Opinion
112474/06.
January 29, 2009.
DECISION/ORDER
The instant motion and cross motion are decided in accordance with the annexed Memorandum Decision. It is hereby
ORDERED that defendants' motion for reargument is granted; and it is further
ORDERED that, upon reargument, the part of plaintiff's notion which sought partial summary judgment on the issue of defendants' liability under Labor Law § 240 (1) is granted, with the issue of the amount of damages to await trial; and it is further
ORDERED that the part of the June Decision which denied this relief is withdrawn and vacated; and it is further
ORDERED that, upon reargument, the part of plaintiff's motion which sought summary judgment on the issue of defendants' liability under Labor Law § 241 (6) is denied, and the part of the June Decision which granted this relief is withdrawn and vacated; and it is further
ORDERED that, upon reargument, the part of defendants' motion which sought summary judgment dismissing plaintiff's section 200 and common-law negligence causes of action is granted, and the part of the June Decision which denied this relief is withdrawn and vacated; and it is further
ORDERED that plaintiff's cross motion for "reconsideration" is denied; and it is further
ORDERED that counsel for defendants shall serve a copy of this order with notice of entry within twenty days of entry on counsel for plaintiff.
MEMORANDUM DECISION
In this action arising from injuries suffered as a result of a construction site accident, defendants move, pursuant to CPLR 2221, for leave to reargue the prior motion and cross motion for summary judgment which were decided in this court's June 10, 2008 decision and order (the June Decision), and, upon reargument, for an order (1) denying plaintiff summary judgment on his Labor Law § 241 (6) claim, and (2) granting defendants summary judgment dismissing plaintiff's common-law negligence and Labor Law § 200 claims. Plaintiff cross-moves, asking the court "to reconsider its denial of plaintiff's Labor Law § 240 (1) application" (Notice of Cross Motion). Familiarity with the June Decision is presumed.
Plaintiff's Cross Motion
CPLR 2221 governs motions affecting prior orders, including motions for leave to reargue and renew. The statute requires that motions for either relief be "identified specifically as such" (CPLR 2221 [d] [1]; [e] [1]). In attempting to bring a motion which seeks the nebulous relief of "reconsideration," plaintiff fails to inform the court and defendants of the relief sought, ignores the mandate of clarity set forth in the statute.
Even if this court were inclined to guess what form of relief plaintiff is requesting (which it is not), plaintiff has failed to provide any grounds for either reargument or renewal. In addition, if plaintiff seeks leave to reargue, his cross motion is clearly untimely.
CPLR 2221 (d) (3) provides that a motion for leave to reargue "shall be made within thirty days after service of a copy of the order determining the prior motion and written notice of its entry." The Affidavit of Service by Mail of the June Decision indicates that the Order with Notice of Entry was served on the court and counsel for plaintiff on June 11, 2008. Plaintiff's cross motion is dated August 19, 2008, well beyond the statutory 30-day limit. As such, on this ground alone, plaintiff's cross motion should be denied, if a motion for reargument it be ( see e.g. Bramble v State of New York, 54 AD3d 1138, 1139 [3d Dept 2008]; Ireland v Wilenzik, 296 AD2d 771, 773 [3d Dept 2002]; Matter of Zahoudanis, 289 AD2d 411, 411 [2d Dept 2001]).
However, there is also another reason to deny plaintiff's cross motion, if it is a motion for reargument. A motion for leave to reargue "shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion" (CPLR 2221 [d] [2]; see also Ito v 324 East 9th Street Corp., 49 AD3d 816, 817 [2d Dept 2008] [motions for reargument are addressed to sound discretion of court; may be granted upon showing that court "for some reason mistakenly arrived at its earlier decision"]; Mazzei v Licciardi, 47 AD3d 774, 774 [2d Dept 2008] [same]; McDonald v Stroh, 44 AD3d 720, 721, 842 N.Y.S.2d 727 [2d Dept 2007] [same]; McGill v Goldman, 261 AD2d 593, 594 [2d Dept 1999] [showing must be made that court "overlooked or misapprehended the relevant facts or misapplied any controlling principle of law"]).
