Opinion
400542-2004.
Decided August 12, 2004.
This is a personal injury action in which plaintiff, Zenon Badzmierowski ("plaintiff") asserts three causes of action against defendant PBAK, LLC ("defendant"): (1) negligence; (2) violation of Labor Law § 200; and (3) violation of Labor Law § 241(6). More specifically, plaintiff alleges that defendant violated NY Codes, Rules and Regulations ("NYCRR"), Title 12 §§ 23-1.5(a); 23-1.13; 23-3.2; 23-3.3(c); and 23-1.8(a) and (c). Defendant moves for summary judgment dismissing plaintiff's complaint in its entirety. The Court grants defendant's motion in part and denies it in part.
The background facts are undisputed. The Court notes the assistance of Salil Jani of Fordham University School of Law, Class of 2006, with this decision.
Plaintiff was injured on January 4, 2001, while working on the condominium owned by defendant, located at 51 East 25th Street, New York, New York ("the subject premises"). At the time of the incident, plaintiff was employed as a laborer by Andrew General Construction ("AGC"), who, in turn, was hired by defendant to perform certain renovation work at the subject premises. The renovation consisted of demolition and reconstruction of the condominium. While working on the demolition phase of the renovation project, plaintiff attempted to remove a lamp from a pile of debris. The electrical cord of the lamp had become caught inside the pile. As plaintiff attempted to pull the lamp's electrical cord from the debris, it became loose, struck plaintiff in the eye and caused plaintiff's injury. At the time the incident occurred, plaintiff was engaged in the removal of debris and was carrying debris from one area of the subject premises to a garbage chute. AGC did not require plaintiff to wear safety goggles, nor did plaintiff wear safety goggles at the time of the incident.
Motion for Summary Judgment
Defendant moves for an order, pursuant to CPLR 3212 for summary judgment dismissing the complaint, on the grounds that plaintiff's claims of general negligence, as well as violations of §§ 200 and 241(6) of the Labor Law cannot be established under the facts before this Court because (1) defendant lacked control, direction and supervision of the work involved; (2) defendant did not have notice of any claimed defective conditions; and (3) plaintiff was not engaged in the type of work intended to be protected by the Industrial Code to trigger a violation of § 241(6) of the Labor Law.
Defendant construes additional facts through a review of the pleadings and discovery had herein as follows: Defendant hired AGC through its principal Mr. Lupinski, to renovate the subject premises. Dr. Arden Kaisman ("Dr. Kaisman"), on behalf of defendant, visited the premises at various times to observe what was going on and to speak with Mr. Lupinski. Dr. Kaisman did not, however, exercise any control over the work performed by Mr. Lupinski and his company during the demolition phase. Prior to the accident, Dr. Kaisman visited the subject premises on January 2, 2001 and spoke to Mr. Lupinski. At the time of his visit, Dr. Kaisman saw hats, goggles and gloves on a window sill for workers at the location; however, he did not see any of the workers utilizing the goggles. Dr. Kaisman had no knowledge that an accident occurred until he received a letter from plaintiff's attorney and Dr. Kaisman's knowledge of the incident was limited to what was told to him by Mr. Lupinski.
According to defendant, although plaintiff states at his deposition that he was injured while he was throwing sheetrock into a garbage chute, plaintiff then testified that he had nothing else in his hands when he was picking up the lamp. Defendant also notes that as plaintiff attempted to grab the lamp, he pulled at the cord on two occasions before it came free and injured plaintiff's eye.
Contentions as to Labor Law § 241(6)
Defendant contends that courts have long held that a regulation establishing a general safety standard is insufficient to give rise to a non-delegable duty imposed by Labor Law § 241(6). Defendant argues that summary judgment is warranted as to plaintiff's claim of a violation of 12 NYCRR § 23-1.5(a) because this section of the Industrial Code is a general provision for health and safety protection to employees. Thus, defendant concludes that plaintiff's reliance on this provision is irrelevant to the action.
