Opinion
13091/2000.
Decided October 11, 2007.
Present: HONORABLE PETER J. KELLY, Justice.
Upon the foregoing papers the motion and cross-motion are determined as follows:
This action arises from an accident that occurred on November 11, 1999 at Bayside High School in Bayside, New York during renovation of the exterior of the premises. The plaintiff was employed by Graciano Corp. ("Graciano"), a non-party, who was the general contractor for the project. Graciano hired the third-party defendant Safeway Construction Enterprises, Inc. ("Safeway") to provide certain demolition services at the work cite. The defendant URS Greiner Woodward Clyde n/k/a URS Corporation-New York ("URS") was the construction manager for the project and hired the fourth-party defendant Colgate Scaffolding ("Colgate") to erect metal pipe scaffolding to be used in the renovation of the exterior of the premises.
At the time of the accident, the plaintiff was on the scaffold using an electric chisel to remove bricks from a corner on the fourth floor of the exterior facade of the building. The scaffold was a common metal pipe skeleton variety with wooden planking that formed the work surface. The plaintiff testified that when the accident occurred he was standing on a pile of bricks that had accumulated on the wooden planking as a result of his demolition activities. The plaintiff averred that he was unable to reach all the areas he was required to demolish by standing on the surface of the scaffold and it was necessary for him to stand on the debris. The plaintiff claims that while he was chiseling on top of a two or three foot high debris pile, wind caused the scaffold to move, he lost his balance and fell to the surface of the scaffold and was injured as a result.
The plaintiff's cross-motion for leave to serve an amended bill of particulars is granted to the extent that the amended bill of particulars annexed to the moving papers is deemed served. Assertions by the defendant that the plaintiff is precluded from serving an amended bill of particulars because a note of issue was filed in this case is without merit. The note of issue was vacated by Justice Martin Schulman on May 7, 2007, before the amended bill of particulars was served. Absent a note of issue, the plaintiff is permitted to amend his bill of particulars once as a matter of right ( See, CPLR § 3042[b]; Reitman v St. Francis Hosp. , 2 AD3d 429 ).
Furthermore, even after a note of issue is filed and a defendant serves a summary judgment motion, meritorious amendments to a bill of particulars may be made provided "no new factual allegations" are made, "no new theories of liability" are raised and "no prejudice to the defendants" is caused ( See, Kelleir v Supreme Indus. Park, LLC, 293 AD2d 513; see also, Walker v Metro-North Commuter R.R. , 11 AD3d 339 , 340-41). Here, contrary to the defendant's conclusory assertions, the amendment to the plaintiff's description of the common law negligent acts allegedly committed by the defendant raised no new facts and no new theories of liability. The amendments were merely amplification of previously pled theories of negligence based upon the plaintiff's description of the occurrence of the accident that the defendant has been aware of since the plaintiff's first deposition in 2001.
With respect to the additional regulatory violations asserted by the plaintiff in the amended bill of particulars, only three Industrial Code sections, namely 12 NYCRR § 23-3.3[c], [l] and § 23-5.3[h][1], are actually newly pled. The other Industrial Code sections cited in the amended bill of particulars are properly asserted as these were either specifically pled before or are simply subsections of code sections previously identified in the original bill of particulars. The plaintiff also identifies in the amended bill of particulars numerous provisions of the Occupational Safety and Health Act ("OSHA") he claims were violated.
The plaintiff's "failure to allege such violation[s] earlier [is] not fatal to [his] claim" ( See, Dowd v City of New York , 40 AD3d 908 , 911; see also, Latino v Nolan Taylor-Howe Funeral Home, Inc., 300 AD2d 631). Nevertheless, proposed amendments that are "devoid of merit and are legally insufficient" are not permitted ( See, Duffy v Wetzler, 260 AD2d 596; see also, Lang v Dachs, 303 AD2d 645).
