Opinion
No. 22421/10.
2013-05-10
Hector REYNOSO, Plaintiff, v. BOVIS LEND LEASE, LMB, INC., and National September 11 Memorial and Museum at the World Trade Center Foundation, Inc., Defendants.
Alan M. Friedman, Esq. of Friedman Friedman Chiaravalloti & Giannini, for Plaintiff. Kevin B. Pollack, Esq. and Alison M. Drew, Esq. of Fabiani Cohen & Hall, LLP, for Defendants.
Alan M. Friedman, Esq. of Friedman Friedman Chiaravalloti & Giannini, for Plaintiff. Kevin B. Pollack, Esq. and Alison M. Drew, Esq. of Fabiani Cohen & Hall, LLP, for Defendants.
JACK M. BATTAGLIA, J.
On February 12, 2010, plaintiff Hector Reynoso, a laborer/stripper employed by nonparty Navillus Contracting, allegedly sustained personal injuries when he slipped on ice at “the World Trade Center construction site at Liberty Street and Church Street believed to be known as 284 North on the 4th Floor of the building then and there under construction, on a platform and/or temporary platform covering an open shaft” ( see Verified Bill of Particulars, ¶ 4.) Thereafter, Plaintiff brought an action as against defendants Bovis Lend Lease Lmb, Inc. (“Bovis”) and National September 11 Memorial and Museum at the World Trade Center Foundation, Inc. (“National”) alleging, among other things, violation of Labor Law § 241(6).
In his motion, Plaintiff contends that he is entitled to partial summary judgment on his Labor Law § 241(6) cause of action as against Bovis and National. Labor Law § 241(6) provides, in pertinent part, as follows:
“All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, 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, 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.”
Initially, with respect to Plaintiff's motion as against National, Plaintiff asserts that defendant National is the owner of the premises ( see Memorandum of Law, p. 2). However, in its Verified Answer to Verified Complaint, defendant National denies Plaintiff's allegations that it either owned the property, or that it managed or controlled the premises.
“A party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, producing sufficient evidence to demonstrate the absence of any material issue of fact”. (Giuffrida v. Citibank Corp., 100 N.Y.2d 72, 81 [2003];see alsoCPLR 3212; Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 [1986].) “Once this showing has been made, the burden shifts to the nonmoving party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact that require a trial for resolution.” (Giuffrida v. Citibank Corp., 100 N.Y.2d at 81.)
Plaintiff fails to make any showing that National was an owner, or an agent of the owner, such that it can be held liable pursuant to Labor Law § 241(6). ( See Allan v. DHL Express (USA), 99 AD3d 828, 830 [2d Dept 2012]; Markey v. C.F.M.M. Owners Corp., 51 AD3d 734, 737 [2d Dept 2008]; Kim v. D & W Shin Realty Corp., 47 AD3d 616, 618 [2d Dept 2008] [“The meaning of owners' under Labor Law § 240(1) and § 241(6) has not been limited to titleholders but has been held to encompass a person who has an interest in the property and who fulfilled the role of owner by contracting to have work performed for his benefit.”]; see also Guclu v. 900 Eighth Ave. Condominium, LLC, 81 AD3d 592, 593 [2d Dept 2011][“A party is deemed to be an agent of an owner or general contractor under the Labor Law when it has the ability to control the activity which brought about the injury”].)
“Failure to make such a prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers.” (Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 [1986];see also Winegrad v. New York Univ. Med. Center, 64 N.Y.2d 851, 853 [1986].)
Accordingly, the branch of Plaintiff's motion for partial summary judgment on the issue of liability on its Labor Law § 241(6) cause of action as against defendant National September 11 Memorial and Museum at the World Trade Center Foundation, Inc. is DENIED.