Defendant then argues that 12 NYCRR § 23-1.13 is a portion of the Industrial Code which applies to "electrical hazards" and addresses claims in which a person has been exposed to electrical hazards. While plaintiff may have been injured when the cord from an electrical lamp struck his eye, the lamp was not plugged in nor did plaintiff receive a shock. Moreover, a lamp, in and of itself, is not an electrical hazard nor was an electrical hazard involved in the injury. Thus, defendant asserts that this section of the Industrial Code is not applicable and cannot support the § 241(6) claim in the instant action.
Third, defendant contends that 12 NYCRR § 23-3.2, is the "General Requirements" section for demolition work. Defendant asserts that this section does not apply specifically to the claims in this matter as they do not involve an issue arising from the preparation of the demolition of the building (subsection a); the protection of adjacent structures (subsection b); a barricade issue (subsection c); or dust control (subsection d).
Next, defendant argues that plaintiff's 12 NYCRR § 23-3.3(c) claim involves demolition by hand and the need for inspections. In the case at bar, defendant claims that there have been no injuries arising from deteriorating walls or materials falling onto plaintiff. As such, defendant considers this subsection of the Industrial Code inapplicable.
According to defendant, the only possible claim which plaintiff might have for a violation of the Industrial Code would involve 12 NYCRR §§ 23-1.8(a) or (c). However, despite the fact that plaintiff sustained an eye injury, defendant asserts that plaintiff was not engaged in any of the statutory operations set forth within these sections of the Industrial Code. Additionally, plaintiff's employer, Mr. Lupinski, indicated in his affidavit that while personal protective equipment was provided at the site, it was not necessary for the type of activity ongoing at the time of the occurrence since an eye injury was not foreseeable. Plaintiff was not in the process of actually demolishing a portion of the building when the incident occurred. Furthermore, defendant argues that goggles were provided at the site.
Contentions as to Labor Law § 200 and Negligence
Defendant contends that since Labor Law § 200 is the codification of common law negligence, in order to prevail under either of these theories, plaintiff must show that defendant had actual or constructive notice of an unsafe condition, and that defendant exercised sufficient control over the work being performed to have corrected the unsafe condition. Defendant argues that there is no evidence or testimony in this case which would establish that defendant had knowledge of any claimed defective condition arising from the demolition activities, in particular, the lamp and lamp cord which is alleged to have struck plaintiff in the eye.
Further, defendant argues that there is no evidence that defendant directed or supervised plaintiff's work. In this regard, defendant points out that Dr. Kaisman testified that he was not involved with the direction, control and supervision of the work at the subject location. Defendant also contends that plaintiff testified that he took all instructions from Mr. Lupinski, his employer. Moreover, plaintiff testified that he never met the owner of the subject premises prior to his accident. Thus, defendant cannot be found liable under Labor Law § 200 or common law negligence.
Opposition to the Motion for Summary Judgment
In opposition, plaintiff construes additional facts as follows: At the time of the subject incident, while plaintiff was attempting to dispose of a part of a pile of debris resulting from the ongoing demolition work, plaintiff pulled a lamp that was one of many lamps in a pile that was part of the prior office equipment. Plaintiff attempted to pull the lamp cord which had become caught inside the pile and the lamp cord snapped loose from the debris and the prongs of the cord struck plaintiff in the eye. Plaintiff also testified at deposition that safety goggles were not available at the work site.
Sufficiency of the Labor Law § 241(6) Claim
Plaintiff claims that defendant's motion for summary judgment should be denied because there are bona fide issues of fact regarding whether defendant violated Labor Law § 241(6) and 12 NYCRR § 23-1.8. Plaintiff argues that although defendant claims that eye protection was available, plaintiff testified that said protection was not available, thereby creating an issue of fact. Further, plaintiff asserts that the defendant agrees that the eye protection was not "used by all persons employed" as the regulation requires and that defendant was aware that the protection was not being used. Moreover, plaintiff contends that although there were at least four workers on the site, there were only three goggles available.
