Opinion
23128/2013E, 43128/2043E, 43086/2019E
01-15-2021
Ana ROSA, as Administrator of the Estate of Danny Rosa, Plaintiff, v. 47 EAST 34TH STREET (NY), L.P., CIM Group, L.P., June Electrical Corp, and Bridgestreet Corporate Housing, LLC, Defendants. 47 East 34th Street (NY), L.P., and CIM Group, L.P., Third-Party Plaintiffs, v. June Electrical Corp and Bridgestreet Corporate Housing, LLC, Third-Party Defendants. June Electrical Corp, Second Third-Party Plaintiff, v. Continental Indemnity Company, Second Third-Party Defendant.
Plaintiff is represented by Alexandra Colella, Esq., Marc J. Bern & Partners LLP, 60 East 42nd Street, Suite 950, New York, NY 10165 Defendant/Third Party Plaintiff- 47 East 34th Street (NY), L.P. is represented by Leon R. Kowalski, Esq. and Michael J. Pearsall , Kowalski & Devito, 80 Pine Street 3rd floor, New York, NY 10005 Defendant/Third Party Plaintiff- CIM Group, L.P. . is represented by Leon R. Kowalski, Esq. and Michael J. Pearsall , Kowalski & Devito, 80 Pine Street 3rd floor, New York, NY 10005 Defendant/Third Party Defendant/ 2nd Third Party Plaintiff - June Electric Corporation is represented by Nicholas P. Calabria, Esq., Ahmuty Demers & McManus, 200 I.U. Willets Road, Albertson, NY 11507 Defendant/Third Party Defendant- Bridgestreet Corporate Housing LLC is represented by Michael Francis Grady, Esq. and Siobhainin S. Funchion, Esq., Wilson Elser Moskowitz Edelman & Dicker LLP, 1133 Westchester Ave., White Plains, NY 10604 2nd Third Party Defendant - Continental Indemnity Company is represented by Joseph S. Alonzo, Esq., Squire Patton Boggs (US) LLP, 1211 Avenue of the Americas, FL 26, New York, NY 10036 and Steven Michael Rosato, Esq. and Shand S. Stephens, Esq., DLA Piper LLP (US), 1251 Avenue of the Americas, FL 27, New York, NY 10036
Plaintiff is represented by Alexandra Colella, Esq., Marc J. Bern & Partners LLP, 60 East 42nd Street, Suite 950, New York, NY 10165
Defendant/Third Party Plaintiff- 47 East 34th Street (NY), L.P. is represented by Leon R. Kowalski, Esq. and Michael J. Pearsall , Kowalski & Devito, 80 Pine Street 3rd floor, New York, NY 10005
Defendant/Third Party Plaintiff- CIM Group, L.P. . is represented by Leon R. Kowalski, Esq. and Michael J. Pearsall , Kowalski & Devito, 80 Pine Street 3rd floor, New York, NY 10005
Defendant/Third Party Defendant/ 2nd Third Party Plaintiff - June Electric Corporation is represented by Nicholas P. Calabria, Esq., Ahmuty Demers & McManus, 200 I.U. Willets Road, Albertson, NY 11507
Defendant/Third Party Defendant- Bridgestreet Corporate Housing LLC is represented by Michael Francis Grady, Esq. and Siobhainin S. Funchion, Esq., Wilson Elser Moskowitz Edelman & Dicker LLP, 1133 Westchester Ave., White Plains, NY 10604
2nd Third Party Defendant - Continental Indemnity Company is represented by Joseph S. Alonzo, Esq., Squire Patton Boggs (US) LLP, 1211 Avenue of the Americas, FL 26, New York, NY 10036 and Steven Michael Rosato, Esq. and Shand S. Stephens, Esq., DLA Piper LLP (US), 1251 Avenue of the Americas, FL 27, New York, NY 10036
Llinét M. Rosado, J.