There is no dispute, however, that Bovis was the general contractor or construction manager, and, as such, may be held liable pursuant to Labor Law § 241(6). “To recover on a cause of action alleging a Labor Law § 241(6) violation, a plaintiff must establish the violation of an Industrial Code provision which sets forth specific safety standards” (Lin v. Holy Family Monuments, 18 AD3d 800, 801 [2d Dept 2005]; see also Ryan P. St. Louis v. Town of North Elba, 16 NY3d 411, 414 [2011] ), and that the Industrial Code provision is applicable to the facts of the case ( see Ferrero v. Best Modular Homes, Inc., 33 AD3d 847, 851 [2d Dept 2006].) Here, Plaintiff alleges that Defendants violated 12 NYCRR 23–1.7(d) of the Industrial Code, which provides as follows:
“Employers shall not suffer or permit any employee to use a floor, passageway, walkway, scaffold, platform or other elevated working surface which is in a slippery condition. Ice, snow, water, grease and any other foreign substance which may cause slippery footing shall be removed, sanded or covered to provide safe footing.”
In support of his motion, Plaintiff proffers, among other things, his own affidavit in which he avers that he was employed by Navillus Contracting as a laborer/stripper; that he was working in an area known as Level 284; that prior to the accident, he was stripping the walls that were made up of Doka panels and carrying them to another area; that at the time of the accident, he was carrying a Doka panel, which is about 9 feet by 2 feet, over his right shoulder; that as he was carrying the panel, he “slipped on snow and ice which had accumulated on the work site platform”; that his “right foot slipped forward while [he] was holding the panel, and [he] fell backward on [his] left knee”; and that after the accident, he “could see that the area of the floor where [he] slipped on was covered with snow and ice”.
Plaintiff also submits the affidavit of his coworker Alberto Rodriguez, which indicates at the end that “[t]his statement has been read and translated to [him] from English to Spanish and it is true to the best of [his] knowledge”. Since the affidavit is not accompanied by an affidavit from a translator, it is not admissible as evidence on this motion. ( SeeCPLR 2101[b]; Reyes v. Arco Wentworth Mgt. Corp., 83 AD3d 47, 54 [2d Dept 2011]; Monteleone v. Jung Pyo Hong, 79 AD3d 988, 989 [2d Dept 2010].)
In any event, the issue raised on this motion is whether Plaintiff's affidavit sufficiently demonstrates prima facie entitlement to summary judgment on his Labor Law § 241(6) cause of action by demonstrating a violation of 12 NYCRR 23–1.7(d), or whether such violation, if shown, is not sufficient to establish prima facie entitlement to summary judgment, but is only some evidence of negligence that may be considered by a jury in determining whether the work site was operated so as to provide reasonable and adequate protection to workers. As will be shown, there does not appear to be a consistently-applied standard in the appellate caselaw used in determining whether a plaintiff has made a prima facie showing of entitlement to summary judgment on a Labor Law § 241(6) cause of action.
In Rizzuto v. L.A. Wenger Contracting Co., Inc. (91 N.Y.2d 343 [1998] ), the plaintiff was removing and replacing a submersible pump in the fuel station area of a bus depot that was under construction when diesel fuel suddenly started to spray all over him and his work area. As the plaintiff attempted to leave the work area to clean himself, his feet slipped out from underneath him. The plaintiff asserted, as here, a cause of action based upon Labor Law § 241(6) premised upon violation of 12 NYCRR 23–1.7(d).
The Court of Appeals denied a general contractor's motion for summary judgment dismissal of the Labor Law § 241(6), holding that absence of notice of the alleged hazardous condition to the general contractor or owner was not a defense since Labor Law § 241(6) “imposes a nondelegable duty upon an owner or general contractor to respond in damages for injuries sustained due to another party's negligence in failing to conduct their construction, demolition or excavation operations so as to provide for the reasonable and adequate protection of the persons employed therein.” ( Id. at 349–50.)
The Court of Appeals further noted that it “has consistently rejected the notion that a violation of section 241(6) results in absolute liability irrespective of the absence of some negligent act which caused the injury” ( see id. at 349–50.) The Court explained how Labor Law § 241(6) was intended to operate, as follows:
“[O]nce it has been alleged that a concrete specification of the Code has been violated, it is for the jury to determine whether the negligence of some party to, or participant in, the construction project caused plaintiff's injury. If proven, the general contractor (or owner, as the case may be) is vicariously liable without regard to his or her fault. An owner or general contractor may, of course, raise any valid defense to the imposition of vicarious liability under section 241(6), including contributory and comparative negligence”. ( Id. at 350.)
