Opinion
22264/10
03-22-2012
Luis F. Maldonado, Plaintiff, v. AMMM Properties Company, SCHOLES STREET REALTY CORP., AMMM PROPERTIES COMPANY, LP, and SHERRY & SONS, INC., Defendants.
, J.
The following papers numbered 1 to 26 read on this motion for an order, pursuant to CPLR § 3212, granting plaintiff partial summary judgment on liability against defendants AMMM Properties Company, Scholes Street Realty Corp., AMMM Properties Company, LP and Sherry & Sons, Inc., pursuant to Labor Law § 240(1); and on this further motion by defendants AMMM Properties Company, Scholes Street Realty Corp., AMMM Properties Company, LP and Sherry & Sons, Inc., pursuant to CPLR § 3212, granting summary judgment and dismissal of plaintiff's complaint.
PAPERS
NUMBERED
Notices of Motion-Affidavits-Exhibits-Memoranda of Law..........1 - 12
Answering Affidavits-Exhibits-Memoranda of Law......................13 - 21
Reply-Memorandum of Law...........................................................22 - 26
Upon the foregoing papers, it is hereby ordered that the motion is disposed of as follows:
Summary judgment should be granted when there is no doubt as to the absence of triable issues. See, Rotuba Extruders, Inc. v. Ceppos, 46 NY2d 223, 231 (1978); Andre v. Pomeroy, 35 NY2d 361, 364 (1974); Taft v. New York City Tr. Auth., 193 AD2d 503, 505 (1st Dept. 1993). As such, the function of the court on the instant motion is issue finding and not issue determination. See, D.B.D. Nominee, Inc., v. 814 10th Ave. Corp., 109 AD2d 668, 669 (2nd Dept. 1985). The proponent of a summary judgment motion must tender evidentiary proof in admissible form eliminating any material issues of fact from the case. See, Zuckerman v. City of New York, 49 NY2d 557, 562 (1980). If the proponent succeeds, the burden shifts to the party opposing the motion, who then must show the existence of material issues of fact by producing evidentiary proof in admissible form, in support of his position. See, Zuckerman v. City of New York, supra.
In the case at bar, plaintiff moves for an order, pursuant to CPLR § 3212, granting him partial summary judgment on liability against defendants AMMM Properties Company, Scholes Street Realty Corp., AMMM Properties Company, LP and Sherry & Sons, Inc. (Collectively "defendants"), on his Labor Law § 240(1) claim. Defendants move for summary judgment and dismissal of plaintiff's complaint. As a determination of defendants motion may be dispositive of plaintiff's motion on liability, the Court will determine defendants' motion in the first instance.
Law § 200 is a codification of the common-law duty imposed upon an owner or general contractor to provide a safe workplace. See, Reilly-Geiger v. Dougherty, 85 AD3d 1000 (2nd Dept. 2011). "Cases involving Labor Law § 200 fall into two broad categories: namely, those where workers are injured as a result of dangerous or defective premises conditions at a worksite, and those involving the manner in which the work is performed. Where a premises condition is at issue, property owners may be held liable for a violation of Labor Law § 200 if the owner either created the dangerous condition that caused the accident or had actual or constructive notice of the dangerous condition that caused the accident (citations omitted). By contrast, when the manner of work is at issue, no liability will attach to the owner solely because [he or she] may have had notice of the allegedly unsafe manner in which work was performed' (citations omitted). Rather, when a claim arises out of alleged defects or dangers in the methods or materials of the work, recovery against the owner or general contractor cannot be had under Labor Law§ 200 unless it is shown that the party to be charged had the authority to supervise or control the performance of the work (citations omitted)." Ortega v. Puccia, 57 AD3d 54, 61-62 (2nd Dept. 2008); see, Reyes v. Arco Wentworth Management Corp., 83 AD3d 47 (2nd Dept. 2011); LaRosa v. Internap Network Services Corp., 83 AD3d 905 (2nd Dept. 2011); Aragona v. State, 74 AD3d 1260 (2nd Dept. 2010); Martinez v. City of New York, 73 AD3d 993 (2nd Dept. 2010); Kwang Ho Kim v D & W Shin Realty Corp., 47 AD3d 616, 620 (2nd Dept. 2008); Quintavalle v. Mitchell Backhoe Service, Inc., 306 AD2d 454 (2nd Dept. 2003). "The determinative factor is whether the party had the right to exercise control over the work, not whether it actually exercised that right.'" Herrel v. West, 82 AD3d 933, 933-934 (2nd Dept. 2011); see, Bakhtadze v. Riddle, 56 AD3d 589 (2nd Dept. 2008).
