Opinion
643 TSN 2004.
Decided March 31, 2008.
Plaintiff represented by: Adam S. Levien, Esq., of Sacks Sacks, LLP, New York, NY.
Defendant represented by: Louis F. Eckert, Esq., of Lewis Brisbois Bisgaard Smith LLP, New York, NY.
Defendants Columbus Centre, LLC ("Columbus Centre") and Bovis Lend Lease, LMB, Inc. ("Bovis") (collectively "defendants") move for an order, pursuant to CPLR § 3212, granting defendants summary judgment against plaintiff Robert Dand ("Dand" or "plaintiff") dismissing the Complaint. Plaintiff opposes defendants' motion but withdraws several of its claims (Affirmation of Adam S. Levin in Opposition to Defendants' Summary Judgment Motion ["P's Aff. in Opp."], ¶ 3).
PROCEDURAL HISTORY
Plaintiff originally commenced this personal injury action in the Supreme Court of the State of New York in or about July 2003 with the filing and service of a Summons and Verified Complaint under Index Number 112247/03 (Exhibit "A" to the Motion). Plaintiff alleged that the accident occurred on May 12, 2003 while he was working at a building construction site at One Columbus Circle where defendant Columbus Centre was the owner of the building and defendant Bovis was the general contractor for the project. Plaintiff's Verified Complaint included claims for negligence, violations of Labor Law sections 200 and 240, violations of Industrial Code provisions Rules 23-1.6, 23-1.7, 23-1.30, 23-2.1, 23-11.3, 23-11.5, 23-11.6, 23-11.7, and Article 1926 of O.S.H.A. (Exhibit "A" to the Motion). On or about August 11, 2003, both defendants served and filed their joint answer. (Exhibit "A" to the Motion). Plaintiff clarified and expanded on his Labor Law and Industrial Code claims in his Third and Sixth Supplemental Bills of Particulars to include violations of Labor Law § 241(6) and Industrial Code sections 23-1.22(a), (b)(1), (2), (3), (4), and (c)(1), and (2), 23-1.7(d), (e)(1) and (2), and (f). (Exhibit 1 to Plaintiff's Opposition papers).
Although plaintiff alleges in his Verified Complaint that the date of his injury was May 12, 2003, the plaintiff, in the Verified Bill of Particulars at ¶ 2, the accident report (Exhibit 4 to Plaintiff's Opposition papers), ambulance call report (Exhibit 5 to Plaintiff's Opposition papers), and in his deposition testimony state the date of the incident was May 13, 2003. Neither party has raised nor explained this apparent discrepancy.
Following an IAS preliminary conference and a compliance conference, the Hon. Jane Solomon, J.S.C., transferred the action from the Supreme Court to the Civil Court. Discovery, including depositions of the plaintiff ("Dand EBT") (Exhibit "C" to Defendants' Motion) and defendant Bovis by its employee Michael Marrone ("Marrone EBT") (Exhibit "D" to Defendant's Motion), was completed.
FACTS
In May of 2003, plaintiff was a journeyman ironworker with Melto Metals ("Melto") working at the building construction site at 10 Columbus Circle, which is also identified by the parties as One Columbus Centre and the AOL Time Warner building. At all relevant times, defendant Columbus Centre was the owner of the building and defendant Bovis was the construction manager for the project. (Verified Answer at ¶ First; Defendants' Motion at p. 5, ¶ 15, and p. 8, ¶ 24; Agreement Between Columbus Centre as Owner and Bovis as Construction Manager submitted as Exhibit 2 to Plaintiff's Opposition papers).
At Dand's EBT, taken under oath on October 25, 2004, plaintiff testified that on May 13, 2003, he was on the fifth or sixth floor level of the atrium ("upper atrium lobby") employed as a working foreman and was supervising two other Melto workers. At that time, plaintiff and the other Melto workers with him were working on floor panels and wall trim on a maintenance walkway which extended from the upper atrium lobby and ran alongside the top of the north atrium wall of the building.
The upper atrium lobby was a "U" shaped area approximately fifty feet wide on the north and south sides by three hundred feet long on the east and west sides. Along the west side of the upper atrium lobby area are walls, columns, and escalators while the eastern side, protected by a railing, looked over the open atrium down to the first floor lobby area below and across the atrium area toward Columbus Circle through the windows on the east wall of the building. Extending from the upper atrium lobby area were maintenance walkways running along both the north and south sides of the open atrium.