Plaintiff argues that despite defendant's assertions, 12 NYCRR § 23-1.8(a) applies and that eye protection is required by workers while engaged in multifarious situations. Plaintiff contends that pertinent case law dictates that applicability of 12 NYCRR § 23-1.8(a) is a question of fact under the circumstances here.
Plaintiff further asserts that the duty of a property owner to comply with Labor Law § 241(6) is non-delegable and is imposed irrespective of whether the owner exercised actual authority and control over the work of the claimant. In addition, plaintiff maintains that an owner will be held vicariously liable for a violation of Labor Law § 241(6) by their contractors or subcontractors even absent a finding of active negligence.
Plaintiff also contends that Labor Law § 241(6) is applicable to plaintiff's accident because he was employed in a demolition operation that endangered his eyes when the accident occurred, and was injured while still on duty at a demolition work site. Plaintiff claims that it is not necessary that a worker actually be considered to be working on his assigned duties at the time of an injury to be considered working on the job site. Therefore, plaintiff asserts that defendant's argument that the complaint should be dismissed because plaintiff was not physically demolishing a building at the moment his accident occurred has no merit.
Plaintiff further asserts that disposing of demolition debris is recognized as demolition work under the definition provided by 12 NYCRR § 23-1.4(b)(16), which defines demolition work as "[t]he work incidental to or associated with the total or partial dismantling or razing of a building or other structure including the removing or dismantling of machinery or other equipment." Since plaintiff was employed to accomplish a demolition task, plaintiff argues that he is within the class of persons that Labor Law § 241(6) was designed to protect and that Labor Law § 241(6) is applicable to the case at bar. Thus, plaintiff concludes that there is no merit to defendant's argument that plaintiff's task was not demolition work or was not covered by the Labor Law.
Plaintiff also asserts that the affidavit submitted by plaintiff's employer that eye protection was not necessary to perform the plaintiff's task is not relevant to the question of whether plaintiff was exposed to a risk of eye injury at the time of his accident. Plaintiff claims that this affidavit merely shows that plaintiff's employer did not consider eye protection to be necessary for that specific task; it does not show that the task did not endanger plaintiff's eyes, which is the only issue relevant to the applicability of 12 NYCRR § 23-1.8(a).
In addition, plaintiff notes that the enabling regulations effectuating Labor Law § 241(6) are contained in 12 NYCRR Part 23, and, like § 241(6), must be liberally construed to accomplish the legislative intent to protect the health and safety of workers. Further, a triable fact exists where the person alleges that the regulations violated were drafted in order to protect workers from the type of hazard to which plaintiff was exposed.
Similarly, plaintiff asserts that defendant's argument that it bore no duty to plaintiff under Labor Law § 241(6) and 12 NYCRR § 23-1.8(a) based upon his activity at the time of his injury has no merit. Plaintiff claims that defendant's narrow reading of Labor Law § 241(6) and 12 NYCRR § 23-1.8(a) to resolve the factual question as to whether the circumstances of an accident presented a risk of eye injury has been rejected by the Appellate Division, First Department as improper. Plaintiff further contends that such an incomplete and incorrect reading of 12 NYCRR § 23-1.8(a) should be rejected as contrary to the intent of the legislature.
Plaintiff also states that 12 NYCRR § 23-1.8(a) mandates that all persons engaged in any operation that may endanger the eyes be provided with proper eye protection. Since it is foreseeable that persons working at a demolition site, or disposing of piled demolition debris, may suffer an eye injury due to loosened or flying material coming into contact with a worker's eyes, plaintiff contends that his injuries fall within the purview of 12 NYCRR § 23-1.8(a). Plaintiff argues that the divergence in testimony between Dr. Kaisman, who testified and attested that goggles were available for workers at the location and the plaintiff's employer, and plaintiff's testimony that goggles were not available presents an issue of fact.