"Moreover, [a]lthough property owners often have a general authority to oversee the progress of the work, mere general supervisory authority at a work site for the purpose of overseeing the progress of the work and inspecting the work product is insufficient to impose liability under Labor Law § 200 (citations omitted).'" Pilato v. 866 U.N. Plaza Associates, LLC, 77 AD3d 644, 646 (2nd Dept. 2010); see, Cabrera v. Revere Condominium, 91 AD3d 695 (2nd Dept. 2012). "A defendant has the authority to supervise or control the work for purposes of Labor Law § 200 when that defendant bears the responsibility for the manner in which the work is performed." McKee v. Great Atlantic & Pacific Tea Co., 73 AD3d 872 (2nd Dept. 2010); Ortega v. Puccia, 57 AD3d 54, 61-62 (2nd Dept. 2008).
In the case at bar, the evidence adduced clearly establishes that defendants, the owners and property manager of the subject premises, are not liable under Labor Law § 200, as they did not have notice of the allegedly defective condition, nor did they have the opportunity to direct or supervise the work, or take measures to ensure the safety of plaintiff. As plaintiff concedes these points in his opposing papers, defendants are entitled to dismissal of this action.
A cause of action under section 240(1) of the Labor Law, imposes a nondelegable duty upon owners and general contractors which applies when an injury is the result of one of the elevation-related risks contemplated by that section, which prescribes safety precautions to protect laborers from unique gravity-related hazards such as falling from an elevated height or being struck by a falling object where the work site is positioned at or below the level where materials or loads are being hoisted or secured. See, Wilinski v. 334 East 92nd Housing Development Fund Corp., 18 NY3d 1 (2011); Ortiz v. Varsity Holdings, LLC, 18 NY3d 335 (2011); Narducci v. Manhasset Bay Assocs., 96 NY2d 259 (2001); La Veglia v. St. Francis Hosp., 78 AD3d 1123 (2nd Dept. 2010); Novak v. Del Savio, 64 AD3d 636 (2nd Dept. 2009) . The section provides, in pertinent part, the following: "All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed."
The central premise triggering Labor Law § 240(1) is "that a defendant's failure to provide workers with adequate protection from reasonably preventable, gravity-related accidents will result in liability." Wilinski v. 334 East 92nd Housing Development Fund Corp., 18 NY3d 1, 7 (2011). Thus, "[t]he extraordinary protections of Labor Law § 240(1) extend only to a narrow class of special hazards, and do not encompass any and all perils that may be connected in some tangential way with the effects of gravity.'" Meng Sing Chang v. Homewell Owner's Corp., 38 AD3d 625, 627 (2nd Dept. 2007); see, Cohen v. Memorial Sloan-Kettering Cancer Center, 11 NY3d 823 (2008); Nieves v. Five Boro Air Conditioning & Refrig. Corp., 93 NY2d 914, 915-916 (1999).
In the context of the falling objects, "in order to recover damages for violation of the statute, the plaintiff must show more than simply that an object fell causing injury to a worker.' A plaintiff must show that, at the time the object fell, it was being hoisted or secured' (citations omitted) or required securing for the purposes of the undertaking.'" Novak v. Del Savio, 64 AD3d 636 (2nd Dept. 2009); see, Ravinov v. Popeye's, 68 AD3d 1085 (2nd Dept. 2009). "Moreover, the plaintiff must show that the object fell because of the absence or inadequacy of a safety device of the kind enumerated in the statute.'" Marin v. AP-Amsterdam 1661 Park LLC, 60 AD3d 824 (2nd Dept. 2009). Lastly, "[r]outine maintenance activities in a non-construction, non-renovation context are not protected by Labor Law § 240 (citations omitted)." Paciente v. MBG Development, Inc., 276 AD2d 761 (2nd Dept. 2000); see, Garcia v. Piazza, 16 AD3d 547 (2nd Dept. 2005); Jani v. City of New York, 284 AD2d 304 (2nd Dept. 2001).
Here, defendants have failed to demonstrate their prima facie entitlement to summary judgment and dismissal of plaintiff's Labor Law §240(1) claim. In support thereof, defendants asserts that liability cannot be imposed under this provision because the glass pane does not qualify as a falling object due to the lack of elevation differential. However, as was stated by the Court of Appeals in Wilinski v. 334 East 92nd Housing Development Fund Corp., 18 NY3d 1, 9-11 (2011):
We do not agree that Misseritti calls for the categorical exclusion of injuries caused by falling objects that, at the time of the accident, were on the same level as the plaintiff. Misseritti did not turn on the fact that plaintiff and the base of the wall that collapsed on him were at the same level. Rather, just as in Narducci, the absence of a causal nexus between the worker's injury and a lack or failure of a device prescribed by section 240(1) mandated a finding against liability (citations omitted). Thus, we decline to adopt the "same level" rule, which ignores the nuances of an appropriate section 240(1) analysis.