The floor of the upper atrium lobby consisted of a concrete sub-floor, overlaid with large granite panels, which in turn were covered by Homasote and four foot by eight foot boards of half-inch thick plywood. Dand also testified that some of the plywood boards covering the granite floor panels and the Homasote had warped, causing the edges of the plywood boards to twist, rise, and create uneven surfaces where the plywood boards abutted. In an attempt to minimize or remedy this condition, blocks or squares of plywood or sheetrock, measuring approximately six inches by six inches, were installed on the corners where the warped plywood boards abutted.
Homasote is a board made of compressed paper which was placed over the granite floor panels in conjunction with plywood to protect the granite from damage.
Approximately a month before the plaintiff's trip and fall, there was a fire in the building resulting in water damage to several upper atrium level floors, including the fifth and sixth floors. Due to water damage to the floor, granite panels covering about one-third of the upper atrium lobby and some of the Homasote and plywood covering the remaining granite panels were removed. This resulted in a total elevation difference of approximately three to four inches between the concrete sub-floor, the granite floor surface, to the top of the plywood boards, and the corner blocks. Since parts of the granite panels were not completely covered by the Homasote and plywood boards, the total three to four inch difference in height was staggered in two or three levels, from the concrete sub-floor to the surface of the granite panels to the surface of the plywood boards, as well as the plywood or sheetrock corner blocks in some locations. After the water damage to the floors, some of the blocks were removed from the corners of the abutting plywood boards and were not replaced or refastened.
Both Dand and Michael Marrone, Bovis' general superintendent, testified that Bovis either supervised or had its own carpenters and laborers do the actual installation of the Homasote and plywood boards on the upper atrium floor. (Dand EBT at p. 73, lines 13 through 17; Marrone EBT at p. 79, line 2, through p. 80, line 24).
Dand also testified that other workers, from both his company and from some of the other trades, had tripped and fallen on the plywood covering of the upper atrium lobby, although they were able to get right up and to "get going." (Dand EBT at p. 76, line 14, through p. 77, line 19). Dand testified that he complained about the condition of the floor and its potential for injuring someone to his general foreman, John Durst, who then notified the superintendents for Bovis. (Dand EBT at p. 77, line 20, through p. 78, line 25). Plaintiff also testified that the upper atrium lobby was a large area where workers, from both his company and other trades, walked across constantly. (Dand EBT at p. 97, line 23 through p. 98, line 17).
Plaintiff stated that at approximately 9:30 a.m. on May 13, 2003, he and other two Melto employees were working at the extreme end of the north atrium maintenance walkway which branched off from the upper atrium lobby. (Dand EBT at p. 99, lines 2 through 6). While walking from his work area to his company's gangbox which was located in the upper atrium lobby area (Dand EBT at p. 103, lines 8 through 24), plaintiff tripped and fell in the upper atrium lobby area and was injured (Dand EBT at p. 105, line 20 through p. 107, line 6). In his Verified Bill of Particulars at ¶ 4 (Exhibit 1 to Plaintiff's Opposition papers), on the accident report and the ambulance call sheet (Exhibits 4 and 5 to Plaintiff's Opposition papers) completed immediately after the trip and fall, the cause of plaintiff's trip and fall is identified as the warped and/or raised edges of the plywood covering the floor. At his deposition, plaintiff stated that he believed he tripped and fell due to the plywood floor (Dand EBT at p. 111, lines 7 and 8), although he also testified that he may have tripped over the plywood or sheetrock debris at the accident site (Dand EBT at p. 109, lines 10 through 12, and p. 112, lines 11 through 14).
Plaintiff also testified regarding the lighting of the area where he fell. Plaintiff stated that the lighting conditions were "poor." (Dand EBT at p. 56, lines 13 through 16). He stated that the illumination came from one or two temporary strings of light bulbs (Dand EBT at p. 56, lines 17 through 19 and p. 60, line 23, through p. 61, line 3) and whose bulbs were spaced approximately twenty feet apart (Dand EBT at p. 61, lines 4 through 9). Plaintiff also testified that upper atrium lobby area where he tripped and fell did not get much light from the atrium windows due to the scaffolding which rose from the atrium ground level to the ceiling approximately one floor above the upper atrium level lobby and extended along the entire length and width of the atrium. (Dand EBT at p. 56, line 20 through p. 57, line 22). Plaintiff also stated that he had gone from his brighter work area near the atrium windows at the maintenance walkway to the dimmer upper atrium lobby interior where he tripped and fell. (Dand EBT at p. 117, lines 13 through 15).
