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Berberi v. Fifth Ave. Dev. Co., Llc.

Supreme Court of the State of New York, Bronx County
Jun 16, 2008
2008 N.Y. Slip Op. 51244 (N.Y. Sup. Ct. 2008)

Opinion

7575/07.

Decided June 16, 2008.


Defendants move seeking an Order granting them summary judgment over plaintiff. Alternatively defendants seek an Order granting them summary judgment over the third-party defendant on their contractual indemnification claim. Defendants aver that to the extent that they neither supervised nor controlled plaintiff's work, plaintiff's claim pursuant to Labor Law § 200 must be dismissed. Defendants aver that to the extent that the injury herein did not involve a fall from a height nor an object falling while being secured or hoisted, plaintiff's claim pursuant to Labor Law § 240(1) must be dismissed. Defendants aver that insofar as none of the Industrial Code violations pled by plaintiff are either specific or applicable to the facts herein, plaintiff's claim pursuant to Labor Law § 241(6) must be dismissed. Defendants aver that they are entitled to summary judgment over plaintiff on his claims of common law negligence insofar as they did not create the condition which is alleged to have caused plaintiff's injury nor did they have notice of the same. Defendants aver that insofar as defendants MARC GOLDFARB (Marc) PHILIP GOLDFARB (Phillip) had no association with the premises herein the action against must be dismissed. Lastly, defendants aver that insofar as the contract between defendant FITH AVENUE DEVELOPMENT COMPANY, LLC (Fifth) and third-party defendant contains an indemnification clause granting indemnification to the owner of the premises herein, as well as the same's agents and employees, defendants are entitled to indemnification should the Court deny them summary judgment over plaintiff.

Plaintiff opposes defendants' motion to the extent that they seek summary judgment over and against the plaintiff. Plaintiff avers that questions of fact preclude summary judgment on his cause of action pursuant to Labor Law § 200 insofar as defendant PELICAN MANAGEMENT INC. (Pelican) did in fact supervise plaintiff's work. With regard to plaintiff's claim pursuant to Labor Law § 240(1), plaintiff avers that summary judgment must be denied insofar as the accident herein involved a failure to provide plaintiff with a means to secure the sheetrock herein so as to prevent it from falling. With regard to plaintiff's claim pursuant to Labor Law § 241(6), plaintiff avers that summary must be denied insofar as defendants violated 12 NYCRR 23-1.28, mandating that hand propelled vehicles be kept in good repair.

For the reasons that follow hereinafter defendants' motion is granted in part.

The instant action is for alleged personal injuries premised upon violations of the Labor Law. The first-party complaint alleges the following. On July 15, 2005, plaintiff was injured while within premises located at 1160 Fifth Avenue, New York, NY. The premises herein was owned, maintained and managed by the defendants and that the plaintiff was employed to perform construction work therein. Defendants were negligent in causing and creating a dangerous condition within the premises herein or allowing the same to exist despite notice of the same. Said condition caused plaintiff injury. Defendants violated Labor Law § 200, 240(1), and 241(6) and 12 NYCRR §§ 23-1, 23-1.5, 23-1.15, 23-5.1(j)(1), 23-5.8(c)(1), 23-5.8(c)(2), 23-5.8(g), 23-5.9(d), 23-5.9(e)(2); 23-6.3, 23-1.8, 23-1.15, 23-2.3(a), 23-2.3(b), 23-2.3(c), 23-2.3(d), 23-2.3(3), 23-4.1(a), 23-4.1(b), 23-4.4, 23-4.5, 23-9.8, 23-1.16(b), 23-1.16(d), and 23-1.16(3). The third-party action is for contribution, common law and contractual indemnification and breach of contract.

In support of the instant motion, defendants submit plaintiff's deposition transcript and errata sheets, wherein he testified, in pertinent part as follows. On July 15, 2005, plaintiff had an accident while employed within premises located at 1160 Fifth Avenue. Plaintiff was employed by third-party defendant, a construction company, at which he performed carpentry, sheetrocking and plastering. Plaintiff had been working at the premises herein since mid May 2005 and was involved in the renovation of several apartments. There were other trades also involved in the renovation herein. Plaintiff's boss was Taip Redzovic (Redzovic), who was not on site on a daily basis. There was a superintendent employed by the building herein and said superintendent did not give plaintiff any directions or instruct him with regard to his work. On the date herein, plaintiff was framing a room within an apartment on the fifth floor. Plaintiff was in charge of a four man crew, who were working in the apartment with him. Plaintiff loaded a dolly, supplied by third-party defendant, with 10 pieces of sheetrock. Said dolly was 1 foot wide, 4 feet long, with four wheels and a metal against which sheetrock was leaned. The sheetrock was 4feet wide, 6 feet long, and 3/4 inches thick. Plaintiff transported the dolly and sheetrock to the apartment within which he was working. While the dolly was in the hallway, plaintiff unload a piece of sheetrock and while he was still holding the same, the other nine pieces fell on to of him. Plaintiff did not see whether the dolly tipped over. After his fall, he was told by his co-workers that the sheetrock had fallen on him and that the dolly had also fallen on him. Prior to this accident, plaintiff had no difficulty using the dolly.

Defendants submit Tim Ross' (Ross) deposition transcript, wherein he testified, in pertinent part, as follows. On July 15, 2005, Ross was Vice President of Construction for Pelican. Pelican was in the business of managing rental real estate. Pelican managed premises owned by Fifth located at 1160 Fifth Avenue. Part of Pelicans management responsibility in relation to the instant property was to involve itself with any construction occurring therein. In connection with the renovation of apartments at the premises herein, Pelican hired third-party defendant and several other contractors. With regard to the work therein, Ross entered into an agreement with Redzovic. Third-party defendant was hired to perform sheetrocking in a vacant apartment. Third-party defendant had to answer to Ross who represented Pelican and Fifth. Ross supervised third-party defendant's day to day work and if problems arose, Ross would make any final decisions. The premises herein employed a superintendent, who while not involved in the ongoing renovation, would have to be kept informed of the work being performed and would have the authority to deal with the contractors when authorized by Ross.

Defendants submit Redzovic's deposition transcript, wherein he testified, in pertinent part, as follows. Redzovic is owner and principal of third-party defendant, an interior contracting company. Sometime in June 2005, third-party defendant was hired by Pelican and Fifth to perform renovation within premises located at 1160 Fifth Avenue. A written contract governed the work and the same was between Fifth and third-party defendant, executed by Redzovic and Ross. Third-party defendant was hired to perform sheetrocking, framing, taping, and painting within some of the apartments at the premises herein and plaintiff was an employee of third-party defendant. Third-party defendant's employees only answered to Redzovic and did not answer to Ross nor the superintendent employed at the premises herein. Plaintiff was hired to work and lead a crew within apartment 505. Plaintiff was performing framing and taping therein. Plaintiff was provided with an A-frame dolly to transport sheetrock to the apartment herein. Said dolly had wheels, an 18 inch base, sat 6 inches off the ground, and had tube metal that was about 40 inches in height. The sheetrock would be laid against the tube.

Defendants submit a diagram sketched by Redzovic at his deposition which depicts the dolly herein. Defendants submit unsworn and uncertified copies of an agreement and an accident report. No foundation for the same's admission is laid.

In opposition to the instant motion, plaintiff submits an un-notarized affidavit, which is inadmissible and cannot be considered in opposition to the instant motion.

