Opinion
Index No. 152966/2020 Motion Seq. No. 002 003
01-17-2024
MARCOS PEREIRA, Plaintiff, v. 509 W 34, L.L.C., TISHMAN SPEYER PROPERTIES, L.P TISHMAN SPEYER DEVELOPMENT CORPORATION, TISHMAN SPEYER PROPERTIES, INC..TURNER CONSTRUCTION COMPANY Defendant.
Unpublished Opinion
MOTION DATE 10/31/2023
DECISION + ORDER ON MOTION
RICHARD LATIN, J.S.C
The following e-filed documents, listed by NYSCEF document number (Motion 002) 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 91, 93, 95, 97, 100, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 132, 133, 134, 135 were read on this motion to/for JUDGMENT - SUMMARY.
The following e-filed documents, listed by NYSCEF document number (Motion 003) 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 92, 94, 96, 98, 99, 101, 128, 129, 130, 131, 136, 137 were read on this motion to/for SUMMARY JUDGMENT(AFTER JOINDER
Upon the foregoing documents and after oral argument held on October 31, 2023, plaintiffs motion for partial summary judgment and defendants' motion for summary judgment are determined as follows:
Plaintiff commended this action alleging he was injured after he tripped and fell while carrying construction materials on a steel mesh floor at 66 Hudson Boulevard East on or about December 16, 2019. Plaintiff testified that on the day of incident, he was instructed to carry pipes across the steel mesh on the ninth floor even though it was lacking plywood cover. Plaintiff testified that he tripped on an upright portion of the steel mesh that was not tied down. Plaintiff s motion seeks summary judgment on his claims pursuant to Labor Law § 241 (6). Defendants' motion seeks summary judgment dismissing plaintiffs entire complaint and all causes of action alleged therein.
"The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985]). To defeat a motion for summary judgment, the non-moving party bears the burden to "produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which he rests his claim" (Zuckerman v City cf New York, 49 N.Y.2d 557, 562 [1980]).
As an initial matter, plaintiff did not oppose dismissal of his claims under Labor Law § 200/common law negligence or Labor Law § 240 (1), and as such these claims are abandoned.
Labor Law § 241 (6) reads as follows:
"Construction, excavation and demolition work
6. All 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 or lawfully frequenting such places. The commissioner may make rules to carry into effect the provisions of this subdivision, and the owners and contractors and their agents for such work, except owners of one and two-family dwellings who contract for but do not direct or control the work, shall comply therewith."
"To establish liability under Labor Law § 241 (6), a plaintiff must demonstrate that his oilier injuries were proximately caused by a violation of an Industrial Code provision 'mandating compliance with concrete specifications'" (Ennis v. Noble Constr. Group, LLC, 207 A.D.3d 703, 705 [2d Dept 2022], citing Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494 [1993]). In addition, the rule or regulation alleged to have been breached must be a "specific, positive command" (Toussaint v Port Auth. cfNew York and New Jersey, 38 N.Y.3d 89, 93 [2022]).
"Labor Law § 241(6) imposes a non-delegable duty on owners and contractors to provide reasonable and adequate protection and safety for workers and to comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor (Toussaint, 38 N.Y.3d at 93 [2022] [internal quotations marks and citations omitted]). The non-delegable duty is absolute and "imposes liability upon a general contractor for the negligence of a subcontractor, even in the absence of control or supervision of the worksite" (Rizzuto v L.A. Wenger Contr. Co., 91 N.Y.2d 343, 348-349 [1998], citing Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494 [1993]).
12 NYCRR § 23-1.7 (e) is entitled "Tripping and other hazards." § 23-1.7 (e) (1) governs "passageways" and states: "All passageways shall be kept free from accumulations of dirt and debris and from any other obstructions or conditions which could cause tripping. Sharp projections which could cut or puncture any person shall be removed or covered." § 23-1.7 (e) (2) governs "working areas" and states: "The 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." Both § 23-1.7 (e) (1) and (2) are sufficiently specific to support a § 241 (6) claim (Vieira v Tishman Const. Corp., 255 A.D.2d 235 [1st Dept 1998]).
Here, triable issues of fact remain as to whether the site at which plaintiff fell was a working area or a passageway, whether the upright portion of the wire mesh was a sharp projection, and whether the steel mesh was integral to the work. As there remain triable issues of fact, both plaintiff and defendants' motions for summary judgment as to these regulations are denied.
The portions of defendant's motion seeking summary judgment as to all other industrial code violations are granted as those provisions are inapplicable or unsupported by the evidence.
Accordingly, it is
ORDERED that plaintiffs motion for partial summary judgment is denied; and it is further
ORDERED that defendant's motion for summary judgment is granted to the extent that all causes of action are dismissed except for plaintiffs Labor Law § 241 (6) claim predicated upon a violation of § 23-1.7 (e) (1) and (2).
This constitutes the decision and order of the court.