Opinion
No. 18865/2012.
2012-07-18
Peter NOLAN, Plaintiff, v. BOVIS LEND LEASE, INC. and Extell Development Company, Defendants. Peter Nolan, Plaintiff, v. Bovis Lend Lease Lmb, Inc. and CRP/Extell Parcel I, LP, Defendants.
Kazmierczuk & McGrath, Forest Hills, NY, for Plaintiff. Ahmuty, Demers & McManus, Albertson, NY, for Defendants.
Kazmierczuk & McGrath, Forest Hills, NY, for Plaintiff. Ahmuty, Demers & McManus, Albertson, NY, for Defendants.
DAVID SCHMIDT, J.
Pending before the court is defendants' motion for: (i) consolidation of Actions # 1 and # 2, pursuant to CPLR 602, and (ii) summary judgment, pursuant to CPLR 3212, to dismiss the complaint. Plaintiff cross-moves to amend the Bill of Particulars to include a violation of Industrial Code § 23–2.1(a).
Plaintiff, an employee of a subcontractor, commenced both actions as a result of personal injuries he sustained on September 16, 2008 when he walked into the edge of one of several pieces of irregularly-shaped plywood that were stacked vertically against a wall at a construction site where he was employed. Besides asserting a claim for common-law negligence, plaintiff alleges violations of Labor Law §§ 200, 240(1) and 241(6); Industrial Code §§ 23–1.7(e)(1), 23–1.7(e)(2), and 23–2.1(b); and certain OSHA regulations.
For the following reasons, defendants' motion is granted in part and denied in part and plaintiff's cross motion is granted.
I. Relevant Testimony and Procedural History
Plaintiff testified at his deposition that, on the day of his accident, he was working as a marble finisher for Berardi Stone Setting Inc. (Berardi) on a construction jobsite at 80 Riverside Boulevard.
Plaintiff injured his left knee while walking from a cutting bench to a storage crate situated approximately ten to fifteen feet away while holding a thirty-pound piece of marble stone. As he walked toward the crate, plaintiff's left knee made contact with a sharp piece of plywood that was jutting out from a stack of eight to ten irregularly shaped pieces of plywood, measuring 4–5 feet across or 3 feet across, that were stacked vertically against one of the lobby walls and extended outwardly 3–4 feet. The incident occurred at about 8:30 am and plaintiff began his shift at 7:00 am. Plaintiff believes that the plywood was probably placed against the wall that morning by one of defendants' laborers. He also testified that he observed some part of that activity as he was getting set up for his work day. The plywood in question had initially been laid on the floor of a revolving door and was placed there to protect marble that had previously been set; it was taken up off the floor so that Berardi personnel could continue their work in and around the revolving door on the morning of the incident.
A transcript of plaintiff's deposition testimony is annexed as “Exhibit G” to defendants' motion.
On July 30, 2010, plaintiff commenced an action (Action # 1) against defendants Bovis Lend Lease, Inc. and Extell Development Company. In their answer, defendants in Action # 1 denied both ownership of the location and that defendant Bovis Lend Lease, Inc. was a construction manager of the project on which plaintiff was injured.
Subsequently, plaintiff commenced a second action which properly named defendants Bovis Lend Lease LMB, Inc. (Bovis) and CRP/Extell Parcel I, LP. (CRP/Extell) as, respectively, construction manager and owner of the project, and alleging the identical theories of liability as in Action # 1. II. Defendants' Motion A. Consolidation
Plaintiff does not oppose defendants' motion to consolidate Actions # 1 and # 2, pursuant to CPLR 602. Accordingly, both actions are consolidated.
B.Summary Judgment
To prevail on a motion for summary judgment, the proponent must make a prima facie showing of entitlement to judgment as a matter of law, tendering evidentiary proof in admissible form. See Zuckerman v. City of New York, 49 N.Y.2d 557, 560 (1980). The movant does not carry its burden “by pointing to gaps in its opponent's proof, but must affirmatively demonstrate the merit of its claim or defense.” Dalton v. Educational Testing Serv., 294 A.D.2d 462, 463 (2nd Dept 2002). Once this showing has been made, the burden shifts to the party opposing the motion to rebut the prima facie showing by producing evidentiary proof in admissible form sufficient to require a trial of material issues of fact. See Kaufman v. Silver, 90 N.Y.2d 204, 208 (1997). Additionally, in deciding the motion, the court must view the evidence in a light most favorable to the party opposing the motion and must give that party the benefit of every favorable inference. Negri v. Stop & Shop, 65 N.Y.2d 625, 626 (1985).
As an initial matter, plaintiff acknowledges that he did not name the proper defendants in Action # 1. Therefore, all claims asserted against the defendants named in Action # 1, are dismissed.