BACKGROUND
This personal injury action arises out of an incident alleged to have occurred on January 31, 2013 at the premises located at 47-49 East 34th Street, New York, New York. Danny Rosa claimed that in the course of his employment, he was shocked and fell off a ladder while working on a piece of electrical equipment, known as a bus duct, at the premises, and he sustained burns and bodily injuries. The plaintiff's causes of action sound in common-law negligence and violations of the New York State Labor Law.
It is alleged that the defendants, 47 East 34th Street (NY), L.P. (47 East) and/or CIM Group, L.P. (CIM) were the owner of the premises (collectively referred to as the "owner entities"). It is also alleged that Bridgestreet Corporate Housing, LLC (Bridgestreet) had a lease agreement with 47 East, and Bridgestreet was a tenant and building manager of the premises. Pursuant to a Settlement Agreement and Release between CIM and June Electric Corporation (June Electric), dated April 18, 2012 (Settlement Agreement), June Electric performed all electrical work at the premises. It is alleged that Mr. Rosa had been working with June Electric for ten (10) years as of the day of the incident. Arcenio Cuevas, a former building manager of the premises from Bridgestreet, testified that Mr. Rosa came to the premises to put a cap on a bus duct. Mr. Cuevas testified that Mr. Rosa was going to use a piece of cardboard to perform his work. Mr. Cuevas instructed Mr. Rosa not to use it and not to work on the live bus duct without a rubber barrier. However, allegedly, Mr. Rosa was working on the live bus duct without a rubber barrier at the time of the accident. After the accident, on or about October 8, 2013, Mr. Rosa passed away. Mr. Rosa was never deposed before his death.
By the decision and order of the Honorable Lizbeth Gonzalez (Justice Gonzalez), dated July 28, 2014, the court permitted the complaint to be amended to reflect the substitution of his estate's administrator, Ana Rosa. By the decision and order, dated February 21, 2019, citing Danny Rosa's autopsy report, the court found that causes of his death were the "hypertensive cardiovascular disease," and that "chronic alcoholism and pulmonary emphysema" contributed to his death. The court concluded that the manner of Danny Rosa's death was natural, and the court denied adding a wrongful death action against the defendants.
Procedural History
Pursuant to CPLR 3212, Bridgestreet moves for an order granting summary judgment in its favor and dismissing the plaintiff's complaint in its entirety, and all crossclaims and counter claims against Bridgestreet [motion sequence (013)]. Bridgestreet submitted a memorandum of law in support, dated December 2, 2019; a copy of the pleadings; the decision and order by Justice Gonzalez, dated July 25, 2017; the deposition transcript of Arcenio Cuevas; a lease agreement between 47 East and Bridgestreet, dated March 1, 2012 (lease agreement); and a settlement agreement and release, dated April 18, 2012 (settlement agreement).
The owner entities filed its motion (012), dated September 18, 2019, and June Electric filed its cross-motion, dated December 6, 2019. This Court issued a separate decision on motion sequence (012).
The owner entities submitted an attorney's affirmation, dated January 7, 2020 in partial opposition to the instant motion. The owner entities oppose Bridgestreet's motion to the extent that the motion seeks dismissal of the owner entities crossclaims. The owner entities submitted the deposition transcript of Ana Rosa.
The plaintiff submitted an attorney's affirmation, dated January 24, 2020, in opposition to the instant motion. Submissions include a memorandum of law in opposition; a copy of the pleadings; the deposition transcripts of Ana Rosa, Arcenio Cuevas, and Kristen Zigo ; and a copy of the Occupational Safety & Health Administration (OSHA) report issued by the U.S. Department of Labor Manhattan Area Office, dated September 6, 2013 (OSHA report).
Ms. Kristen Hewett was formally known as Ms. Kristen Zigo. Her family name was changed due to her marriage in 2015.
Bridgestreet submitted an attorney's affirmation, dated January 30, 2020, in reply to the opposition filed by the owner entities and the plaintiff, and in further support of Bridgestreet's motion for summary judgment, and also submitted Ms. Zigo's deposition transcript.
No opposition was filed by June Electric.
