Opinion
23498/2003.
Decided June 16, 2006.
Edward Gersowitz Esq., Gersowitz Libo Korek, P.C., New York, NY, for Plaintiff.
Jerri DeCamp Esq., Traub Eglin Lieberman Straus LLP, Hawthorne, NY, for Defendant Biltmore Construction Corp.
Justine Grisanti Esq., Kral, Clerkin, Redmond, Ryan, Perry Girvan, LLP, New York, NY, for Defendant 42/43 Realty LLC.
I. BACKGROUND
Plaintiff sues to recover for personal injuries sustained January 29, 2003, while working on a construction project for which defendant Biltmore Construction Corp. was a subcontractor, on premises owned by defendant 42/43 Realty LLC at 345 West 42nd Street in New York County. Biltmore Construction and 42/43 Realty each move for summary judgment dismissing the complaint and cross-claims against each defendant. C.P.L.R. § 3212(b). Biltmore Construction claims that it did not create the condition that caused plaintiff's injury. 42/43 Realty claims that as the owner of the premises it did not supervise plaintiff's work and neither created nor had notice of the condition causing his injury. Plaintiff cross-moves to serve a supplemental bill of particulars, C.P.L.R. § 3043, and for summary judgment on liability against both defendants. C.P.L.R. § 3212(b) and (e).
After oral argument April 4, 2006, for the reasons explained below, the court grants Biltmore Construction's motion for summary judgment only insofar as the motion seeks dismissal of plaintiff's claims for violation of New York Labor Law § 200 and for ordinary negligence, based on plaintiff's voluntary discontinuance of those claims. C.P.L.R. §§ 3212(b) and (e); 3217(b). The court grants 42/43 Realty's motion for summary judgment to the same extent and also insofar as the motion seeks dismissal of Biltmore Construction's cross-claims for indemnification. Id. Finally, the court grants plaintiff's cross-motion to amend his bill of particulars and for summary judgment on each defendant's liability under Labor Law § 241(6). C.P.L.R. §§ 3043(b), 3212(b) and (e).
II. SUMMARY JUDGMENT STANDARDS
Unless the court sets another deadline, a summary judgment motion "shall be made no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown." C.P.L.R. § 3212(a); Perini Corp. v. City of New York, 16 AD3d 37, 39 (1st Dep't 2005). See Gonzalez v. 98 Mag Leasing Corp., 95 NY2d 124, 128 (1999). It is now beyond dispute that, even though plaintiff cross-moved for summary judgment on defendants' liability after the 120 day deadline, plaintiff's cross-motion is timely, as it responded to defendants' pending timely summary judgment motions. James v. Jamie Towers Hous. Corp., 294 AD2d 268, 272 (1st Dep't 2002), aff'd, 99 NY2d 639 (2003); Osario v. BRF Constr. Corp., 23 AD3d 202, 203 (1st Dep't 2005).
To obtain summary judgment, the moving party must make a prima facie showing of entitlement to judgment as a matter of law, through admissible evidence eliminating all material issues of fact. C.P.L.R. § 3212(b); Giuffrida v. Citibank Corp., 100 NY2d 72, 81 (2003); Sheehan v. Gong, 2 AD3d 166, 168 (1st Dep't 2003). If the moving party satisfies this standard, the burden shifts to the opposing parties to rebut that prima facie showing, by producing evidence, in admissible form, sufficient to require a trial of material factual issues. Darby Darby v. VSI Intl., 95 NY2d 308, 315 (2000); Judith M. v. Sisters of Charity Hosp., 93 NY2d 932, 933-34 (1999); Ruggiero v. Cardella Trucking Co., 16 AD3d 342, 344 (1st Dep't 2005); Sheehan v. Gong, 2 AD3d at 168. In evaluating the evidence for purposes of each summary judgment motion, the court must accept the opposing parties' version of the facts as true and construe the evidence in the light most favorable to the opponents. Maldonado v. Metropolitan Life Ins. Co., 289 AD2d 176 (1st Dep't 2001); Garcia v. Martin, 285 AD2d 391, 392 (1st Dep't 2001). The court must deny summary judgment if the moving party fails to meet the initial burden, despite any insufficiency in the opposition. Roman v. Hudson Tel. Assoc., 15 AD3d 227, 228 (1st Dep't 2005).
