Opinion
863/2015
07-16-2019
Linder MOSQUERA, Plaintiff, v. TRITON CONSTRUCTION COMPANY, LLC, Capobianco, Inc., and Relle Electric Corp., Defendants.
Attorney For Plaintiff Pena & Kohn, PLLC 1250 Water Place, Suite 901 Bronx, New York 10461 Diane W. Bando, Esq. (718) 585-6551 Attorney for Defendants Gordon & Rees, LLP 1 Battery Park New York, New York 10004 (212) 453-0796 Wilser, Elser, Moskowitz, Edelman & Dicker, LLP 1133 Westchester Avenue White Plain, New York 10604 (212) 490-3000 Rafter & Associates, PLLC 29 Broadway, 14th floor New York, New York 10006
Attorney For Plaintiff
Pena & Kohn, PLLC
1250 Water Place, Suite 901
Bronx, New York 10461
Diane W. Bando, Esq.
(718) 585-6551
Attorney for Defendants
Gordon & Rees, LLP
1 Battery Park
New York, New York 10004
(212) 453-0796
Wilser, Elser, Moskowitz, Edelman & Dicker, LLP
1133 Westchester Avenue
White Plain, New York 10604 (212) 490-3000
Rafter & Associates, PLLC
29 Broadway, 14th floor
New York, New York 10006
Wayne P. Saitta, J.
Plaintiff, LINDER MOSQUERA, moves this Court for an Order pursuant to CPLR § 3212 for partial Summary Judgment against the Defendants TRITON CONSTRUCTION COMPANY, LLC and CAPOBIANCO, INC, and Defendants TRITON CONSTRUCTION COMPANY, LLC and CAPOBIANCO, INC move for summary judgment dismissing the complaint against it.
Upon reading the Notice of Motion by Diane W. Bando, Esq., Attorney for Plaintiff, LINDER MOSQUERA, dated October 24th, 2018, together with the Affirmation in Support of Partial Summary Judgment by Diane W. Bando, Esq., dated October 24th, 2018 and all exhibits annexed thereto; the Notice of Motion of Robert Modica, Esq., Attorney for Defendants, TRITON CONSTRUCTION COMPANY, LLC, dated October 26th, 2018, together with the Affirmation in Support of Robert Modica, Esq., dated October 26th, 2018 and all exhibits annexed thereto; the Affirmation in Opposition of Diane W. Bando, Esq., dated January 14th, 2019 and all exhibits annexed thereto; the Affirmation in Opposition to Plaintiff's Motion for Summary Judgment by Robert Modica, Esq., dated January 17th, 2019 and all exhibits annexed thereto; the Affirmation in Partial Opposition of Andrew Levinson, Attorney for RELLE ELECTIRC CORP, dated January 17, 2019; the Reply Affirmation in Further Support of Partial Summary Judgment by Diane W. Bando, Esq., dated February 4th, 2019; the Reply Affirmation of Robert Modica, Esq., dated February 6th, 2019 and all exhibits annexed thereto; and after argument of counsel and due deliberation thereon, Plaintiff's motion for partial Summary Judgment is granted in part and the Defendants' motion for summary judgment is granted in part for the reasons set forth below.
FACTS
Plaintiff seeks compensation for injuries he sustained after he was struck by light fixtures that fell from the ceiling above him while he was on the floor below, assisting a co-worker who was demolishing a dropped ceiling at a school.
Plaintiff and his co-worker Gustavo Guato were employed by third party Defendant XANDER ENVIRONMENTAL CORP. Part of the work XANDER contracted to do was to remove the dropped ceiling in the "music room" of the school.
Defendant TRITON was the construction manager and Defendant CAPOBIANCO was the general contractor on the project.
While Plaintiff and Guato were working, a row of connected light fixtures fell and struck Plaintiff.
The row of light fixtures was hung flush with the dropped ceiling, but the fixtures were suspended by metal wires from the permanent ceiling. The dropped ceiling was comprised of ceiling tiles which rested within a metal frame which was hung from the permanent ceiling independently of the light fixtures.
Guato was positioned on a scissor lift, removing ceiling tiles from the metal frame and dropping them to form a pile on the floor. Plaintiff would then pick up the tiles and remove them to a dumpster. Plaintiff said that he was walking toward a pile of tiles to pick them up when he felt the row of fixtures strike him on his back.
Plaintiff alleges three causes of action against the Defendants: 1) negligence, 2) violations of Labor Law sections 200, 240(1) and 241(6), 3) and negligent hiring, retention, training and supervision.
Plaintiff moves for partial summary judgment on its claims pursuant to Labor Law 240(1) and 241(6).