DISCUSSION
CPLR 3212 Summary Judgment Standard of Review
Pursuant to CPLR 3212, "for a summary judgment to be granted, the moving party 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. ( Alvarez v. Prospect Hosp. , 68 NY2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986] ). If the moving party produces the required evidence, the burden shifts to the nonmoving party "to establish the existence of material issues of fact which require a trial of the action." (Vega v. Restani Constr. Corp. , 18 NY3d 499, 503, 542 N.Y.S.2d 923, 501 N.E.2d 240, quoting Alvarez , 68 NY2d at 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 )." Xiang Fu He v. Troon Mgmt., Inc. , 34 NY3d 167, 137 N.E.3d 469, 114 N.Y.S.3d 14 (2019).
Lease Agreement and Settlement Agreement
Bridgestreet submitted a copy of the lease agreement to show the contractual relationship between 47 East and Bridgestreet, and the term of the lease agreement.
However, the testimonial evidence of Mr. Cuevas and Ms. Zigo failed to demonstrate that Mr. Cuevas or Ms. Zigo personally signed and executed the lease agreement, or that they were personally familiar with the lease agreement. Mr. Cuevas and Ms. Zigo also failed to testify that the lease agreement was recorded by a person with personal knowledge of the stated facts in it, or a person who is sufficiently familiar with the corporate records to aver that the lease agreement is what it purports to be and that it came out of the entity's files. DeLeon v. Port Auth. of NY and N.J. , 306 AD2d 146 (1st Dept. 2003) ; see Bd. of Managers of Ruppert Yorkville Towers Condominium v. Hayden , 169 AD3d 569 (1st Dept. 2019). No additional evidence was proffered for this Court to find otherwise. Bridgestreet failed to lay a proper foundation, and the copy of the lease agreement is inadmissible under CPLR 4518(a).
Bridgestreet submitted a copy of the Settlement Agreement between 47 East and June Electric. June Electric served a notice to admit, dated October 6, 2017 as to the Settlement Agreement, dated January 23, 2012, between 47 East and June Electric to the plaintiff, the owner entities, and Bridgestreet. No party provided a sworn statement denying the Settlement Agreement or setting forth in detail the reasons why they cannot truthfully either admit or deny the Settlement Agreement within twenty (20) days. CPLR 3123(a). Accordingly, the Settlement Agreement is admissible in this case.
Protected Work under Labor Law § 240(1) and § 241(6)
In motion sequence (012), the owner entities argued that the work that Mr. Rosa performed was not protected work under Labor Law § 240(1) and § 241(6) because Mr. Rosa was merely replacing a missing cover on the bus duct at the premises, and there is no evidence that the bus duct was malfunctioning or inoperative.
The plaintiff argues that there is a triable issue of fact as to whether Mr. Rosa was engaged in protected work because he was involved in "altering or repairing of the premises or structure" under Labor Law § 240(1) and/or involved in "construction work" under Labor Law § 241(6).
Under Labor Law § 240(1), owners, contractors, and their agents must provide proper protection to a person so employed in altering and/or repairing a building or structure.
The Court of Appeals concluded that "altering" under Labor Law § 240(1) requires making a significant physical change to the configuration or composition of the building or structure. Saint v. Syracuse Supply Co. , 25 NY3d 117 (2015) ; Joblon v. Solow , 91 NY2d 457 (1998).
Here, Mr. Cuevas testified that Mr. Rosa came to the premises to put a cap on the bus duct. Mr. Rosa did not have to extend or re-route the wiring within the bus duct or chisel a hole through a concrete wall. See Joblon , 91 NY2d at 465-66. The work that Mr. Rosa performed did not involve a significant physical change in the configuration or composition of the premises. His work may have changed the outward appearance of the bus duct; however, his work did not change the structure of the premises or the bus duct. Munoz v. DJZ Realty, LLC , 5 NY3d 747 (2005). His work was just to put a cap on the bus duct, and it was more akin to cosmetic or decorative modification than "altering" for the purpose of Labor Law § 240(1). Munoz , 5 NY3d at 748 ; Acosta v. Banco Popular , 308 AD2d 48 (1st Dept. 2003). This Court concludes that the work Mr. Rosa performed was not "altering" a building or structure under Labor Law § 240(1).