1. Common Law Negligence and Labor Law § 200
Labor Law § 200 codifies the common-law duty imposed on an owner or general contractor to provide construction site workers with a safe work site. Nevins v. Essex Owners Corp., 276 A.D.2d 315, 316 (1st Dept 2000). In support of their motion to dismiss this claim, defendants first argue that the protruding plywood was an open and obvious condition which plaintiff was aware of at the time of the accident, and therefore, Bovis and CRP/Extell cannot be held liable. Defendants are mistaken.
“[T]he issue of whether a dangerous condition is open and obvious is fact specific, and thus usually a question for the jury.” Ruiz v. Hart Elm Corp., 44 AD3d 842, 843 (2nd Dept 2007). Furthermore, “whether an asserted hazard is open and obvious cannot be divorced from the surrounding circumstances.” Mazzarelli v. 54 Plus Realty Corp., 54 AD3d 1008, 1009 (2nd Dept 2011). That is because even a person making reasonable use of his or her senses may be distracted from noticing a seemingly apparent condition or the condition may be obscured from view. Id.
Here, the circumstances surrounding plaintiff's injury precludes the court from making a determination that the condition complained of was open and obvious as a matter of law. First, plaintiff was injured while carrying a thirty-pound piece of stone. Second, the plywood was placed against a rounded portion of wall such that the edges of the irregularly-shaped pieces extended outward and away from the wall. See defendants' reply affirmation, ¶ 9. Third, the condition was newly-created and existed for only a short duration before the accident occurred. In this regard, plaintiff stated that he observed the plywood being placed against the wall by an employee of Bovis on the morning of the incident not more, and possibly less, than an hour and a half before he sustained his injury. Thus, the evidence submitted by defendants, including, inter alia, plaintiff's deposition testimony, is insufficient to establish defendants' entitlement to judgment as a matter of law on this issue.
Next, defendants argue that plaintiff's Labor Law § 200 claim should be dismissed because there is no evidence that they had supervisory control over the “means and methods” of plaintiff's work. See defendants' affirmation in support, ¶ 46. In this connection, defendants point to plaintiff's testimony that the only direction he received at the work site was from a Berardi supervisor. Citing Comes v. New York State Elec. & Gas Corp., 82 N.Y.2d 876, 877 (1993) and Ross v. Curtis–Palmer Hydro–Elec. Co., 81 N.Y.2d 494, 506 (1993), defendants contend that supervisory control and authority over the manner in which the work is performed is a precondition to maintaining a Labor Law § 200 claim.
However, defendants' reliance on those authorities is misplaced. In Comes and Ross, the Court expressly noted that the Labor Law claim implicated the “means and methods” utilized by the plaintiff's employer. Comes, 82 N.Y.2d at 877;Ross, 81 N.Y.2d at 506. It is only in that scenario that courts require proof that an owner had control or input over how the injury-producing work was done as a precondition to asserting a claim against an owner. By contrast, and contrary to defendants' characterization of plaintiff's claim, the instant action is a “dangerous condition” case. “Where ... a plaintiff's injuries stem not from the manner in which the work was being performed, but, rather, from a dangerous condition on the premises, a general contractor may be liable in common-law negligence and under Labor Law § 200 if it has control over the work site and actual or constructive notice of the dangerous condition.” Lane v. Fratello Constr. Co., 52 AD3d 575, 576 (2nd Dept 2008) (inner quotation marks and citation omitted). Here, plaintiff does not allege that he was injured as a result of the manner in which his work was being performed but, rather, as a result of an allegedly dangerous condition at the work site. Nor can it reasonably be maintained to be otherwise—the plywood was stacked by a laborer that was employed by defendant Bovis. Further, there is nothing in the record that establishes that the plywood belonged to Berardi. To the contrary, Thomas Ryan Maher, Bovis' chief superintendent at the project, testified that it was his experience that the only trade that worked with plywood at the subject work site, were carpenters.
As such, defendants have no basis to assume that plaintiff is alleging a violation of Labor Law § 200 as a result of defects or dangers arising from Berardi's methods or materials.
A transcript of the deposition testimony of Thomas Ryan Maher is annexed as “Exhibit H” to defendants' motion.
Having concluded that plaintiff's Labor Law § 200 claim is premised on the existence of a dangerous condition at the work site, defendants' proof fails to demonstrate the absence of a triable issue of fact with respect to their control of the premises or their notice of the alleged dangerous condition.