Defendant TRITON moves for summary judgment dismissing the complaint against it on the grounds that it is not an agent of the owner, and both Defendant TRITON and Defendant CAPOBIANCO move to dismiss the complaint arguing there was no violation of Labor Law 240(1) or 241(6), that they are not liable under Labor Law 200 and that they were not negligent.
240(1)
Plaintiff seeks summary judgment on its 240(1) claim arguing Defendants' failure to secure the overhead light fixtures prior to the demolition of the dropped ceiling where Plaintiff was working constitutes a violation of that section as it was foreseeable that the lights could fall during demolition.
Defendants move for summary judgment dismissing the Labor Law 240(1) claim against them.
Plaintiff's expert engineer, Nicholas Bellizzi, PE states that Defendants violated Labor Law section 240(1) and proposed two methods by which Defendants could have ensured the light fixtures didn't fall, preventing the accident.
Bellizzi's first method was that Defendants' could have required the removal of the light fixtures prior to the removal of the ceiling tiles.
The second method was that Defendants' could have braced the light fixtures while the workers removed the ceiling tiles.
As to his first method, it is clear that the light fixtures could not have been removed prior to the removal of the ceiling tiles, as the tiles would have prevented access to the structural elements holding the lights in place. Defendant's engineer, Robert O'Connor, points out in his affidavit that it would not have been possible to remove the fixtures before removing the ceiling tiles because the workers would not have been able to access the wires attaching the fixtures to the concrete ceiling without removing the tiles. While it would be possible to remove the light fixtures before removing the metal grid of the dropped ceiling, or vice versa, neither could be removed without first removing the ceiling tiles.
Bellizzi's second proposed method, that the lights should have been braced prior to removing the ceiling tiles, is misplaced because the light fixtures were not objects required to be secured for the work of removing the dropped ceiling as they were independently attached to the permanent ceiling.
Defendants' expert O'Connor states that the light fixtures that hung from the concrete ceiling were hung independently from the metal grid framework in which the tiles of the dropped ceiling rested. Plaintiff's co-worker Guato also testified that the fixtures were hung from the permanent ceiling. Bellizzi in his affidavit does not contest that the light fixtures were suspended from the permanent ceiling rather than the metal frame of the dropped ceiling.
Plaintiff cites Sarata v. Metro. Transp. Auth. , 134 AD3d 1089, 1092 [2d Dept 2015] in support of its position that the light fixtures required securing. In Sarata , the renovation of an elevated subway line required the removal of concrete from an encasement above ground level. Once removed, the pieces of concrete were dropped from above through a "controlled access zone" which was a plywood chute surrounded by protective netting. Sarata was struck by a piece of concrete when it hit a crossbeam within the chute and flew out of the controlled access zone through a hole in the protective netting.
In Sarata, the project involved dropping concrete from above and the safety devices employed to prevent the hazards from the falling concrete failed. The falling concrete was an integral part of the job, and the attendant risks were foreseeable.
Here, however, the light fixtures were not being removed or lowered at the time of Plaintiff's accident, and there was no foreseeable risk of their falling as a result of the work being performed.
More recently in Ruiz v. Ford, 160 AD3d 1001 (2nd Dept 2018), the Second Department declined to extend the protections of Labor Law 240(1) where a worker was ascending a ladder to gain access to a roof. Tires fell from the roof above him and struck the ladder, causing his fall. The court concluded that the tires were not materials that were being hoisted or secured for the purposes of the undertaking, nor was it expected that the tires would require securing for the purposes of the undertaking. Ruiz v. Ford , 160 AD3d 1001, 75 NYS3d 242 [2d Dept 2018], Moncayo v. Curtis Partition Corp. , 106 AD3d 963, 965 NYS2d 593 [2d Dept 2013], Romero v. 2200 N. Steel, LLC , 148 AD3d 1066, 50 NYS3d 158 [2d Dept 2017].
In this case, the light fixtures were supported independently from the dropped ceiling and were not materials being hoisted and which did not need to be secured for the purposes of the undertaking. For this reason plaintiff's accident does not come within the ambit of Labor Law 240(1).
241(6)
Plaintiff also seeks summary judgment that Defendants violated section 241(6) of the Labor Law by their violating three section of the Industrial Code: section 23-1.7 of the Industrial Code, "protection from overhead hazards", section 23-1.8(c)(1) of the Industrial Code, personal protective equipment, and 23-3.3(g), "demolition by hand".
Defendants argue that none of the three Industrial Code violations asserted in the motion is applicable to the facts of this case and therefore they are entitled to dismissal of the 241(6) claim against them.
As a preliminary matter, although Plaintiff seeks summary judgment on three Industrial Code violations, only section 23-1.7 was asserted in his bill of particulars.