Plaintiff submits portions of Brett Obletz' (Obletz) deposition transcript, wherein he testified, in pertinent part, as follows. In July 2005, Obletz' was Facilities Manager with Pelican. Fifth owned 1160 Fifth Avenue and the same was managed by Pelican. The premises herein had a superintendent and several porters. In July 2005, third-party defendant was hired along with other contractors to renovate several apartments in the building.

Plaintiff submits a copy of the errata sheet already submitted by defendants. Plaintiff also submits his bill of particulars and supplemental bill of particulars.

The Law and Standard on Summary Judgment

The proponent of a motion for summary judgment carries the initial burden of tendering sufficient admissible evidence to demonstrate the absence of a material issue of fact as a matter of law. Alvarez v. Prospect Hospital, 68 NY2d 320 (1986); Zuckerman v. City of New York, 49 NY2d 557 (1980). There is no requirement that the proof for said motion be submitted in affidavit form, rather, the requirement is that the evidence proffered be in admissible form. Muniz v. Bacchus, 282 AD2d 387 (1st Dept. 2001). Accordingly, affirmations from attorneys having no personal knowledge of the facts are not evidence and offer nothing more than hearsay. Reuben Israelson v. Sidney Rubin, 20 AD2d 668 (2nd Dept. 1964); Erin Federico v. City of Mechanicville, 141 AD2d 1002 (3rd Dept. 1988); Harry L. Cohen v. Genesee Supply Co., 7 AD2d 886 (4th Dept. 1959). Consequently any such submissions are inadmissible and cannot be the basis for creating an issue of fact sufficient to preclude summary judgment. Johnson v. Phillips, 261 AD2d 269 (1st Dept. 1999); Rue v. Stokes, 191 AD2d 245 (1st Dept. 1993). Similarly, unsworn accident reports are inadmissible and cannot be considered by the court. Id.; Reed v. New York Coty Transit Authority, 299 AD2d 330 (2nd Dept. 2002); Hegy v. Coller, 262 AD2d 606 (2nd Dept. 1999).

Once movant meets his initial burden, the burden shifts to the opponent, who must then produce sufficient evidence, also in admissible form, to establish the existence of a triable issue of fact. Zuckerman v. City of New York, 49 NY2d 557 (1980). The burden, however, always remains where it began, with the movant on the issue. Hence, "if the evidence on the issue is evenly balanced, the party that bears the burden must loose." Director Office of Workers Compensation Programs v. Greenwich Collieris, 512 U.S. 267 (1994); 300 East 34th Street Co. V. Habeeb, 248 AD2d 50 (1st Dept. 1997).

It is worth noting, however, that while the movant's burden to proffer evidence in admissible form is absolute, the opponent's burden is not. On this issue the Court of Appeals has stated

[t]o obtain summary judgment it is necessary that the movant establish his cause of action or defense sufficiently to warrant the court as a matter of law in directing summary judgment' in his favor, and he must do so by the tender of evidentiary proof in admissible form. On the other hand, to defeat a motion for summary judgment the opposing party must show facts sufficient to require a trial of any issue of fact.' Normally if the opponent is to succeed in defeating a summary judgment motion, he too, must make his showing by producing evidentiary proof in admissible form. The rule with respect to defeating a motion for summary judgment, however, is more flexible, for the opposing party, as contrasted with the movant, may be permitted to demonstrate acceptable excuse for his failure to meet strict requirement of tender in admissible form. Whether the excuse offered will be acceptable must depend on the circumstances in the particular case. (Internal citations omitted).

Friends of Animals v. Associated Fur Manufacturers, Inc., 46 NY2d 1065, 1067-1068 (1979). Accordingly, generally, the opponent of a motion for summary judgment seeking to have court consider inadmissible evidence must proffer an excuse for proffering the inadmissible evidence in inadmissible form. Johnson v. Phillips, 261 AD2d 269 (1st Dept. 1999). Other cases seem to hold that otherwise inadmissable evidence may be used to defeat summary judgment if the inadmissable evidence would be admissible at trial and raises questions of fact. . Phillips v. Joseph Kantor Company, 31 NY2d 307 (1972); Buckley v. J.A. Jones/GMO , 38 AD3d 461 (1st Dept. 2007); Levbarg v. City of New York, 282 AD2d 239 (1st Dept. 2001); Eitner v. 119 West 71st Street Owners Corp., 253 AD2d 641 (1st Dept. 1998). In Phllips, for example, found that evidence submitted in inadmissible form in opposition to summary judgment might be admissible at trial and if so would support plaintiff's cause of action. Phillips v. Joseph Kantor Company, 31 NY2d 307 (1972). The Court thus denied summary judgment to the defendant. Id. Similarly, in Zuckerman v. City of New York, 49 NY2d 557 (1980), the court discounted an attorney affirmation as speculative, in that said attorney lacked no personal knowledge of the facts he was proffering. Id. The court, however, in recognizing that inadmissible evidence could be used to preclude summary judgment, stated that if said attorney had personal knowledge of a witnesses testimony and that witnesses' testimony created an issue fact, said affirmation would suffice to defeat summary judgment. Id.; See, Indig v. Finkelstein, 23 NY2d 728 (1968); Graso v. Angerami, 79 NY2d 813 (1991). In Buckley, a careful reading evinces that the court found that plaintiff raised an issue of fact sufficient to preclude summary judgment when he submitted an accident report containing hearsay. Buckley v. J.A. Jones/GMO , 38 AD3d 461 (1st Dept. 2007). The report was submitted in admissible form as it was undisputed that the same was created in the ordinary course of business. Id. The court held insofar as said report would be admissible at trial as a business record under CPLR § 4518, said report contained an inconsistent statement, and said report evinced a witness with knowledge, the same raised an issue of fact sufficient to preclude summary judgment. This Court reads the cases just cited as standing for the proposition that hearsay within documents submitted in inadmissable form, if admissible at trial, is sufficient to raise an issue of fact sufficient to preclude summary judgment. This Court still requires that submissions in opposition for summary judgment be submitted in admissible form of that evidence's inadmissibility be excused.

When deciding a summary judgment motion the role of the Court is to make determinations as to the existence of bonafide issues of fact and not to delve into or resolve issues of credibility. As the Court stated in Knepka v. Talman, 278 AD2d 811 (4th Dept. 2000):

Supreme Court erred in resolving issues of credibility in granting defendants' motion for summary judgment dismissing the complaint. Any inconsistencies between the deposition testimony of plaintiffs and their affidavits submitted in opposition to the motion present issues for trial. (Internal citations omitted).

See also, Yaziciyan v. Blancato, 267 AD2d 152 (1st Dept. 1999); Perez v. Bronx Park Associates, 285 AD2d 402 (1st Dept. 2001); Glick Dullock v. Tri-Pac Export Corp., 22 NY2d 439 (1968); Singh v. Kolcaj Realty Corp., 283 AD2d 350 (1st Dept. 2001).

Accordingly, the Court's function when determining a motion for summary judgment is issue finding and not issue determination. Sillman v. Twentieth Century Fox Film Corp., 3 NY2d 395 (1957). Lastly, because summary judgment is such a drastic remedy, it should never be granted when there is any doubt as to the existence of a triable issue of fact. Rotuba Extruders v. Ceppos, 46 NY2d 223 (1978). When the existence of an issue of fact is even debatable, summary judgment should be denied. Stone v. Goodson, 8 NY2d 167 (1960). It is well established that inadmissable hearsay is insufficient to raise any triable issues of fact sufficient to defeat summary judgment. Schwartz v. Nevatel Communications Corp., 778 NY2d 308 (2nd Dept. 2004); Zuckerman v. City of New York, 49 NY2d 557 (1980).