Industrial Code section 23-5.3[h][1] requires "metal scaffolds" to be secured to buildings with tie-ins and states the maximum intervals for the placement of the tie-ins. Movement of the scaffold has been the very nature of the plaintiff's claim and the defendant has been aware of this, at a minimum, since plaintiff's first deposition. More importantly, in the original bill of particulars the plaintiff pled that the scaffold was "improperly tied to the building". As such, this amendment will be permitted to stand.
With respect to Industrial Code sections § 23-3.3[c] and [l], these provisions apply during the performance of "hand demolition". Section 23-1.4[b][16] of the Industrial Code defines, in pertinent part, demolition as "work incidental to or associated with the total or partial dismantling or razing of a building or other structure . . ." The work that was being performed by the plaintiff, removal of exterior masonry work on a structure that was to remain standing, "does not fall within the purview of "demolition" as defined in § 23-1.4(b)(16)" ( Solis v 32 Sixth Ave. Co. LLC , 38 AD3d 389 ). Accordingly, these amendments will not be permitted.
The OSHA regulations pled in the amended bill of particulars are also without merit and will not be permitted. A cause of action based on Labor Law § 241 "must refer to a violation of the specific standards set forth in the implementing regulations (12 NYCRR Part 123)" ( Simon v Schenectady North Congregation of Jehovah's Witnesses, 132 AD2d 313, 317 [emphasis added]; Vernieri v Empire Realty Co., 219 AD2d 593). Therefore, a violation of OSHA regulations can not form the basis of a cause of action under Labor Law § 241. Moreover, responsibility to ensure compliance with Occupational Safety and Health Act regulations rested with Graciano, the plaintiff's employer, not the defendant ( See, 29 CFR § 1910.12[a]; Kocurek v Home Depot, USAP, Inc, 286 AD2d 577, 580; Pellescki v City of Rochester, 198 AD2d 762, 763; Herman v Lancaster Homes, Inc, 145 AD2d 926).
The defendant's claims of prejudice ring distinctly hollow since the permitted amendments are not based upon new facts and are universally based upon previously pled theories of negligence which the defendant has had more than ample opportunity to investigate during the seven year discovery phase of this litigation that included three separate depositions of the plaintiff.
Turning to the main motion, the defendant seeks to dismiss the plaintiff's Labor Law § 240 cause of action on the basis that the protections of that statute do not apply to this plaintiff based upon the facts of this case.
While Labor Law § 240 does not protect a worker from "any and all perils that may be connected in some tangential way with the effects of gravity," the statute does protect a worker from "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 NY2d 494, 501). The harm must flow "directly . . . from the application of the force of gravity to an object or person" ( Ross v Curtis-Palmer Hydro-Elec. Co., supra at 501).
It is, however, not required that a worker actually fall off a protective device or from a place of safety to the ground to have the accident come within the ambit of the statute ( See, Striegel v Hillcrest Heights Dev. Corp., 100 NY2d 974). Additionally, "[t]he sufficiency of an elevation differential and fall from a height for purposes of Labor Law § 240 (1) liability cannot, unfortunately, be reduced to a numerical bright-line test or automatic minimum/maximum quantification" ( Amo v Little Rapids Corp., 301 AD2d 698, 701).
The defendant's assertions in its memorandum of law that the movement of the scaffold is "irrelevant" since the plaintiff fell "onto the same level as his work site" are both legally and factually incorrect. The plaintiff testified that he was standing on a two to three foot high pile of debris just prior to his accident and that when he fell he landed on "the platform, the scaffold", not the pile of debris. Thus, viewing the testimony in a light most favorable to the plaintiff as the court must ( See e.g., Kelly v Media Services Corp, 304 AD2d 717; Krohn v Felix Industries, 302 AD2d 499), this case is not a "garden variety" trip and fall accident and can not be likened to Milligan v Allied Bldrs., Inc. , 34 AD3d 1268, a case cited by the defendant.
