Opinion
109141/08.
October 18, 2011.
DECISION ORDER
Defendant Amedeo Hotels Limited Partnership (Amedeo) moves for summary judgment dismissing the complaint, pursuant to CPLR 3212. Plaintiffs Guy T. Caputo ("Caputo") and Glorianna Caputo oppose the motion which is granted for the reasons below.
BACKGROUND
This action arises out of injuries allegedly sustained by Caputo on February 11, 2008, while disposing of a garbage bag containing carpet remnant into a trash compactor, at the New York Palace Hotel (the Hotel), which is owned by Amedeo. At the time of the incident, Caputo was employed by non-party S.V.M. Services, Inc. (SVM), which contracted with Amedeo to install carpet at the Hotel.
Caputo testified that he had started worked at the Hotel about two months before the accident. Caputo Transcript at 37, Ex. E attached to motion. His work at the Hotel proceeded floor-by-floor, ripping up the old carpet and installing it in the new in rooms and corridors, each activity taking about one day per floor. Id. at 38-40. Other trades, such as painters and paper hangers might be on the premises at the same time. Id. at 40. While the renovations were underway, the floor was not open to the public. Id. at 52.
The old carpeting was cut into three-foot strips, rolled up, put into plastic bags and removed. Id. at 52. Scraps of new carpet were also bagged for disposal. Id. at 64. The bags used did not have drawstrings or other closures, so the open end was knotted to close the bag. Id. at 128-129. Caputo estimated that a bag weighed about 30 pounds, plus or minus five pounds. Id. at 71. Usually, apprentices or laborers hauled the old carpet off, but carpet installers, such as Caputo, might do it if they were available. Id. at 49-50, 53-54. Bags would accumulate by the main elevator bank, then be carried over to the service elevator 30 feet or so away, one or two at a time. Id. at 102. Six or seven bags would be strapped to a dolly provided by SVM, and taken down to the Hotel's loading dock in the service elevator. Id. at 74-75. The dolly was wheeled up to a dumpster and the discards removed "one piece of [bagged] carpet at a time." Id. at 98.
Rolls of old carpet may have also been thrown away without being bagged. Caputo transcript at 192.
There was "one big dumpster that they had for us and then they had their general hopper dumpster [, a compactor,] that was for the general use of the hotel." Id. at 86-87. The big dumpster was replaced when it became full; the compactor remained in place. Id. at 153. He stated that he normally placed the bags of old carpet in the big dumpster, but he had used the compactor on one prior occasion. Id. at 87. Caputo identified photographs of the dumpster area of the loading dock, which he had taken about seven months after the accident. Id. at 88. The big dumpster had a door, allowing the trash to be brought in and loaded from the back to the front. Id. at 94-95. When the dumpster was nearly full, the door was closed and the bags of discarded carpet were picked up and thrown into the dumpster, over a sidewall, perhaps seven feet high. Id. at 96-97. Under those conditions, he always had help getting the bags into the crowded dumpster once its door was shut. Id. at 108.
The compacted trash was removed nightly by an outside service. Schlemm transcript at 102, Ex. H attached to motion.
The compactor was also known as the "hopper dumpster."
On the accident date, Caputo began work about 7:30 A.M. He recalls working on either the 14th or 16th floor. Id. at 46. He spent the first hour to 90 minutes removing bags of discarded carpet and padding. Id. at 61. While filling the bags was part of his job, he said that he had only thrown them out once or twice before at this site. Id. at 76-77. The bags contained carpet and padding that he and others had pulled up on Friday, and possibly other garbage. On his first two trips to the loading dock that morning, he disposed of the bags into the compactor, which he testified was chest high, by "throw[ing] them over my shoulder . . . I guess like a baseball pitcher overhand." Id. at 104-105, 129. Caputo grasped the bags by the knot or bow closing off the open end. Id. at 129. He testified that he could handle the weight of the bags without difficulty. Id. at 120.