Self serving affidavits, meaning those which contradict previous deposition testimony, will not be considered by the Court in deciding summary judgment and cannot raise a triable issue of fact sufficient to defeat summary judgment. Lupinsky v. Windham Construction Corp., 293 AD2d 317 (1st Dept 2002); Joe v. Orbit Industries, Ltd., 269 AD2d 121 (1st Dept. 2000); Kistoo v. City of New York, 195 AD2d 403 (1st Dept. 1993).

A defendant seeking summary judgment must establish prima facie entitlement to such relief as a matter of law by affirmatively, with evidence demonstrating the merits of the claim or defense, and not merely by pointing to gaps in plaintiff's proof. Mondello v. DiStefano , 16 AD3d 637 (2nd Dept. 2005); Peskin v. New York City Transit Authority, 304 AD2d 634 (2nd Dept. 2003).

Labor Law § 200

Labor Law § 200 reads:

All places to which this chapter applies shall be so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein or lawfully frequenting such places. All machinery, equipment, and devices in such places shall be so placed, operated, guarded, and lighted as to provide reasonable and adequate protection to all such persons. The board may make rules to carry into effect the provisions of this section.

Thus, Labor Law § 200 codifies an owner and general contractor's common law duty to provide workers with a safe place to work. Rizzutto v. Wagner Contracting Co., 91 NY2d 343 (1998); Comes v. New York State electric and Gas Corporation, 82 NY2d 876 (1993); Russin v. Picciano, 54 NY2d 311 (1981); Allen v. Cloutier Construction Corp., 44 NY2d 290 (1978). The lynchpin for purposes of liability pursuant to Labor Law § 200 is supervision and control, in other words the party against whom liability is sough must "have the authority to control the activity bringing about the injury to enable it to avoid or correct an unsafe condition." Rizzutto v. Wagner Contracting Co., 91 NY2d 343, 352 (1998).

Owners and general contractors, will be found liable for accidents resulting from unsafe conditions on the owner's land, if the owner either exercised supervision and control over the activity causing the injury, caused or created the dangerous condition, or had actual or constructive notice of the unsafe condition. Ross v. Curtis-Palmer Hydro-Electric Company, 81 NY2d 494 (1993); Murphy v. Columbia University , 4 AD3d 200 (1st Dept. 2004); Higgins v. 1790 Broadway Associates, 261 AD2d 223 (1st Dept 1999); Cuartas v. Kourkoumelis, 265 AD2d 293 (2nd Dept. 2005); Paladino v. Society of New York Hospitals, 307 AD2d 343 (2nd Dept. 2003); Maggi v. Innovax Methods Group, Co., Inc., 250 AD2d 576 (2nd Dept. 1998). However, where the defect or dangerous condition arises from a sub contractor's methods and the owner or general contractor exercises no control or supervision over the activity at issue, the owner and general contractor will not be liable under Labor Law § 200, even if the same had notice of the sub-contractor's defective methods or the dangerous condition alleged. Comes v. New York State electric and Gas Corporation, 82 NY2d 876 (1993); Allen v. Cloutier Construction Corp., 44 NY2d 290 (1978); Dalanna v. City of New York, 308 AD2d 400 (1st Dept. 2003). Stated differently, with respect to the sub-contractor's improper methods or the use of defective materials, liability is only established when the owner has maintained the ability to control the work giving rise to the injury or has actually exercised supervision or control of the same. Allen v. Cloutier Construction Corp., 44 NY2d 290 (1978).

For liability to be imposed upon an owner or general contractor, more than general control over the work giving rise to the injury must be established the retention of the right to generally supervise the work, to stop the contractor's work if a safety violation is noted, or to ensure compliance with safety regulations, does not amount to the supervision and control of the work site necessary to impose liability on an owner or general contractor pursuant to Labor Law § 200. Dennis v. City of New York, 394 AD2d 611, 612 (2nd Dept. 2003); Brown v. New York City Economic Development Corporation, 234 AD2d 33 (1st Dept. 1996) (Court held that oversight responsibility as opposed to specific work of any subcontractor was insufficient to impose liability for a Labor Law § 200 upon the owner.); Carty v. Port Authority of New York and New Jersey, 32 AD3d 732 (1st Dept. 2006).

Labor Law § 240(1)

Labor Law § 240(1) requires that:

All contractors and owners and their agents* * *who contract for but do not direct or control the work, in erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.

This section of the Labor Law was intended to apply where the work being performed subjects those involved to risks related to elevation differentials. Gordon v. Eastern Railway Supply, Inc., 82 NY2d (1993). The hazards contemplated by the statute "are those related to the effects of gravity where protective devices are called for* * *because of a difference between the elevation level of the required work and a lower level.'" Id. at 560, quoting, Racovich v. Consolidated Edison Co., 78 NY2d 509, 514 (1991). Labor Law § 240(1), was intended to prevent accidents where the ladders, scaffold, or other safety devices provided to a worker proved inadequate to prevent an injury related to the forces of gravity on objects or persons. Id. Thus, the law applies equally to instances of injuries caused by falling objects as well as instances of injuries caused by people falling from elevations. Narducci v. Manhasset Bay Associates, 96 NY2d 259 (2001)

Under Labor Law § 240(1), a complete failure to provide safety devices of any kind is a violation of Labor Law § 240(1). Zimmer v. Chemmung County Performing Arts, Inc., 65 NY2d 513 (1985). Hence, if the evidence demonstrates that the defendants failed to provide any safety devices at all, the statute has been violated as a matter of law. By contrast, when a defendant does provide safety equipment and an accident nevertheless occurs, the adequacy, functionality, and placement of said devices must be assessed in order to determine whether there has been a violation of the Labor Law. Narducci v. Manhasset Bay Associates, 96 NY2d 259 (2001). Ultimately a violation of Labor Law § 240(1) is established when the defendant fails to provide plaintiff with the safety devices intended to protect the plaintiff from each and every height related risk associated with the particular work being performed. Felker v. Corning Incorporated, 90 NY2d 219 (1997); Barnaby v. A C Properties., 188 AD2d 958 (3rd Dept. 1992). Thus, the relevant inquiry involves a determination of the particular risk involved and whether a safety device intended to protect against each and every risk was provided. Id. In Barnaby, plaintiff was involved in framing windows inside a building. Id. Indoors, plaintiff was provided with a ladder to access the windows which extended some ten feet above the floor. Id. Plaintiff stumbled and fell through the window and to the ground outside the building. Id. The Court found that by failing to provide a safety device designed to protect against a fall through the window, the defendant violated the labor law. Id. The ladder provided merely guarded against the risk of falling inside the building but did not guard against the risk of falling outside. Id.

It is generally understood that the requisites of the § 240(1) and the liability that results from a breach of the same is designed to hold owners and general contractors absolutely liable. Russin v. Picciano, 54 NY2d 311 (1981); Serpe v. Eyris Production, Inc., 243 AD2d 375 (1st Dept. 1997). Hence, while the statute seeks to include all contractors and agents within its definition, when it comes to a subcontractor or an agents' liability, control and supervision are necessary pre-requisites. Id. Accordingly, a subcontractor or agent is only liable under § 240(1) if it can be establishes that the agent or subcontractor had control or supervision over the work being performed when the accident took place. Id. The determinative factor, on the issue of control is not whether the agent or subcontractor furnishes equipment, but rather, whether there was authority delegated to insist that proper safety practices be followed. Serpe v. Eyris Production, Inc., 243 AD2d 375 (1st Dept. 1997)

Labor Law § 240, provides its own unvarying standards which contractors, owners, or their agents must abided by. Zimmer v. Chemmung County Performing Arts, Inc., 65 NY2d 513 (1985). Consequently, any external considerations, such as rules, regulations, contracts, industry custom, practice or usage are immaterial for purposes of the statute.

