actual notice of an unsafe condition such that the third sentence of 23 NYCRR 23.9.2(a), which requires the repair or replacement of such condition, provides a predicate for liability under Labor Law § 241(6). This conclusion is supported by evidence that the pump was purchased in a used condition without any instruction manual or other directions, that Shield's employer was aware that a groove in the swing tube of the pump had to be cleaned manually, that this cleaning was performed with the engine running, and that the pump would not work unless the ring or grove on the swing tube was cleaned manually. Thus, issues of fact exist as to whether MC & O's knowledge of such condition and of the manner in which the pump was to be cleaned constitutes of violation of the third sentence of 23 NYCRR 23.9.2(a), and whether such condition was a proximate cause of Shields' injuries.
See Salsinha v. Malcome Pirnie, Inc., 76 AD3d 411, 412 (1st Dept 2010)(“whether the inability to open the door of a truck constitutes a structural defect or unsafe condition' within the meaning of 12 NYCRR 23–9.2(a) and, if so, whether such condition was a proximate cause of plaintiff's injuries must be determined by the factfinder”).
While the defendants focus on whether Shields' injuries were caused by a design defect as opposed to a structural defect or dangerous condition for the purpose of the Industrial Code section 23–9.2(a), the court need not reach this issue as a jury question is raised as to whether the need to clean the pump manually constituted an unsafe condition.
However, to the extent plaintiffs' experts opine that a defect exists for the purposes of the third sentence of section 23–9.2(a) based on the lack on an interlock mechanism, there is no evidence that defendants had actual notice of any such defect. In this connection, the court notes that while expert evidence is permitted on the issue of whether a certain condition or omission was in violation of a statute or regulation and as to the meaning of specialized terms, the interpretation as to the meaning and applicability of the law is for the court. Franco v. Jay Cee of New York Corp., 36 AD3d 445, 448 (1st Dept 2007); Morris v. Pavarini Const., 9 NY3d 47, 51 (2007).
Next, the court finds that the record raises triable issues of fact as to whether there was a violation of the last sentence of section 23.9.2(a), which requires that the servicing and or repairing of equipment like the concrete pump “shall be performed only while such equipment is at rest.” This requirement is sufficiently specific to provide a predicate for liability under section 241(6) since it imposes “an affirmative duty” and “mandates a distinct standard of conduct.” Misicki v. Caradonna, 12 NY3d at 521 (internal citations and quotations omitted). Here, the record shows that the engine of the concrete pump was running when Shields was cleaning it at the time of the accident and, at the very least, raises issues of fact as to whether MC & O knew that the engine was running based, in part, on McDonnell's testimony that he was aware that the engine was allowed to run while the pump was cleaned. Furthermore, the court finds that servicing includes cleaning under the circumstances of this case, and to the extent servicing can be considered a specialized term, Ms. Hopper's opinion supports this conclusion.
Plaintiffs also rely on subsection (d) of section 23–9.2, which states as follows:
(d) Protection of moving parts. Gears, belts, sprockets, drums, sheaves and any points of contact between moving parts of power-operated equipment or machines when not guarded by location shall be guarded in compliance with this Part (rule) and with Industrial Code Part (rule) 19.
Defendants argue that this section does not apply here as there are no allegations that any exterior moving parts like those listed in this provision were improperly guarded and that rule 19 was repealed prior to Shield's accident and therefore does not provide a basis for liability. Hassett v. Celtic Holdings, LLC, 7 AD3d 364 (1st Dept 2004).
In opposition, plaintiffs assert that “any points of contact between moving parts” is broad enough to include the unguarded portion of the concrete pump that Shields came in contact with, and that there is no limitation in the section with respect to interior parts. In addition, plaintiffs rely on Hopkins' statement that Section 23–9.2(d) “is applicable to the instant matter as this section confers a positive command that any point of contact between moving parts of power-operated equipment or machines when not guarded by location or otherwise guarded [and that] had the grout tube been guarded ... to prevent the insertion of [Shield's] hand ... the accident would not have occurred.” (Hopkins' Affidavit, ¶ 19).
“The Industrial Code should be sensibly interpreted and applied to effectuate its purpose of protecting construction laborers against hazards in the workplace.... Accordingly, the preferred rule both as a matter of statutory interpretation and as a reinforcement of the objectives of the Industrial Code is to take into consideration the function of a piece of equipment, and not merely the name, when determining the applicability of a regulation.” St Louis v. Town of N. Elba, 16 NY3d 411, 416 (2011)
Even under the liberal principles for applying the Industrial Code, the court finds that section 23–9.2(d) does not apply here since it cannot be said that the interior moving parts at issue in this action are “not guarded by location.” This conclusion is supported by section 23–1.12, entitled “guarding of power driven machinery,” which does not include any interior moving parts similar to those at issue and applies only to the machines or their parts which are not otherwise “protected by their location or design.
The section requires that the following machines or their parts be guarded: “keys, set screws, bolts and similar projections on revolving parts of machines “that are not protected by location,” power driven saws, circular table saws, “sprockets or gears not protected by location or design from accidental contact by persons,” “belts, pulleys and flywheels ... not protected by location from accidental contact by persons,” “friction-disc drives ... not protected by location from accidental contact by persons,” and “nip points between ... wire rope.”
Moreover, the statements in Hopkins' affidavit are insufficient to raise a triable issue of fact in this regard as she fails to offer any basis for her conclusion that guards were required on the interior of the pump or any explanation for the need for such guards if the pump was functioning correctly. Accordingly, section 23–9.2(d) does not provide a basis for liability here.
The only two reported cases discussing section 23–9.2(d) summarily found that the section did not apply and thus could not provide a basis for liability under Labor Law section 241(6). See Fisher v. WNY Bus Parts, Inc., 12 AD3d 1138 (4th Dept 2004); Hassett v. Celtic Holdings, LLC, 7 AD3d at 365;
Plaintiffs also rely on section 23–9.11(d), regarding mixing machines, which provides that “[f]lywheels and power transmission mechanisms shall be kept covered and guarded against accidental contact.”
Defendants argue that this provision is inapplicable as the cement pump is not a mixing machine and that the accident did not involve a flywheel or power transmission mechanism that needed to be covered or guarded.
In opposition, plaintiffs rely on Ms. Hopkins' statement that section 23–9.11(d) is applicable to the instant matter and that Shield's accident “shows that the power transmission mechanisms, the swing tube, was not covered and guarded against contact.”
The court finds that section 23–9.11(d) is not applicable here as the record shows that the cement pump does not function as a mixing machine but rather as a pump to move concrete from a lower level to a higher level. Furthermore, there is no evidence that the swing tubes functioned as a “power transmission mechanism” and Ms. Hopkins' conclusory assertions to the contrary are insufficient to raise a triable issue of fact. In any event, as the swing tube is in the interior of the pump, it would appear there would be no need to cover or guard it from contact. Accordingly, plaintiffs have failed to raise a triable issue of fact as to the applicability of section 23–9.11(d).
CONCLUSION
In view of the above it is
ORDERED that defendants' motion for summary judgment is granted to the extent of dismissing plaintiffs' claims under Labor Law sections 240 and 200; and it is further
ORDERED that defendants' motion for summary judgment dismissing plaintiffs' Labor Law section 241(6) claim is denied to the extent of finding that the third sentence and the last sentence of 23–9.2(a) provide a predicate for liability insofar as indicated herein and is otherwise granted; and it is further
ORDERED that the parties shall proceed to mediation.