Plaintiff was observed at the accident site immediately after the fall by several individuals and was carried out of the construction site and removed by ambulance to Roosevelt Hospital. (Dand EBT at p. 124, line 13, through p. 126, line 6). As a result of his trip and fall, plaintiff allegedly suffered injuries to his neck, back, spine, shoulder, right arm, and both legs as detailed in his Verified Bill of Particulars and the various Supplemental Bills of Particulars. (Exhibit 1 to Plaintiff's Opposition papers).
DISCUSSION
Summary Judgment
The movant has the initial burden of proving entitlement to summary judgment. Winegrad v N.Y.U. Medical Center, 64 NY2d 851 (1985). As the Court of Appeals in Winegrad stated:
The proponent of a summary judgment motion 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 (see, Zuckerman v. City of New York, 49 NY2d 557, 562; Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 404). Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers (Matter of Redemption Church of Christ v. Williams, 84 AD2d 648, 649; Greenberg v. Manlon Realty, 43 AD2d 968, 969). 64 NY2d at 853.
Once the movant has provided such proof, in order to defend the summary judgment motion the opposing party must "show facts sufficient to require a trial of any issue of fact." CPLR § 3212(b); Zuckerman v City of New York, 49 NY2d 557 (1980); Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065 (1979); Freedman v Chemical Construction Corp., 43 NY2d 260 (1977); Spearmon v Times Square Stores Corp., 96 AD2d 552 (2d Dept 1983). "It is incumbent upon a [litigant] who opposes a motion for summary judgment to assemble, lay bare and reveal [his, her, or its] proof, in order to show that the matters set up in [the complaint] are real and are capable of being established upon a trial." Spearmon, 96 AD2d at 553 (quoting Di Sabato v Soffes, 9 AD2d 297, 301 [1st Dept 1959]). If the opposing party fails to submit evidentiary facts to controvert the facts set forth in the movant's papers, the movant's facts may be deemed admitted and summary judgment granted since no triable issue of fact exists. Kuehne Nagel, Inc. v F.W. Baiden, 36 NY2d 539, 543-544 (1975).
Labor Law § 240(1) Claim
Defendant moves to dismiss plaintiff's claim under Labor Law § 240(1), which deals with elevation related risks, arguing that plaintiff's accident was not a height related risk as contemplated by this statute. Since plaintiff withdrew its Labor Law § 240(1) claim (Plaintiff's Opposition Papers at ¶ 2) this issue is now moot and plaintiff's claims under Labor Law § 240(1) is hereby dismissed.
Labor Law § 241(6) claims
To find defendants liable under a Labor Law § 241(6) claim, the plaintiff must show that the defendants violated a specific provision of the Industrial Code Rules and Regulations, codified under 12 NYCRR Part 23. Ross v Curtis-Palmer Hydro-Electric Co., 81 NY2d 494, 502-504 (1993); Rizzuto v L.A. Wenger Contracting Co., Inc., 91 NY2d 343, 350 (1998). Plaintiff has alleged in his Verified Complaint, and in his Third and Sixth Supplemental Bills of Particulars that defendants violated the following Industrial Code sections:
12 NYCRR § 23-1.6 — General Provision — Responsibility of Employees
12 NYCRR § 23-1.7(d) — Protection from General Hazards — Slipping Hazards
12 NYCRR § 23-1.7(e)(1) and (2) — Protection from General Hazards —
Tripping and Other Hazards
12 NYCRR § 23-1.7(f) — Protection from General Hazards — Vertical Passage
12 NYCRR § 23-1.22(a) — General Provisions — Structural Runways, Ramps, and Platforms
12 NYCRR § 23-1.22(b)(1), (2), (3) and (4) — General Provisions —
Structural Runways, Ramps, and Platforms
12 NYCRR § 23-1.22(c)(1) and (2) — General Provisions —
Structural Runways, Ramps, and Platforms
12 NYCRR § 23-1.30 — General Provisions — Illumination
12 NYCRR § 23-2.1 — Construction Operations — Maintenance and Housekeeping
12 NYCRR § 23-11.3 — Use of Explosives — Loading or Charging Operations
12 NYCRR § 23-11.5 — Use of Explosives — Re-Entry of Blasting Area
12 NYCRR § 23-11.6 (No such provision is listed in Code 23 of the Industrial Code)
12 NYCRR § 23-11.7 (No such provision is listed in Code 23 of the Industrial Code)
Defendants move to dismiss plaintiff's claims under Labor Law § 241(6) for all of the above alleged Industrial Code violations. Defendants state that there are no Industrial Code provisions 12 NYCRR § 23-11.6 and 12 NYCRR § 23-11.7, and the defendants are correct on this point. Therefore, plaintiff's claims under Labor Law § 241(6) for violations under these cited Industrial Code provisions are hereby dismissed. Defendants also argue that Industrial Code provisions 12 NYCRR § 23-11.3 and Industrial Code provisions 12 NYCRR § 23-11.5 which deal with the use of explosives are inapplicable in this case. The defendants are also correct on this point and, therefore, plaintiff's claims under Labor Law § 241(6) for violations under these cited Industrial Code provisions are hereby dismissed.