Additionally, Labor Law § 240 is applicable since the plaintiff testified he was working above the surface of the scaffold and was required to use a pile of debris to facilitate access to that elevation ( See, Mann v Meridian Centre Associates, LLC, 17 AD3d 1143; Siago v Garbade Construction Co., 262 AD2d 945; see also, Menga v Tishman Construction Corp., 306 AD2d 163). In addition, as the plaintiff claims his fall resulted from movement of the scaffold which caused him to lose his balance, the accident arguably entails the failure of a safety device to afford plaintiff proper protection under the circumstances ( See, Fernandes v Equitable Life Assur. Soc'y of the United States, 4 AD3d 214; Cordero v Kaiser Org., Inc., 288 AD2d 424). That the plaintiff did not fall off the scaffold to the ground does not nullify his claim ( See, Striegel v Hillcrest Heights Dev. Corp., supra; Fernandes v Equitable Life Assur. Soc'y of the United States, supra; Franklin v Dormitory Auth., 291 AD2d 854; Cordero v Kaiser Org., Inc., supra). The distance the plaintiff fell, although relatively small, still presented a sufficient risk for Labor Law 240 to apply ( See, Mann v Meridian Centre Associates, LLC, supra; Siago v Garbade Construction Co., supra).
Accordingly, the branch of the defendant's motion to dismiss the plaintiff's Labor Law § 240 claim is denied.
The defendant also seeks summary dismissal of the plaintiff's causes of action alleging it violated section 241 of the Labor Law. That statute provides, inter alia, that areas in which construction is being performed shall be "guarded, arranged, operated, and conducted" in a manner which provides "reasonable and adequate protection and safety to the persons employed therein," that the Commissioner of Labor may make rules to implement the statute, and that owners, contractors, and their agents shall comply with them ( See, Rizzuto v L.A. Wenger Contracting Co., Inc., 91 NY2d 343). The duty imposed by Labor Law § 241 upon owners and contractors is also nondelegable and exists regardless of their control and supervision of the job site ( See, Rizzuto v L.A. Wenger Contracting Co., Inc., supra; Whalen v City of New York, 270 AD2d 340).
In order to prove a cause of action pursuant to Labor Law § 241, a plaintiff must show that a defendant "violated a rule or regulation of the Commissioner of Labor that sets forth a specific standard of conduct as opposed to a general reiteration of common-law principles" ( Adams v Glass Fab, Inc., 212 AD2d 972, 973). The regulation upon which a plaintiff relies must "set forth a specific standard of conduct as opposed to a general reiteration of common-law principles' for its violation to qualify as a predicate for a Labor Law § 241(6) cause of action" ( Mendoza v Marche Libre Associates, 256 AD2d 133, quoting Adams v Glass Fab, 212 AD2d 972, 973; Quinlan v City of New York, 293 AD2d 262).
In the amended bill of particulars, aside from the amendments the court previously ruled were without merit, the plaintiff claims the defendants violated fourteen discrete provisions of the Industrial Code, namely 12 NYCRR §§ 23-1.5, 23-1.7[d], [e][1], [e][2]; 23-1.15; 23-1.16; 23-1.17; 23-1.21; 23-5.1[b], [c], [f], [h] and 23-5.3[g], [h].
Turning to each of the code sections individually, it is clear section 23-1.5 of the Industrial Code can not form a foundation for liability against Parsons as it "merely sets forth a general safety standard" ( Cun-En Lin v Holy Family Monuments , 18 AD3d 800 , 802).
Section 23-1.7[7][d] is not applicable to the facts of this case because it does not involve a "slipping hazard" ( See, Heizman v Long Island Lighting Co., 251 AD2d 289). Neither section 23-1.7[e][1] or [2] are actionable since "the debris covering the scaffold resulted directly from the masonry work plaintiff and his co-worker were performing, and thus constituted an integral part of that work" ( Solis v 32 Sixth Ave. Co. LLC, supra). In addition, section 23-1.7[e][1] is not applicable to this case since the plaintiff's accident did not occur in a "passageway".