On his third trip, he had moved all the bags from the service elevator to the base of the compactor on the loading dock. He testified that after throwing several of these bags into the compactor, "[a]s I threw the [next] bag, I don't know if it was caught on my thumb or my fingers itself." Id. at 128. He felt the bag pulling him and he "tried to pull back, like to pull my hand away from it." Id. The particular bag "didn't seem any heavier or lighter than most of the bags." Id. Caputo agreed that "either [his] thumb or fingers were stuck in the loop or the knot" at the end of the plastic bag. Id. at 129. As a result, the bag "pulled my arm all the way down until the bag just hit the ground." Id. at 130. He "felt a small lightening bolt and a bit of a snap" in his right arm. Id. at 143. He then took a taxicab to Lenox Hill Hospital's emergency room. Caputo testified that the compactor was off at the time of the incident, the compactor did not grab the bag and the operation of the compactor did not cause his injuries. Id. at 130-131.
According to Caputo, at the time of the incident, the only other people in the vicinity were someone from the Hotel's kitchen, two SVM truck drivers delivering new carpet, who had no part in removing or discarding old carpet, and possibly a security guard. Id. at 109-111. No testimony is provided from anyone who might have witnessed the incident.
William Schlemm, who was the Hotel's assistant director of property operations at the time of the incident, was responsible for coordinating the work of the contractors renovating the Hotel. Schlemm transcript at 11. He described the project as a "soft renovation and that was to replace the carpeting, wallpaper and paint on about 10 floors." Id. It was all "cosmetic," not involving any structural work. Id. at 11, 31. SVM and its predecessors worked at the Hotel from the time he started 10 years earlier. Id. at 12. He worked closely with "Chet Webber," who may have been an owner of SVM, "but mostly he was like a general foreman who ran the jobs." Id. at 13. Schlemm had no contact with SVM carpet installers or laborers; he did not know Caputo. Id. at 26. Hotel employees had nothing to do with carpet installation or removal, according to Schlemm. Id. at 16.
Chet Weber is apparently a nickname for Joseph Weber, who testified that he was SVM's foreman at the Hotel in 2008, and that Schlemm was his regular contact at the Hotel. Weber transcript at 7, 12, 16 Ex. L attached to motion.
When carpet was being removed, Schlemm testified that Weber "would say that he needed an open container [i.e. a dumpster,] and we would have one there the next day." Id. at 16-17. Only one day's notice was required to get a dumpster. Id. at 17. The Hotel ordered a dumpster only at Weber's request. Id. at 89. Schlemm stated that no one from SVM ever complained about not having a dumpster when needed. Id. at 17-18, 29. He identified the dumpster as a "rectangular dumpster that one end has a door with hinges that could be opened." Id. at 22. Schlemm testified that the big dumpster had to be located on the Hotel's loading dock, because placing it on the street required a permit. Id. at 83. He stated that SVM was "allowed to use our regular compactor if they had little scraps or something when the [open] container [i.e. the dumpster] was not available." Id. at 23. That would also include the plastic bags of scraps and debris. Id. at 24. If the big dumpster was full, the bags of debris usually were left on the floor where they originated until an empty dumpster was delivered. Id. at 90. The compactor became full and unusable only because of a mechanical failure. Id. at 106. Heavy construction material, such as "steel beams, cement, sheetrock, metal studs," were barred from the compactor. Id. at 109. SVM's trash did not include such materials, and it was allowed to use the compactor. Id.
William Fertidos, the Hotel's project manager, testified that the work SVM was engaged in during the early months of 2008 "was a cosmetic renovation of guest rooms," over 10 floors. Fertidos transcript at 11, Ex. I attached to motion. Another group of 10 floors had been renovated in late 2007. Id. at 12. Fertidos's testimony about trash disposal, ordering dumpsters and relations with SVM and other contractors at the Hotel is consistent with Schlemm's testimony. Fertidos also testified that SVM's work proposal, which was incorporated by reference into the purchase order, made SVM responsible for the removal and disposal of the existing carpeting. Id. at 40.