The Second Department has held that where an Industrial Code violation not pled in the Bill of Particulars does not rely on new factual allegations and there are no new theories of liability, there is no prejudice to the defendant in asserting it later. In such cases, the Second Department has permitted plaintiffs to assert new violations for the first time in motion practice. Sheng Hai Tong v. K and K 7619, Inc. , 144 AD3d 887, 41 NYS3d 266 [2d Dept 2016], Doto v. Astoria Energy II, LLC , 129 AD3d 660, 11 NYS3d 201 [2d Dept 2015] ; Przyborowski v. A & M Cook, LLC , 120 AD3d 651, 992 NYS2d 56 [2d Dept 2014].
Two of the Industrial Code sections cited by Plaintiff, section 23-1.7 and section 23-3.3(g), are not applicable here because their requirements would have interfered the work from being done.
Industrial Code section 23-1.7 provides:
Every place where persons are required to work or pass that is normally exposed to falling material or objects shall be provided with suitable overhead protection. Such overhead protection shall consist of tightly laid sound planks at least two inches thick full size, tightly laid three-quarter inch exterior grade plywood or other material of equivalent strength. Such overhead protection shall be provided with a supporting structure capable of supporting a loading of 100 pounds per square foot.
Industrial Code section 23-3.3(g) provides:
Every floor or equivalent area within the building or other structure that is subject to the hazard of falling debris or materials from above shall be boarded up to prevent the passage of any person through such area, or shall be fenced off by a substantial safety railing constructed and installed in compliance with this Part (rule) and placed not less than 20 feet from the perimeter of such floor opening or such area shall be provided with overhead protection in the form of tight planking at least two inches thick full size, exterior grade plywood at least three-quarters inch thick or material of equivalent strength.
As part of his work, Plaintiff stood below a co-worker who was removing the ceiling tiles above him, dropping the tiles to the floor below him, where Plaintiff was positioned.
Because the workers were removing the dropped ceiling, erecting the tightly laid planks required by these sections was not compatible with the work as it would have made the removal of the ceiling impossible.
Plaintiff also alleges a violation Industrial Code section 23-1.8(c)(1), which provides in part "[e]very person required to work or pass within any area where there is a danger of being struck by falling objects or materials.. shall be required to wear an approved safety hat". As the tiles were being removed by dropping them to the floor there was clearly a danger of being struck by falling objects.
Defendants' expert O'Connor argues that the removal of the ceiling tiles is not a work task that would create a significant hazard of falling objects for person in the area where that work was being performed because the relatively lightweight tiles did not create a danger that would require the workers to wear safety hats. However, at the time of the accident, Guato was positioned twenty feet above Plaintiff and dropping ceiling tiles to the floor.
Section 23-1.8(c)(1) does not limit its requirements to situations where the potential falling objects are of any minimum weight. The minimal obligation to provide Plaintiff with a hard hat was even more important given the infeasibility of erecting the overhead protections of sections 23-1.7 and 23-3.3(g).
The fact that Plaintiff was struck by a light fixture rather than a ceiling tile does not change the fact that Plaintiff was required to be provided with a hardhat, and that a hard hat would have prevented or lessened his injury. The failure to provide Plaintiff with a hard hat constituted a violation of section 23-1.8(c)(1). Therefore Plaintiff is entitled to summary judgment on that part of his claim pursuant to Labor Law 241(6).
TRITON
TRITON argues that the complaint against it must be dismissed as against it because it is not an agent of the owner or contractor and therefore not a proper Defendant for the purpose of the Labor Law.
"The Labor Law imposes upon all contractors and owners and their agents nondelegable duties to provide workers with proper safety devices and adequate protection. When the work giving rise to these duties has been delegated to a third party, that third party then obtains the concomitant authority to supervise and control that work and becomes a statutory ‘agent’ of the owner or general contractor. While a construction manager is generally not considered a "contractor" or "owner" within the meaning of § 240(1) or § 241 of the Labor Law, the label of construction manager versus general contractor is not necessarily determinative. A construction manager may be vicariously liable as an agent of the property owner for injuries sustained under the statute in an instance where the manager had the ability to control the activity which brought about the injury. Lodato v. Greyhawk N. Am., LLC , 39 AD3d 491, 834 NYS2d 242 [2d Dept 2007], internal citations omitted.
"The determinative factor [as to whether a party is an agent for the property owner] is whether the party had the right to exercise control over the work, not whether it actually exercised that right." Johnsen v. City of New York , 149 AD3d 822 [2d Dept 2017], internal citations omitted.
TRITON states its contract with the Owner of the property did not convey the duty to control the activity which brought about the injury. While the contract obligated TRITON to oversee the safety programs submitted by the contractors, TRITON says its authority to oversee the safety conditions of the work was limited to making a recommendation to the respective contractor, and nothing more.