Section 23-1.15 does not apply to this case because the section "does not specify when safety railings are required but, rather, sets forth only how they must be constructed when they are required" ( Partridge v Waterloo Cent. Sch. Dist. , 12 AD3d 1054 ). Likewise, sections 23-1.16, 23-1.17 and 23-1.21 are not applicable since the plaintiff was not provided with the safety devices specified in those sections ( See, Partridge v Waterloo Cent. Sch. Dist., supra; Bennion v Goodyear Tire Rubber Co., 229 AD2d 1003; Maldonado v Townsend Ave. Enters., Ltd. P'ship, 294 AD2d 207).
Contrary to the defendant's assertions, sections 23-5.1[b] and [c] are specific enough to support a claim under Labor Law § 241 ( See, O'Connor v Spencer (1997) Inv. Ltd. P'ship , 2 AD3d 513 , 515). The defendant also argues in its memorandum of law that "[t]hese subsections are not applicable to the instant action because plaintiff has not alleged that the scaffolding in this action failed to meet footing, anchorage, weight-bearing or bracing requirements". This assertion is illogical since by citing these sections in the bill of particulars, the plaintiff is claiming that the defendant did not comply with the requirements provided in these code sections. Likewise, section 23-5.1[h], which requires that "[e]very scaffold shall be erected and removed under the supervision of a designated person" is specific enough to be actionable and is not simply a codification of the common law duty of care ( See, Atkinson v State of New York , 12 Misc 3d 582 ).
As to the merits of the claims based upon sections 23-5.1[b], [c] and [h], the defendant's argument in its reply memorandum of law, is in essence, an unsupported assertion that "the plaintiff presented no evidence to suggest" these sections were violated. This is insufficient to establish entitlement to dismissal since it is the movant's burden to establish the inapplicability of this Industrial Code provision ( See, Sainato v City of Albany, 285 AD2d 708; Bockmier v Niagara Recycling, 265 AD2d 897). Indeed, "a defendant moving for summary judgment does not carry its burden merely by citing gaps in the plaintiff's case" ( Kucera v Waldbaums Supermarkets, 304 AD2d 531; See also, OLeary v Bravo Hylan, LLC , 8 AD3d 542; Nationwide Prop. Cas. v Nestor , 6 AD3d 409 ). Accordingly, the defendant has failed to establish prima facie entitlement to dismissal of these claims.
Section 23-5.1[f] provides that "[e]very scaffold shall be maintained in good repair and every defect, unsafe condition or noncompliance with this Part (rule) shall be immediately corrected before further use of such scaffold". Requiring that scaffolds be kept in "good repair" and mandating that an "unsafe condition" be remedied are merely generic directives which do not provide a sufficient predicate to sustain a claim under Labor Law § 241 ( See, Sanatass v Consolidated Investing Co., Inc. , 38 AD3d 332 ; Maldonado v Townsend Ave. Enters., Ltd. P'ship, 294 AD2d 207; see also, Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 503-504).
With respect to Industrial Code sections 23-5.3[g] and [h], defendant's initial assertion that any Labor Law § 241(6) should be dismissed summarily, is again deficient as the defendant failed to proffer any evidence to establish, in the first instance, entitlement to judgment as a matter of law ( See, Sainato v City of Albany, supra; Bockmier v Niagara Recycling, supra; see also, Kucera v Waldbaums Supermarkets, supra; OLeary v Bravo Hylan, LLC, supra; Nationwide Prop. Cas. v Nestor, supra).
The defendant's further assertion that the entire section is wholly inapplicable to the case at bar is totally without merit. That section unambiguously sets forth, in pertinent part, that it "applies to all scaffolds constructed of metal". Defense counsel argues in his reply affirmation that this Code provision is inapplicable since the scaffold at issue "was constructed of iron piping, not metal". This suggestion is utterly ludicrous bordering on the frivolous. Other than taking judicial notice of the periodic table of the elements which lists iron as a metallic element, the court is not obliged to cite any authority to counter the fallacious argument proffered by defense counsel. The further contention that the section does not apply since the planking that formed the work surface of the scaffold is made of wood also fails. While it true that wood is not a metal, the code section at issue does not say it applies just to scaffolds constructed "entirely" of metal, but rather "all scaffolds constructed of metal except mobile types".