Caputo's foreman, Weber testified that the Hotel supplied SVM "a 40-[cubic] yard dumpster" with a door that allowed workers to place trash "to the back and work our way to the front." Weber transcript at 23. If no big dumpster was available, the old carpet would not be taken to the loading dock until a replacement arrived. Id. at 26. Scraps could be put in the compactor, though, according to Weber. Id. He confirmed that a big dumpster was almost always available when needed; he did not wait for it to be full before asking Schlemm to replace it. Id. at 27.
Weber said that no one instructed SVM's workers in how to tie the knots in the end of the bag of old carpet and padding. Id. at 60. "[E]verybody ties it in a different way." Id. He was not at work the day of the accident, and, as result, did not know whether a big dumpster was on the loading dock at the time. Id. at 38. He heard the next day that Caputo "blew out his shoulder." Id. at 37-38.
Plaintiffs commenced this action in July 2008. The complaint asserts claims for negligence, violations of Labor Law §§ 200 and 241(6), and for loss of consortium. The graveman of the action is that Amedeo was at fault in "failing to provide a proper and adequate dumpster for work performed." Supplemental Verified Bill of Particulars, ¶ 5, Ex. D attached to motion. Plaintiffs maintain that if a dumpster had been in place, Caputo would not have had to make the awkward motion in lifting the trash bag into the compactor that caused his injury.
DISCUSSION.
On a motion for summary judgment, the proponent "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. . ." Winegrad v. New York Univ. Med. Center, 64 NY2d 851, 852 (1985). Once the proponent has made this showing, the burden of proof shifts to the party opposing the motion to produce evidentiary proof in admissible form to establish that material issues of fact exist which require a trial. Alvarez v. Prospect Hospital, 68 NY2d 320, 324 (1986).
Labor Law § 200 and Negligence Claim
To establish a prima facie case of common-law negligence, a plaintiff is required to show that a defendant either created or had actual notice of the alleged dangerous or defective condition, and that the alleged dangerous condition was the proximate cause of the injury. See, Pouso v City of New York, 177 AD2d 560 (2d Dept 1991). An owner's or general contractor's common-law duty to maintain a safe workplace is codified in Labor Law § 200. See, Gasper v Ford Motor Co., 13 NY2d 104 (1963).
"Where the alleged defect or dangerous condition arises from the contractor's methods and the owner exercises no supervisory control over the operation, no liability attaches to owner under the common law or under Labor Law § 200." Comes v New York State Elec. and Gas Corp., 82 NY2d 876, 877 (1993). Moreover, liability will not be found under 200 "solely because the owner had notice of the unsafe manner in which work is performed." Id., at 878. To be charged with liability under Labor Law § 200, an owner or general contractor must perform more than their "general duty to supervise the work and ensure compliance with safety regulations." De La Rosa v Philip Morris Management Corp., 303 AD2d 190, 192 (1st Dept 2003); see also Vasiliades v Lehrer McGovern Bovis. Inc., 3 AD3d 400 (1st Dept 2004); Reilly v Newireen Associates, 303 AD2d 214 (1st Dept), lv denied, 100 NY2d 508 (2003)."[M]onitoring and oversight of the timing and quality of the work is not enough to impose liability under section 200, [n]or is a general duty to ensure compliance with safety regulations or the authority to stop work for safety reasons." Dalanna v City of New York, 308 AD2d 400, 400 (1st Dept 2003). Instead, it must be shown that the owner ' "had authority to control the activity bringing about the injury to enable it to avoid or correct the unsafe condition'." Hughes v. Tishman Construction Corp., 40 AD3d 305 (1st Dept 2007) (emphasis in the original), quoting, Ruzzuto v. Wenger Construct. Co., 91 NY2d at 352.