Defendants also argue that Industrial Code provisions 12 NYCRR § 23-2.1, 12 NYCRR § 23-1.22(a), 12 NYCRR § 23-1.22(b)(1), (2), (3), (4), and 12 NYCRR § 23-1.22(c)(1), and (2), 12 NYCRR § 23-1.7(d), 12 NYCRR § 23-1.7(f), and 12 NYCRR § 23-2.1 are inapplicable in this case. Since plaintiff also withdrew these claims (Plaintiff's Opposition Papers at ¶ 2) this issue is now moot and plaintiff's claims under Labor Law § 241(6) for violations under these cited Industrial Code provisions are hereby dismissed.
Defendants argue that Industrial Code provision 12 NYCRR § 23-1.6 is insufficiently specific to sustain a Labor Law § 241(6) claim. This provision reads, in its entirety, as follows:
Section 23-1.6. Responsibility of Employees
Every employee shall observe all the provisions of this Part (rule) which directly concern or affect his conduct. He shall use the safety devices provided for his personal protection and he shall not tamper with or render ineffective any safety device, safeguard or personal protective equipment.
Plaintiff has not addressed defendants' challenge to his claim under this provision of the Industrial Code. Inasmuch as this provision deals with the responsibilities of employees only, and does not relate to the responsibilities or duties of the owner or contractors, this provision of the Industrial Code is inapplicable and, therefore, plaintiff's claim under Labor Law § 241(6) for violations under Industrial Code 12 NYCRR § 23-1.6 is hereby dismissed.
The only remaining Industrial Code provisions still at issue are 12 NYCRR § 23-7(e)(1) and (2) which relate to tripping hazards and 12 NYCRR § 23-1.30 which relates to illumination. The arguments regarding these two remaining provisions will be discussed separately below.
Industrial Code 12 NYCRR 23-1.7(e)(1) and (2)
Plaintiff has alleged that defendants violated the provisions of Industrial Code 12 NYCRR § 23-1.7(e)(1) and (2) which reads as follows:
(e) Tripping and other hazards.
(1)Passageways. All passageways shall be kept free from accumulations of dirt and debris and from any other obstructions or conditions which could cause tripping. Sharp projections which could cut or puncture any person shall be removed or covered.
(2)Working areas. The parts of floors, platforms and similar areas where persons work or pass shall be kept free from accumulations of dirt and debris and from scattered tools and materials and from sharp projections insofar as may be consistent with the work being performed.
There is no dispute that the provisions of Industrial Code 12 NYCRR § 23-1.7(e)(1) and (2) are specific enough to sustain an action under Labor Law § 241(6) for their violation. Boss v Integral Construction Corp., 249 AD2d 214 (1st Dept 1998); Herman v St. John's Episcopal Hosp., 242 AD2d 316 (2d Dept 1997); McDonagh v Victoria's Secret, Inc. , 9 AD3d 395 (2d Dept 2004).
Plaintiff claims that he tripped, fell, and was injured while he was walking from his work area on one of the atrium maintenance walkways on the upper atrium level to his gangbox located on the upper atrium lobby floor. Defendants argue in their motion that Industrial Code provisions 12 NYCRR § 23-1.7(e)(1) and (2) are inapplicable based on the facts of this case.
Defendants assert that 12 NYCRR § 23-1.7(e)(1), which deals with tripping hazards in passageways, does not apply because plaintiff did not trip and fall "in a passageway, but rather in a large open area. The area itself is not a passageway as there is no testimony as to the area of his accident being blocked off or separated from the general open area in any way." (Defendants' Motion at p. 17, ¶ 39). Defendants also argue that 12 NYCRR § 23-1.7(e)(2), which deals with working areas, is inapplicable because the area where he tripped and fell was not the area in which he was working at the time (Defendants' Reply Affirmation at p. 8, ¶ 16), and that the cause of plaintiff's trip and fall was not an item listed as a tripping hazard under 12 NYCRR § 23-1.7(e)(2) (Defendants' Motion at p. 17, ¶ 41 and Defendants' Reply Affirmation at p. 6, ¶ 12 through p. 7, ¶ 13).
