Opinion
1303 Index No. 158417/18 Case No. 2022–05123
12-28-2023
Domenico CASTALDO et al., Plaintiffs–Respondents, v. F.J. SCIAME CONSTRUCTION CO. INC. et al., Defendants–Appellants, Tishman Construction Corporation, Defendant.
Nicoletti Hornig & Sweeney, New York (Barbara A. Sheehan of counsel), for appellants. Sacks & Sacks, LLP, New York (Scott N. Singer of counsel), for respondents.
Nicoletti Hornig & Sweeney, New York (Barbara A. Sheehan of counsel), for appellants.
Sacks & Sacks, LLP, New York (Scott N. Singer of counsel), for respondents.
Kern, J.P., Oing, Gesmer, Moulton, Mendez, JJ.
Order, Supreme Court, New York County (Lynn R. Kotler, J.), entered October 13, 2022, which, to the extent appealed from, granted plaintiffs’ cross-motion for summary judgment on their Labor Law § 241(6) claim insofar as predicated on Industrial Code §§ 23–1.7(e)(2) and 23–2.1(a) and denied the motion for summary judgment by defendants F.J. Sciame Construction Co. Inc. (F.J. Sciame) and Sciame Construction, LLC (Sciame LLC and, together with F.J. Sciame, defendants), dismissing all claims against defendant Sciame LLC and the Labor Law § 241(6) claim insofar as predicated on Industrial Code § 23–1.5 as against defendant F.J. Sciame, unanimously modified, on the law, to grant defendants’ motion, and otherwise affirmed, without costs.
The injured plaintiff, a worker at a construction site, was pushing a loaded dolly up a ramp at his foreman's instruction. According to plaintiff's testimony, the ramp was partially obstructed by construction material, including a hose, and as plaintiff walked up the ramp, he tripped on the hose.
Plaintiff established that he was walking up the ramp in the course of his assigned duties, and that it fell within the definition of a "working area" set forth in Industrial Code § 23–1.7(e)(2), as it was a "physically defined area" that workers routinely crossed to access equipment and materials (see Smith v. Hines GS Props., Inc., 29 A.D.3d 433, 433–434, 815 N.Y.S.2d 82 [1st Dept. 2006] ; see also Canning v. Barney's New York, 289 A.D.2d 32, 35, 734 N.Y.S.2d 116 [1st Dept. 2001] ). Furthermore, the uncontroverted evidence established that the ramp was blocked by piles of construction material, including the hose on which plaintiff tripped. Thus, the hose's position on the ramp constituted a violation of 12 NYCRR 23–1.7(e)(2), which prohibits "scattered tools and materials" in working areas (see Best v. Tishman Constr. Corp. of N.Y., 120 A.D.3d 1081, 1081–1082, 993 N.Y.S.2d 16 [1st Dept. 2014] ; see also Boss v. Integral Constr. Corp., 249 A.D.2d 214, 215, 672 N.Y.S.2d 92 [1st Dept. 1998] ). F.J. Sciame failed to show that the hose was either in use when the incident occurred or was an integral part of the work performed at the site (see Pereira v. New Sch., 148 A.D.3d 410, 412, 48 N.Y.S.3d 391 [1st Dept. 2017] ; see also Hammer v. ACC Constr. Corp., 193 A.D.3d 455, 456, 146 N.Y.S.3d 608 [1st Dept. 2021] ).
Despite defendants’ position otherwise, there is no genuine issue of material fact as to the width of the ramp and whether it was obstructed by the construction material. The transcript of plaintiff's deposition testimony shows that plaintiff at one point said the ramp was "70 feet" wide, but also shows that plaintiff then provided answers to a series of questions by defendants’ counsel which made clear that the ramp was about 8–to–10 feet wide, of which about half was left clear of obstructions. F.J. Sciame's site superintendent similarly testified that the ramp was about 10–to–12 feet wide, and defendants submitted site drawings showing that the ramp was not 70 feet wide. Thus, even without considering the unnotarized affidavit of the court reporter, who stated that there was a stenographic error in the deposition transcript ( CPLR 2106 ), the record is clear that the ramp was, in fact, between 8 and 12 feet wide.
The evidence also established that the incident was caused by F.J. Sciame's failure to properly store the hose and other building materials in violation of 12 NYCRR 23–2.1(a)(1), and that the accident resulted from the use of the ramp as a storage area for the hose and other building materials (see Nicholson v. Sabey Data Ctr. Properties, LLC, 205 A.D.3d 620, 620–21, 169 N.Y.S.3d 292 [1st Dept. 2022] ). No party controverted that various types of construction material occupied the left half of the ramp as plaintiff ascended and that the hose protruded two feet onto the ramp from the right side. These obstructions constituted a safety violation impeding plaintiff's ability to safely push a loaded three-foot wide dolly up the ramp (see Fitzgerald v. Marriott Intl., Inc., 156 A.D.3d 458, 458–459, 64 N.Y.S.3d 883 [1st Dept. 2017] ; see also Conklin v. Triborough Bridge & Tunnel Auth., 49 A.D.3d 320, 321, 855 N.Y.S.2d 54 [1st Dept. 2008] ).
However, the Labor Law § 241(6) claim predicated on Industrial Code § 23–1.5 should be dismissed against F.J. Sciame, since that provision is a generic directive which is an insufficient predicate for Labor Law § 241(6) liability (see Maldonado v. Townsend Ave. Enters., Ltd. Partnership, 294 A.D.2d 207, 208, 741 N.Y.S.2d 696 [1st Dept. 2002] ).
As to Sciame LLC, Supreme Court should have dismissed the complaint as against it. Plaintiffs proffered no evidence to refute Sciame LLC's contention that it was a separate entity from F.J. Sciame and was not a construction manager, general contractor, or agent on the project, and was not involved with the construction project in any way (see Grilikhes v. International Tile & Stone Show Expos, 90 A.D.3d 480, 483, 934 N.Y.S.2d 384 [1st Dept. 2011] ).