Opinion
INDEX NO. 151242/2013
03-29-2019
DONNELL BARDEN, Plaintiff, v. THE CITY OF NEW YORK, METROPOLITAN TRANSPORTATION AUTHORITY, MTA CAPITAL CONSTRUCTION COMPANY, STRATEGIC/EXTELL 34TH STREET LLC, and NEW YORK CITY TRANSIT AUTHORITY, Defendants.
NYSCEF DOC. NO. 125 PRESENT: HON. DEBRA A. JAMES Justice MOTION DATE 11/27/2017 MOTION SEQ. NO. 002
DECISION AND ORDER
The following e-filed documents, listed by NYSCEF document number (Motion 002) 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 87, 112, 113, 114, 115, 116 were read on this motion to/for PARTIAL SUMMARY JUDGMENT.
ORDER
Upon the foregoing documents, it is
ORDERED that plaintiff Donnell Barden's motion for partial summary judgment against defendants the City of New York, Metropolitan Transportation Authority, MTA Capital Construction Company, Strategic/Extell 34th Street LLC, and New York City Transportation Authority, pursuant to Labor Law § 240 (1), is denied; and it is further
ORDERED that plaintiff's cross motion to serve a supplemental bill of particulars is granted; and it is further
ORDERED that the part of defendants' motion seeking summary judgment pursuant to Labor Law § 240 (1), is granted; and it is further
ORDERED that the Labor Law § 240 (1) cause of action of the complaint is dismissed; and it is further
ORDERED that the part of defendants' motion for summary judgment pursuant to Labor Law § 241 (6), is partially granted in that allegations of violations of Industrial Code sections 23-2.28 (c) (1) (2); 23-2.1; and 23-1.33 are dismissed; and it is further
ORDERED that the part of defendants' motion for summary judgment pursuant to Labor Law § 200 is denied.
DECISION
"Liability under Labor Law § 240 (1) depends on whether the injured worker's task creates an elevation-related risk of the kind that the safety devices listed in section 240 (1) protect against." Salazar v Novalex Contr. Corp., 18 NY3d 134, 139 (2011) (internal quotation marks and citation omitted). "Thus, in order to recover damages for violation of the statute . . . [a] plaintiff must show that, at the time the object fell, it was being hoisted or secured or required securing for the purposes of the undertaking. The plaintiff also must show that the object fell because of the absence or inadequacy of a safety device of the kind enumerated in the statute." Mendez v Jackson Dev. Group, Ltd., 99 AD3d 677, 678 (2nd Dept 2012) (internal quotation marks and citations omitted).
"Consequently, the protections of Labor Law § 240 (1) do tangential way with the effects of gravity. Rather, liability [remains] contingent upon the existence of a hazard contemplated in section 240 (1) and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein." Nicometi v Vineyards of Fredonia, LLC, 25 NY3d 90, 96 (2015) (internal quotation marks and citations omitted).
Here, the door hinges which plaintiff alleges failed, were not a safety device as listed in Labor Law § 240 (1) but were attached to the door so that it would function. Despite plaintiff's argument to the contrary, the court does not believe that the reach of Labor Law § 240 (1) should be extended to a hinge. See Fabrizi v 1095 Ave. of the Americas, L.L.C., 22 NY3d 658, 663 (2014) (holding that "[p]laintiff's argument that the coupling itself is a safety device, albeit an inadequate one, extends the reach of section 240 [1] beyond its intended purpose to any component that may lend support to a structure" [citations omitted] ); see also Dias v Stahl, 256 AD2d 235, 236 (1st Dept 1998) (holding "[p]laintiff's contentions that liability resulted from the failure of the metal strapping or from the failure to provide other safety devices are without merit, since the metal strapping was not a safety device used in connection with an elevated work site, but a device used to lend support to a completed structure . . .").
Furthermore, plaintiff fails to demonstrate that the subject door was an object which was being hoisted or required to be secured for the undertaking. According to the plaintiff's testimony, the door which was being used to enter and exit the property, was not being hoisted, nor was in the process of being secured. See Berman-Rey v Gomez, 153 AD3d 653, 655 (2d Dept 2017) (holding that while plaintiff was injured when a portion of plywood fence surrounding a construction site fell and struck him, defendants made a prima facie showing of their entitlement to summary judgment demonstrating that the plywood fence was not an object being hoisted or that required securing for the undertaking, and that it did not fall because of the absence or inadequacy of an enumerated safety device).