Significantly, the Court also reiterated that, “unlike the violation of an explicit and definite statutory provision which demonstrates negligence as a matter of law, a violation of section 241(6) is merely some evidence which the jury may consider on the question of defendant's negligence”. ( Id. at 349 [internal citations and quotation marks omitted].)
Even so, Rizzuto does not specifically address whether a plaintiff establishes prima facie entitlement to summary judgment on a Labor Law § 241(6) cause of action by demonstrating the violation of a specific and concrete Industrial Code section, which is “merely some evidence” of negligence that a jury may consider, as well as evidence that said violation was the proximate cause of the plaintiff's injuries.
Both the Third and Fourth Departments have determined it to be error to grant summary judgment on a Labor Law § 241(6) cause of action based solely upon a violation of an Industrial Code section. For example, in Puckett v. County of Erie (262 A.D.2d 964 [4th Dept 1999] ), the Fourth Department noted that “violation of the Industrial Code, even if admitted by defendants, does not establish negligence as a matter of law but is merely some evidence to be considered on the question of defendant's negligence”. ( See id. [quoting Schmeer v. County of Monroe, 175 A.D.2d 633, 633–34 (4th Dept 1991) ].) In Puckett, the Fourth Department further noted that there were issues of fact as to whether the claimed violation of the regulation was a proximate cause of Plaintiff's injuries, and issues of fact with respect to the plaintiff's comparative negligence.
In Wells v. British American Development Corp. (2 AD3d 1141 [3d Dept 2003] ), the Third Department noted that the plaintiff's offer of proof established a prima facie case under Labor Law § 241(6) based upon violations of certain Industrial Code provisions. Even so, the Third Department held that “contrary to plaintiff's argument, even if a violation of a regulation was established, he is not entitled to summary judgment on the Labor Law § 241(6) cause of action, since a violation of this section would only amount to some evidence of negligence.” ( Id. at 1144 [internal citations and quotation marks omitted]; see also Paolangeli v. Cornell University, 296 A.D.2d 691, 692–93 [3d Dept 2002].) However, the Third Department noted that there were issues of fact “concerning whether each claimed violation was a proximate cause of his injury, as well as questions regarding his comparative fault.” ( See Wells v. British American Development Corp., 2 AD3d at 1144.)
The First Department appears to differ. In Velasquez v. 795 Columbus LLC (103 AD3d 541 [1st Dept 2013] ), a worker was injured when “he slipped and fell on mud, rocks and water' at a construction site” ( see id. at 541). The muddy condition was caused by water from rain and a nearby water main break that occurred a few days before the accident. The plaintiff asserted a Labor Law § 241(6) cause of action premised on violation of 12 NYCRR 23–1.7(d). Citing only to Rizzuto, the First Department held that “plaintiff's testimony that his foreman instructed him to work on the day of the accident, despite the presence of a muddy and wet condition, established negligence for which defendants may be held vicariously liable, and defendants failed to raise a triable issue of fact in opposition.” ( See id. at 542.)
In Capuano v. Tishman Construction Corp. (98 AD3d 848 [1st Dept 2012] ), in opposition to a plaintiff's motion for summary judgment on a Labor Law § 241(6) cause of action, the defendants argued that “section 241(6) did not impose absolute liability arising from the breach, but rather required a determination as to whether the safety measures employed were reasonable and adequate' under the circumstances” ( id., at 849), and that “there were issues of fact as to whether the alleged violations existed for a sufficient period of time to be discovered and remedied” ( id.). The First Department rejected the defendants' contentions, and found that “plaintiffs met their burden of establishing liability under Labor Law § 241(6) based upon the alleged violations” of two sections of the Industrial Code. ( See id., at 850.) Notably, in rejecting the defendants' contentions, the opinion does not discuss or cite to Rizzuto. ( See also e.g. Harris v. City of New York, 83 AD3d 104, 111 [1st Dept 2011] [“As the evidence of violations of 12 NYCRR 23–8.1(f)(1)(iv) and (2)(i) is undisputed, the plaintiff is entitled to summary judgment as to Labor Law § 241(6) liability”]; Hayden v. 845 UN Limited Partnership, 304 A.D.2d 499 [1st Dept 2003].)