Regarding Industrial Code provision 12 NYCRR § 23-1.7(e)(1), plaintiff argues that the accident occurred when the plaintiff was walking from the atrium maintenance walkway and a few steps into the open upper atrium lobby area where his gangbox was located and, as such, that area should be considered a "passageway." Defendants maintain that for an area to be considered a "passageway" under Industrial Code provision 12 NYCRR § 23-1.7(e)(1) the area must be enclosed or "blocked off or separated from" a general open area. However, defendants present no case law or commentary to support this interpretation of passageway and a search by this Court could not find any such limitation. Industrial Code 12 NYCRR § 23-1.4 which is the section for definitions, does not provide a definition for "passageway" under the Code. As such, the Court must rely upon the ordinary definition of "passageway."
Webster's Revised Unabridged Dictionary (copyright 1996, 1998 MICRA, Inc.) defines "passageway" as "a way for passage; a hall." Testimony by the plaintiff indicated that the area where he tripped and fell was a large lobby area where workers, from both his company and other trades, walked across constantly. (Dand EBT at p. 97, line 23 through p. 98, line 17). Plaintiff has, therefore, presented evidence to show that the upper atrium lobby area where plaintiff tripped and fell was a de facto passageway where workers were regularly passing through. This is sufficient to survive defendants' summary judgment motion regarding Industrial Code provision 12 NYCRR § 23-1.7(e)(1).
Webster's Revised Unabridged Dictionary (copyright 1996, 1998 MICRA, Inc.) defines "hall" as "[a] building or room of considerable size and stateliness, used for public purposes.
Regarding Industrial Code provision 12 NYCRR § 23-1.7(e)(2), plaintiff testified and alleged that the area nearby where he tripped and fell was also a work area, but was not the area where he and his men were working at that time. Defendants argue that for Industrial Code provision 12 NYCRR § 23-1.7(e)(2) regarding tripping hazards at work areas to apply, the area must be plaintiff's own work area. (Defendant's Reply at p. 8, ¶ 16). Defendants' assertion is unavailing as Industrial Code provision 12 NYCRR § 23-1.7(e)(2) contains no such limitation and has been applied to general work areas. See, e.g., McDonagh v Victoria's Secret, Inc. , 9 AD3d 395 (2d Dept 2004).
Defendants' argument that the plaintiff did not trip over one of the items listed under Industrial Code provision 12 NYCRR § 23-1.7(e)(2) is also unpersuasive. One fairly recent case, Giza v New York City School Construction Auth. , 22 AD3d 800 (2d Dept 2005), held that a warped piece of plywood which caused the plaintiff worker to trip and fall was a tripping hazard as defined in 12 NYCRR § 23-1.7(e)(2). Whether defined as "materials" or a "sharp projection," the warped plywood is a tripping hazard covered by Industrial Code provision 12 NYCRR § 23-1.7(e)(2).
In Giza, there was a triable issue of fact as to whether the warped piece of plywood over which the plaintiff worker allegedly tripped was an integral part of his work. No such issue has been raised in the instant case.
Defendants have also argued that because plaintiff, during his deposition, stated that he thought he tripped on either the warped plywood or the debris (sheetrock) that was on the floor in the area where he fell (Dand EBT at p. 109, lines 10 through 12, and p. 112, lines 11 through 14), that his claim is not specific enough to maintain his claim under Industrial Code provision 12 NYCRR § 23-1.7(e)(2). This ignores other deposition testimony given by the plaintiff (Dand EBT at p. 111, lines 7 and 8) and the statements made by the plaintiff immediately after the accident that he tripped and fell on a warped piece of plywood (Exhibits 4 and 5 to Plaintiff's Opposition papers). At best, this raises a triable issue of fact of whether plaintiff tripped due to a warped piece of plywood or debris, both of which would be a tripping hazard under the provisions of Industrial Code 12 NYCRR § 23-1.7(e)(2).
Defendants reliance on the case of Alvia v Teman Electric Contracting, 287 AD2d 421 (2d Dept 2001), is also misplaced. In that case, the court found that "the plywood on which he [the plaintiff worker] tripped was not "debris" or "scattered materials" [as per Industrial Code 12 NYCRR § 23-1.7(e)(2)], but was material used in the actual task he was performing. The regulation does not apply where the object on which plaintiff tripped * * * was an integral part of the work he was performing.'" 287 AD2d at 423 (citations omitted). Here, the plywood or debris upon which plaintiff tripped and fell was not an integral part of the work plaintiff was performing and the exception cited in Alvia and other cases which similarly so held, is not applicable in the instant case.