A violation of the statute which proximately causes an employee to sustain an injury makes said owner, contractor or agent absolutely liable for said employee's injury. Blake v. Neighborhood Housing Services of New York City, Inc., 1 NY3d 280 (2003); Zimmer v. Chemmung County Performing Arts, Inc., 65 NY2d 513 (1985); Gordon v. Eastern Railway Supply, Inc., 82 NY2d (1993). Thus, if it is established that a defendant's actions or failure to act as per the statute, in other words, a breach or violation, substantially caused the events which produced plaintiff's injury, defendant is deemed liable. Id. By absolute liability it is meant that liability is imposed without regard to defendant's care or lack of care. Zimmer v. Chemmung County Performing Arts, Inc., 65 NY2d 513 (1985). Hence, a defendant's negligence is wholly irrelevant when a violation of Labor Law § 240(1) is asserted. The relevant inquiry is whether there was a violation of the labor law and if so, did that violation proximately cause plaintiff's injury. Id.

The duty imposed by Labor Law § 240(1) is non-delegable and renders liable those charged with the duty for a breach even if the work involved is farmed out to an independent contractor. Gordon v. Eastern Railway Supply, Inc., 82 NY2d (1993). Thus, unlike other sections of the labor law, liability under Labor Law § 240(1) is not premised on supervision or control of the work site or those employed therein. Id.

A plaintiff's contributory or comparative negligence, in a case premised on Labor Law § 240(1), is wholly irrelevant in determining liability and does not bar recovery or serve to offset a defendant's liability. Bland v. Manocherian, 66 NY2d 452 (1985); Stolt v. General Foods Corporation, 81 NY2d 918 (1993). Unlike many other cases, comparative negligence originally known as contributory negligence is a defense that cannot be asserted when a violation of Labor Law § 240(1) is alleged.

Not every accident at a work site means that the Labor Law has been violated. Blake v. Neighborhood Housing Services of New York City, Inc., 1 NY3d 280 (2003); Narducci v. Manhasset Bay Associates, 96 NY2d 259 (2001). Specifically, not every fall from a scaffold or ladder indicates a violation of Labor Law § 240(1). Id. Not every falling object at a work site constitutes a violation of the Labor Law. Id. Manifestly, the labor law was not intended to penalize those people who, by providing the requisite safety equipment, have complied with the statue. Id. The owners, contractors, or agents are not the insurers of a plaintiff's safety; they are merely required to abide by the statute. Id. A distinction must be made between those accidents caused by the failure to provide a safety device required by Labor Law § 240(1) and those caused by general hazards specific to a workplace. Id. The former is a violation of Labor Law § 240(1) giving rise to liability, the latter is not. Thompson v. St. charles Condominiums, 303 AD2d 152 (1st dept. 2003).

It is well settled that Labor Law § 240(1) is not applicable in cases where there is no appreciable height difference between the work site and the falling object. Melo v. Consolidated Edison Company of New York, Inc., 92 NY2d 909 (1998). In Melo, the Court of appeals concluded that Labor Law § 240(1) was not applicable to an accident involving the movement of steel plates to cover holes in the ground. The Court held that since the plates, when being moved, were resting on the ground, or were at most, hovering slightly above the ground, the statute was not implicated. Id. The court held that the statute only applies "either because of a difference between the elevation level of the required work and a lower level or a difference between the elevation level where the worker is positioned and the higher level of the materials being hoisted or secured.'" Id. at 911-912., quoting, Misserti v. Mark IV Constr. Co., 86 NY2d 487, 491 (1995). In Melo, the court recognized and once again reiterated that Labor Law § 240(1), doesn't apply simply because an injury is caused by the effects of gravity. Melo v. Consolidated Edison Company of New York, Inc., 92 NY2d 909 (1998). The court once again reinforced the notion that Labor Law § 240(1), applies only to such accidents where the worker is exposed to dangerous conditions by virtue of elevation differentials. Id. This same rationale was also applied in Piccinich v. New York Stock Exchange, Inc., 257 AD2d 438 (1st Dept. 1999), where the court found that Labor Law § 240(1) was inapplicable to an accident involving an air conditioner falling three inches upon plaintiff's hand. Such an accident, the court reasoned, was not caused by an elevation-related risk contemplated by the statute. Id. In Daley v. City of New York Metropolitan Transportation Authority, 277 AD2d 88 (1st Dept. 2000), the court held that even if an injury is proximately caused by an inadequate safety device, that in it of itself does not give rise to a Labor Law § 240(1) violation. Instead, the applicability of Labor Law § 240(1) necessarily depends on whether there is an elevation differential between the worker and the agency of the injury. Id. In that case an injury was caused by a deficient hoist, but which was attached to a concrete slab at ground level. Id. The court, relying on Melo, held that because there was no height differential between the worker and the hoist, Labor Law § 240(1) was not applicable. Id.

In Rodriguez v. Margaret Tietz Center for Nursing Care, Inc. 84 NY2d (1994), plaintiff's Labor Law § 240(1) claim was dismissed when the court concluded that his accident, wherein he was injured by a falling beam as he dismantled a hoist, did not fall under the purview of Labor Law § 240(1). The Court held that plaintiff's injury occurred as he placed a beam onto the ground from seven inches above his head. Id. The court held that such a minor elevation differential was not the special elevation risk contemplated by the statute. In Thompson v. St. Charles Condominiums, 303 AD2d 152 (1st Dept. 2003), the court granted plaintiff partial summary judgment after he was injured when a scaffold collapsed causing bricks to fall on top of him from an elevation of four feet. The court acknowledged that insignificant height differentials, such as where the falling object is at the same level as the work site, are often not actionable under Labor Law § 240(1), however t the extent that the case involved a failing scaffold, an enumerated device under the statute, the court found that Labor Law § 240(1) had been violated. Id.

It is also well settled that Labor Law § 240(1) does not when the falling object alleged to have caused plaintiff injury was being neither hoisted or secured at the time of the accident. Doucoure v. Atlantic Development Group, LLC , 18 AD3d 337 (1st Dept. 2005). In Doucoure, the court dismissed plaintiff's Labor Law § 240(1) claim after finding that while he was struck by falling concrete, insofar as the concrete was being neither hoisted or secured, the event therein did not fall within the ambit of Labor Law § 240(1). Thus, the court limited the applicability of Labor Law § 240(1), as it relates to falling objects, to cases where the object is being hoisted or secured. Id. In Almanzar v. Goval Realty, 286 AD2d 278 (1st Dept. 2001), the court went on to reiterate that Labor Law § 240(1) applies only to those falling object cases where the objects are improperly hoisted or secured. More importantly, the court granted defendant's motion for summary judgment finding that Labor Law § 240(1) did not apply to that case where plaintiff was injured when a ladder he was attempting to remove fell causing him injury. Id. The court found that to the extent that plaintiff and the ladder which fell were essentially at the same level, Labor Law § 240(1), did not apply. Id. The court stated that there was "no significant elevation-related differential between" plaintiff's arm and the ladder. Id.