The caselaw in the Second Department appears in conflict. In Melchor v. Singh (90 AD3d 866 [2d Dept 2011] ), the plaintiff was injured “when he fell from an unsecured ladder “that had old and worn feet” ( see id. 867). The court noted that the violation of an “explicit and concrete provision of the Industrial Code by a participant in a construction project constitutes some evidence of negligence, for which the owner or general contractor may be held vicariously liable.” ( See id. at 870.) However, the court held that “[t]he plaintiff demonstrated his prima facie entitlement to judgment as a matter of law on the issue of liability under that statute, insofar as asserted against the respondents, by showing that there were violations of relevant Industrial Code sections, and that such violations were a proximate cause of his injuries”. ( See id.; Harris v. Arnell Constr. Corp., 47 AD3d 768 [2d Dept 2008]; Carriere v. Whiting Turner Contr., 299 A.D.2d 509, 511 [2d Dept 2002]; Blair v. Cristani, 296 A.D.2d 471, 472 [2d Dept 2002]; Beckford v. 40th St. Assoc. [NY Partnership], 287 A.D.2d 586, 587 [2001].)
But in the Second Department there is also a series of cases in which plaintiffs were denied summary judgment on their Labor Law § 241(6) cause of action on grounds including that violation of the Industrial Code provision at issue was only considered some evidence of negligence that a jury could take into account in determining whether the work site was “so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety” to workers ( seeLabor Law § 241[6].)
In denying a plaintiff's motion for summary judgment on his Labor Law § 241(6) cause of action, the Second Department in Seaman v. Bellmore Fire District (59 AD3d 515 [2d Dept 2009] ), explained “where such a violation [of a specific Industrial Code rule or regulation] is established, it does not conclusively establish a defendant's liability as a matter of law, but constitutes some evidence of negligence and thereby reserves, for resolution by a jury, the issue of whether the equipment, operation or conduct at the worksite was reasonable and adequate under the particular circumstances” ( see id. at 516 [internal citations and quotation marks omitted]; see also Husak v. 45th Avenue Housing Company, 52 AD3d 782, 783–84 [2d Dept 2008].)
Similarly, in Belcastro v. Hewlett–Woodmere Union Free School District Number 14 (286 A.D.2d 744, 746 [2d Dept 2001] ), the Second Department denied a plaintiff's motion for summary judgment even though it found that plaintiff had established the violation of an applicable Industrial Code provision. ( See id. at 746.)
In Fusca v. A & S Construction, LLC (84 AD3d 1155 [2d Dept 2011] ), the plaintiff “fell from the ground floor to the basement through an unguarded unfinished stairwell while working in a house under construction” ( see id. at 1156). The Second Department cited to Rizzuto for the proposition that “a violation of an explicit and concrete provision of the Industrial Code by a participant in the construction project constitutes some evidence of negligence for which the owner or general contractor may be held vicariously liable”. ( See id. at 1156.) Without describing any of the proof submitted by the parties, the court denied summary judgment to both the plaintiff and defendants on the Labor Law § 241(6) cause of action.
At least within the Second Department, which this Court is bound to follow, the caselaw establishes that, under certain facts and circumstances, a plaintiff establishes prima facie entitlement to summary judgment on a Labor Law § 241(6) cause of action based upon a showing that an applicable Industrial Code provision was violated and that such violation was the proximate cause of the accident or injury. ( See e.g. Melchor v. Singh, 90 AD3d 866;Harris v. Arnell Constr. Corp., 47 AD3d 768;Carriere v. Whiting Turner Contr., 299 A.D.2d at 511;Blair v. Cristani, 296 A.D.2d at 472;Beckford v. 40th St. Assoc. [NY Partnership], 287 A.D.2d at 587;Amirr v. Calcagno Construction Co., 257 A.D.2d 585, 586 [2d Dept 1999].) It may be that under the facts and circumstances of these cases, the violation of the Industrial Code provision, while only considered “some evidence of negligence”, was also shown to be a proximate cause of the injury, and, therefore, was considered sufficient for purposes of carrying plaintiff's prima facie burden on a summary judgment motion, and to shift the burden to the defendant to raise a valid defense to vicarious liability, including contributory or comparative negligence. ( See Fusca v. A & S Construction, LLC, 84 AD3d at 1156.)