Therefore, because plaintiff fails to demonstrate that the door was an object which was being hoisted or required to be secured for the undertaking, or that the door hinges were a safety device, the part of defendants' motion seeking to dismiss the violation of Labor Law § 240 (1), must be granted.
Defendants argue that plaintiff's claims made pursuant to Labor Law § 241 (6) should be dismissed because the Industrial Code provisions which plaintiff alleges were violated, are inapplicable.
Labor Law § 241 (6) provides, in pertinent part:
"[a]ll contractors and owners and their agents, . . . 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".
Labor Law § 241 (6) is not self-executing, and in order to demonstrate a violation of this statute, and withstand a defendant's motion for summary judgment, it must be shown that the defendant violated a specific, applicable regulation of the Industrial Code, rather than a provision containing only generalized requirements for worker safety. See Buckley v Columbia Grammar & Preparatory, 44 AD3d 263, 271 (1st Dept 2007).
Plaintiff seeks to amend his bill of particulars to include allegations of violations of Industrial Code sections 23-1.11 (b) and (c), regarding lumber and nail fastenings, as well as section 1.18 (c) (1), regarding barricades. It is unclear to the court, what prejudice, if any, defendants will suffer if the bill of particulars is amended to include these sections. Defendants were aware of the factual allegations of plaintiff regarding the door hinges and the fencing surrounding the construction site. Various witnesses, including plaintiff, were deposed and expert affidavits were provided. Therefore, the court will allow the amendment of the bill of particulars and will consider such sections of the Industrial Code. See Kelleir v Supreme Indus. Park, LLC, 293 AD2d 513, 513-514 (2d Dept 2002) (holding that a failure to identify an Industrial Code section in the complaint or bill of particulars is not fatal to such a claim).
Defendants contend that Section 23-1.7 (a) (2) of the Industrial Code is not applicable, and that plaintiff's allegations that this section was violated must be dismissed. Section 23-1.7 (a) (2) discusses protection from overhead hazards, and states:
"(2) Where persons are lawfully frequenting areas exposed to falling material or objects but wherein employees are not required to work or pass, such exposed areas shall be provided with barricades, fencing or the equivalent in compliance with this Part (rule) to prevent inadvertent entry into such areas."
This section would be inapplicable to plaintiff's accident because, pursuant to the testimony of plaintiff, the area where he was struck was a location of ongoing work where employees were passing through and which served as an entrance. See Griffin v Clinton Green South, LLC, 98 AD3d 41, 50 (1st Dept 2012) (holding "this section of the code requires barricades to cordon off areas for the safety of those not required to work within the sectioned-off area. Since the very area where plaintiff was required to work was the area where he was injured, he was required to perform his work therein and no barricades were thus required); see also Perillo v Lehigh Constr. Group, Inc., 17 AD3d 1136, 1138 (4th Dept 2005) (holding "section 23-1.7 [a] [2] is inapplicable because plaintiff was required to work or pass in or through the area of the partially demolished wall").
Therefore, because plaintiff fails to meet his burden and demonstrate that section 23-1.7 (a) (2) was applicable, the part of plaintiff's complaint alleging a violation of section 23-1.7 (a) (2), must be dismissed.
Defendants contend that section 23-1.18 (c) (1) (2) of the Industrial Code is inapplicable to plaintiff's accident. Section 23-1.18 (c) (1) (2) states:
"(c) Barricades. (1) Along every sidewalk or pedestrian thoroughfare where a building or other structure is to be constructed or demolished and where a sidewalk shed is not required by this Part (rule), there shall be erected a substantial barricade to prevent unauthorized persons from entering the site of such operations.
(2) Such barricade shall be a fence or equivalent barrier not less than six feet in height. Such barricade shall be of solid construction for its entire height and length except for such openings, provided with solid doors, as may be necessary for the proper performance of the work."
Defendants argue that the purpose of this subsection is to prevent unauthorized individuals at the site, and that the entire site was surrounded by a plywood fence which was approximately 8 to 10 feet tall, with a solid door.
Here, based upon the testimony, the barricade wall was in place, and the fence was over six feet high with a door. There is no indication that the door was not constructed of a solid material. Therefore, the part of plaintiff's complaint, based upon a violation of section 23-1.18 (c) (1) (2) of the Industrial Code, must be dismissed.
Plaintiff alleges that section 23-1.11 of the Industrial Code was violated. Section 23-1.11 states:
"(a) The lumber used in the construction of equipment or temporary structures required by this Part (rule) shall be sound and shall not contain any defects such as ring shakes, large or loose knots or other defects which may impair the strength of such lumber for the purpose for which it is to be used.