When the allegation is that the falling object, which allegedly caused the plaintiff injury was neither being hoisted nor secured and was instead, a stationary object, Labor Law § 240(1) may nonetheless apply if the accident alleged was, given the work being performed, a foreseeable consequence of the failure to provide a safety device as enumerated by the statute. Outar v. City of New York , 5 NY3d 731 (2005); Buckley v. Columbia Grammar and Preparatory , 44 AD3d 263 (1st Dept. 2007); Boyle v. 42nd Street Development Project, Inc. , 38 AD3d 404 (1st Dept. 2007). (Court held that Labor Law § 240(1) was violated when plaintiff was struck by falling rod. The Court held that rod, while not being hoisted, was nonetheless in the process of being secured. Further, the Court took noted that plaintiff's assigned task involved the installation of the stairs from which the rod fell.). In Buckley, the court denied plaintiff's motion for partial summary judgment on his Labor Law § 240(1) holding that his accident, involving falling elevator counterweights, did not involve a significant inherent risk attributable to elevation, did not involve the hoisting or securing of a load, and nor was the accident foreseeable. Buckley v. Columbia Grammar and Preparatory , 44 AD3d 263 (1st Dept. 2007). The counterweights involved were not related to plaintiff's assigned task nor were they being hoisted or secured. Id In Outar, the court granted plaintiff's motion for partial summary judgment on his Labor Law § 240(1) claim. Outar v. City of New York , 5 NY3d 731 (2005). The court held that plaintiff's accident involving a dolly which fell into a ditch thus injuring plaintiff was foreseeable in light of the task plaintiff was asked to perform. Id. The Court thus held that said cart should have been secured. Id.

There are two well recognized defenses to a Labor Law § 240(1) claim, the "proximate cause," no violation defense and the "recalcitrant worker" defense. A defendant can avoid liability under the statute if it can demonstrate that it did not violate the labor law and that the proximate cause of the plaintiff's accident was plaintiff's own negligence. Blake v. Neighborhood Housing Services of New York City, Inc., 1 NY3d 280 (2003); Weininger v. Hagedorn Company, 91 NY2d 958 (1998). The Court in Blake reasoned that a violation of the labor law which proximately causes plaintiff's accident is mutually exclusive with plaintiff's negligence proximately causing his accident. Id. This defense only applies when defendant is compliant with the statute and no violations of the same can established. Davidson v. Ambrozewicz, 2004 WL 2609225 (3rd Dept. 2004). Stated differently, before a defendant can claim that a plaintiff's accident was proximately caused by his own actions, it must be demonstrated that defendants did not violate the statute; that defendants complied with the same by providing adequate safety devices. Id. In that situation where the safety devices were provided and the labor law was thus not violated, any resulting accident could not have been caused by any statutory violation. In that instance it can be fairly said that the violation of the labor law had nothing to do with plaintiff's accident, because the exclusive cause of plaintiff's accident was his behavior and actions. Hence, Labor Law § "240 does not give absolution to the plaintiff when his injury has been caused, exclusively, as a result of his own willful or intentional acts." Tate v. Clancy-Cullen Storage Co., Inc., 171 AD2d 292, 296 (1st Dept. 1991).

An extension of this rationale is the "recalcitrant worker" defense, the second of the defenses mentioned above. This defense allows a defendant to escape liability if he can show that the plaintiff refused to use the safety devices provided. Gordon v. Eastern Railway Supply, Inc., 82 NY2d (1993). Implicit in this defense is the notion that proper equipment was provided and that said equipment, was safe to begin with. Hence, an instruction to employees that they not use available but defective equipment is not akin to providing the requisite and safe equipment mandated by the statute. Id. Consequently, an employer who provides unsafe equipment with a caveat that the employees not use said equipment cannot assert the "recalcitrant worker" defense, because that employer has not complied with the statute as a matter of law.

In sum, before the imposition of absolute liability upon a responsible entity pursuant to Labor Law § 240(1) is warranted, the injured party must prove that there was a violation of the labor law and that the violation was the proximate cause of the injuries alleged. Smith v. Hooker Chemicals, 89 AD2d 361 (4th Dept. 1982), app. dismissed, 58 NY2d 824 (1983).

Labor Law § 241(6)

Labor Law § 241states that:

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:

For purposes of Labor Law § 241(6), those requirements are found in subsection (6), which mandates that:

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. The commissioner may make rules to carry into effect the provisions of this subdivision, and the owners and contractors and their agents for such work, except owners of one and two-family dwellings who contract for but do not direct or control the work, shall comply therewith.

Thus, Labor Law § 241(6) imposes a duty of reasonable care upon owners, contractors and their agents. Owners, contractors and their agents must provide reasonable and adequate protection to those employed in all areas where construction, excavation, or demolition is being conducted. Rizzutto v. Wagner Contracting Co., 91 NY2d 343 (1998); Ross v. Curtis-Palmer Hydro-Electric Company, 81 NY2d 494 (1993). The duty imposed by the this section of the labor law is nondelegable. This means that an owner, contractor or agent can be held liable for the breach of the statute absent supervision or control of the particular work site at issue. Rizzutto v. Wagner Contracting Co., 91 NY2d 343 (1998); Ross v. Curtis-Palmer Hydro-Electric Company, 81 NY2d 494 (1993). A violation of Labor Law § 241(6) necessarily requires a failure to comply or adhere to external rules and statutes. Id. Thus, a violation of this provision of the labor law requires ". . .reference to outside sources to determine the standard by which a defendant's conduct must be measured.'" Id. at 503, quoting, Zimmer v. Chemmung County Performing Arts, Inc., 65 NY2d 513, 521-523 (1985).

In order to establish a violation of Labor Law § 241(6), the underlying statute or rule that the violation of Labor Law § 241(6) is premised upon, must be one that mandates concrete specifications rather than a general safety standard. Rizzutto v. Wagner Contracting Co., 91 NY2d 343 (1998); Ross v. Curtis-Palmer Hydro-Electric Company, 81 NY2d 494 (1993). The rule alleged to have been violated, must be applicable to the facts of the action therein. Buckley v. Columbia Grammar and Preparatory , 44 AD3d 263 (1st Dept. 2007).

While a violation of Labor Law § 241(6) subjects an owner, contractor aor agent to absolute liability, it does so only to the extent that the duty imposed by the Labor Law § 241(6) cannot be delegated to a third-party. Long v. Forest-Fehlhaber, 55 NY2d 154 (1982). In other words, absolute liability simply means, as discussed above, that an owner contractor or agent can be liable for breach of Labor law § 241(6) absent control or supervision of the work site. Allen v. Cloutier Construction Corp., 44 NY2d 290 (1978). Based on the theory of vicarious liability, an owner, contractor or agent can be vicariously liable for the breach of Labor Law § 241(6) without a showing of active negligence by the person vicariously liable. Kane v. Peter Couundorous, 293 AD2d 309 (1st Dept. 2002). Unlike a violation of Labor Law § 240(1) which establishes conclusive negligence, a violation of Labor Law § 241(6) does not conclusively establish negligence and instead is" merely some evidence of negligence which the jury may consider on the question of defendant's negligence.'" Rizzutto v. Wagner Contracting Co., 91 NY2d 343, 349 (1998), quoting, Teller v. Prospect Hgts. Hosp., 280 NY 456, 460 (1939); Long v. Forest-Fehlhaber, 55 NY2d 154 (1982). Thus, a party may not be liable under Labor Law § 241(6), even if it is established that said party failed to comply with an applicable predicate statute. Unlike Labor Law § 240(1), contributory and comparative negligence are valid defenses to any allegation pursuant to Labor Law § 241(6). Id.