Plaintiff also claims that defendant's argument that the complaint should be dismissed because it could not foresee or anticipate the specific circumstances of the lamp electrical cord injuring plaintiff's eye has no merit. Plaintiff argues that the issue here is not the foreseeability of the precise manner in which the accident occurred, but whether plaintiff was exposed to the risk of an eye injury while working at the demolition site. Accordingly, plaintiff asserts that this is a jury question that cannot be resolved on summary judgment because a reasonable trier of fact could conclude that the disposal of piled debris presents a foreseeable risk of eye injury, based upon the risk of a portion of that pile of debris coming into contact with the worker's eye.
Plaintiff also contends that defendant's argument that plaintiff was not engaged in an operation that may endanger his eyes at the moment of his injury has no merit. In support, plaintiff submits an affidavit of Walter Konon, a professional engineer, wherein he states that there were insufficient goggles available at the work site and that an eye injury was foreseeable. Thus, plaintiff claims that it is for the trier of fact to determine whether plaintiff was exposed to a risk of eye injury at the time his accident occurred. The circumstances that gave rise to plaintiff's accident, namely, his work at a demolition site, and his disposing of a pile of demolition debris, cannot be said, as a matter of law, not to constitute circumstances that were capable of presenting a risk of eye injury to plaintiff.
Therefore, plaintiff argues that the record shows a contested issue of fact as to whether eye protection was available to the workers at the site and as to whether it was foreseeable that plaintiff, while working at the demolition site at the time of his injury, was in danger of being struck in the eye by loosened or flying material and suffering an eye injury.
Reply to Plaintiff's Opposition
Initially, defendant argues that plaintiff failed to submit any proof in response to Mr. Lupinski's affidavit to establish that the activity in which plaintiff was engaged required eye protection and/or reasonably exposed plaintiff to the risks of eye injury. Thus, defendant argues that plaintiff failed to meet his burden to refute defendant's initial showing of entitlement to summary judgment.
Defendant further argues that if the Court finds that garbage/debris removal from a work site falls within the scope of 12 NYCRR § 23-1.8(a), it would open the door to any laborer who receives an eye injury to claim entitlement to the protections of this statute. Defendant contends that such a finding would be contrary to the purpose of the statute, which was enacted to protect persons engaged in activities which presented a foreseeable risk of eye injury. Moreover, defendant asserts that the removal or debris from a construction site is not an activity which presents a reasonably foreseeable risk of eye injury.
Defendant also distinguishes the facts of this case from the cases plaintiff cites which involve application of 12 NYCRR § 23-1.8(a) to eye injuries sustained by workers while hammering nails, climbing on a ladder in an area of loose wires, or using bungee cords. Defendant argues that the hammering of nails presents a foreseeable risk of eye injury as it is an activity which can cause a particle or tool to fly, while the removal of construction debris is not an activity where particles are expected to fly into a person's eye. Similarly, defendant contends that unlike the instant case, it is reasonably foreseeable that a person working in an area of loose wires, wherein they were caused to place their head into the area, could suffer an eye injury. Finally, defendant contends that the use of a bungee cord exposes workers to the risk of the cord's "bounce back abilities," and consequently creates a foreseeable risk of eye injury. Defendant argues that the use of a bungee cord is distinguishable from the facts of the instant case.
Further, defendant argues that no factual issues regarding foreseeability exist. Rather, defendant contends that the accident occurred when the plaintiff inappropriately attempted to pull a lamp cord out from a pile of debris. Defendant asserts that the plaintiff's actions were not foreseeable, as it was unreasonable for plaintiff to pull the cord harder without attempting to move the other debris. Additionally, defendant argues that it was unreasonable to require a person removing garbage to wear goggles or other eye protection.
Finally, defendant argues that since the plaintiff has failed to submit any opposition to any other portion of defendant's motion, including defendant's request for dismissal of the section 200 claims, those portions of the motion for summary judgment dismissing the remaining claims should be granted, in their entirety.