Moreover, the so-called "same level" rule is inconsistent with this Court's more recent decisions, namely Quattrocchi v. F.J. Sciame Constr. Corp., 11 NY3d 757, 866 N.Y.S.2d 592, 896 N.E.2d 75 (2008) and Runner v. New York Stock Exch., Inc., 13 NY3d 599, 895 N.Y.S.2d 279, 922 N.E.2d 865 (2009) []. In Quattrocchi, we articulated for the first time that liability is not limited to cases in which the falling object was in the process of being hoisted or secured (see 11 NY3d at 759, 866 N.Y.S.2d 592, 896 N.E.2d 75). Next, in Runner, the Court had occasion to apply section 240(1) to novel factual circumstances that did not involve a falling worker or falling object (see 13 NY3d at 605, 895 N.Y.S.2d 279, 922 N.E.2d 865). In Runner, the plaintiff was injured while he and coworkers moved an 800 pound reel of wire down a flight of four stairs (see id. at 602, 895 N.Y.S.2d 279, 922 N.E.2d 865).
As the "elevation differential ... [could not] be viewed as de minimis, particularly given the weight of the object and the amount of force it was capable of generating, even over the course of a relatively short descent" [], we held the defendants liable under Labor Law § 240(1) for using a "jerry-rigged device" rather than hoists or pulleys as provided under the statute (citations omitted).
Further, the Runner Court found that "the dispositive inquiry framed by [New York jurisprudence] does not depend upon the precise characterization of the device employed or upon whether the injury resulted from a fall, either of the worker or of an object upon the worker. Rather, the single decisive question is whether plaintiff's injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential." Runner v. New York Stock Exchange, Inc., 13 NY3d 599 at 603. The Court of Appeals in Runner further stated the following [13 NY3d 599, 604]:
The governing rule is to be found in the language from [Ross v. Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494], following closely upon that just quoted, where we elaborated more generally that "Labor Law § 240(1) was designed to prevent those types of accidents in which the scaffold, hoist, stay, ladder or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person [].
Thus, in applying these holdings to the case at bar, this Court finds that there is a triable issue of fact with regard to whether plaintiff's injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential. Further, there is an issue of fact as to whether plaintiff's injuries where caused due to the manner in which the work was performed. In light thereof, plaintiff's motion for liability on his Labor Law § 240(1) claim, and that branch of defendants' motion addressed to this claim, are both denied.
Labor Law § 241(6) imposes a nondelegable duty of reasonable care upon owners and contractors "to provide reasonable and adequate protection and safety to all persons employed in areas in which construction, excavation, or demolition work is being performed." See, Rizzuto v. Wenger Contr. Co., 91 NY2d 343, 347 (1998); Ross v. Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501-502 (1993). It is well settled that to support a § 241(6) claim, a plaintiff must allege a violation of the New York State Industrial Code, the implementing regulations promulgated by the State Commissioner of Labor, which sets forth a specific standard of conduct, and that such violation was the proximate cause of his injuries. See, St. Louis v. Town of North Elba, 16 NY3d 411 (2011); Gasques v. State, 15 NY3d 869 (2010); Fusca v. A & S Const., LLC, 84 AD3d 1155 (2nd Dept. 2011); Forschner v. Jucca Co., 63 AD3d 996 (2nd Dept. 2009); Harris v. Arnell Const. Corp., 47 AD3d 768 (2nd Dept. 2008). "In order to support a claim under section 241(6), however, the particular provision relied upon by a plaintiff must mandate compliance with concrete specifications and not simply declare general safety standards or reiterate common-law principles." Misicki v. Caradonna, 12 NY3d 511 (2009). Here, defendants have failed to demonstrate their prima facie entitlement to summary judgment and dismissal of the Labor Law § 241(6) based upon plaintiff's failure to allege specific violations of the New York State Industrial Code which were the proximate cause of plaintiff's injuries. The Court finds Industrial Code § 23-3.3(b)(3), applicable to the facts asserted in this case.
Accordingly, the motion by defendants AMMM Properties Company, Scholes Street Realty Corp., AMMM Properties Company, LP and Sherry & Sons, Inc., granting summary judgment and dismissal of plaintiff's complaint, pursuant to CPLR § 3212, is granted to the extent that the claims for violations of Labor Law § 200 and common law negligence, hereby are dismissed. The balance of the motion hereby is denied. Plaintiff's motion granting him partial summary judgment on liability as to Labor Law § 240(1), is denied.
Dated: March 22, 2012
____________________________
J.S.C.