While an owner and general contractor are statutorily liable for a violation of Labor Law § 241(6), an agent, i.e, a subcontractor, is liable for a violation of Labor Law § 241(6), When he the same has been delegated supervision or control of a the accident causing activity. Russin v. Picciano, 54 NY2d 311 (1981); Serpe v. Eyris Production, Inc., 243 AD2d 375 (1st Dept. 1997); Everitt v. Nozkowski, 285 A, D, 2d 442 (2nd Dept. 2001). Said subcontractor's or agent's liability under Labor Law § 240(1) is limited to a breach of Labor Law § 241(6) with respect to those areas and activities and control actually delegated to agent or contractor. Id. In other words, a subcontractor cannot be liable for a breach of the labor law in an area of the work site or for an activity falling outside the ambit of the control or supervision delegated. Id. Stated another way, a subcontractor is only liable under Labor Law § 241(6), if it established that said subcontractor either controlled or had the ability to control or supervise the work giving rise to the accident. Id.

For purposes of the labor law, a lessee of a particular property is deemed an owner and thus subject to liability for a breach of the labor law. Kane v. Peter Coundorous, 293 AD2d 309 (1st Dept. 2002).

Prima facie entitlement to summary judgment, is established when plaintiff demonstrates that Labor Law § 241(6) has been violated because defendant has violated a rule or regulation promulgated by the Commissioner of Labor, which mandates compliance with concrete specifications. ICF Kaiser Enfineers Corp v. Charles Shutrump Sons Co., 227 AD2d 959 (4th Dept. 1996). Further, it is axiomatic that plaintiff must also establish that any breach of the labor law was the proximate cause of the injuries alleged. Kane v. Peter Coundorous, 293 AD2d 309 (1st Dept. 2002).

Violations of the Occupational Safety and Health Administration (OSHA) regulations, do not form the basis for liability under Labor Law § 241(6). Schiulaz v. Arnell Construction Corp., 261 AD2d 247 (1st Dept. 1999); Pellescki v. City of Rochester, 198 AD2d 762 (4th Dept. 1993); Bender v. TBT Operating Corporation, 186 Misc 2d 394 (Supreme Court New York County 2000).

At one time the First Department held that violations of the Industrial Code, raised for the first time in opposition to a motion for summary judgment is acceptable, provided that the allegations in plaintiff's pleadings evince a violation of the sections asserted. Murtha v. Integral Construction Corp., 253 AD2d 637 (1st Dept. 1998). However, since that time the First Department has refused to consider any violations of the Industrial Code which are not pled within plaintiff's bill of particulars. Reilly v. Newireen Associates, 303 AD2d 214 (1st Dept. 2003 (In granting defendant's motion for summary judgment, court dismissed plaintiff's Labor Law § 241(6) claim holding that plaintiff failed to plead any Industrial Code violations in his bill of particulars.) Obviously, Industrial Code violations raised for the first time within reply papers cannot be considered and thus do not preclude summary judgment. Schiulaz v. Arnell Construction Corp., 261 AD2d 247 (1st Dept. 1999).

Premises Liability and Common Law Negligence

Absent a duty of care to the person injured, a party cannot be held liable in negligence. Palsgraf v. Long Island R.R. Co., 248 NY 339 (1928). In cases where there is a duty and that duty is breached, a party is held to have acted negligently. To impose common-law negligence, the tort, the duty breached, must be the proximate cause of the accident. Misirlakis v. East Coast Entertainment Props., 297 AD2d 312 (2nd Dept. 2002).

The common law dictates that a landowner is duty bound to maintain his or her property in a reasonably safe condition. Basso v. Miller, 40 NY2d 253 (1976). Logically, the law dictates that reasonable care be utilized in the maintenance of the property, taking into account all circumstances such as the likelihood of injuries to others, the seriousness of the injury, and the burden involved in avoiding the risk. Id. This duty also obligates a landowner to warn against dangerous conditions, existing on his land, known or reasonably ascertainable by him through the use of reasonable and ordinary care. Cupo v. Karfunkel, 1 AD3d (2nd Dept. 2003). No duty to warn exists, however, if the dangerous condition complained of is open and obvious and reasonably discernible through the use of one's own senses. Id.; Orlando v. Audax Construction Corp. , 14 AD3d 500 (2nd Dept. 2005); Reuscher v. Pergament Home Centers, Inc., 247 AD2d 603 (2nd Dept. 1998); Jackson v. Supermarkets Genereal Corporation, 214 AD2d 650 (2nd Dept. 1995). Additionally, Multiple Dwelling Law § 78 imposes a duty upon the owner of multiple dwelling to keep the same in a reasonably safe condition. Mas v. Two Bridges Associates, 75 NY2d 680 (1990); Altz v. Leiberson, 233 NY 16 (1921); Bonifacio v. 910-930 Southern Boulevard, LLC, 295 AD2d 86 (1st Dept. 2002).

Premises liability is by no means predicated solely on ownership. Liability for a dangerous condition on or within a property, is instead predicated upon occupancy, ownership, control or special use of the premises at issue. Balsam v. Delma Engineering Corporation, 139 AD2d 292 (1st Dept. 1998); Valmon v. 4M M Corporation, 291 AD2d 343 (1st Dept. 2002); Allen v. Pearson Publishing, 256 AD2d 528 (2nd Dept. 1998); Millman v. CitiBank, N.A., 216 A.D.D2d (2nd Dept. 1995); Bruhns v. Antonelli, 255 AD2d 478 (2nd Dept. 1998); Kraemer v. K-Mart Corporation, 226 AD2d 590 (2nd Dept. 1996). Additionally, it is well established that no liability will be found absent proof that a defendant actually created the dangerous condition or alternatively, had actual or constructive notice of the same. Piacquadio v. Recine Realty Corp., 84 NY2d 967 (1994); Bogart v. F.W. Woolworth Compnay, 24 NY2d 936 (1969); Armstrong v. Ogden Allied Facility Management Corporation, 281 AD2d 317 (1st Dept. 2001); Wasserstrom v. New York City Transit Authority, 267 AD2d 36 (1st Dept. 1999); Allen v. Pearson Publishing, 256 AD2d 528 (2nd Dept. 1998); Kraemer v. K-Mart Corporation, 226 AD2d 590 (2nd Dept. 1996).

A defendant is charged with having constructive notice of a defective condition when said condition is visible, apparent, and exist for a sufficient length of time prior to the happening of an accident to permit the defendant to discover and remedy the same. Gordon v. American Museum of Natural History, 67 NY2d 836 (1986). The notice required must be more than general notice of any defective condition. Id.; Piacquadio v. Recine Realty Corp., 84 NY2d 967 (1994). The law requires notice of the specific condition alleged at the specific location alleged. Id. A general awareness that a dangerous condition may exist, is insufficient to constitute notice of a particular condition alleged to have caused an accident. Piacquadio v. Recine Realty Corp., 84 NY2d 967 (1994). Instead, liability can only be predicated on defendant's failure to remedy a dangerous condition after actual or constructive notice of the condition. Id. The absence of evidence demonstrating how long a condition existed prior to plaintiff's accident constitutes a failure to establish the existence of constructive notice as a matter of law. Anderson v. Central Valley Realty Company, 300 AD2d 422 (2nd Dept. 2002) (Plaintiff's inability to state how long the puddle which allegedly caused her fall existed prior to her fall was insufficient to establish that defendants had constructive notice of the same.); McDuffie v. Fleet Financial Group, Inc., 269 AD2d 575 (2nd Dept. 2000); Scirca v. Ariola Pastry Shop, 171 AD2d 859 (2nd Dept. 1991). It has been held that as a matter of law a condition which existed for 8 to 10 minutes is an insufficient period of time to constitute constructive notice. Branham v. Loews Orpheum Cinemas, Inc. , 31 AD3d 319 (1st Dept. 2006); Edwards v. Terryville Meat Co., 178 AD2d 580 (2nd Dept. 1991).

