Opinion
Index 159128/2016595118/2017
10-26-2021
TEO QUINTERO, Plaintiff, v. 520 MADISON OWNERS LLC, 520 MADISON VENTURE, Defendant. 520 MADISON OWNERS LLC Plaintiff, v. PAL ENVIRONMENTAL SERVICES, INC. Defendant. Motion Seq. No. 006
Unpublished Opinion
DECISION+ ORDER ON MOTION
SHAWN T. KELLY JUDGE
The following e-filed documents, listed by NYSCEF document number (Motion 006) 178, 179, 180, 181, 182, 183, 184, 185, 186, 187, 188, 189, 190, 191, 192, 193, 194, 195, 198, 200, 201, 202, 203, 204, 205, 206, 207, 208, 209 were read on this motion to/for JUDGMENT-SUMMARY Upon the foregoing documents, it is
Defendant 520 Madison Owners LLC moves for summary judgment contending that Plaintiffs misuse of scaffolding caused his accident and thus, Plaintiffs Labor Law §240(1), §200 and §241(6) claims must be dismissed.
This Labor Law action stems from serious injuries allegedly sustained by Plaintiff on July 8, 2016, while in the course of his employment removing asbestos at 520 Madison Avenue, New York, NY. Plaintiff contends that he was caused to fall approximately eight (8) feet when the scaffold upon which he was laboring tipped as he attempted to disembark from it. As a result, Plaintiff alleges that he sustained serious and permanent personal injuries, including but not limited to herniations of his lumbar spine which required a surgical fusion. Plaintiff alleges violations of New York Labor Law §200, §240(1), §240(2) and §241(6).
Factual Evidence
Factual allegations are herein adopted as recited at length in this court's April 30, 2021 decision under Motion Sequence 005.
Analysis
'"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'" (Santiago v Filstein, 35 A.D.3d 184, 185-186 [1 Dept 2006], quoting Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985]). The burden then shifts to the motion's opponent to "present evidentiary facts in admissible form sufficient to raise a genuine, triable issue of fact" (Mazurek v Metropolitan Museum of Art, 27 A.D.3d 227, 228 [1 Dept 2006], citing Zuckerman v City of New York, 49 N.Y.2d 557, 562 [1980]; see also DeRosa v City of New York, 30 A.D.3d 323, 325 [1
Dept 2006]). The evidence presented in a summary judgment motion must be examined in the "light most favorable to the party opposing the motion" (Udoh v Inwood Gardens, Inc., 70 A.D.3d 563 1
Dept 2010]) and bare allegations or conclusory assertions are insufficient to create genuine issues of fact (Rotuba Extruders v Ceppos, 46 N.Y.2d 223, 231 [1978]).
Further, issues of credibility are not to be resolved on summary judgment (see Alvarez v New York City Hous. Autk, 295 A.D.2d 225, 226, 744 N.Y.S.2d 25 [1st Dept 2002]). Second Cause of Action. New York Labor Law §240(1) and §240(2)
New York Labor Law §240(1) states as follows:
All contractors and owners and their agents, ... 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 statute is violated when the plaintiff is exposed to an elevation-related risk while engaged in an activity covered by the statute and the defendant fails to provide a safety device adequate to protect the plaintiff against the elevation-related risk entailed in the activity or provides an inadequate one" (Jones v 414 Equities LLC, 2008 NY Slip Op 08197WL 4707496 [1st Dept 2008] (citations omitted)). Thus, pursuant to Labor Law §240(1), owners and contractors have the duty to provide safety equipment to protect workers from hazards related to elevating themselves or their materials at the work site (Drew v Correct Manufacturing Corp., 149 A.D.2d 893, 540 N.Y.S.2d 575 [3d Dept 1989]; see Ross v Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 618 N.E.2d 82 [1993] ["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]).
Defendant contends that the accident would not have happened if Plaintiff did not misuse the scaffold. However, the evidence raises material questions of fact as to how the accident occurred as well as significant issues of credibility. Accordingly, Defendant's motion as to the §240(1) claim is denied.