Based on the foregoing, that portion of defendants' summary judgment motion seeking dismissal of plaintiff's claims under Labor Law § 241(6), premised on a violation of Industrial Code provisions 12 NYCRR § 23-1.7(e)(1) and (2) must fail, and plaintiff's Labor Law § 241(6) claims based on Industrial Code provisions 12 NYCRR § 23-1.7(e)(1) and (2) may go forward to trial.
Industrial Code 12 NYCRR 23-1.30
Industrial Code 12 NYCRR 23-1.30 covers illumination requirements at construction sites and reads as follows:
Illumination sufficient for safe working conditions shall be provided wherever persons are required to work or pass in construction, demolition and excavation operations, but in no case shall such illumination be less than 10 foot candles in any area where persons are required to work nor less than five foot candles in any passageway, stairway, landing or similar area where persons are required to pass.
Defendants argue that plaintiff has failed to show that the illumination at the accident location failed to meet the requirements of Industrial Code 12 NYCRR 23-1.30. Plaintiff argues that on a summary judgment motion brought by the defendants, the burden of proof is on the moving defendants to show that the illumination meets the statutory requirements.
While some cases in the Second, Third, and Fourth Department place the burden on a defendant bringing the motion for summary judgment to show that the illumination met the requirements imposed by Industrial Code 12 NYCRR 23-1.30, regardless of the sufficiency of the opposing parties papers (see, e.g., Lucas v KD Development Construction Corp., 300 AD2d 634, 635 [2d Dept 2002]; England v Vacri Construction Co., 24 AD3d 1122 [3d Dept 2005]; Duell v Eastman Kodak Co., 224 AD2d 997 [4th Dept 1996]; Giglio v St. Joseph Intercommunity Hosp., 309 AD2d 1266 [4th Dept 2003]); and Earl v Starwood Ceruzzi Saratoga, LLC , 9 AD3d 879 ([4th Dept 2004], such is not the rule in the First Department. See, Carty v. Port Authority of New York and New Jersey, 32 AD3d 732 (1st Dept 2006) (plaintiff's testimony that the lighting was "poor" and the area where he fell was "dark" was insufficient to create an inference that the amount of lighting fell below the specific statutory standard under Industrial Code 12 NYCRR 23-1.30 in order to defeat defendant's summary judgment motion [citing Cahill v Triborough Bridge and Tunnel Auth. , 31 AD3d 347 , 349 (1st Dept 2006)]). See also, Herman v St. John's Episcopal Hosp., 242 AD2d 316 (2d Dept 1997) (plaintiff's allegations that the lighting in the area where he fell was "poor" and area was "dark" was insufficient to raise a triable issue of fact whether the specific requirements of 12 NYCRR 23-1.30 were violated in order to defeat defendant's summary judgment motion).
In Cahill v Triborough Bridge and Tunnel Auth. , 31 AD3d 347 (1st Dept 2006), the First Department noted:
We are not unmindful of the inherent difficulties faced by plaintiffs in attempting to establish a violation of this Code provision. Where, as here, the location of the accident is a temporary construction site, with minimum artificial and natural lighting, it may prove difficult, if not impossible, to establish that the lighting at the time and place of the accident fell below the statutory standard of 10 foot candles. Nevertheless, to establish liability under § 241(6), a plaintiff must offer some evidence to support a jury's conclusion that the lighting failed to meet these concrete statutory requirements.
31 AD3rd at 349, n 2 (citations omitted).
The First Department case cited by plaintiff in support of his argument, Murphy v Columbia University , 4 AD3d 200 (1st Dept 2004), is inapplicable. That case did not involve the burden of proof on a summary judgment motion but an appeal by the defendants after a jury trial and verdict. Furthermore, in Murphy the court held that "[n]o necessity for expert testimony regarding the level of illumination was necessary to demonstrate its inadequacy, inasmuch as two witnesses testified that [the] lighting was nonexistent' and pitch black.'" 4 AD3d at 202. While testimony that the illumination was "nonexistent" and that the area was "pitch black" is sufficient to satisfy plaintiff's burden of proof, plaintiff's testimony that the lighting was "poor" and did not get much light, is insufficient as a matter of law to sustain plaintiff's burden of proof. See Carty v. Port Authority of New York and New Jersey and Herman v St. John's Episcopal Hosp., supra,
The affidavit of plaintiff's expert Nicholas Bellizzi, P.E., sworn to on January 12, 2008 ("Bellizzi Aff.") (Exhibit 6 to Plaintiff's Opposition papers) is insufficient to meet plaintiff's burden of proof. Bellizzi merely refers to plaintiff's deposition testimony that the lighting where he tripped and fell as "poor" but Bellizzi did not conduct any objective tests or investigation of the area involved. As the courts held in Carty v. Port Authority of New York and New Jersey and Herman v St. John's Episcopal Hosp., supra, plaintiff has failed to provided sufficient evidence to sustain his claim under 12 NYCRR 23-1.30 regarding illumination and, therefore, that portion of defendants' motion to dismiss that claim must be granted.