The Court of Appeals held that the work involved replacing components in the course of normal wear and tear constitutes routine maintenance, and is not "repairing" or any of the other enumerated activities under Labor Law § 240(1). Abbatiello v. Lancaster Studio Assoc. , 3 NY3d 46 (2004) ; Esposito v. New York City Indus. Dev. Agency , 1 NY3d 526 (2003). The Court of Appeals and the First Department further held that although repairing a broken, inoperable, or malfunctioning item is among the statute's enumerated activities, routine maintenance to prevent malfunction or inoperability of the item is not covered activity. Izrailev v. Ficarra Furniture of Long Island, Inc. , 70 NY2d 813 (1987) ; Santiago v. Fred-Doug 117, L.L.C. , 68 AD3d 555 (1st Dept. 2009) ; see also Mata v. Park Here Garage Corp. , 71 AD3d 423 (1st Dept. 2010).
Here, Mr. Cuevas testified that it takes two minutes to put a cap on the bus duct. No extensive work was necessary, such as wiring and chiseling. Mr. Rosa merely put a cap on the bus duct. Ms. Zigo testified that there was no electrical disruption before the accident indicated the inoperability of electricity at the premises. No admissible evidence was submitted to establish a possible malfunction of an integral part of the bus duct prior to the commencement of the work and constitute "repairing" under Labor Law § 240(1). Caraciolo v. 800 Second Ave. Condominium , 294 AD2d 200, 202 (1st Dept. 2002) ; Papapetro v. Rock-Time, Inc. , 265 AD2d 174 (1st Dept. 1999). This Court concludes that the work Mr. Rosa performed was not "repairing" a building or structure under Labor Law § 240(1).
Accordingly, Bridgestreet's branch of the instant motion for an order dismissing the plaintiff's Labor Law § 240(1) claim is granted.
Labor Law § 241(6) requires owners, contractors, and their agents to provide reasonable and adequate protection and a safe workplace for the persons they employed for performing "construction" work. Liability under Labor Law § 241(6) is limited to accidents where the work being performed involves construction work. Peluso v. 69 Tiemann Owners Corp. , 301 AD2d 360 (1st Dept. 2003) ; Acosta , 308 AD2d at 6; see Jock v. Fien , 80 NY2d 965 (1992). In determining what constitutes "construction" for purposes of the statute, the courts analyze the Industrial Code which defines what constitutes construction work under the statute. Saint , 25 NY3d at 129 ; Joblon , 91 NY2d at 466 ; Acosta , 308 AD2d at 51 ; see Jock , 80 NY2d at 968. The Industrial Code expansively defines "construction work" as "work of the types performed in the construction, erection, alternation, repair, maintenance, painting, or moving of buildings or other structures." 12 NYCRR § 23-1.4(b)(13).
Here, 47 East/CIM and June Electric entered into the Settlement Agreement to perform all work enumerated in a punch list and to remove all New York City Department of Buildings (DOB) violations related to electrical work at the premises. Mr. Cuevas testified that the punch list work was part of completing the construction of the premises, and it was being performed by June Electric on the day of the accident. Mr. Cuevas testified that Mr. Rosa came to the premises to put a cap on the bus duct on the day of the accident. Furthermore, Mr. Cuevas testified that June Electric came to the premises two or three times in January 2013 to perform punch list work.
On the other hand, Ms. Zigo testified that she was not aware of any of contractors who were working on the electrical system at the premises, and she further testified that there was no construction going on at the premises in January 2013.
Thus, this Court is unable to determine that the work Mr. Rosa performed was a part of completing the construction project at the premises under Labor Law § 241(6), based on the submitted evidence.