Though Plaintiff lists Labor Law §240(2) in his Complaint, he does not provide any factual allegations in support of a violation of this statute. To establish liability pursuant to Labor Law §240(2), there must be proof that "the subject scaffolding was more than 20 feet above the ground and lacked properly secured safety rails, and that the failure to provide such protection was a proximate cause of plaintiff s injuries" (Tama v Gargiulo Bros., Inc., 61 A.D.3d 958, 960, 878 N.Y.S.2d 128 [2009]). Plaintiff does not dispute Defendant's prima facie entitlement to judgment as a matter of law on the issue of liability on the Labor Law § 240(2) and accordingly, this claim is dismissed (Viera v WFJ Realty Corp., 140 A.D.3d 737, 739, 31 N.Y.S.3d 613, 615 [2016]).
Third Cause of Action, New York Labor Law $241(6)
Labor Law §241(6) provides, in pertinent part, as follows:
"All contractors and owners and their agents, . . . when constructing or demolishing buildings or doing any excavating in connection therewith, shall comply with the following requirements:
(6) All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, [and] equipped ... as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places."
Labor Law § 241(6) imposes a nondelegable duty of reasonable care upon owners and contractors '"to provide reasonable and adequate protection and safety' to persons employed in, or lawfully frequenting, all areas in which construction, excavation or demolition work is being performed" (Rizzuto v L.A. Wenger Contr. Co., 91 N.Y.2d 343, 348 [1998] [emphasis added]; see also Ross v Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 501-502 [1993]).
Further, to sustain a Labor Law §241(6) claim, it must be shown that the defendant violated a specific, "concrete" implementing regulation of the Industrial Code, rather than a provision containing only generalized requirements for worker safety (Ross, 81 N.Y.2d at 505). Such violation must be a proximate cause of the plaintiffs injuries (Annicaro v Corporate Suites, Inc., 98 A.D.3d 542, 544 [2d Dept 2012]; Rossi v 140 W. JV Manager LLC, 58 Misc.3d 1215(A), 95 N.Y.S.3d 126 [NY Sup Ct 2018], aff'd, 171 A.D.3d 668, 99 N.Y.S.3d 38 [2019]). Plaintiffs Bill of Particulars alleges that Defendant violated Industrial Code §§ 23-1.5(a), 23-1.5(c)l, 23-1.5(c)2, 23-1.5(c)(3); 23-1.6; 23-1.7; 23-5.1(b), 23-5.1(c), 23-5.1(d), 23-5.1(f), 23-5.1(j); 23-5.2; 23-5.3; 23-5.4; 23-5.5; 23-5.6; 23-5.7; 23-5.8; 23-5.9; 23-5.10; 23-5.13(a), 23-5.13(b), 23-5.13(c), 23-5.13(d); 23-5.18(b), 23-5.18(f), 23-5.18(g); and Part 23 Section 13-1.21 and OSHA sections 29 CFR 1926.501 and 1926.502 (NYSCEF Doc. No. 194).
Labor Law § 241(6) is not self-executing, and in order to show a violation of this statute and withstand a defendant's motion for summary judgment, it must be shown that the defendant violated a specific, applicable, implementing regulation of the Industrial Code, rather than a provision containing only generalized requirements for worker safety (see Ross v Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d494 at 503-505 [1993]).
In opposition, Plaintiff only argues that "Defendants cannot say that no section of Industrial Code section 23-5.18 was violated, as it is clear that the scaffold failed" (NYSCEF Doc. No. 202). Although Plaintiff asserts multiple alleged Industrial Code violations in his Bill of Particulars, Plaintiffs failure to oppose the dismissal of all of the specific provisions asserted therein, with the exception of §23-5.18, leads to the dismissal of the cited provisions as abandoned (Kempisty v 246 Spring St., LLC, 92 A.D.3d 474, 475 [1st Dept 2012] ["(w)here a defendant so moves, it is appropriate to find that a plaintiff who fails to respond to allegations that a certain section is inapplicable or was not violated be deemed to abandon reliance on that particular Industrial Code section."]; see Genovese v Gambino, 309 A.D.2d 832, 833 [2d Dept 2003]; Gonzalez v Broadway 371, LLC, No. 153536/2018, 2021 WL 4776212, at *3 [2021]).