Analysis
To obtain summary judgment, the movant must establish its cause of action or defense sufficiently to warrant the court as a matter of law in directing judgment in its favor (CPLR § 3212 [b]). It is well settled that where a defendant is the proponent of a motion for summary judgment, the defendant must establish that the "cause of action . . . has no merit" (CPLR § 3212 [b]), sufficient to warrant the court as a matter of law to direct judgment in his or her favor (Bush v. St. Claire's Hosp., 82 NY2d 738, 739; Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853; Wright v. National Amusements, Inc., 2003 NY Slip Op. 51390(U) [Sup Ct New York County, Oct. 21, 2003]). This standard requires that the proponent of a motion for summary judgment make a prima facie showing of entitlement to judgment as a matter of law, by advancing sufficient "evidentiary proof in admissible form" to demonstrate the absence of any material issues of fact ( Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853; Zuckerman v. City of New York, 49 NY2d 557, 562; Silverman v. Perlbinder, 307 AD2d 230, 762 NYS2d 386 [1st Dept 2003]; Thomas v. Holzberg, 300 AD2d 10, 11, 751 NYS2d 433, 434 [1st Dept 2002]). Thus, the motion must be supported "by affidavit [from a person having knowledge of the facts], by a copy of the pleadings and by other available proof, such as depositions" (CPLR § 3212 [b]). A party can prove a prima facie entitlement to summary judgment through the affirmation of its attorney based upon documentary evidence ( Zuckerman, supra; Prudential Securities Inc. v. Rovello, 262 AD2d 172 [1st Dept 1999]).
Alternatively, to defeat a motion for summary judgment, the opposing party must show facts sufficient to require a trial of any issue of fact (CPLR § 3212 [b]). Thus, where the proponent of the motion makes a prima facie showing of entitlement to summary judgment, the burden shifts to the party opposing the motion to demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action, or to tender an acceptable excuse for his or her failure to do so ( Vermette v. Kenworth Truck Co., 68 NY2d 714, 717; Zuckerman v. City of New York, supra, 49 NY2d at 560, 562; Forrest v. Jewish Guild for the Blind, 309 AD2d 546, 765 NYS2d 326 [1st Dept 2003]). Like the proponent of the motion, the party opposing the motion must set forth evidentiary proof in admissible form in support of his or her claim that material triable issues of fact exist ( Zuckerman, supra at 562). Defendant "must assemble and lay bare [its] affirmative proof to demonstrate that genuine issues of fact exist" and "the issue must be shown to be real, not feigned since a sham or frivolous issue will not preclude summary relief" ( Kornfeld v. NRX Technologies, Inc., 93 AD2d 772 [1st Dept 1983], affd, 62 NY2d 686).
"[S]ection 241(6) of the Labor Law imposes a nondelegable duty on owners and contractors to provide reasonable and adequate protection and safety to construction workers" in all areas where construction, demolition, or excavation work is being performed ( Comes v. New York State Electric and Gas Corp., 82 NY2d 876, 878; see Allen v. Cloutier Construction Corp., 44 NY2d 290, 300-01; Crawford v. Williams, 198 AD2d 48 [1st Dept 1993]). Since an owner's duty under this Section of the Labor Law is nondelegable, plaintiff need not show that the owner exercised control or supervision over the subject premises to establish a viable claim ( Ross v. Curtis-Palmer Hydro-Electric Co., 81 NY2d 494, 502; Rapp v. Zandri Construction Corp., 165 AD2d 639, 643 [3d Dept 1991]; Zaluondo v. City of New York, 141 AD2d 816, 817-18 [2d Dept 1988]). While imposition of such an onerous duty compels owners to be more concerned with the safety practices of general contractors, owners are not subject to absolute liability under Labor Law § 241(6) ( Long v. Forest-Fehlhaber, 55 NY2d 154, 158-60; Monroe v. City of New York, 67 AD2d 89, 101-05 [2d Dept 1979]).
Section 241(6) of the Labor Law provides, in pertinent part: 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, 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. (McKinneys, Labor Law Section 241(6)).