Based on this record, the court finds that Amedeo did not exercise a sufficient level of supervision or control over Caputo's work to give raise to liability under Labor Law section 200, since it did not have supervisory authority over the work causing injury to plaintiff.O'Sullivan v. IDI Construction Co., Inc., 28 AD3d 225 (1st Dept), aff'd, 7 NY2d 805 (2006) (trial court properly dismissed Labor Law § 200 claim against general contractor where the record was "devoid of evidence that [the general contractor] supervised, controlled or directed the performance of plaintiff's job" and plaintiff admitted that he only took instructions from the subcontractor's supervisors); Singh v. Black Diamonds LLC, 24 AD3d 138 (1st Dept 2005) (dismissal of Labor Law § 200 claim against construction manager was warranted despite evidence that construction manager's project superintendent "conducted regularly walk-throughs and if he observed an unsafe condition had authority to find whoever was responsible for the condition and have them correct it" and "discussed the covering of the . .hole (in which plaintiff fell) with [plaintiff's employer]. .and inspected the plywood [covering the hole])."
Specifically, the record shows that Caputo's work was supervised solely by SVM's foreman, Weber. Caputo identified Weber as his supervisor on the job. Caputo transcript at 40, 41. He denied once that he knew a "Bill Schlumm," and was never asked about William Fertidos. He testified that someone named "Bob" from the Hotel would instruct them as to when a particular floor needed to be done ( id. at 42), but did not testified anyone from the Hotel supervised the work itself. The testimony of Weber, Schlemm and Fertidos consistently described SVM as fully in charge of removing old carpet and padding and installing new carpet and padding on the 10 floors of the Hotel in this phase of its renovation. They all stated that SVM had done similar work for the Hotel for at least two or three years prior. Schlemm, more engaged with the project than Fertidos, never spoke of intervening in SVM's daily work. His frequent interaction with Weber focused generally on the progress of the work, scheduling and coordinating the various trades participating in the renovation, and the frequent need to order big dumpsters. According to Weber, Schlemm "was there to see us in the morning, and then he just pop in here and there . . . to make sure everything was going on schedule." Weber transcript at 22.
Furthermore, although the Schlemn testified that he was involved in coordinating the work of the various contractors, scheduling and establishing certain rules, including that the removed carpet could not be left in the hotel hallway, such involvement is insufficient to establish the type of supervision and control required to impose liability under Labor Law § 200. Dalanna v City of New York, 308 AD2d 400 [1st Dept 2003]("There is no evidence that defendant general contractor gave anything more than general instructions on what needed to be done, not how to do it, and monitoring and oversight of the timing and quality of the work is not enough to impose liability under [Labor Law] section 200"). Accordingly, the court finds that the Amedeo did not exercise a level of supervision over Caputo's work to give raise to liability under Labor Law § 200.
When an injury is caused not by a contractor's methods but by a defect in the premises, it is not necessary to show that an owner or general contractor exercised control or supervision over the work causing injury if the owner or general contractor had actual or constructive notice of the defect causing the injury or was responsible for creating the condition. Bonura v. KWK Associates. Inc., 2 AD3d 207 (1st Dept 2003). Here, however, it cannot be said that the compactor constituted a defect in the work site which caused Caputo's injuries. Instead, his injuries were caused by the manner in which he performed his work. See Dalanna v City of New York, 308 AD2d 400 (protruding bolt was not a defect in the premises itself, but rather was created by the manner in which the worker's employer performed his work). Notably, Caputo testified that the operation of compactor itself did not cause his injuries.
In any event, while the record shows that Amedeo knew of the situation on the loading dock, that is, the fixed presence of the compactor and the frequent presence of the walk-in dumpster, and that the Amedeo was responsible for situating both pieces of equipment, there is no evidence that Amedeo knew that any danger arose by the presence of only the compactor on the date of the incident. The compactor showed no defect, and there is no evidence that any problems were reported regarding its use or the lack of the presence of a dumpster, and thus it cannot be said that the Amedeo was responsible creating a dangerous condition on the worksite.