To the extent that Plaintiffs Labor Law §241(6) claim is predicated on alleged violations of Industrial Code §23-5.18, mandating that manually propelled, mobile scaffolds be equipped with a safety railing and properly designed casters, this regulation is sufficiently specific to support a claim under §241(6) (see Vergara v SS 133 W. 21, LLC, 21 A.D.3d 279, 281, 800 N.Y.S.2d 134 [2005]; Ritzer v 6 E. 43rd St. Corp., 57 A.D.3d 412, 412-13, 871 N.Y.S.2d 26, 27 [2008]).
First Cause of Action, New York Labor Law §200
Labor Law §200 is a codification of the common law duty imposed upon an owner or general contractor to provide construction site workers with a reasonably safe place to work (see Comes v NY State Elec. & Gas Coro., 82 N.Y.2d 876 [1993]; Lorabardi v. Stout, 80 N.Y.2d 290, 590 N.Y.S.2d 55, 604 N.E.2d 117 [1992]). 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 (Ortega v Puccia, 57 A.D.3d 54, 61, 866 N.Y.S.2d 323, 329 [2008]).
A general contractor may be held liable under Labor Law §200 where they have control over the work site and the general contractor either created or had actual notice of the dangerous condition that caused the plaintiff to fall (see Bridges v Wyandanch Community Dev. Corp., 66 A.D.3d 938 [2d Dept 2009]; Murchy v Columbia University, 4 A.D.3d 200 [1st Dept 2004]). "To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it" (Gordon v American Museum of Natural History, 67 N.Y.2d 836, 837 [1986]). "The notice must call attention to the specific defect or hazardous condition and its specific location, sufficient for corrective action to be taken" (Mitchell v New York Univ., 12 A.D.3d 200, 201 [1st Dept 2004]). However, a '"general awareness' is legally insufficient to charge defendants with constructive notice of the specific condition that resulted in plaintiffs injuries" (Solazzo v New York City Tr. Auth., 21 A.D.3d 735, 736 [1st Dept 2005], aff'd 6 NY3d 734 [2005]).
Defendant contends that the evidence in the record establishes that they had no control over the means or methods of Plaintiffs work, which was exclusively within the control of Third-Party Defendant PAL Environmental Services. Plaintiff testified that he took all direction from his PAL supervisor Bryan Pilgrim, including on the accident date. (NYSCEF Doc. No. 158, p. 156). Further, Plaintiff testified that no one besides his PAL supervisor instructed him on how to perform his work. (Id. at p. 158). This testimony was corroborated by Bryan Pilgrim's testimony (NYSCEF Doc. No. 171).
Defendant has demonstrated their prima facie entitlement to judgment as a matter of law under Labor Law §200 and Plaintiff has not sufficiently raised a question of fact in opposition. Accordingly, Plaintiffs claims under Labor Law §200 are dismissed.
Fourth Cause of Action, Negligence
Similarly, Plaintiffs cause of action for common-law negligence is dismissed for the same reasons that Plaintiffs claim under Labor Law §200 is dismissed (see Lombardi v Stout, 80 N.Y.2d 290, 295 [1992]; Meng Sing Chang v Homewell Owner's Corp., 38 A.D.3d 625, 627 [2007]; Ortega v Puccia, 57 A.D.3d 54, 63 [2008]).
Accordingly, it is hereby
ORDERED that Defendant's motion for summary judgment is granted and the first and fourth causes of action of the complaint are dismissed; and it is further
ORDERED that Defendant's motion for summary judgment is granted to the extent that under the second cause of action violations of Labor Law §240(2) are dismissed, and under the third cause of action under Labor Law §241(6) as it relates to violations of Industrial Code §§ 23-1.5(a), 23-1.5(c)1, 23-1.5(c)2, 23-1.5(c)(3); 23-1.6; 23-1.7; 23-5.1(b), 23-5.1(c), 23-5.1(d), 23-5.1(f), 23-5.10); 23-5.2; 23-5.3; 23-5.4; 23-5.5; 23-5.6; 23-5.7; 23-5.8; 23-5.9; 23-5.10; 23-5.13(a), 23-5.13(b), 23-5.13(c), 23-5.13(d); and Part 23 Section 13-1.21 and OSHA sections 29 CFR 1926.501 and 1926.502 are dismissed; and it is further
ORDERED that the remaining causes of action are severed, and the balance of the claims are continued.