Although the First Department held in Leon v. JM Peppe Realty Corp., 190 AD2d 400 (1993), that proof of a violation of an Industrial Code is not a prerequisite to an action under § 241(6), subsequent cases implicitly overrule Leon and require plaintiffs to show an Industrial Code violation to sustain a § 241(6) action ( see Ross, 81 NY2d 494 [holding that a plaintiff must rely on a specific administrative rule, i.e. an Industrial Code violation, which establishes specific requirements to sustain a Labor Law § 241(6) action]; Amato v. State of New York, 241 AD2d 400, 402; see also Gonzalez v. United Parcel Service, 249 AD2d 210, 211 [1st Dept 1998]). Otherwise § 241(6) would be redundant, as it would merely reiterate the common law negligence standards which are codified in Labor Law § 200. Moreover, the Industrial Code alleged to have been violated cannot merely set forth a general standard of care; rather, it must contain "'concrete specifications' with which the defendant must comply" ( Donovan v. SL Concrete Construction Corp., Inc., 234 AD2d 336, 336-37 [2d Dept 1996]; see also Curley v. Gateway, 250 AD2d 888, 891 [3d Dept 1998]; McLoud v. State, 237 AD2d 783, 784-85 [3d Dept 1997]). However, while proof of a violation of a specific Industrial Code is required to sustain an action under Labor Law § 241(6), such proof does not establish liability, and is merely evidence of negligence ( see Ross, 81 NY2d at 502; Long, 55 NY2d 154).
In the instant case, it is undisputed that demolition work was being performed at the subject premises. Thus, in support of his claim under Labor Law § 241(6), plaintiff alleges that defendant violated 12 NYCRR §§ 23-1.5(a), 23-1.13, 23-3.2, 23-3.3(c), 23-1.8(a), and 23-1.8(c) as a basis for the action. However, of the violations alleged, only plaintiff's claim regarding § 23-1.8(a) merits a detailed discussion, as the other Industrial Codes upon which plaintiff relies are either clearly inapplicable or lacking specificity and cannot be used as a basis for a 241(6) claim. Moreover, plaintiff failed to address the applicability of 12 NYCRR §§ 23-1.5(a), 23-1.13, 23-3.2, 23-3.3(c), and 23-1.8(c) in his opposition to defendant's motion. Nonetheless, the court provides the following analysis to demonstrate that such claims were fully reviewed and rejected. 12 NYCRR § 23-1.15(a), which sets forth employers' general responsibilities, only delineates nonspecific requirements such as "reasonable and adequate protection" and "safe working conditions." Such generalities are insufficiently specific to provide a basis for a claim under Labor Law § 241(6) as a matter of law ( see Hawkins v. City of New York, 275 AD2d 634, 635 [1st Dept 2000]).
The plain language of 12 NYCRR § 23-1.13, which is entitled "Electrical Hazards," indicates that it only applies to hazards and injuries sustained as a result of circumstances that are electrical in nature ( see Zak v. United Parcel Service, 262 AD2d 252 [1st Dept 1999] [holding that the purpose of 12 NYCRR § 23-1.13(b)(5) is to protect against electrical shock, and that this section did not apply to plaintiff's injuries when electrical power was accidentally restored to the conveyor belt on which plaintiff was working; see also Rice v. City of Cortland, 262 AD2d 770, 776 [3d Dept 1999] [stating that 12 NYCRR § 23-1.13 provides specific guidelines to protect workers against electrocution]). Here, the record fails to indicate that plaintiff was exposed to any electrical hazard at the time of the injury. Thus, § 23-1.13 of the Industrial Code is plainly inapplicable, and cannot support plaintiff's Labor Law § 241(6) claim.
Although 12 NYCRR § 23-3.2, is entitled "General Requirements," it provides more specific requirements pertaining to (a) Preparations for the demolition of any building or other structure; (b) Protection of adjacent structures; (c) Barricades; and (d) Dust Control. Nonetheless, § 23-3.2 is also inapplicable, as the circumstances surrounding plaintiff's injury do not involve any of the specific dangers contemplated by this section of the Industrial Code ( see e.g. Bornschein v. Shuman, 7 AD3d 476 [2d Dept 2004]; Sainato v. City of Albany, 285 AD2d 708 [3d Dept 2001]; Sponholz v. Benderson Property Development, Inc., 273 AD2d 791 [4th Dept 2000]; Nankervis v. Circuit City Stories, Inc., 2002 NY Slip. Op. 50228(U) [Sup Ct Suffolk County, April 2, 2002]).