(b) The lumber dimensions specified in this Part (rule) are nominal or trade size except as otherwise specifically stated with the words "full size" and except in the case of ladders.
(c) All nails shall be driven full length and shall be of the proper size, type, length and number to provide the required strength at all joints. Only double-headed or screw-type nails shall be used in the construction of scaffolds."
Here, it is unclear whether the lumber and nails which were utilized were in accordance with this Industrial Code section. Plaintiff testified that the nails were replaced a month prior to his accident, however there is no testimony from the party that repaired the fence to determine why the nails were replaced. Also, Paine's affidavit raises a question as to whether the fence and door were adequate as he states that the construction of the barricade fence was not designed to withstand environmental forces which were anticipated in the work area due to its improper construction.
Therefore, because questions of fact exist as to whether the door failed due to its construction of lumber and nails, the court denies the part of defendants' motion for summary judgment seeking to dismiss section 23-1.11 of the Industrial Code.
Plaintiff alleges that section 23-2.1 of the Industrial Code, entitled "Maintenance and housekeeping" was also violated. Section 23-2.1 states:
"(a) Storage of material or equipment.
(1) All building materials shall be stored in a safe and orderly manner. Material piles shall be stable under all conditions and so located that they do not obstruct any passageway, walkway, stairway or other thoroughfare.
(2) Material and equipment shall not be stored upon any floor, platform or scaffold in such quantity or of such weight as to exceed the safe carrying capacity of such floor, platform or scaffold. Material and equipment shall not be placed or stored so close to any edge of a floor, platform or scaffold as to endanger any person beneath such edge.
(b) Disposal of debris. Debris shall be handled and disposed of by methods that will not endanger any person employed in the area of such disposal or any person lawfully frequenting such area."
Plaintiff fails to elaborate as to how defendants violated this section of the Industrial Code. There is no allegation that plaintiff tripped or slipped on any debris, nor does plaintiff allege that the actual method for removing the debris was dangerous. Therefore, the part of plaintiff's complaint alleging a violation of section 23-2.1, must be dismissed.
Plaintiff alleges a violation of section 23-1.33 of the Industrial Code entitled "Protection of persons passing by construction, demolition or excavation operations." Defendant argues that pursuant to section 241 (8) of the Labor Law, this section does not apply to any city in the State of New York, such as New York City, which has a population of one million or more. Defendants maintain that New York City has an excess of a population of 8 million people. Plaintiff fails to refute this argument or explain why this section is applicable. Therefore, the part of plaintiff's complaint alleging a violation of section 23-1.33 of the Industrial Code must be dismissed.
Defendants contend that any allegation made by plaintiff that they were negligent under the common law or that they violated Labor Law § 200 must be dismissed. The Court of Appeals has held:
"[s]ection 200 of the Labor Law merely codified the common-law duty imposed upon an owner or general contractor to provide construction site workmen with a safe place to work. An implicit precondition to this duty to provide a safe place to work is that the party charged with that responsibility have the authority to control the activity bringing about the injury to enable it to avoid or correct an unsafe condition."Russin v Louis N. Picciano & Son, 54 NY2d 311, 316-317 (1981) (citations omitted).
"Liability pursuant to Labor Law § 200 may be based either upon the manner in which the work is performed or actual or constructive notice of a dangerous condition inherent in the premises." Markey v C.F.M.M. Owners Corp., 51 AD3d 734, 736 (2d Dept 2008). For an owner or general contractor to be liable for common-law negligence or a violation of Labor Law § 200 for claims involving the way the work is performed, it must be shown that the defendant had the authority to supervise or control the performance of the work. For claims which arise out of an alleged dangerous premises condition, it must be demonstrated that an owner or general contractor had control over the work site and either created the dangerous condition causing an injury, or failed to remedy the dangerous or defective condition, while having actual or constructive notice of it. See Abelleira v City of New York, 120 AD3d 1163, 1164 (2d Dept 2014).
Furthermore, "[w]here a claimant's injuries stem not from the manner in which the work was being performed but, rather, from a dangerous condition on its property, an owner may be liable for common-law negligence and violation of Labor Law § 200 if it has actual or constructive notice of the dangerous condition, irrespective of whether it supervised the claimant's work." Wynne v State, 53 AD3d 656, 657 (2d Dept 2008). In order "[t]o constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it." Gordon v American Museum of Natural History, 67 NY2d 836, 837 (1986).