Article 1926 of O.S.H.A.
Plaintiff has alleged that the defendants are liable for his accident and injuries as a result of their violation of Article 1926 of O.S.H.A., codified as 29 USC § 651, et seq. Defendants argue that 29 USC § 651 cannot serve as a predicate for liability under Labor Law § 241(6). Plaintiff has not presented any argument to challenge defendants' arguments on this issue.
Defendants are correct in arguing that violations of O.S.H.A. regulations can not be used to establish liability under Labor Law § 241(6). The Court of Appeals in Rizzuto v L.A. Wenger Contracting Co, 91 NY2d 343, 351 (1998), clearly stated in a footnote that the Court:
. . . expressly hold[s] that plaintiff's attempt here to use Federal OSHA regulations as a predicate for his Labor Law § 241(6) claim against a nonsupervising owner or general contractor must fail. As the Federal provisions relied upon by plaintiff are not the type which establish a nondelegable duty, the breach of which would constitute some evidence of negligence, any violation of the OSHA regulations by the subcontractor, plaintiff's employer, would not form the basis for liability under Labor Law § 241(6).
See also, Schiulaz v Arnell Construction Corp., 261 AD2d 247 (1st Dept 1999); Cun-En Lin v Holy Family Monuments , 18 AD3d 800 (2d Dept 2005).
As a result of the holdings in Rizzuto, Schiulaz, and Cun-En Lin, , supra, plaintiff's claims under Labor Law § 241(6) for any violations of Article 1926 of O.S.H.A. are hereby dismissed.
Liability of Defendants as Owner and General Contractor
Plaintiff seeks to hold defendants liable under Labor Law § 241(6). To do this, plaintiff must show that the owner or general contractor violated a specific Industrial Code rule or regulation and that such violation proximately caused the plaintiff's injuries. Rizzuto v L.A. Wenger Contracting Co., Inc., 91 NY2d 343 (1998). As the Rizzuto court stated:
[W]e have repeatedly recognized that section 241(6) imposes a nondelegable duty upon an owner or general contractor to respond in damages for injuries sustained due to another party's negligence in failing to conduct their construction, demolition or excavation operations so as to provide for the reasonable and adequate protection of the persons employed therein. Thus, once it has been alleged that a concrete specification of the Code has been violated, it is for the jury to determine whether the negligence of some party to, or participant in, the construction project caused plaintiff's injury. If proven, the general contractor (or owner, as the case may be) is vicariously liable without regard to his or her fault ( see, Allen v. Cloutier Constr. Corp., supra; see also, Monroe v. City of New York, 67 AD2d at 104, 414 NYS2d 718, supra; 1A PJI 2:216A [1997], at 807-809).
91 NY2d at 350. See also Allen v. Cloutier Construction Corp., 44 NY2d 290 (1978); Temes v Columbus Centre LLC, 48 AD3d 281 (1st Dept 2008); Murphy v Columbia University , 4 AD3d 200 (1st Dept 2004).
Since this Court has found that plaintiff's claims under Labor Law § 241(6) based on Industrial Code provisions 12 NYCRR § 23-1.7(e)(1) and (2) may go forward to trial, defendants Columbus Centre, as the owner, and Bovis, as the general contractor, may be held vicariously liable without regard to their fault if the plaintiff proves that the negligence of some party to the construction project caused his injuries.
Labor Law § 200 and Common Law Negligence
Plaintiff has asserted claims against the defendants under Labor Law § 200 and common-law negligence. Labor Law § 200 is a codification of the common-law duty imposed upon an owner and general contractor to provide construction site workers with a safe place to work. Allen v. Cloutier Construction Corp., 44 NY2d 290 (1978); Ross v Curtis-Palmer Hydro-Electric Co., 81 NY2d 494 (1993); Rizzuto v L.A. Wenger Contracting Co., Inc., 91 NY2d 343 (1998). Therefore, the standards for liability under Labor Law § 200 and common law negligence are the same. Id.