Plaintiff submits the contract between the Owner, Riverhead School District, and TRITON. Section 5 subdivision a(i) of the contract provides, in part, that "[t]he construction manager shall not be responsible for the means, methods and/or techniques used by the Contractors on site."
Subdivision (c) of section 5 provides that "[t]he Construction Manager will monitor the safety program developed by each contractor, record any safety violations, and make recommendations for improving safety conditions". The contract does not authorize TRITON to stop or direct the work of any of the trades.
Stephen Brugge, Senior Project Manager and senior employee on the project for TRITON was deposed and asked what action he would take if he saw something unsafe on the project. Brugge stated he would contact the supervisor of the contractor.
Plaintiff argues the totality of the contract terms obligated TRITON to monitor safety on the job. However the contract terms explicitly state that TRITON shall not be responsible for the means, methods and/or techniques used by the Contractors on site. Plaintiff has offered no evidence that despite that term, TRITON actually exercised control over the work.
Defendants have shown that TRITON was not an agent of the Owner for the purposes of the Labor Law. Therefore the 240(1) and 241(6) claims against TRITON should be dismissed.
200/common law
Defendants TRITON and CAPOBIANCO move to dismiss the Labor Law 200/common law negligence claim.
"To establish liability against an owner or contractor pursuant to the Labor Law provision requiring landowners to provide workers with a reasonably safe place to work, it must be established that the owner or general contractor exercised supervision and control over the work performed at the site, or had actual or constructive notice of the allegedly unsafe condition." McKinney's Labor Law 200.
Common law and Labor Law § 200 impose a duty upon employers to provide their employees with a safe place to work. It applies to owners, contractors, or their agents, who had control over, or supervised the work, or who created the dangerous condition and had actual or constructive notice of it. Kim v. Herbert Construction. Co. , 275 AD2d 709, 713 NYS2d 190 (2nd Dept 2000).
Defendants argue that they neither supervised, controlled nor directed Plaintiff's work and that the cause of the accident was an unforeseeable condition of the building, and therefore they cannot be held liable for the accident.
In opposition, Plaintiff argues that Defendants were negligent both by failing to schedule the removal of the lights prior to the removal of the dropped ceiling, and by failing to inspect the light fixtures prior to the removal of the dropped ceiling.
Plaintiff cites the deposition testimony of Mike Melchione of CAPOBIANCO that it would be possible to remove the light fixtures prior to the removal of the dropped ceiling. In testimony preceding that statement, he said removal of the dropped ceiling included removing the metal frame that held the ceiling tiles.
The supports for both the dropped ceiling frame and the lights fixtures were concealed behind the ceiling tiles and Plaintiff's accident occurred during the removal of the ceiling tiles. While Melchione's statement that the light fixtures could have been removed before the ceiling frame is true, the order of the work would not have prevented the accident. In both cases the ceiling tiles had to come down first to get access to the permanent ceiling in order to remove either the light fixtures or the dropped ceiling frame. Because the light fixtures were independently affixed to the ceiling, the removal of the ceiling tiles to gain access to the fixtures would not have affected the integrity of the structure securing the light fixtures in place.
Plaintiff also alleges that Defendants had a duty to inspect the lights prior to the removal of the dropped ceiling. However, the only way an inspection of the lights was possible was by removing the ceiling tiles, which was underway when the accident occurred.
Plaintiff has presented no evidence that any of the Defendants had actual or constructive notice of a defect in the manner in which the light fixtures were suspended, or that any defect could have been discovered without removing the ceiling tiles.
Plaintiff cannot show the Defendants were negligent or violated Labor Law 200 because ceiling tiles would have had to be removed before any inspection of work on the light fixtures and dropped ceiling frame could be undertaken. While it is unclear from the papers submitted what caused the light fixtures to fall, the necessary act of removing ceiling tiles, independent from the structure holding the lights, was not the cause.
Negligent hiring, retention, training and supervision
Finally Defendants argue that the claim for negligent hiring, retention, training and supervision must be dismissed. They note that TRITON did not do any hiring, and they argue that CAPOBIANCO's subcontracting with Xander was not a proximate cause of the accident. Plaintiff did not submit opposition to dismissing this cause of action and therefore Defendants are entitled to summary judgment dismissing the third cause of action.
WHEREFORE, it is ORDERED that Defendant TRITON is granted summary judgment dismissing the complaint as against it; and it is further
ORDERED that Defendants are granted summary judgment dismissing Plaintiff's first and third causes of action; and it is further
ORDERED that Defendants are granted summary judgment dismissing that part of Plaintiff's second cause of action based upon Labor Law section 240(1) and Labor Law section 200 ; and it is further
ORDERED that Plaintiff is granted summary judgment as to liability on that part of the second cause of action based on a violation of Labor Law section 241(6) for failure to provide Plaintiff head protection.
This shall constitute the decision and order of the Court.