Proximate Cause
Bridgestreet argues that Mr. Rosa's accident was solely and proximately caused by his own conduct in voluntarily, and in contravention of express instructions, working on the bus duct without turning off the electrical power.
The Court of Appeals held that there can be no liability under Labor Law § 240(1) when there is no violation of said section, and a worker's actions are the sole proximate cause of the worker's accident. Robinson v. East Med. Ctr., LP , 6 NY3d 550 (2006) ; Cahill v. Triborough Bridge and Tunnel Auth. , 4 NY3d 35 (2004) ; Blake v. Neighborhood Hous. Servs. of N.Y.C., Inc. , 1 NY3d 280 (2003).
Here, no admissible evidence is submitted to indicate a violation of Labor Law by Bridgestreet. See Broggy v. Rockefeller Group, Inc. , 8 NY3d 675, 681 (2007). Mr. Cuevas testified that he told Mr. Rosa not to work on the live bus duct with the piece of cardboard. Mr. Cuevas testified that he offered to go to a hardware store to get a rubber barrier for Mr. Rosa. Mr. Cuevas further testified that Mr. Rosa and he agreed that, after Mr. Cuevas came back from the hardware store, he would shut down the electricity, and Mr. Rosa would work on the bus duct with the rubber barrier. However, Mr. Rosa did not follow Mr. Cuevas' explicit instructions, and he performed the work without the rubber barrier. The plaintiff failed to offer any admissible evidence for this Court to rebut Mr. Cuevas's testimony.
The plaintiff argues that no ladder, harness or any protective equipment was provided to Mr. Rosa. The plaintiff claimed that Mr. Rosa fell off a ladder that was not provided to him, but that he found himself in order to perform the work.
Again, Mr. Cuevas testified that Mr. Rosa agreed to not to work on the bus duct before he came back from the hardware store. Mr. Cuevas had no reason to provide a ladder to Mr. Rosa at that point. As Mr. Cuevas testified, Mr. Rosa did not follow Mr. Cuevas' instruction, but he forced open the boiler room door to get a ladder without Mr. Cuevas' permission and knowledge. In addition, no admissible evidence was proffered to show that the ladder was defective.
Furthermore, a ladder and harness are not the types of safety device use to provide protection from an electric shock, and they are not directly relevant here. Shutting down the electricity at the premises, and use of a rubber barrier could protect from an electric shock. However, in this case, Mr. Rosa ignored Mr. Cuevas' instructions and worked on the bus duct without shutting down the electricity, or using a rubber barrier.
In this motion, Bridgestreet also argues that 12 NYCRR § 23-1.7(f), § 23-1.13, § 23-1.16, § 23-1.21(b), § 23-1.21(e), § 23-1.24, § 23-1.30, § 23-2.1, and § 23-5 claims that the plaintiff raised are inapplicable here because there are no allegations and/or evidence to support such claims.
The plaintiff failed to submit opposition to the dismissal of said sections against Bridgestreet, except as to 12 NYCRR § 23-1.13(b)(4), and those causes of action are deemed abandoned. See Kronick v. L.P. Thebault Co., Inc. , 70 AD3d 648 (2nd Dept. 2010) ; Genovese v. Gambino , 309 AD2d 832, 766 N.Y.S.2d 213 (2nd Dept. 2003) ; see also Ellis v. Emerson , 34 AD3d 1334, 825 N.Y.S.2d 608 (4th Dept. 2006).
Thus, remaining issue is whether there was a violation of 12 NYCRR § 23-1.13(b)(4), and whether such violation proximately caused Mr. Rosa's accident.
To support a cause of action 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 accident. Aragona v. State , 147 AD3d 808 (2d Dept. 2017) ; Martinez v. City of New York , 73 AD3d 993 (2d Dept. 2010) ; Rivera v. Santos , 35 AD3d 700 (2d Dept. 2006) ; see Ross v. Curtis-Palmer Hydro-Elec. Co. , 81 NY2d 494, 502 (1993).