Implicit in the duty to maintain a safe workplace is the requirement that "the party to be charged with that obligation have the authority to control the activity bringing about the injury to enable it to avoid or correct an unsafe condition' ( Russin v Picciano Son, 54 NY2d 311, 317)." Rizzuto, 91 NY2d at 352.
Citing Russin, Comes v New York State Elec. Gas Corp., 82 NY2d 876 (1993) which defendants argue that since they did not directly supervise or control plaintiff's work, which was supervised by plaintiff's own Melto foreman, John Durst, they cannot be held liable for plaintiff's injuries under Labor Law § 200 or common law negligence. This argument ignores the testimony of Michael Marrone, Bovis' general superintendent, that one of his responsibilities was as site safety director, with other safety directors reporting to him. (Marrone EBT p. 8, lines 11 through 20). In addition, his responsibilities also included the coordination of the various trades (i.e. sub-contractors) at the construction site, including insuring that the sub-contractors performed their work in a safe manner, and had the authority to stop the work. (Marrone EBT at p. 10, lines 3 through 24). More importantly, it ignores the fact that the defendants would be liable to the plaintiff not for the supervision of plaintiff's work but for the creation and/or the control of the dangerous condition which caused plaintiff's injury.
Under both the common law and Labor Law § 200, "an owner or general contractor can be held liable for injuries caused as a result of a defective condition on the premises, if it can be shown that the owner or general contractor created the condition, or that it had actual or constructive notice of the condition for such a period of time that, in the exercise of reasonable care, the owner or general contractor should have corrected the problem." Bender v TBT Operating Corp., 186 Misc 2d 394, 399 (Sup Ct NY County 2000) citing Rizzuto and Ross v. Curtis-Palmer Hydro-Electric Co., supra; Lombardi v. Stout, 80 NY2d 290 (1992); cf. Bond v York Hunter Construction, Inc., 95 NY2d 883 (2000) (to support a Labor Law § 200 claim, plaintiff must show that defendant construction manager created or had prior notice of the dangerous condition which caused the accident).
In this case, Bovis' general superintendent, Michael Marrone, testified that Bovis placed or directly supervised the placement of the plywood boards which then allegedly caused plaintiff to trip, fall, and be injured. (Marrone EBT at p. 79, line 2 through p. 80, line 24). Furthermore, Marrone testified that the area where plaintiff tripped, fell and was allegedly injured was under Bovis' jurisdiction. (Marrone EBT at p. 77, lines 16 through 19). Plaintiff testified that when the plywood boards first began warping, blocks were installed at the corners in an attempt to remedy the situation (Dand EBT at p. 10, lines 14 through 23). In addition, plaintiff testified that there were prior incidents of workers tripping on the plywood boards (Dand EBT at p. 76, line 14 through p. 77, line 2) which had been reported to the Bovis superintendents (Dand EBT at p. 77, line 20 through p. 78, line 25). Marrone also testified that he and the other Bovis safety directors would walk the areas under their jurisdiction on a regular basis (Marrone EBT at p. 8, line 21 through p. 9, line 10; and p. 22, line 13 through p. 24, line 8).
Base on the above testimony, there exists a triable issue of fact as to whether Bovis created or controlled the conditions of the plywood boards which allegedly caused plaintiff's accident and whether defendants had actual or constructive notice of the allegedly dangerous condition. Plaintiff's claims under Labor Law § 200 and common-law negligence, therefore, survive defendants' summary judgment motion for resolution by the finder of fact.
CONCLUSION
Based on the foregoing, the summary judgment motion by defendants Columbus Centre and Bovis is granted only to the extent of dismissing plaintiff's claims under Labor Law § 240(1) and those claims under Labor Law § 241(6) based on Industrial Code provisions 12 NYCRR § 23-1.6, 12 NYCRR § 23-1.7(d), 12 NYCRR § 23-1.7(f), 12 NYCRR § 23-2.1, 12 NYCRR § 23-1.22(a), 12 NYCRR § 23-1.22(b)(1), (2), (3), (4), and 12 NYCRR § 23-1.22(c)(1), and (2), 12 NYCRR § 23-1.30, 12 NYCRR § 23-11.3, 12 NYCRR § 23-11.5, 12 NYCRR § 23-11.6, 12 NYCRR § 23-11.7,
Plaintiff's claims under Labor Law § 241(6) based on Industrial Code provisions 12 NYCRR § 23-1.7(e)(1) and (2), Labor Law § 200, and common law negligence are preserved for trial as there are issues of fact to be resolved regarding these claims.
The foregoing constitutes the Decision and Order of this Court. Courtesy copies of this decision and order have been provided to counsel for the parties.