Similarly, while 12 NYCRR § 23-3.3(c) is sufficiently specific, it too is inapplicable to the instant case. Section 23-3.3(c) mandates continuing inspections of hand demolition projects. However, the stated purpose of these inspections is to "detect any hazards to any person resulting from weakened or deteriorated floors or walls or from loosened material." ( 12 NYCRR § 23-3.3(c); see Monroe v. City of New York, 67 AD2d 89, 100 [2d Dept 1979] [holding that the purpose of 12 NYCRR § 23-3.3(c) is to fashion a safeguard against hazards which are created by the progress of the demolition work itself] [emphasis added]). Here, plaintiff failed to present any evidence that the injuries were caused by any type of structural instability, so as to make a showing that § 23-3.3(c) could apply as a basis for his 241(6) action.
Finally, the plain language of 12 NYCRR § 23-1.8(c) reveals that it is also sufficiently specific, but inapplicable to this case. Although § 23-1.8(c) mandates protective apparel, its scope is limited to (1) Head protection "where there is a danger of being struck by falling objects or materials or a hazard of head bumping"; (2) Foot protection for persons who are required to work or pass through an area with a "wet footing"; (3) Waterproof clothing for employees required to work in wet conditions; and (4) Protective apparel and eye wear for employees "required to use or handle corrosive substances or chemicals." ( 12 NYCRR § 23-1.8(c)). Since plaintiff failed to demonstrate that any of the hazards contemplated by § 23-1.8(c) even existed, this section of the Industrial Code cannot provide the basis for plaintiff's § 241(6) claim. Accordingly, defendant's motion for summary judgment dismissing plaintiff's claims under Labor Law § 241(6) as to 12 NYCRR §§ 23-1.5(a), 23-1.13, 23-3.2, 23-3.3(c), and 23-1.8(c) is granted.
Unlike the other Industrial Code provisions that plaintiff relies upon, 12 NYCRR § 23-1.8(a) is both applicable to the facts of this case and sufficiently specific to provide a basis for a 241(6) action. 12 NYCRR § 23-1.8(a), entitled "Eye protection," mandates that eye protection "be provided for and shall be used by all persons while employed in welding, burning or cutting operations, or in chipping, cutting or grinding any material from which particles may fly, or while engaged in any other operation which may endanger the eyes" ( 12 NYCRR § 23-1.8(a) [emphasis added]). This Industrial Code is specific enough to support a cause of action under Labor Law § 241(6) ( Galawanji v. 40 Sutton Place Condominium, 262 AD2d 55 [1st Dept 1999]; see also Crawford, 198 AD2d 48). While defendant contends that plaintiff is not an intended beneficiary of this Industrial Code because he was not engaged in of the statutory activities enumerated above, defendant ignores the emphasized "catch-all" portion of the above stated statute which contemplates that other activities may require the use eye protection. Further, defendant's attempt to frame a denial of its motion for summary judgment on this point as a ruling which would legislate that eye protection is required for all activities at a construction site and would thereby open the door to any laborer who receives an eye injury to prove entitlement to this statute, improperly limits the scope of 12 NYCRR § 23-1.8(a). It is well settled that the highlighted portion of 12 NYCRR § 23-1.8(a) extends the Industrial Code's protections beyond the statutory activities stated therein ( see Cappiello v. Telehouse International Corporation of America, 193 AD2d 478 [1st Dept 1993] and Fresco v. 157 East 72nd Street Condominium, 2 AD3d 326 [1st Dept 2003] [hammering a nail]; McByrne v. Ambassador Construction Co., Inc., 290 AD2d 243 [1st Dept 2002] [holding that a triable issue of fact existed as to whether defendant violated 12 NYCRR 23-1.8(a) when a cable that hung from the ceiling struck plaintiff in the eye and caused injury]; Rapp, 165 AD2d 639 [engaging in horseplay whereby plaintiff's eye was injured by a staple that a co-worker shot at him]).