12 NYCRR § 23-1.13(b)(4) commands that "before work is started, it is to be ascertained whether the work will bring a worker into contact with an electric power circuit, and, if so, that the worker not be permitted to come into contact with the circuit without it being de-energized." DelRosario v. United Nations Fed. Credit Union , 104 AD3d 515 (1st Dept. 2013).
Even if this Court reviews the records in the light most favorable to the plaintiff, the plaintiff's Labor Law § 241(6) claim is not sustainable. Mr. Cuevas' testimony shows that Mr. Rosa was instructed not to work on the live bus duct, and Mr. Cuevas was going to provide a rubber barrier and shut down the electricity at the premises after he came back from the hardware store. Mr. Cuevas further testified that Mr. Rosa agreed to follow such instructions, however, he failed to do so. In this case, no one forced him to work on the live bus duct; no one negligently instructed him to work on the live bus duct; and no one negligently failed to shut down the electricity while Mr. Rosa was working on the bus duct. Mr. Rosa himself ignored Mr. Cuevas' instructions and the agreement with Mr. Cuevas, and he himself violated 12 NYCRR § 23-1.13(b)(4). Thus, this Court concludes that there was no violation of a safety regulation promulgated pursuant to Labor Law § 241(6) proximately caused Mr. Rosa's accident. McCullum v. Barrington Co. , 192 AD2d 489 (1st Dept. 1993).
This Court finds that Bridgestreet made a prima-facie showing of entitlement to judgment as a matter of law with respect to Labor Law § 241(6) claim.
Accordingly, Bridgestreet's branch of the instant motion for an order dismissing the plaintiff's complaint as to Labor Law § 240 (1) and § 241(6) claim is granted.
Labor Law § 200 and Common-Law Principles Claims against Bridgestreet
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 safe place to work. Labor Law § 200 ; Rizzuto v. L.A. Wenger Contracting Co., Inc. , 91 NY2d 343, 693 N.E.2d 1068, 670 N.Y.S.2d 816 (1998) ; Comes v. NY State Elec. and Gas Corp. , 82 NY2d 876, 631 N.E.2d 110, 609 N.Y.S.2d 168 (1993) ; Ross v. Curtis-Palmer Hydro-Elec. Co. , 81 NY2d 494, 618 N.E.2d 82, 601 N.Y.S.2d 49 (1993) ; Villanueva v. 114 Fifth Ave. Assoc. LLC. , 162 AD3d 404; 78 N.Y.S.3d 87 (1st Dept. 2018) ; Hughes v. Tishman Constr, Corp. , 40 AD3d 305, 836 N.Y.S.2d 86 (1st Dept. 2007). In addition, the First Department held that Labor Law § 200 applies to a managing agent who exercises control or supervision over the work performed at the accident site. Alfonseca v. Van-Tag Constr. Corp. , 39 AD3d 266, 266 (1st Dept. 2007) ; De La Rosa v. Philip Morris Mgt. Corp. , 303 AD2d 190, 192 (1st Dept. 2003) ;
Therefore, Labor Law § 200 and common-law principles require this Court to first find that Bridgestreet is an owner, contractor, or agent of the owner or contractor to consider whether Bridgestreet is liable pursuant to Labor Law § 200 and common-law principles.
In the instant motion, Bridgestreet argues that it was a tenant of the premises, and it did not contract for the injury-producing work, or it did not have authority to control Mr. Rosa's work.
Here, as discussed above, the lease agreement is not in admissible form to establish that Bridgestreet was a mere tenant on the day of the accident. In addition, Ms. Zigo, who was Bridgestreet's former assistant general manager of the premises at the time of the plaintiff's accident, testified that CIM was the owner of the premises, and Bridgestreet was the managing partner or managing agent of the premises. Furthermore, although Mr. Rosa did not follow Mr. Cuevas' instructions, Mr. Cuevas' testimony shows that he instructed Mr. Rosa as to how to proceed with the work.
This Court finds that the inconsistencies in the submitted evidence raise questions of fact as to whether Bridgestreet is a managing partner or managing agent of the premises, or a mere tenant of the premises.