Plaintiff fails to identify any fact or law which the court allegedly either overlooked or misapprehended. The only alleged "mistake" mentioned in plaintiff's moving papers that the court made in the June Decision was that the court was "overly favorable to the defendants in denying plaintiff's § 240 (1) application" (Shapiro 8/9/08 Affirm., ¶ 23). This statement lacks the substance necessary for the grant of a motion for reargument, and any such motion by plaintiff is denied.
If the motion is allegedly one for renewal, a motion for leave to renew
shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination; and shall contain reasonable justification for the failure to present such facts on the prior motion
(CPLR 2221 [e] [2], [3]; see also Sun Whan Lee v Doe, 57 AD3d 651, *1 [2d Dept 2008] [motion for leave to renew "is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation"]; Castillo v 711 Group, Inc., 55 AD3d 773 [2d Dept 2008]; Gonzalez v County of Westchester, 55 AD3d 873, 873 [2d Dept 2008]).
If plaintiff's cross motion seeks renewal relief, it must be denied. Plaintiff set forth no new facts or law in its cross motion at all. Thus, no ground for the grant of the motion has been presented. It was only after defendants appended an affidavit from non-party Shannon Henry to their papers opposing plaintiff's cross motion that plaintiff belatedly attempted to supply new information by appending, to a letter dated September 4, 2008, a "subsequent affidavit" by the same witness. The CPLR allows the service of "any reply or responding affidavits" as part of motion practice (CPLR 2214 [b]). No such sanction is provided for letter submissions to the court which improperly attempt to present evidence for the court's consideration. This court shall not consider the "subsequent affidavit" of Shannon Henry on these motions.
Even if the court were to do so, however, the cross motion would still have to be denied, as the "subsequent affidavit" presents nothing new that would "change the prior determination," as required for a grant of a motion for leave to renew (CPLR 2221 [e] [2]).
In sum, whether considered a motion for leave to reargue or to renew, plaintiff's cross motion is denied.
Defendants' Motion
Defendants' motion for leave to reargue is granted, and upon reargument, is decided as follows.
Defendants correctly assert that the court overlooked the fact that plaintiff failed to establish his prima facie entitlement to summary judgment on his moving papers, and that his motion should have been denied on that basis ( see e.g. Santiago v Filstein, 35 AD3d 184, 186 [1st Dept 2006] [failure to make prima facie showing requires denial of summary judgment motion]). Specifically, defendants contend that plaintiff failed to establish that One Bryant Park was the owner, and Tishman the construction manager/agent of One Bryant Park, and thus, that they were subject to the Labor Law, in his motion papers. The deficiencies in plaintiff's proof on his motion could not be cured, as plaintiff attempted to do, by reliance on defendants' submissions or by plaintiff's reply ( see e.g. Esdaille v Whitehall Realty Co., 50 AD3d 251, 251 [1st Dept 2008] [owner and agent failed to establish prima facie entitlement to summary judgment; court properly declined to consider attempted cure in reply affirmation]). Accordingly, upon reargument, the court withdraws and vacates the part of the June Decision which granted plaintiff's motion in part, and hereby denies plaintiff's motion in its entirety.
Defendants also correctly argue that the court mistakenly decided parts of the June Decision, in that it reached inconsistent determinations with respect to the Labor Law §§ 240 (1) and 241 (6) claims. The court agrees that its conclusions were inconsistent, and upon reargument, decides the prior motions as follows.
Plaintiff's Motion for Summary Judgment on the Issue of Defendants' Liability Under Labor Law §§ 240 (1) and 241 (6)
On this present motion, defendants do not argue that the court erred in deciding that the part of plaintiff's motion which sought summary judgment on his section 240 (1) claim should be denied.
In the June Decision, in the section discussing Labor Law § 240 (1), the court stated that
[t]he safety device which would have prevented plaintiff's fall was a proper cover for the opening. It is hotly contested whether a proper cover was in place at the time of the accident (plaintiff contends that it was absent), or whether plaintiff himself removed the cover and then inadvertently fell into the opening (defendants' position). The evidence before the court raises material questions of fact concerning how the accident occurred and whether plaintiff was the sole proximate cause of his injuries
(June Decision, at 6-7). On the basis of the question of whether plaintiff was the sole proximate cause of his accident, the court denied plaintiff summary judgment on his section 240 (1) claim.