In the first place, plaintiff testified that he observed defendants' employee place the plywood against the lobby wall that morning. This alone is sufficient to rebut defendants' contention that they did not have constructive notice of the dangerous condition. Moreover, Mr. Maher testified that, as part of his responsibilities, he did daily walk-throughs of the jobsite. In addition, there were four superintendents that he supervised that were assigned to different areas of the project and who were employed by Bovis. He also stated that there was an on-site safety manager employed by Bovis. This testimony is sufficient, in the court's opinion, to create an issue of fact as to whether defendants exercised control over the work site and had actual/constructive notice of the alleged dangerous condition. See e.g. Mott v. Tromel Constr. Corp., 79 AD3d 829, 831 (2nd Dept 2010) (affirming denial of general contractor's summary judgment motion based on deposition testimony of its superintendent that, among other things, he was present at the work site on a daily basis).
In short, the evidence submitted by defendants establishes that there are issues of fact as to whether the alleged dangerous condition was open and obvious, as well as whether defendants had control of the premises and had actual and/or constructive notice of the dangerous condition. Thus, defendants have failed to demonstrate their entitlement to judgment as a matter of law on these claims.
2. Labor Law §§ 240(1) and 241(6)
As an initial matter, plaintiff consents to the dismissal of his cause of action under Labor Law § 240(1).
Labor Law § 241(6) imposes a nondelegable duty upon owners and contractors to provide reasonable and adequate protection and safety to workers engaged in the inherently dangerous work of construction, excavation or demolition. See Ross, 81N.Y.2d at 501–02. However, the worker must allege and prove that the owner or contractor violated a rule or regulation of the Commissioner of the Department of Labor, which sets forth a specific standard of conduct, as opposed to a general reiteration of the common law. Id.; Jara v. New York Racing Assoc. Inc., 85 AD3d 1121, 1123 (2nd Dept 2011).
In his Bill of Particulars, plaintiff predicates his Labor Law § 241(6) claim on violations of Industrial Code §§ 23–1.7(e)(1); 23–1.7(e)(2) and 23–2.1(b). In his opposition, however, plaintiff concedes that, except for § 23–1.7(e)(2), the other Industrial Code sections he cites have no relevance to the instant action.
Industrial Code § 23–1.7(e)(2) provides:
“[t]he 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.”
Defendants attempt to rebut plaintiff's alleged violation of this provision by claiming, without submitting any evidence, that the plywood was “placed neatly against the wall,” and therefore, cannot be considered dirt, debris or scattered tools/materials for the purpose of application of this provision. However, whether or not the pieces of plywood constitute “scattered tools and materials” is a question of fact for a jury, especially given plaintiff's testimony that the plywood was irregularly-shaped, jutted out and that a stack of 8–10 sheets of plywood extended as much as 3–4 feet from the wall.
Thus, defendants have not submitted evidence sufficient to entitle them to judgment as a matter of law on plaintiff's Labor Law § 241(6).
III. Plaintiff's Cross–Motion
Besides opposing defendants' motion for summary judgment, plaintiff seeks leave to amend the Bill of Particulars to allege a violation of Industrial Code § 23–2.1(a). This section of the Industrial Code provides, in relevant part, that: “[a]ll building materials shall be stored in a safe and orderly manner. Material piles shall be stable under all conditions and so located that they do not obstruct any passageway, walkway, stairway or other thoroughfare.”
Leave to amend the pleadings to identify a “sufficiently specific” ordinance or code provision “may properly be granted, even after the note of issue has been filed, where the plaintiff makes a showing of merit, and the amendment involves no new factual allegations, raises no new theories of liability, and causes no prejudice to the opposing party.” Jara, 85 AD3d at 1123 (inner quotation marks and citations omitted).
According to plaintiff, all of the conditions for granting leave to amend set forth in Jara are present in the instant action. The court agrees. Nevertheless, defendants strenuously object, arguing, among other things, that the proposed claim lacks merit. Specifically, defendants contend that there can be no violation of Section 23–2.1(a) because plaintiff's testimony establishes that the plywood was placed together in one spot. However, there is nothing in this description of how the plywood was stored that precludes a finding that defendants' conduct was a violation of the express terms of section 23–2.1(a).
Defendants' other contentions have been considered and are without merit.
Accordingly, it is hereby
ORDERED that branch of defendants' motion to consolidate Action # 1 (Index No. 18865/2010) and Action # 2 (Index No. 11249/2011), is granted; and it is further
ORDERED that branch of defendants' motion for summary judgement to dismiss all claims asserted against defendants Bovis Lend Lease, Inc. and Extell Development Company in the consolidated action, is granted; and it is further
ORDERED that branch of defendants' motion for summary judgment to dismiss the complaint against defendants Bovis Lend Lease LMB, Inc. and CRP/Extell Parcel I, LP. in the consolidated action, is granted to the extent that the Labor Law § 240(1) claim is dismissed, and is otherwise denied; and it is further
ORDERED that plaintiff's cross-motion is granted and plaintiff is granted leave to amend the Bill of Particulars to add a violation of Industrial Code § 23–2.1(a).