It may also be that certain Industrial Code provisions are so closely related to causation that a violation demonstrates prima facie that the worksite was not “operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places.” ( SeeLabor Law § 241[6].)
In other contexts, for example, the violation of an ordinance, which is also only considered “some evidence of negligence”, that causes injury to any person “has been found to be prima facie evidence of negligence and, unless its probative force is overcome, it becomes conclusive and fixes liability.” ( See Lein v. Czaplinski, 106 A.D.2d 723, 724 [3d Dept 1984] [citing Coe v. City of New York, 238 App.Div. 453 [2d Dept 1933].) “However, negligence may not be so established unless it is shown that compliance with the regulation or ordinance would have obviated the injury.” (Lein v. Czaplinski, 106 A.D.2d at 724 [citing Sheehan v. City of New York, 40 N.Y.2d 496, 501 (1976); Daggett v. Keshner, 284 App.Div. 733, 735 (1st Dept 1954) ].)
In the context of Labor Law § 241(6), caselaw has consistently held that violation of an Industrial Code provision is only some evidence of negligence and not negligence as a matter of law. ( See Long v. Forest–Fehlhaber, 55 N.Y.2d 154, 160 [1982];Conte v. Large Scale Development Corp., 10 N.Y.2d 20, 29 [1961].) But, as the caselaw discussed above demonstrates, that does not mean that a violation cannot establish prima facie that the plaintiff is entitled to judgment as a matter of law.
Here, based upon Second Department precedent awarding a plaintiff summary judgment on his or her Labor Law § 241(6) cause of action based upon evidence that an Industrial Code section was violated, and that such violation was a proximate cause of the plaintiff's injury, and based upon a recent First Department case, Velasquez v.. 795 Columbus LLC (103 AD3d 541 [1st Dept 2013] ), which involved the same Industrial Code section as presented in the instant case, i.e., 12 NYCRR 23–1.7(d), the Court concludes that Plaintiff sufficiently establishes prima facie entitlement to summary judgment. Plaintiff's affidavit sufficiently establishes prima facie that he was instructed to perform work, which included carrying Doka panels that were 9 feet by 2 feet in dimension, on the subject platform even though there were areas on the platform covered with snow and ice, and that, as a result, he slipped and fell. ( See12 NYCRR 23–1.7[d].)
In opposition, Defendants fail to point to any admissible evidence demonstrating the existence of a triable issue of fact, or demonstrating any defense to vicarious liability. Defendants proffer portions of an unsigned and unsworn deposition transcript of Dwayne Fitzpatrick, which is not certified by the court reporter. Even though Plaintiff does not challenge the accuracy of the transcript, the deposition testimony is not admissible as evidence on this motion because it was not certified. ( See Pevzner v. 1397 E. 2nd, LLC, 96 AD3d 921, 922 [2d Dept 2012] [“(T)he Supreme Court providently reviewed the unsworn deposition transcripts submitted in support of the motion, since they were certified by the reporters and the plaintiffs did not challenge their accuracy.”]; Boadu v. City of New York, 95 AD3d 918, 919 [2d Dept 2012]; Zalot v. Zieba, 81 AD3d 935, 936 [2d Dept 2011]. In any event, none of the testimony establishes any culpable conduct on the part of Plaintiff, or is probative of the condition of the worksite at the time of the accident. Moreover, the fact that a subcontractor, Navillus, may have been responsible for the condition of the area where Plaintiff was working is not a defense to vicarious liability under Labor Law § 241(6). ( See Rizzuto v. L.A. Wenger Contracting Co., Inc., 91 N.Y.2d at 350.)