However, in its discussion of section 241 (6), and the issue of whether defendants are liable under that statute for a violation of Industrial Code § 23-1.7 (b) (1) (I), the court concluded that the Code provision had been violated, and that the violation was a proximate cause of plaintiff's injuries. If a violation of the Industrial Code was a proximate cause of his accident, plaintiff could not have been the sole proximate cause ( see Blake v Neighborhood Housing Services of New York City, 1 NY3d 280, 290 ["if a statutory violation is a proximate cause of an injury, the plaintiff cannot be solely to blame for it"]), and the issue of fact found in the court's determination of the section 240 (1) claim would be nonexistent.
Defendants argue that the court erred in determining that "defendants failed to comply with Industrial Code § 23-1.7 (b) (1) (I), and that this failure was a proximate cause of plaintiff's injury" (June Decision, at 15). They contend that because "fastened in place" is not defined in the Industrial Code, the court should have adopted defendants' experts' opinions concerning OSHA regulations and current industry standards, and should have decided that cleating satisfies the rule. At the very least, defendants assert, what constitutes "fastening" is in dispute, and that, therefore, the court should not have found a violation of section 23-1.7 (b) (1) (I) as a matter of law.
"The interpretation of [an Industrial Code] regulation presents a question of law" ( Morris v Pavarini Construction, 9 NY3d 47, 51). A trial court errs if it allows an "expert witness to usurp its function as the sole determiner of the law" ( Marquart v Yeshiva Machezikel Torah D'Chasidel Belz of New York, 53 AD2d 688, 689 [2d Dept 1976]), and "[e]xpert testimony as to a legal conclusion is impermissible . . . [because] a pure question of law involving statutory interpretation . . . is the responsibility of the court" ( Measom v Greenwich Perry Street Housing Corp., 268 AD2d 156, 159 [1st Dept 2000]). Of course, "the meaning of specialized terms in [an Industrial Code] regulation is a question on which a court must sometimes hear evidence before making its determination" ( Morris, 9 NY3d at 51), but this court is not convinced that "fastened" presents such a "specialized term" that it requires expert evidence to plumb its meaning.
In interpreting a statute, "our primary consideration is to ascertain and give effect to the intention of the Legislature. Of course, the words of the statute are the best evidence of the Legislature's intent. As a general rule, unambiguous language of a statute is alone determinative [interior quotation marks and citations omitted]" ( Stinton v Robin's Wood, Inc., 45 AD3d 203, 208 [2d Dept 2007]; see also Matter of Excellus Health Plan v Serio, 2 NY3d 166, 171 [same]). "As a general proposition, we need not look further than the unambiguous language of the statute to discern its meaning" ( Jones v Bill, 10 NY3d 550, 554; see also McLean v City of Kingston, 57 AD3d 1269, *2 [3d Dept 2008] ["'(a) fundamental rule of statutory construction is that the Legislature is presumed to mean what it says' (citations omitted)"]; Matter of Kittredge v Planning Board of Town of Liberty, 57 AD3d 1336, *4 [3d Dept 2008] ["Such intent and meaning is best determined from the plain language of the statutory text"]; Skerritt v Bach, 23 AD3d 1080, 1081 [4th Dept 2005] ["The preeminent canon of statutory interpretation requires (courts) to presume that (the) legislature says in a statute what it means and means in a statute what it says there. . . . Thus, (a court's) inquiry begins with the statutory text, and ends there as well if the text is unambiguous (internal quotation marks and citation omitted)"]; Matter of von Knapitsch, 296 AD2d 144, 149 [1st Dept 2002] ["Where the language of a statute clearly and unambiguously expresses the will of the Legislature, there is no reason to resort to other means of interpretation"]).
