Opinion
2017–12514 2018–01558 Index No. 7856/15
01-20-2021
Leonel REYES, appellant, v. ASTORIA 31ST STREET DEVELOPERS, LLC, et al., respondents.
Sackstein, Sackstein & Lee, LLP (Pollack, Pollack, Isaac & DeCicco, LLP, New York, NY [Brian J. Isaac and Diane K. Toner ], of counsel), for appellant. Gartner + Bloom, P.C., New York, NY (Roy M. Anderson of counsel), for respondents.
Sackstein, Sackstein & Lee, LLP (Pollack, Pollack, Isaac & DeCicco, LLP, New York, NY [Brian J. Isaac and Diane K. Toner ], of counsel), for appellant.
Gartner + Bloom, P.C., New York, NY (Roy M. Anderson of counsel), for respondents.
WILLIAM F. MASTRO, A.P.J., LEONARD B. AUSTIN, SYLVIA O. HINDS-RADIX, PAUL WOOTEN, JJ
DECISION & ORDER
In an action, inter alia, to recover damages for personal injuries, the plaintiff appeals from (1) an order of the Supreme Court, Queens County (Cheree´ A. Buggs, J.), entered November 2, 2017, and (2) an order of the same court entered December 26, 2017. The order entered November 2, 2017, insofar as appealed from, denied that branch of the plaintiff's motion which was for summary judgment on the issue of liability on the cause of action alleging violations of Labor Law §§ 200, 240(1) and 241(6). The order entered December 26, 2017, granted that branch of the defendants' motion which was for summary judgment dismissing the cause of action alleging violations of Labor Law §§ 200, 240(1) and 241(6).
ORDERED that the order entered November 2, 2017, is affirmed insofar as appealed from; and it is further,
ORDERED that the order entered December 26, 2017, is affirmed; and it is further,
ORDERED that one bill of costs is awarded to the defendants.
The plaintiff allegedly was injured while working as an ironworker for a nonparty subcontractor at an excavation site. Construction of a new building was underway and the excavation for the foundation was complete. Prior to the happening of the accident, the plaintiff was performing his assigned task of wrapping up and tying pieces of rebar which were four to five feet long at the bottom of the excavation site. The plaintiff ceased performing his assigned task when, upon observing coworkers having difficulty attempting to pass a 30–foot–long piece of rebar manually across the excavation site at ground-level, he ran up the 9–foot hill to assist them. As the plaintiff grabbed the 30–foot–long piece of rebar, the rebar shook, allegedly causing the plaintiff to lose his footing and to roll down the hill to the bottom of the excavation site.
The plaintiff commenced this action against the defendant general contractor, Mega Contracting Group, LLC, and the defendant construction site owner/developer, Astoria 31st Street Developers, LLC, asserting, inter alia, a cause of action alleging violations of Labor Law §§ 200, 240(1), and 241(6). The defendants moved, among other things, for summary judgment dismissing the cause of action alleging violations of Labor Law §§ 200, 240(1), and 241(6). Thereafter, the plaintiff moved, inter alia, for summary judgment on the issue of liability on the cause of action alleging violations of Labor Law §§ 200, 240(1), and 241(6). In an order entered November 2, 2017, the Supreme Court, among other things, denied, as untimely, that branch of the plaintiff's motion which was for summary judgment on the issue of liability on the cause of action alleging violations of Labor Law §§ 200, 240(1), and 241(6). In an order entered December 26, 2017, the court granted that branch of the defendants' motion which was for summary judgment dismissing the cause of action alleging violations of Labor Law §§ 200, 240(1), and 241(6). The plaintiff appeals from both orders.
The defendants established their prima facie entitlement to judgment as a matter of law dismissing the Labor Law § 200 claim by submitting, inter alia, transcripts of deposition testimony which established that they lacked authority to supervise or control the plaintiff's work, that the condition of the excavation site was an open and obvious one that was readily observable by the reasonable use of one's senses, and was not inherently dangerous (see Salgado v. Rubin, 183 A.D.3d 617, 123 N.Y.S.3d 153 ; Ulrich v. Motor Parkway Props., LLC, 84 A.D.3d 1221, 924 N.Y.S.2d 493 ; Rojas v. Schwartz, 74 A.D.3d 1046, 903 N.Y.S.2d 484 ). In opposition, the plaintiff failed to raise a triable issue of fact (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ; Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 ).