Contrary to Defendants' contentions, the evidence proffered by Plaintiff in support of his summary judgment motion, i.e., his own affidavit, sufficiently establishes prima facie that he was free from comparative negligence ( see e.g. Villa v. Leandrou, 94 AD3d 980, 980 [2d Dept 2012]; Roman v. A1 Limousine, Inc., 76 AD3d 552, 552 [2d Dept 2010] ), or, at the least, does not raise an issue of fact as to Plaintiff's comparative negligence ( see Thoma v. Ronai, 82 N.Y.2d 736 [1993];see also generally Shenkerman v. Goycoechea, 34 Misc.3d 496, 505–06 [Sup Ct, Kings County 2011].)
In opposition, Defendants only point to a portion of Plaintiff's deposition testimony, to the effect that Plaintiff knew that there was snow and ice on the subject platform, but fail to relate such knowledge to any claim of comparative negligence that was a proximate cause of the accident. To allow a worker's awareness of a dangerous condition, without more, to constitute contributory fault would vitiate the protection of the Industrial Code and § 241(6). As such, Defendants fail to establish the existence of a triable issue of fact on the issue of comparative negligence. ( See e.g. Velasquez v. 795 Columbus LLC (103 AD3d at 542 [“nor did defendants submit any evidence that plaintiff was contributorily negligent”]; but see Amirr v. Calcagno Construction Co., 257 A.D.2d at 586 .)
Accordingly, the branch of Plaintiff's motion for summary judgment on his Labor Law § 241(6) cause of action as against defendant Bovis is GRANTED.
Defendant National's Motion for Summary Judgment (MS# 5, Cal. No. 39)
Defendant National contends that it is entitled to summary dismissal of Plaintiff's Verified Complaint as against it on the ground that it “did not and does not own any portion of the World Trade Center Complex, and has never owned, operated, controlled, maintained or managed any construction site at the World Trade Center Complex, and as such, [it] bore no duty to the Plaintiff and cannot be liable as a matter of law”. In support of its motion, National proffers the affidavit of its Chief Financial Officer, David Langford, in which he avers that he is “fully familiar” with National's operations, assets and holdings; that since the Spring of 2005, National has “participated in creating the design and plan for the September 11th Memorial at the World Trade Center”; and that National does not “now own, nor has it ever possessed an ownership interest in” the subject premises; that National did “not operate, maintain, exercise control” over the premises; and did not “supervise any construction activity” at “any time in 2010, up to and including February 12, 2010.”
“Where an officer's knowledge has been obtained either from unnamed and unsworn employees or unidentified and unproduced work records, the affidavit lacks any probative value”. ( See Dempsey v. Intercontinental Hotel Corp., 126 A.D.2d 477, 479 [1st Dept 1987]; see also Flick Lumber Co., Inc. v. Breton Industries, Inc., 223 A.D.2d 779, 780 [3d Dept 1996]; Republic National Bank of N.Y. v. Luis Winston, Inc., 107 A.D.2d 581, 582 [1st Dept 1985]; see also Williams v. D & J School Bus, Inc., 69 AD3d 615, 617 [2d Dept 2010]; Whitfield v. City of New York, 16 Misc.3d 1115[A], 2007 N.Y. Slip Op 51433[U], *8 [Sup Ct, Kings County], aff'd48 AD3d 798 [2d Dept 2008] ) The conclusory affidavit of Langford does not describe the source of his “familiarity” with National's operations and interests, nor does he describe the source of his familiarity with National's “participation in creating the design and plan” for the premises or, most importantly, the translation of that “design and plan” into construction. No documents are provided, nor are any documents that he reviewed described or rendered admissible as evidence. As a result, National fails to demonstrate prima facie entitlement to summary judgment.
In any event, Plaintiff submits in opposition a copy of a contract entitled Pre–Construction Phase Services Agreement between World Trade Center Memorial Foundation, Inc. and Bovis Lend Lease, LMB, Inc. (the “Agreement”), demonstrating, among other things, that National retained Bovis as the “construction manager” for the work being performed at the subject site. The Agreement provides, among other things, that National “is the entity responsible for building, and thereafter operating and maintaining” the premises. The contract sets forth various rights and responsibilities of National, none of which are explained away by National in support of its motion. In this regard, the contract provides that one of National's responsibilities was for payment to Bovis. Plaintiff also proffers a Construction Management Agreement that designates National as the “owner.”