The "core objective" of the Legislature in enacting the provisions of the Labor Law at issue here, specifically section 240 (1), was to ensure that adequate safety devices would be provided to prevent falls and injury to workers (see e.g. Lopez v Melidis, 31 AD3d 351, 351 [1st Dept 2006] ["Since the scaffold-and-ladder arrangement did not prevent plaintiff from falling — 'the core objective of Labor Law § 240 (1)' (citation omitted), and plaintiff's injuries were caused by the fall, plaintiff established a prima facie case for relief under Labor Law § 240 (1)"]; see also Nieves v Five Boro Air Conditioning Refrigeration Corp., 93 NY2d 914, 916 ["core objective" of section 240 (1) is met when required protective devices prevent falls]; Gordon v Eastern Railway Supply, 82 NY2d 555, 561 [same]). That same intent is expressed in Labor Law § 241 (6), where "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. . . ."
In prescribing the standards set forth in Industrial Code § 23-1.7 (b) (1) (I), the Commissioner of the Department of Labor required that "a substantial cover [be] fastened in place." According to Webster's New World Dictionary (4th ed), "fasten" means "(1) to attach; connect; (2) to make secure, as by locking, buttoning, etc.; (3) to fix (the attention, etc.) on something [emphasis in original]." The court is unaware of the word used in any way that implies a less fixed or attached quality.
In support of their opposition to plaintiff's motion, defendants submitted the affidavit of their expert, Tony Raimo, who has many years' experience in the field of construction site safety. After familiarizing himself with the facts of this case, Mr. Raimo opined, "with a reasonable degree of certainty in the fields of construction and construction site safety," that the cleated plywood board that covered the opening through which plaintiff fell "satisfie[d] the Industrial Code Rule 23-1.7 (b) requirement for the provision of 'a substantial cover fastened in place'" (Raimo 1/15/08 Aff., ¶ 9). He further concluded that "the cover utilized to protect the subject floor opening was proper, fully complied with the mandates of OSHA and the Industrial Code and effectively eliminated the risk of accidentally or inadvertently falling from the first floor to the level below" ( id., ¶ 14).
In his opposition to defendants' cross motion, plaintiff submitted the affidavit of his expert, Kathleen Hopkins, who has many years' experience in "safety, health and environmental management and site experience in the construction industry" (Hopkins 2/21/08 Aff., ¶ 1). After familiarizing herself with the facts of this case, she opined that
[w]hile cleats are sometimes used on floor covers for small holes that are not big enough for a worker to fall through, cleats alone should never be used on a cover for a hole that is large enough for a worker to fall through. Large floor hole covers are required to be nailed or screwed in place so that they are secure, as required by the State of New York Industrial Code and by the Occupational Safety and Health Administration (OSHA) regulations
( id., ¶ 9). In her opinion, "to a reasonable degree of professional site safety certainty," defendants failed to comply with and were in violation of Industrial Code § "23-1.7 (a) [ sic] (1) (I)" because the cover over the hole was not securely fastened in place ( id., ¶ 15).
The court has considered the parties' experts' "testimony on the question of whether a certain condition or omission was in violation of a statute or regulation," and the evidence of industry standards and practices, as well as the purposes for which Labor Law §§ 240 (1) and 241 (6) were enacted, and concludes that "fastened" is an unambiguous term which indicates that a cover needs to do more than simply plug a hole. Interpreting the Industrial Code section at issue in such a way that "fastening" could mean simply stoppering an opening, without protecting workers from the very danger that may have arisen in this case — that a worker would be able to lift the cover off an opening and then inadvertently fall into it — would do violence to the plain meaning of the word that the Commissioner chose to use, and substantially diminish the protections intended.
As noted in the June Decision, it is "hotly contested" whether a cover was in place at the time of plaintiff's accident. If no cover was present over the design opening, the Industrial Code was violated because mandated protection was absent. If a cover was there, because, at the most, the cover over the opening through which plaintiff fell was only cleated, it was not "fastened in place," and Industrial Code § 23-1.7 (b) (1) (I) was violated.
Next, the court must consider whether the violation of the Industrial Code was a proximate cause of plaintiff's injury. The court finds that it was.