Defendants contend that plaintiff's claims of common law negligence and a violation of Labor Law § 200 must be dismissed because defendants did not supervise, direct, or control the work of plaintiff. Defendants argue that at the time of his accident, plaintiff was performing work pursuant to instructions from a Yonkers foreman who told plaintiff to clean up the exterior area of the job site. They contend that the fence which surrounded the site was installed by Yonkers, that plaintiff's work was supervised by Yonkers, and that Yonkers was responsible for the maintenance of the fence surrounding the subject project. Defendants also argue that MTA's project manager testified that the door was placed by Yonkers and that MTA Capital's construction manager testified that Yonkers' carpenters placed the door so that it could get in and out of the site.
Defendants argue that the expert affidavit of plaintiff's job safety expert is conclusory and fails to demonstrate that he is qualified to offer opinions as to the defendants alleged liability or to the weather conditions. Defendants also contend that they cannot be held liable because the accident was a result of an "Act of God." They maintain that according to their expert, the door was blown off its hinges by an unanticipated and not forecasted gale force wind of about 45 to 50 miles per hour.
Plaintiff argues that defendants have failed to demonstrate that the subject door was properly constructed or repaired prior to the accident. He maintains that wind was a foreseeable occurrence and that the barricade, hinges, and other component parts should have been designed and constructed to withstand such forces of nature. Plaintiff contends that defendants have not produced any evidence to demonstrate that the negligent way the gate was installed and/or repaired was not the proximate cause of the occurrence. Plaintiff maintains that the hinges were replaced approximately one month prior to the occurrence and that they should have been able to withstand any condition.
Plaintiff argues that the climatological records demonstrate that the wind gusts of 40 to 50 miles per hour were not unusual or unforeseeable for the subject area. In support of this argument, plaintiff submits reports from the National Oceanic and Atmospheric Administration and from records on file at the National Climatic Data Center. Plaintiff contends that weather reports were not produced for the months prior to his accident which may have demonstrated that such wind gusts were common.
Plaintiff also contends that for a loss to be considered an "Act of God," human activities cannot have contributed to the loss in any way. See Moore v Gottlieb, 46 AD3d 775, 775 (2d Dept 2007) (holding "[f]or a loss to be considered the result of an act of God, human activities cannot have contributed to the loss in any degree. It cannot be determined at this juncture if the damage to the plaintiffs' property was a consequence of negligence or an act of God" [citations omitted]). Plaintiff maintains that because the hinges may have been negligently installed or maintained, this defense would be inapplicable.
Here, it remains the evidence is the record is inconclusive as to whether the wind gusts were a common occurrence at the subject location, whether defendants had constructive notice of such conditions and the impact of such force on the door and fence. In his affidavit, defendants' meteorologist states that wind gusts of such strength were an unexpected and unanticipated event. However, climatological data submitted by plaintiff from the National Climatic Data Center that registers maximum wind speeds conflicts with defendants' assertion that high speeds were uncommon in New York City.
Based upon the testimonial and other evidence, it also remains unclear which defendant, if any, were responsible for constructing or maintaining the door and fence which plaintiff alleges was a dangerous condition that caused his injury. MTA's project manager testified that the site was fenced off prior to the period in which Yonkers arrived at the site, however he was unaware if anyone from the MTA or the DOT instructed Yonkers to change the fencing. He also testified that he did not remember who created the door of the fence or when it was built. MTA Capital's construction manager testified that Yonkers maintained the fencing, but he believed that a prior demolition contractor working for the City had placed the fence. Hudson Yards Development Corporation's vice president and counsel testified that he was unaware when the fence was placed around Site J and believed that the Department of Buildings would be involved with the barricading of the site.
While defendants also submit a part of a contract which they maintain is from the MTA acting by the NYCTA, the contract fails to state what parties signed the document. Furthermore, although the contract states that barricades shall conform to the details and requirements indicated on contract drawings or from the engineer, the parties do not provide the language in the contract that specifies what party oversaw the maintenance of the fences.
Therefore, as there are issues of fact as to which defendant had the authority to maintain the fencing and door which stuck plaintiff, and whether defendants may have had constructive notice regarding the need for a secure door due to local wind speeds, such part of defendants' motion that seeks summary judgement pursuant to Labor Law § 200 and common law negligence must be denied. 3/29/2019
DATE
/s/ _________
DEBRA A. JAMES, J.S.C.