Moreover, defendant's contention that plaintiff was not engaged in the demolition operation at the time he sustained the injury is unfounded. 12 NYCRR § 23-1.4(b)(16) defines demolition work as "The work incidental to or associated with the total or partial dismantling or razing of a building . . ." ( 12 NYCRR § 23-1.4(b)(16)). The record indicates that at the time of the accident, removal of debris was necessary to complete the first phase of the renovation, i.e. demolition of the subject premises. Therefore, the debris removal was work associated with the partial dismantling of the subject premises, and falls within the scope of the Labor Law ( cf. Rivera v. Squibb Corp., 184 AD2d 239, 240 [1st Dept 1992]). Having determined that 12 NYCRR § 23-1.8(a) meets the threshold requirements of specificity and applicability, defendant's motion for summary judgment on this issue must be denied, as it remains a question of fact as to whether the particular activity plaintiff was engaged in at the time of the accident involved a foreseeable risk of eye injury ( Fresco, 2 AD3d at 328; Cappiello, 193 AD2d at 480; see also McByrne 290 AD2d 243; Rapp, 165 AD2d 639). To hold otherwise would render the catch-all phrase of 12 NYCRR § 23-1.8(a) superfluous. Furthermore, an issue of fact exists as to whether eye protection was provided at the subject premises. Therefore, the defendant's motion for summary judgment dismissing plaintiff's claims under Labor Law § 241(6) as to 12 NYCRR § 23-1.8(a) must be denied.
With respect to defendant's motion to dismiss plaintiff's claims under Labor Law § 200 and common law negligence, such motion must be granted.
Section 200 of the Labor Law codifies the common law duty imposed upon owners and contractors to provide construction site workers with a safe place to work ( see Comes, 82 NY2d at 877; Ross, 81 NY2d at 505). However, in cases where the dangerous condition arises from the contractor's actions, the owner has not breached its duty unless it had the authority to control the manner in which the activity that caused the injury was performed ( see Comes, 82 NY2d at 877; Blessinger v. The Estee Lauder Companies, 271 AD2d 343 [1st Dept 2002]). Thus, unlike § 241(6) of the Labor Law, failure to prove control over the manner in which the work was completed is fatal to common law negligence and Labor Law § 200 claims ( see Gonzalez, 249 AD2d 210; McByrne, 290 AD2d 243; Blessinger, 271 AD2d 343; Comes, 82 NY2d 876). In the instant case, the record is devoid of any evidence that the defendant exercised control or had any input over the manner in which AGC accomplished the tasks associated with the demolition of the subject premises. Further, plaintiff failed to address defendant's assertion that it did not control or supervise the plaintiff's work at the subject premises. Therefore, defendant's motion for summary judgment is granted as to plaintiff's claims under Labor Law § 200 and common law negligence.
Based on the above, it is hereby
ORDERED that the branch of defendant's motion for summary judgment pursuant to CPLR 3212 dismissing the complaint as to plaintiff's Labor Law § 241(6) cause of action based on Industrial Code, 12 NYCRR § 23-1.8(a) is denied; and it is further
ORDERED that the branch of defendant's motion for summary judgment pursuant to CPLR 3212 dismissing the complaint as to plaintiff's Labor Law § 241(6) cause of action based on Industrial Code 12 NYCRR §§ 23-1.5(a), 23-1.13, 23-3.2, 23-3.3(c), and 23-1.8(c) is granted; and it is further
ORDERED that defendant's motion for summary judgment pursuant to CPLR 3212 dismissing the complaint as to the causes of action for common law negligence and violations of Labor Law § 200 is granted.
This constitutes the decision and order of the Court.