Plaintiff's accident occurred, at least in part, because the plywood cover, which may or may not have been in place, merely plugged the hole. The cleats allegedly beneath the board, while an effective device for preventing horizontal movement of the cover, did nothing to prevent vertical movement. As stated in the June Decision, plaintiff's "accident did not occur because the cover shifted horizontally" (June Decision, at 15). The accident occurred because the cover was not "fastened" in such a way that it would prevent a worker from lifting it up and inadvertently falling through the exposed opening. As a safety device mandated by Industrial Code § 23-1.7 (b) (1) (I), the plywood cover did not fulfill its core objective of preventing plaintiff's fall and injuries. This failure constituted a proximate cause of the accident, because, as stated in the June Decision, the "safety device which would have prevented plaintiff's fall," i.e., "a proper cover for the opening," was not provided (see June Decision, at 6). Had the cover been properly fastened, plaintiff would not have been able to lift it up, if indeed he did so, whether intentionally or not, and the accident would not have happened.
As such, the issue of proximate cause which precluded summary judgment on plaintiff's Labor Law § 240 (1) claim has now been resolved. Plaintiff could not have been the sole proximate cause of his accident because a violation of the Industrial Code section at issue here was a proximate cause.
Even if it is eventually determined that plaintiff lifted up the cover before stepping into the opening, his action would not preclude the grant of summary judgment in his favor on his Labor Law § 240 (1) claim ( see Hernandez v Bethel United Methodist Church of New York, 49 AD3d 251, 253 [1st Dept 2008] ["the Labor Law does not require a plaintiff to have acted in a manner that is completely free from negligence"]). It is well-settled that "[e]ven if the plaintiff was partially at fault, a worker's contributory negligence is not a defense to a Labor Law § 240 (1) claim" ( Moniuszko v Chatham Green, Inc., 24 AD3d 638, 639 [2d Dept 2005]; see also Spages v Gary Null Associates, 14 AD3d 425, 426 [1st Dept 2005]; Samuel v Simone Dev. Co., 13 AD3d 112, 113 [1st Dept 2004]).
Accordingly, the part of the June Decision which denied summary judgment in plaintiff's favor on his Labor Law § 240 (1) claim is withdrawn and vacated, and summary judgment in plaintiff's favor on the issue of defendants' liability under section 240 (1) is granted.
However, findings of a violation of the Industrial Code and Labor Law § 241 (6), and of proximate cause, are not the end of the inquiry. The element of negligence with regard to the violations must be considered.
[A]lthough this Court has consistently rejected the notion that a violation of section 241 (6) results in absolute liability irrespective of the absence of some negligent act which caused the injury, we 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., [ 44 NY2d 290 (1978)]; see also Monroe v City of New York, 67 AD2d [89], 104 [2d Dept 1979])
( Rizzuto v L.A. Wenger Contracting Co., 91 NY2d 343, 349-350; see also Mulhern v Manhasset Bay Yacht Club, 22 AD3d 470, 471 [2d Dept 2005]). The Rizzuto Court found that, once the negligence of some project party was established, the owners and general contractors "would be vicariously liable, irrespective of [their] ability to direct, control or supervise the construction site or the activity connected therewith" ( id. at 351) because "the 'apparent intent [of the 1969 amendment to section 241 (6)] was to compel owners and general contractors to become more concerned with the safety practices of subcontractors, because they would be exposed to liability without regard to control over the work' [citation omitted]" ( id. at 352).
As has been held many times, "violation of an administrative regulation promulgated pursuant to statute . . . is "'simply some evidence of negligence which the jury could take into consideration with all the other evidence bearing on that subject'" ( Rizzuto, 91 NY2d at 349, quoting Allen v Cloutier Construction Co., 44 NY2d 298), i.e., that "a violation of section 241 (6) is merely some evidence which the jury may consider on the question of defendant's negligence [internal quotation marks and citations omitted]" ( ibid.). Thus, a finding of a violation of the Industrial Code and of section 241 (6) is not a finding of negligence as a matter of law ( see e.g. Long v Forest-Fehlhaber, 55 NY2d 154, 161 ["violation of the administrative rules adopted pursuant to the authorization of subdivision 6 of section 241 of the Labor Law cannot rise to the level of negligence as a matter of law"]; Brinson v State of New York, 178 AD2d 457, 458 [2d Dept 1991] [violation of section 241 (6) is considered some evidence of negligence, but "would not establish negligence as a matter of law"), and the liability imposed upon a defendant under section 241 (6) may be completely vicarious.