“The meaning of owners' under Labor Law § 240(1) and § 241(6) has not been limited to titleholders but has been held to encompass a person who has an interest in the property and who fulfilled the role of owner by contracting to have work performed for his benefit.” (Kim v. D & W Shin Realty Corp., 47 AD3d at 618;see also Allan v. DHL Express (USA), 99 AD3d at 830 [2d Dept 2012]; Markey v. C.F.M.M. Owners Corp., 51 AD3d at 737.) While National may not have had an ownership or even a lease interest in the property, such fact, if true, does not preclude liability under Labor Law § 241(6) if National were determined to be an agent of the owner. “A party is deemed to be an agent of an owner or general contractor under the Labor Law when it has the ability to control the activity which brought about the injury”. (Guclu v. 900 Eighth Ave. Condominium, LLC, 81 AD3d 592, 593 [2d Dept 2011]; see also Perez v. 347 Lorimer, LLC, 84 AD3d 911, 912 [2d Dept 2011].)
“If there is any doubt about the existence of a triable issue of fact, or a material issue of fact is arguable, summary judgment should be denied.” (Celardo v. Bell, 222 A.D.2d 547, 547 [2d Dept 1995]; see also Kolivas v. Kirchoff, 14 AD3d 493 [2d Dept 2005].) Here, Plaintiff's submission of the Agreement, as well as the Construction Management Agreement, sufficiently raises triable issues of fact as to National's role with respect to subject property and the construction project at issue, and whether National was an “owner”, or “agent of the owner” pursuant to Labor Law § 241(6).
Accordingly, National's motion for summary dismissal of Plaintiff Verified Complaint as against it is DENIED.
Defendants Bovis's and National's Disclosure Motion (MS # 3, Cal No. 38)
Defendants contend that the note of issue must be vacated due to various outstanding disclosure. Uniform Court Rule § 202.7 provides that no motion relating to disclosure shall be filed with the court unless it is accompanied by “an affirmation that counsel has conferred with counsel for the opposing party in a good faith effort to resolve the issues raised by the motion.” Such affirmation must “indicate the time, place and nature of the consultation and the issues discussed and any resolutions.” ( See22 NYCRR § 202.7[c] .) In support of their motion, Defendants submit an affirmation of their attorney, Alison M. Drew, Esq., who fails to indicate the time, place and nature of any consultation with Plaintiff's counsel, the issues discussed, and any resolutions. Merely sending letters to opposing counsel is not sufficient to satisfy the requirement of 22 NYCRR § 202.7(c). On this ground alone, Defendants' motion must be denied. ( See Mironer v. City of New York, 79 AD3d 1106, 1107–08 [2d Dept 2010]; Yargeau v. Lasertron, 74 AD3d 1805, 1806 [4th Dept 2010]; Natoli v. Milazzo, 65 AD3d 1309, 1310–11 [2d Dept 2009]; 148 Magnolia, LLC v. Merrimack Mut. Fire Ins. Co., 62 AD3d 486, 487 [1st Dept 2009]; Amherst Synagogue v. Schuele Paint Co., Inc., 30 AD3d 1055, 1056–57 [4th Dept 2006].)
Moreover, Defendants' motion must also be denied on the merits. In Defendants' Reply Affirmation, they make clear that the only outstanding disclosure issues are whether Defendants are entitled to obtain authorizations to obtain Plaintiff's education records, homeland security records, and a copy of Plaintiff's passport. ( See Reply Affirmation in Support, ¶ 3.)
“A motion to compel responses to demands and interrogatories is properly denied where the demands and interrogatories seek information which is irrelevant, overly broad, or burdensome.” (Accent Collections, Inc. v. Cappelli Enterprises, Inc., 84 AD3d 1283, 1283–84 [2d Dept 2011].) “A disclosure request is palpably improper if it seeks information of a confidential and private nature that does not appear to be relevant to the issues in the case.” (Saratoga Harness Racing, Inc. v. E. Guy Roemer, 274 A.D.2d 887, 889 [3d Dept 2000]; see also Sullivan v. 40/40 Club, 34 Misc.3d 138[A], 2011 N.Y. Slip Op 52419[U], *3 [App Term, 2nd, 11th and 13th Jud Dists 2011].) Such motion must show that “the method of discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims.” ( See Abrams v. Pecile, 83 AD3d 527, 528 [1st Dept 2011].)