In opposition, plaintiffs submit the affidavit of Stanley H. Fein, P.E., to support their position that the Amedeo created a dangerous condition by failing to have the dumpster available for the disposal of garbage bag. Fein acknowledges that Caputo "[w]hile throwing a bag overhand with his right arm, his fingers became lodged in the knot of the bag, which pulled him downward and caused him to sustain serious injury." Fein Aff., ¶ 5. Fein states that the "4 foot high compactor hopper was defective in that it was not suitable for the disposal of bags of debris weighing 25 pounds." Id., ¶ 8. He concludes that the accident and resulting injuries "were caused by the negligence of the defendant, Amedeo, for permitting plaintiff, Guy Caputo to work without giving him the proper tools to safely perform his job." Id., ¶ 6. However, Fein offers no data, references, or citations to support his opinion. Under these circumstances, Fein's affidavit is insufficient to raise a triable issue of fact as to whether the compactor as used by Caputo constituted a dangerous condition. See Jones v City of New York, 32 AD3d 706, 707 (1st Dept 2006) (reversing the denial of defendant's summary judgment motion, where the trial court relied upon an affidavit from Fein, finding that "Fein did not offer any supporting data . . ., nor did he identify any particular professional or industry standard to substantiate his assertion" of the property owner's negligence); Amatulli v Delhi Constr. Corp., 77 NY2d 525, 533 (1991) ("as we read plaintiff's expert's affidavit as containing only bare conclusory assertions in respect to industry-wide knowledge regarding in-ground installation of these above-ground pools, it was insufficient to raise a triable issue of fact").
As there is no evidence that Amedeo had actual or constructive notice of any dangerous condition or that it create a dangerous condition, the court need not reach the parties' arguments regarding whether the lack of a dumpster was a proximate cause of Caputo's injuries.
Accordingly, the plaintiffs' negligence claim and claim under Labor Law § 200 must be dismissed.
Labor Law § 241(6) Claim
Labor Law § 241 (6) provides that "[a]ll areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places." The section requires owners and contractors at a construction site to "provide reasonable and adequate protection and safety for workers and to comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor." Ross v Curtis-Palmer Hydro-Electric Co., 81 NY2d 494, 502 (1993).
The duty under Labor Law § 241(6) is nondelegable. Thus, "to the extent that a plaintiff has asserted a viable claim under Labor Law § 241(6), he need not show that defendants exercised supervision or control over the worksite in order to establish a right to recovery." Id. At the same time, however, a violation of 241(6) does not result in "absolute liability irrespective of the absence of a negligent act which caused the injury [but rather] imposes a nondelegable duty upon an owner or general contractor to respond in damages from injuries sustained due to another party's negligence . . ." Ruzzuto v. Wenger Construct. Co., 91 NY2d 343, 349-350 (1998) (emphasis in original). In addition, only a violation of the State Industrial Code and regulations promulgated by the State Commissioner of Labor may serve as a basis for liability under that statutory section"Heller v 83rd Street Investors Ltd. Partnership, 228 AD2d 371, 372 (1st Dept), lv denied 88 NY2d 815 (1996); see also Messina v City of New York, 300 AD2d 121 (1st Dept 2002). Furthermore, a violation of a section of the Industrial Code is only "some evidence of negligence." Ruzzuto v. Wenger Construct, Co., 91 NY2d at 351.
The preliminary issue to be determined is whether Labor Law § 241(6) applies to the factual circumstances of this case. In Nagel v. D R Realty Corp., 99 NY2d 98, 103 (2002), the Court of Appeals held that although Industrial Code's definition of "construction" includes certain kinds of maintenance work including installation of equipment, that this definition must be "construed consistently with the Court's understanding that § 241(6) covers industrial accidents that occur in the context of construction, demolition, excavation" involving a building or structure. Thus, the court held that a laborer who was injured while performing a two-year safety test on an elevator could not recover as the test constituted maintenance work not connected with construction, demolition or excavation.