It is axiomatic that before negligence can be found it must be established that the accident causing instrumentality constitutes a dangerous condition, defect, or trap. Crawford v. Pick Quick Foods, Inc., 300 AD2d 431 (2nd Dept. 2002); Garry v. Rockville Centre Union Free School District, 272 AD2d 437 (2nd Dept. 2000); Reynolds v. Reynolds, 245 AD2d 498 (2nd Dept. 1997).

On a motion for summary judgment a defendant establishes prima facie entitlement to summary judgment when he or she establishes a lack of notice, actual or constructive. Hughes v. Carrols Corporation, 248 AD2d 923 (3rd Dept. 1998); Edwards v. Wal-Mart Stores, Inc., 243 AD2d 803 (3rd Dept. 1997); Richardson-Dorn v. Golub Corporation, 252 AD2d 790 (3rd Dept. 1998). If defendant meets his burden it is then incumbent on plaintiff to tender evidence indicating that defendant had actual or constructive notice. Strowman v. Great Atlantic and Pacific Tea Company, Inc., 252 AD2d 384 (1st Dept. 1998).

Premises Liability For Acts Other than Owners and Occupiers

Generally, the body of case law relating to dangerous conditions upon a premises applies to owners and those who occupy, control or otherwise maintain property. In cases where a dangerous condition is alleged to have been caused by a person visiting a premises the law is different. It is well settled that liability for a dangerous condition caused or created by a person visiting a premises is only established if the evidence demonstrates that said person caused and created the condition alleged. Mendoza v. 685 Sterling Realty Corp., 284 AD2d 437 (2nd Dept. 2001); Martinek v. Deli Button, Inc., 208 AD2d 809 (2nd Dept. 1994); Williams v. Southland Corp., 204 AD2d 717 (2nd Dept. 1994); Vliet v. Crowley Foods, Inc., 263 AD2d 941 (3rd Dept. 1999). That issues of notice are irrelevant as to these class of tortfeasors are evident in the court's holding in Martinek, where plaintiff was injured by newspaper straps left on newspapers delivered to the owner of a premises by a newspaper delivery company. Martinek v. Deli Button, Inc., 208 AD2d 809 (2nd Dept. 1994). In denying summary judgment to defendant owner, the court held that questions of fact as to notice and whether the condition was caused by the owners precluded summary judgment. Id. In granting summary judgment to the newspaper company, the court held that summary judgment was warranted when the evidence demonstrated that said defendant neither caused nor created the dangerous condition. Id. Thus, in that case the court applied two different standards for purposes of liability, concluding that the only issue with respect to defendant newspaper, a visitor to the premises, who neither owned, controlled nor maintained the premises, was whether the same caused or created the condition at issue. In Williams, the court once again applied two different standards to the owner of the premises and to the defendant who delivered the newspapers to said location. Williams v. Southland Corp., 204 AD2d 717 (2nd Dept. 1994). The court denied summary judgment to defendant who delivered the newspaper, finding that questions of fact as to whether it caused or created the condition at issue precluded the same. Id.

When the issue concerns one hired to perform work at a premises, commonly termed a contractor, liability is premised on different legal principles. As cited above, the duty of care discussed, that with respect to maintenance, is generally only imposed upon the a limited class of people. A contractor hired to perform work at a premises is generally not liable in tort or for breach of contract for injuries sustained by a third party. Espinal v. Melville Snow Contractors, Inc., 98 NY2d 136 (2002); Moch v. Rensselaer Water Co., 247 NY 160 (1928); Bugiada v. Iko, 274 AD2d 368 (2nd Dept. 2000). Persons hired to perform work at a premises are usually hired pursuant to contract. While such contractors are liable to the person who hired them, generally the owner of a premises, they are not liable to third for injury resulting from a breach of their contractual obligation. Espinal v. Melville Snow Contractors, Inc., 98 NY2d 136 (2002). Consequently, if a contractor is to be held liable for injury to a third-party, one of three scenarios must exist. First, a contractor is liable for injury to a third-party if the putative [contractor] has advanced to such a point as to have launched a force or instrument of harm, or has stopped where inaction is at most a refusal to become an instrument for good.

Id. at 139, quoting, Moch v. Rensselaer Water Co., 247 NY 160, 168 (1928). Stated differently, a contractor is liable to an injured third-party when said contractor causes or creates the condition alleged to have caused injury. Id. Second, a contractor is responsible for a third-parties injuries when the third-party detrimentally relies on the contractor's continued performance and the contractor's failure to perform positively and actively causes injury. Espinal v. Melville Snow Contractors, Inc., 98 NY2d 136 (2002); Eaves Brooks Costume Compnay, Inc. v. Y.B.H. Realty Corp., 76 NY2d 220 (1990); Bugiada v. Iko, 274 AD2d 368 (2nd Dept. 2000). Lastly, when the contract is comprehensive and exclusive as to a property's maintenance, so that it's broadness displaces and in fact assumes the owner or possessors duty to safely maintain property, said contractor is liable to an injured third-party resulting from a breach of the services undertaken. Espinal v. Melville Snow Contractors, Inc., 98 NY2d 136 (2002); Palka v. Servicemaster Management Services Corporation, 83 NY2d 579 (1994); Bugiada v. Iko, 274 AD2d 368 (2nd Dept. 2000).

Discussion

Defendants' motion seeking summary judgment over all of plaintiff's claims as against Marc and Phillip is hereby granted. It is well settled that the Labor Law applies only to owners, contractors, and agents who are involved in qualifying work as enumerated by the labor law. It is equally well settled that common law premises liability is premised upon possession or control of a premises. In this case a review of the evidence submitted by defendants, in particular Ross' deposition testimony, evinces that the work being performed herein was being performed by third-party defendants, that Fifth owned the property herein and that Pelican managed the same. Thus, the evidence demonstrates that Marc and Phillip were neither owners, contractors, agents, or in control or possession of the premises herein. Thus, they have established entitlement to summary judgment.

With regard to this portion of defendants' motion, plaintiff's opposition fails to raise an issue of fact sufficient to preclude summary judgment. It bears noting that the only admissible evidence submitted by plaintiff was the portions Obletz' deposition testimony. Nothing in that testimony establishes that Marc and Phillip were owners, contractors, agents, or in control or possession of the premises herein. Thus, this portion of defendants' motion is hereby granted.

Defendants' motion seeking summary judgment over plaintiff as to his Labor Law § 200 is hereby granted. With regard to Labor Law § 200, owners and general contractors, will be found liable for accidents resulting from unsafe conditions on the owner's land, if the owner either exercised supervision and control over the activity causing the injury, caused or created the dangerous condition, or had actual or constructive notice of the unsafe condition. However, where the defect or dangerous condition arises from a sub contractor's methods and the owner or general contractor exercises no control or supervision over the activity at issue, the owner and general contractor will not be liable under Labor Law § 200, even if the same had notice of the sub-contractor's defective methods or the dangerous condition alleged. Supervision and control mens just that, that there was a right to direct and control the activity bringing about the injury. General supervision or the right to control the work will not suffice and no liability shall be to imposed. The evidence submitted by defendants, namely plaintiff's own testimony, evinces that he was injured while in the employ of the third-party defendant. Plaintiff was using third-party defendant's dolly and while unloading sheetrock the same and the dolly fell upon him. Plaintiff testified that the buildings's superintendent did not instruct or direct his work. Ross testified that he supervised third-party defendant's day to day work and if problems arose, Ross would make any final decisions. Redzovic testified third-party defendant's employees only answered to Redzovic and did not answer to Ross nor the superintendent employed at the premises herein. Based on the foregoing it is clear that the accident herein arose form the methods and work of the third-party defendant. As such, liability, even if there exists notice, shall only be imposed if Pelican and/or Fifth supervised and controlled plaintiff's work. The evidence submitted clearly evinces that neither Pelican nor Fifth supervised and/or controlled plaintiff's work. Thus, defendants establish prima facie entailment to summary judgment as to plaintiff's Labor Law § 200 claim.