" ‘ Labor Law § 240(1) imposes a nondelegable duty ... upon owners and general contractors and their agents to provide safety devices necessary to protect workers from risks inherent in elevated work sites’ " ( Von Hegel v. Brixmor Sunshine Sq., LLC, 180 A.D.3d 727, 728, 115 N.Y.S.3d 712, quoting Caiazzo v. Mark Joseph Contr., Inc., 119 A.D.3d 718, 720, 990 N.Y.S.2d 529 ). "Where there is no statutory violation, or where the plaintiff is the sole proximate cause of his or her own injuries, there can be no recovery under Labor Law § 240(1)" ( Von Hegel v. Brixmor Sunshine Sq., LLC, 180 A.D.3d at 728, 115 N.Y.S.3d 712 ; see Blake v. Neighborhood Hous. Servs. of N.Y. City, 1 N.Y.3d 280, 290, 771 N.Y.S.2d 484, 803 N.E.2d 757 ). Here, the defendants demonstrated their prima facie entitlement to judgment as a matter of law dismissing the Labor Law § 240(1) claim by submitting, among other things, transcripts of deposition testimony establishing that the accident was not caused by an elevation-related risk contemplated by the statute (see Kickler v. Dove–Tree Greenery, Inc., 185 A.D.3d 1017, 126 N.Y.S.3d 368 ; Lombardi v. City of New York, 175 A.D.3d 1521, 1523–1524, 109 N.Y.S.3d 373 ; Clark v. FC Yonkers Assoc., LLC, 172 A.D.3d 1159, 1161, 98 N.Y.S.3d 870 ), and that the plaintiff's action of engaging in an activity that he was not authorized or instructed to engage in, i.e., passing 30–foot–long rebar across the excavation site, was the sole proximate cause of his injuries (see Serrano v. Popovic, 91 A.D.3d 626, 627, 936 N.Y.S.2d 254 ; Capellan v. King Wire Co., 19 A.D.3d 530, 532, 798 N.Y.S.2d 76 ; Weingarten v. Windsor Owners Corp., 5 A.D.3d 674, 677, 774 N.Y.S.2d 537 ). In opposition, the plaintiff failed to raise a triable issue of fact.
"To establish liability under Labor Law § 241(6), a plaintiff ... must demonstrate that his [or her] injuries were proximately caused by a violation of an Industrial Code provision that is applicable under the circumstances of the case" ( Graziano v. Source Bldrs. & Consultants, LLC, 175 A.D.3d 1253, 1258, 109 N.Y.S.3d 115 [internal quotation marks omitted]; see Aragona v. State of New York, 147 A.D.3d 808, 809, 47 N.Y.S.3d 115 ), and "sets forth a specific standard of conduct and not simply a recitation of common-law safety principles" ( St. Louis v. Town of N. Elba, 16 N.Y.3d 411, 414, 923 N.Y.S.2d 391, 947 N.E.2d 1169 ). Here, the plaintiff alleged violations of Industrial Code ( 12 NYCRR) §§ 23–1.7(b) and 23–4.1(a) and (b) (see Palomeque v. Capital Improvement Servs., LLC, 145 A.D.3d 912, 914, 43 N.Y.S.3d 483 ; Harsch v. City of New York, 78 A.D.3d 781, 783, 910 N.Y.S.2d 540 ). 12 NYCRR 23–4.1(b) is not sufficiently specific to support a Labor Law § 241(6) claim (see Smith v. Robert Marini Bldr., Inc., 83 A.D.3d 1188, 1189, 921 N.Y.S.2d 371 ). Additionally, the defendants established, prima facie, the inapplicability of 12 NYCRR 23–1.7(b) and 23–4.1(a) and, in any event, that they did not violate either provision (see Salazar v. Novalex Contr. Corp., 18 N.Y.3d 134, 140, 936 N.Y.S.2d 624, 960 N.E.2d 393 ; Palumbo v. Transit Tech., LLC, 144 A.D.3d 773, 41 N.Y.S.3d 85 ; Hernandez v. Columbus Ctr., LLC, 50 A.D.3d 597, 857 N.Y.S.2d 84 ; Rookwood v. Hyde Park Owners Corp., 48 A.D.3d 779, 853 N.Y.S.2d 127 ; Ruland v. Long Is. Power Auth., 5 A.D.3d 580, 774 N.Y.S.2d 84 ). In opposition, the plaintiff failed to raise a triable issue of fact.
Accordingly, we agree with the Supreme Court's determination granting that branch of the defendants' motion which was for summary judgment dismissing the cause of action alleging violations of Labor Law §§ 200, 240(1), and 241(6).
Finally, while the Supreme Court should have considered the merits of that branch of the plaintiff's motion which was for summary judgment on the issue of liability on the cause of action alleging violations of Labor Law §§ 200, 240(1), and 241(6), rather than denying it as untimely (see Jenkin v. Cadore, 185 A.D.3d 558, 126 N.Y.S.3d 202 ; Munoz v. Salcedo, 170 A.D.3d 735, 95 N.Y.S.3d 358 ), an affirmance is appropriate given our determination with respect to that branch of the defendants' motion which was for summary judgment dismissing the cause of action alleging violations of Labor Law §§ 200, 240(1) and 241(6).
MASTRO, A.P.J., AUSTIN, HINDS–RADIX and WOOTEN, JJ., concur.