In this case, the activity at issue involved the removal and installation of carpeting in connection with a cosmetic renovation of a hotel. Plaintiffs contend that Caputo's work was a covered activity under Labor Law § 241 (6), which addresses construction, demolition or excavation work based on the large budget, extensive time and variety of trades involved in the renovation project to identify it as a construction project. However, these factors are not determinative when the work underway dealt with the replacement of worn-out decorative elements, rather than the creation, modification or elimination of structural elements of the premises. Esposito v New York City Indus. Dev, Agency, 1 NY3d 526, 528 (2003) (Labor Law § 241 inapplicable because the "work here involved replacing components that require replacement in the course of normal wear and tear"); Raikumar v Budd Contr. Corp., 77 AD3d 595, 595 (1st Dept 2010) ("dismissal of the Labor Law § 241 claim was warranted as the evidence demonstrated that plaintiff's interior decorating work, which involved, inter alia, the manufacture and hanging of a 300-pound mirror in the hotel defendants' main lobby, was not done in the context of construction, demolition or excavation work"); Meiia v Levenbaum, 30 AD3d 262, 262-263 (1st Dept 2006) ("Inasmuch as plaintiff was engaged at the time of his accident in a 'general clean out' of what had formerly been a restaurant and the work being performed was not construction, excavation or demolition work within the meaning of Labor Law § 241 (6), his claim pursuant to that statute should have been dismissed"); compare Tornello v. Beaver Brooks Assocs., 8 AD3d 7 (2004) (installation of carpet as part of the process of finishing a new house constitutes construction work within the ambit of Labor Law § 241(6)).
Moreover, even assuming arguendo that Caputo's work were considered a covered activity under the Labor Law, there is no evidence that Amedeo violated any provision of the Industrial Code mandating compliance with concrete specifications. Plaintiff's supplemental bill of particulars (Ex. D attached to motion) alleges violation of two Industrial Code provisions by Amedeo. The first, 12 NYCRR 23-3.3 (e) is entitled "demolition by hand" and specifies that the removal of debris be accomplished by means of chutes, buckets, hoists, openings in the floor or "other structure in compliance with this section." Section 23-1.4 (16) of the Industrial Code defines "demolition work" as "work incidental to or associated with the total or partial dismantling or razing of a building or structure, including the removal or dismantling of machinery or other equipment." The work here, which involved the cosmetic removal of carpeting, does not fall within the above definition.
In addition, the provision is inapplicable to the facts here which involved disposing of debris in a trash bag at ground level which does not implicate the use of chutes, buckets and/or hoists set forth in the provision. Freitas v. New York City Transit Authority, 249 AD2d 184 (1st Dept 1998) (affirming trial court decision finding that 12 NYCRR 23-3.3 (e) did not apply when plaintiff who was injured in connection with removal of debris using a dumpster finding that the provision did not apply "where debris on the ground was being collected [as] [i]n such circumstances a 'bucket' a 'hoist' or 'chute' would simply be inappropriate for removal of debris. . .").
The other provision relied by plaintiffs is 12 NYCRR 23-2.1 (b), which provides that "[d]ebris 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." The First Department has held that this provision is insufficiently specific to support a cause of action under Labor Law § 241(6). Ouinlan v. City of New York, 293 AD2d 262 (1st Dept 2002); Mendoza v. Marche Libre Associates, 256 AD2d 133 (1st Dept 1998).
Thus, as Amedeo did not violate any Industrial Code provision, it cannot be held liable under Labor Law § 241 (6). Accordingly, it is
ORDERED that defendant Amedeo Hotels Limited Partnership's motion for summary judgment dismissing the complaint is granted, and it is further
ORDERED that the Clerk shall enter judgment dismissing the complaint.