In opposing imposition of liability under section 241 (6), a defendant "may raise any valid defense . . . including [plaintiff's] contributory and comparative negligence" ( Edwards v C D Unlimited, 295 AD2d 310, 311 [2d Dept 2002]; see also Spages, 14 AD3d at 425; Ramputi v Ryder Construction Co., 12 AD3d 260, 261 [1st Dept 2004]). Defendants insist that plaintiff intentionally lifted the cover from the hole before he fell into the opening, and certain evidence supports this assertion, while other evidence does not. Thus, there are questions of fact concerning plaintiff's comparative negligence that preclude summary judgment in plaintiff's favor on this claim.
Should it be found that plaintiff's negligence was a proximate cause of his accident, and that the violation of the Industrial Code was caused by one or more of the contractors or subcontractors at the site, without negligence on defendants' part, defendants' liability would be vicarious only ( see e.g. McGuinness v Hertz Corp., 15 AD3d 160, 161-162 [1st Dept 2005] [absent evidence of active negligence, defendant subject only to vicarious liability]; Fresco v 157 East 72nd Street Condominium, 2 AD3d 326, 328 [1st Dept 2003] [no evidence that general contractor failed to provide eye protection; liability "purely vicarious"]; Farina v Plaza Construction Co., 238 AD2d 158, 158 [1st Dept 1997] [defendant had no notice of dangerous condition; section 241 (6) liability "only vicarious"]; Elezaj v P.J. Carlin Construction Co., 225 AD2d 441, 443 [1st Dept 1996], affd 89 NY2d 992 [no evidence that defendant controlled plaintiff's work; liability was "entirely vicarious" under section 241 (6)]).
Because an issue of fact remains concerning plaintiff's possible comparative negligence, summary judgment in his favor on his Labor Law § 241 (6) claim is denied, and that part of the June Decision which granted summary judgment in his favor on this claim is withdrawn and vacated.
Defendants' Motion for Summary Judgment Dismissing the Complaint
In the June Decision, defendants' motion which sought summary judgment dismissing plaintiff's complaint was denied. With respect to plaintiff's common-law negligence and Labor Law § 200 claims, this court denied summary judgment because "it cannot be determined at this juncture whether the accident occurred because of a dangerous condition . . . or whether it resulted from plaintiff's means and methods" (June Decision, at 17). As defendants assert on their reargument motion, they would have no liability under either scenario because the evidence shows that they neither supervised and controlled plaintiff's work, nor caused or had notice of the alleged dangerous condition. The court agrees, and the part of defendants' motion which sought summary judgment dismissing these two claims is granted, and the part of the June Decision which denied this relief is withdrawn and vacated.
CONCLUSION
Accordingly, it is
ORDERED that defendants' motion for reargument is granted; and it is further
ORDERED that, upon reargument, the part of plaintiff's motion which sought partial summary judgment on the issue of defendants' liability under Labor Law § 240 (1) is granted, with the issue of the amount of damages to await trial; and it is further
ORDERED that the part of the June Decision which denied this relief is withdrawn and vacated; and it is further
ORDERED that, upon reargument, the part of plaintiff's motion which sought summary judgment on the issue of defendants' liability under Labor Law § 241 (6) is denied, and the part of the June Decision which granted this relief is withdrawn and vacated; and it is further
ORDERED that, upon reargument, the part of defendants' motion which sought summary judgment dismissing plaintiff's section 200 and common-law negligence causes of action is granted, and the part of the June Decision which denied this relief is withdrawn and vacated; and it is further
ORDERED that plaintiff's cross motion for "reconsideration" is denied.