Opinion
117274/06.
Decided June 23, 2008.
Friedman, Khafif Sanchez, LLP, New York, NY, Attorneys Plaintiff.
Michael J. Pearsall, Esq., The Law Offices of Edward Garfinkel, New York, NY, Attorneys Defendants.
This is a motion for summary judgment dismissing plaintiff's LL §§ 240(1), 241(6), 200 and common law negligence claims.
While carrying rebars to the working area of a construction site, plaintiff slipped on some debris. The company for which he worked was installing rebars which are reinforced steel which when combined with concrete increases the strength of the rebars.
Defendant argues that the plaintiff slipped on parts of rebars which were to be an integral part of the building structure. Plaintiff, on the other hand, testifies at his deposition that the debris over which he tripped consisted of left over wooden wedges from the work of other tradesmen and were not an inherent part of the structure of the building. Defendant claims that there is no liability under LL § 240(1) because the Industrial Code Violations cited by plaintiff are either too general to be a basis for liability or they do not apply to this situation.
To begin with, defendant argues that plaintiff was in a room, not in a passageway under 12-23-2.1(a)(I). Although the plaintiff was injured in a corridor, it is unclear whether this was a passageway or a work area for other tradesmen. Defendant claims this is a room while plaintiff and his expert engineer state that this was a passageway under 12 NYCRR 23-1.7(e) and 23-21(a)(i)(b). However, neither the Industrial Code nor the plaintiff's expert set forth the means to distinguish between the designation of that area as a room or a passageway; nor does the defendant. This, then is a very significant fact dispute that will have to be decided at trial. Until it is, it is not possible to determine whether a number of parts of the Industrial Code apply to this matter. This alone precludes summary judgment. Although Industrial Code § 23-1.5(a) has been held to be too general a safety standard to support a LL § 241(6) claim ( Adamczyk v Hillview Estates Development Corp. , 226 AD2d 1049, 1050, 641 NYS2d 925 [4th Dept 1996]; Gardineer v County of Orange , 205 AD2d 205, 613 NYS2d 247 [2nd Dept 1994]), a recent 1st Department case appears to have found quite the opposite. ( See, McCormack v Helmsley Spear , 233 AD2d 203, 204 (at footnote) 649 NYS2d 697 [1st Dept 1996]). Therefore, at this time, the Court will adhere to the First Department interpretation and uphold this provision of the Industrial Code against the claim that it is too general to be enforceable.
A further matter of dispute is whether plaintiff slipped on the rebars or the wooden wedges. If either of these items were not there to be used as part of the building but were already used materials to be removed from the area, they would be debris for which there could be liability under the Industrial Code.
The LL § 240(1) claim is dismissed. Plaintiff did not fall from an elevated height nor was he struck by material that fell from an elevated height as a result of the force of gravity. Moreover, plaintiff does not oppose this portion of the motion to dismiss.
The Court also denies summary judgment under § 200 of the Labor Law and common-law negligence for the debris plaintiff slipped on if it was in fact debris. Plaza may very well have exercised sufficient supervision and control over the performance and operation of the project. Plaza, as the construction manager had the obligation under the contract to keep the premises free of the accumulation of waste material and rubbish (par 3.4(p) of its contract). It also had the responsibility to inspect the work regarding safety matters and to review site and safety programs of the other contractors and make recommendations (par. 3.4(d). It also was to coordinate the work of the various contractors (par 3.4(b) and to prepare and enforce changes of the work (Art. 10). It conducted periodic safety meetings and its safety manager was on the premises continuously. These raise issues not only of sufficient control but whether Plaza may have failed in its express duty to keep the premises free of debris and obstruction ( Walls v Turner Construction Co. , 4 NY3d 861 , 798 NYS2d 351 [2005]). There is also some evidence that Plaza may have had sufficient notice of these conditions since plaintiff has stated that the debris was there for several days and, therefore, Plaza's representative may have had sufficient notice and a reasonable opportunity to have removed the debris.
That part of the motion seeking dismissal of the complaint against Marine Estates, the owner, for common law negligence and violation of § 200 of the Labor Law is denied. There is no discussion in movant's submission of the reasons supporting dismissal on these grounds.
Accordingly, it is
ORDERED that the cause of action pursuant to LL § 240(1) is dismissed; and it is further
ORDERED that the balance of the motion seeking summary judgment against the defendants is denied.