Plaintiff's evidence, fails to raise any issues of fact sufficient to preclude summary judgment. Obletz' testimony does not establish that the injury herein arose from anything other than the plaintiff's work and fails to establish that defendants exercised supervision and control over the activity in question. Thus, defendants' motion, insofar as they seek summary judgment over plaintiff's labor Law § 200 claim is hereby granted.

Defendants' motion seeking summary judgment over plaintiff's Labor Law § 240(1) claim is hereby granted. Not every accident at a work site means that the Labor Law has been violated. Specifically, not every fall from a scaffold or ladder indicates a violation of Labor Law § 240(1). Not every falling object at a work site constitutes a violation of Labor Law § 240(1). A distinction must be made between those accidents caused by the failure to provide a safety device required by Labor Law § 240(1) and those caused by general hazards specific to a workplace. The former is a violation of Labor Law § 240(1) giving rise to liability, the latter is not. It is well settled that Labor Law § 240(1) is not applicable in cases where there is no appreciable height difference between the work site and the falling object. It is also well settled that Labor Law § 240(1) does not apply when the falling object alleged to have caused plaintiff injury was being neither hoisted or secured at the time of the accident. Labor Law § 240(1) has also been applied when the allegation is that the falling object, which allegedly caused the plaintiff injury was neither being hoisted nor secured and was instead stationary object. Under such circumstances, there must be an appreciable height from which the object fell it must be established that given the work being performed, the falling object was a foreseeable consequence of the failure to provide a safety device as enumerated by the statute. The evidence submitted by defendants', again, namely plaintiff's own testimony evinces that the accident herein occurred when he was removing a piece of sheet rock from a dolly which was level with the floor he was standing on. Rezovic testified that the dolly was at most six inches of the ground virtue of the wheels on the dolly. The evidence thus demonstrates that Labor Law § 240(1) does not apply to the accident herein insofar as there was no appreciable height difference between plaintiff and his work surface, the sheetrock which fell on to him was neither being hosted or secured, and while it was foreseeable that said sheetrock would fall, it certainly did not fall from an appreciable height. Thus, defendants establish prima facie entitlement to summary judgment with regard to this portion of their motion.

Plaintiff's opposition fails to raise an issue of fact sufficient to preclude summary judgment. Obletz' testimony evinces that he was not aware of the accident herein and his testimony offers nothing with regard to the happening of the accident herein. Defendants' motion seeking summary judgment over plaintiff's Labor Law § 240(1) claim is hereby granted.

Defendants motion seeking summary judgment over plaintiff's Labor Law § 241(6) claim is hereby granted. A violation of Labor Law § 241(6) necessarily requires a failure to comply or adhere to external rules and statutes. In order to establish a violation of Labor Law § 241(6), the underlying statute or rule that the violation of Labor Law § 241(6) is premised upon, must be one that mandates concrete specifications rather than a general safety standard. The rule alleged to have been violated, must be applicable to the facts of the action therein. To the extent that plaintiff does not oppose defendants' motion seeking summary judgment on grounds that none of the Industrial Code regulations pled by plaintiff within his complaint and bills of particulars are either concrete or applicable, defendant's motion is granted and the Court shall not endeavor to discuss whether those sections are concrete and/or applicable to the facts herein. Plaintiff's opposition is not that any of his previously pled Industrial Code violations are applicable and establish a violation of Labor Law § 241(6) but that defendants violated a new and never before pled violation of the Industrial Code, namely 12 NYCRR § 23-1.28. The First Department has refused to consider any violations of the Industrial Code which are not pled within plaintiff's bill of particulars. Reilly v. Newireen Associates, 303 AD2d 214 (1st Dept. 2003). In this case, plaintiff separately moved for leave of Court seeking to interpose a second supplemental bill of particulars wherein he alleged that defendants violated 12 NYCRR § 23-1.28. On June 5, the Court denied said motion. Thus, with regard to the instant motion the Court shall not consider whether defendants violated § 12 NYCRR § 23-1.28 as the same was never pleaded prior to the motion herein and leave to plead the same has been denied. Defendants' motion seeking summary judgment over plaintiff's Labor Law § 241(6) claim is hereby granted.

Defendant's motion seeking summary judgment over plaintiff's common law premises liability claim is hereby granted. With regard to premises liability, it is well established that no liability will be found absent proof that a defendant actually created the dangerous condition or alternatively, had actual or constructive notice of the same. A defendant is charged with having constructive notice of a defective condition when said condition is visible, apparent, and exist for a sufficient length of time prior to the happening of an accident to permit the defendant to discover and remedy the same. In this case the allegation is that defendants' created a dangerous condition by allowing a defective dolly to exist within their premises. Defendants evidence, namely plaintiff's own testimony, establishes that the dolly herein was owned and supplied by third-party defendant and that prior to his accident plaintiff never had difficulty using the same. Redzovic testified that the dolly herein was in good condition. To the extent that the dolly did not belong to the defendants they were not in a position to create any condition with regard to the same. Plaintiff testified that it was third-party defendant's dolly and used by same's employees. As such, defendants' negate that they created the condition herein as the evidence establishes that they were not in possession of the same. To the extent that plaintiff testified that he never had any difficulty with the dolly herein he establishes that the same was fully functional prior to his accident and thus negates any actual or constructive notice that the same was defective. It is axiomatic that if there is no defect, there can be no prior notice of the same. Defendants thus establish prima facie entitlement to summary judgment over plaintiff's common law negligence claim.

As reiterated ad nauseam above, plaintiff's opposition, and the only admissible evidence submitted therein fails to raise any issues of fact precluding summary judgment with regard to the common law negligence claim. Obletz' testimony fails to establish that defendants created the condition herein or had prior notice of the same. Defendants' motion is thus granted.

Based on the foregoing, defendants' motion seeking summary judgment over third-party defendant on their contractual indemnification claim is hereby denied as moot and the third-party action is hereby dismissed by operation of law. It is hereby ORDERED that plaintiff's complaint be hereby dismissed in its entirety with prejudice. It is further

ORDERED that the third-party complaint be hereby dismissed. It is further

ORDERED that defendants serve a copy of this Order with Notice of Entry upon all parties within thirty (30) days hereof.

This constitutes this Court's decision and Order.


Summaries of

Berberi v. Fifth Ave. Dev. Co., Llc.

Supreme Court of the State of New York, Bronx County
Jun 16, 2008
2008 N.Y. Slip Op. 51244 (N.Y. Sup. Ct. 2008)
Case details for

Berberi v. Fifth Ave. Dev. Co., Llc.

Case Details

Full title:PELLUMB BERBERI, Plaintiff(s), v. FIFTH AVENUE DEVELOPMENT COMPANY, LLC…

Court:Supreme Court of the State of New York, Bronx County

Date published: Jun 16, 2008

Citations

2008 N.Y. Slip Op. 51244 (N.Y. Sup. Ct. 2008)