The Court of Appeals and the First Department held that an implicit precondition to the duty which Labor Law § 200 and common-law principles imposed is that the party to be charged with that obligation have the authority to control the activity bringing about the injury to enable it to avoid or correct an unsafe condition. Rizzuto , 91 NY2d at 352 ; Comes , 82 NY2d at 877 ; Ross , 81 NY2d at 505 ; Russin v. Louis N. Picciano & Son , 54 NY2d 311, 429 N.E.2d 805, 445 N.Y.S.2d 127 (1981) ; Hughes , 40 AD3d at 306. Only general supervisory authority over a plaintiff's work is insufficient to establish liability under Labor Law § 200 or common-law principles. James v. Alpha Painting & Constr. Co., Inc. , 152 AD3d 447, 59 N.Y.S.3d 21 (1st Dept. 2017) ; Hughes , 40 AD3d at 306.
Here, Mr. Cuevas testified that he told Mr. Rosa not to use a piece of cardboard to put between the bus duct bars and the cap, and he told Mr. Rosa that he would go to the hardware store and pick up a rubber barrier for him. Mr. Cuevas further testified that he and Mr. Rosa agreed to wait until he returned from the hardware store with a rubber barrier. However, the submitted evidence shows that Mr. Rosa did not follow such agreement. From submitted evidence, although Mr. Cuevas instructed Mr. Rosa and tried to control his work, this Court is unable to determine whether Mr. Cuevas had actual authority to control Mr. Rosa's work.
Thus, this Court finds questions of material fact as to whether Bridgestreet had the authority to control the work Mr. Rosa performed.
The Court of Appeals and the First Department held that Labor Law § 200 duty does not extend to hazards which are "part of or inherent in" the very work being performed or to those hazards that may be readily observed by reasonable use of the senses in light of the worker's age, intelligence and experience. Gasper v. Ford Motor Co. , 13 NY2d 104 (1963) ; Bodtman v. Living Manor Love, Inc. , 105 AD3d 434 (1st Dept. 2013) ; Bombero v. NAB Constr. Corp. , 10 AD3d 170 (1st Dept. 2004) ; Isola v. JWP Forest Elec. Corp. , 262 AD2d 95 (1st Dept. 1999) (holding that the hazardous condition was open and obvious, and there was no duty to warn plaintiff of such condition); Brezinski v. Olympia & York Water St. Co. , 218 AD2d 633 (1st Dept.1995) (holding that there is no duty to warn a worker or his employer of dangers and conditions that are open and obvious, either pursuant to Labor Law § 200 or common-law negligence principles).
In this case, from the submitted evidence, the work Mr. Rosa performed was only to put a cap on the bus duct, and this Court is unable to determine with certainty that the electric shock was the "part of or inherent in" the very work Mr. Rosa performed, or such hazardous condition was readily and reasonably observed by Mr. Rosa.
This Court finds that there are questions of material fact as to Bridgestreet's liability under Labor Law § 200. Accordingly, Bridgestreet's branch of the instant motion for an order dismissing the plaintiff's Labor Law § 200 claim against Bridgestreet is denied.
Accordingly it is hereby
ORDERED, that Bridgestreet's branch of the motion (013) to dismiss the plaintiff's Labor Law § 240(1) and § 241(6) claims is granted; and it is further
ORDERED, that the plaintiff's complaint as to Labor Law § 240(1) and § 241(6) claims against Bridgestreet is dismissed; and it is further
ORDERED, that Bridgestreet's branch of the motion (013) to dismiss the plaintiff's Labor Law § 200 claim is denied; and it is further
ORDERED, that the plaintiff, the owner entities, Bridgestreet, and June Electric shall appear for a compliance conference on April 6, 2021 at Bronx County compliance conference part; and it is further
ORDERED, that Bridgestreet is directed to serve a copy of this order with notice of entry on the plaintiff, the owner entities, and June Electric within thirty (30) days from the date of entry.
This constitutes the decision and order of the court.