The court could find no appellate authority holding whether or not sections 23-5.3[g] or [h] were specific enough to be actionable under Labor Law § 241. With respect to 23-5.3[g][1], the defendant's reliance on Lockwood v State, 7 Misc 3d 1028A is misplaced. That court's holding is not binding on this court and is premised on appellate rulings that are contrary to those in the Appellate Division, Second Department. The Lockwood court drew on another Industrial Code provision, 23-5.1[b], with remarkably similar language which was determined to be not specific enough to be actionable by First and Fourth Departments of the Appellate Division ( See, Schiulaz v Arnell Constr. Corp., 261 AD2d 247, 248; Fisher v WNY Bus Parts, Inc. , 12 AD3d 1138 , 1140). The Appellate Division, Second Department, however, in O'Connor v Spencer (1997) Inv. Ltd. P'ship, supra, held that section 23-5.1[b] of the Industrial Code was sufficiently specific. Accordingly, given the similarity in the language used in section 23-5.1[b] with 23-5.3[g][1], the court finds the later section to be actionable under the Labor Law.
Section 23-5.3[g][2], which provides specific numeric dimensions for the metal base plates of scaffold footings and 23-5.3[h], which requires metal scaffolds to be secured to buildings with tie-ins and states the maximum intervals for the placement of the tie-ins, are sufficiently specific to sustain claims under Labor Law § 241 ( See generally, Ross v Curtis-Palmer Hydro-Elec. Co., supra).
Accordingly, the defendant's motion for summary judgment dismissing the plaintiff's Labor Law § 241 claim is granted to the extent that all the claims are dismissed except those based upon Industrial Code sections 23-5.1[b], [c] and [h], as well as section 23-5.3[g] and [h].
With respect to the plaintiff's cause of action brought pursuant to Labor Law § 200, that statute "is a codification of the common-law duty imposed upon an owner or general contractor to provide construction site workers with a safe place to work" ( Comes v New York State Elec Gas Corp, 82 NY2d 876, 877). Where the accident is the result of a dangerous or defective condition in the workplace, liability is predicated upon the party at issue either creating the condition or having actual or constructive notice of the condition ( See, Gambino v Mass. Mut. Life Ins. Co. , 8 AD3d 337 ; DeBlase v Herbert Constr. Co. , 5 AD3d 624 ; Paladino v Soc'y of the NY Hosp., 307 AD2d 343, 345). When the theory of liability is based upon the manner in which the plaintiff's work was being performed, liability will attach only if the party to be charged exercised supervision and control over the work performed at the site or had actual or constructive notice of the unsafe practice causing the accident ( See, Comes v New York State Electric and Gas Corporation, supra). Here, the defendant established prima facie entitlement to summary judgment on the plaintiff's Labor Law § 200 claim. The defendant's superintendent of construction on the project at issue, Eugene Staudte ("Staudte"), testified at his deposition that the defendant neither supervised the work of the sub-contractors nor selected the means and methods these entities used to complete their tasks. The plaintiff's testimony confirms this point as he averred that he only received direction from his employer's supervisors. Staudte also testified that the only prior knowledge he had of unsteadiness in the scaffold was in a different locale from where the accident occurred. Additionally, there was no proof that the defendant was aware that the plaintiff was utilizing debris piles to accomplish his assigned demolition tasks or, in fact, how long the plaintiff had been engaging in that process prior to the accident.
In opposition, the plaintiff failed to raise an issue of fact. The contractual provisions cited by the plaintiff do not demonstrate that the defendant had the authority to supervise and control the plaintiff's work ( Cf., Pino v Irvington Union Free Sch. Dist., AD3d, 2007 NY Slip Op 6969; Lodato v Greyhawk N. Am., LLC , 39 AD3d 491 ). Moreover, the plaintiff failed to establish that the defendant was aware, or should have been aware, that the scaffold was unsteady at the location were his accident occurred or was alerted to the demolition practices engaged in by the plaintiff.
Accordingly, the plaintiff's Labor Law § 200 claim is dismissed.