While it has been held that Plaintiff's immigration status may be relevant to the issue of lost wages ( see Balbuena v. IDR Realty LLC, 6 NY3d 338, 362 [2006];Angamarca v. New York City Partnership Housing Development Fund, Inc., 87 AD3d 206, 209 [1st Dept 2011] ), there has been differing treatment by courts as to the scope of disclosure with respect to a plaintiff's immigration status. ( Compare Barahona v. Trustees of Columbia University in the City of New York, 11 Misc.3d 1035, 1038 [Sup Ct, Kings County 2006] [defendant entitled to all documents related to immigration status including applications for green card, duly-executed authorization to obtain records kept by the Immigration and Naturalization Service, and duly-executed authorization to obtain tax documents] to Gomez v. F & T Int'l (Flushing, New York) LLC, 16 Misc.3d 867, 871 [Sup Ct, New York County 2007] [“it seems somewhat disingenuous for contractors and owners to seek disclosure of the status of an employee after the employee has been injured under the guise of attempting to mitigate a lost wage claim, a concern which apparently never entered their minds when the work was bid out”]; and to Probala v. Rian Holding Company, LLC, 26 Misc.3d 1201 [A], 2009 N.Y. Slip Op 52614, *4 [since the plaintiff admitted that he is currently in the United States on an F–1 student visa, rather than claiming citizenship or green card status, defendants were entitled to passport, visa, and past visas, but not authorization for records kept by the Department of Homeland Security].)
Here, Plaintiff has provided Defendants with a copy of his Permanent Resident Card, as well as disclosure of his driver's license and union card. That disclosure reveals Plaintiff's permanent resident status, and Defendants fail to make any showing that there is further need of disclosure as to Plaintiff's immigration status. More specifically, Defendants fail to show how their demand for authorizations for homeland security records, and Plaintiff's passport are “material and necessary” in defense of Plaintiff's claims or is reasonably calculated to lead to relevant evidence.
Defendants also contend that Plaintiff has failed to provide them with an authorization to obtain Plaintiff's educational records. In the Affirmation in Support, Defendants' counsel contends that Defendants need an authorization for educational records “to have plaintiff examined by a vocational rehabilitation expert to assess plaintiff's ability to return to work”, and that in order “to make such assessment, plaintiff's educational transcripts are necessary to determine his functional capacity.” (Affirmation in Support, ¶ 39.) However, counsel's Reply Affirmation in Support does not deny that Plaintiff has already been examined by Defendants' vocational rehabilitation expert ( see Affirmation in Reply, ¶ 11). Defendants' counsel fails to explain why she failed to apprise the court that a vocational rehabilitation expert had already examined Plaintiff. Moreover, since Defendants fail to attach a copy of the report of the vocational rehabilitation expert addressing the need for education records, and fail to submit an affidavit from the expert with respect to any need for further disclosure with respect to Plaintiff's educational background, Defendants fail to show that the demand for the authorization is reasonably calculated to lead to the discovery of information bearing on Plaintiff's claims.
Finally, to the extent that Defendants seek an order pursuant to CPLR 3126, none of the claimed outstanding items of disclosure are shown to have ever been subject to any court order.
Since Defendants have already moved for summary judgment, the branch of Defendants' motion seeking to extend the time to move for summary judgment is denied as moot.
Accordingly, Defendants' motion to vacate the note of issue, compel further disclosure, and to strike Plaintiff's complaint based upon a failure to disclose is DENIED in its entirety.
In sum, the branch of Plaintiff's motion for summary judgment on his Labor Law § 241(6) cause of action as against defendant Bovis Lend Lease LMB, Inc. is granted, and the remaining branch of his motion as against defendant National September 11 Memorial and Museum at the World Trade Center Foundation, Inc. is denied. Defendants' motions are both denied in their entirety.