III. PLAINTIFF'S BILL OF PARTICULARS
The initial prong of plaintiff's cross-motion seeks to serve a supplemental bill of particulars alleging additional violations of the regulations under Labor Law § 241(6). These additional allegations are amendments to plaintiff's bill of particulars, C.P.L.R. § 3042(b), rather than a supplementation with continuing damages. C.P.L.R. § 3043(b). See Martinovics v. New York City Health Hops. Corp., 285 AD2d 532, 535 (2nd Dep't 2001). The amendments sought rely on the same condition causing plaintiff's injury alleged in the original bill of particulars and do not allege a new theory of liability.
These amendments remedying the failure in plaintiff's complaint or bill of particulars to identify specific regulations violated, at most, merely amplify and elaborate on the facts and theory of liability set forth in those prior pleadings. Adams v. Santa Fe Constr. Corp., 288 AD2d 11, 12 (1st Dep't 2001); Baten v. Wehuda, 281 AD2d 366 (1st Dep't 2001); Noetzell v. Park Ave. Hall Hous. Dev. Fund Corp., 271 AD2d 231, 232 (1st Dep't 2000); Orros v. Yick Ming Yip Realty, 258 AD2d 387, 388 (1st Dep't 1999). In fact, plaintiff alleges no new facts or cause of action in his supplemental or amended bill to make out violations of the regulations cited. Noetzell v. Park Ave. Hall Hous. Dev. Fund Corp., 271 AD2d at 232-33; Kelleir v. Supreme Indus. Park, 293 AD2d 513, 514 (2nd Dep't 2002). See C.P.L.R. § 3043(b); Warden v. Orlandi, 4 AD3d 239, 241 (1st Dep't 2004); Santiago v. New York City Hous. Auth., 268 AD2d 203, 204 (1st Dep't 2000).
Although 42/43 Realty claims plaintiff's amendments will necessitate its further deposition of plaintiff, defendant offers no explanation how or why such further disclosure will be necessary. Plaintiff's prior omission of additional applicable regulations did not hinder defendant from eliciting his complete relevant testimony based on the allegations in the prior pleadings. Defendants were aware from those pleadings and the prior depositions that safety of the surface plaintiff was traversing over, which the additional regulations address, was the central issue raised in this action. Harris v. Rochester Gas Elec. Corp., 11 AD3d 1032, 1033 (4th Dep't 2004).
Moreover, in light of the judgment in plaintiff's favor based on the original regulation pleaded, any prejudice caused by plaintiff's reliance on the additional regulations may be entirely academic. Nonetheless, since the amendments cause no explained or demonstrated prejudice to defendants in any event, Kelleir v. Supreme Indus. Park, 293 AD2d at 514, the court grants plaintiff's cross-motion insofar as it seeks to serve an amended bill of particulars. C.P.L.R. § 3043(c); Asaro v. City of New York, 19 AD2d 167 (1st Dep't 2005); Baten v. Wehuda, 281 AD2d 366; Noetzell v. Park Ave. Hall Hous. Dev. Fund Corp., 271 AD2d at 232-33; Snowden v. New York City Tr. Auth., 248 AD2d 235, 236 (1st Dep't 1998).
IV. WHETHER PLAINTIFF WAS A WORKER PROTECTED BY THE LABOR LAW
Defendant owner 42/43 Realty contends it is not liable because plaintiff was not entitled to protection under the Labor Law. Defendants do not dispute, however, that 42/43 Realty's agent, the general contractor, hired plaintiff to work on defendants' building and construction project, at the construction site, as is necessary for the Labor Law's protection. NY Labor Law § 2(5) and (7); Mordkofsky v. V.C.V. Dev. Corp., 76 NY2d 573, 576-77 (1990); Paradise v. Lehrer, McGovern Bovis, 267 AD2d 132, 134 (1st Dep't 1999); Blandon v. Advance Contr. Co., 264 AD2d 550, 552 (1st Dep't 1999); Agli v. Turner Constr. Co., 246 AD2d 16, 21 (1st Dep't 1998). Plaintiff contends that, on this basis, and because his work was integral to the work undertaken by defendant owner or its agents, he is entitled to that protection.
Bernard Friedman, a partner of 42/43 Realty, and Peter Voyiatzis, defendant Biltmore Construction's president, testified at their depositions that 42/43 Realty hired BRF Construction Company, plaintiff's employer, as the general contractor for the construction project. BRF Construction subcontracted with Biltmore Construction to remove and replace the sidewalk and sidewalk curbs along West 42nd Street in front of 42/43 Realty's building. While demolishing and excavating the old sidewalk and constructing a new one, subcontractor Biltmore Construction constructed a pedestrian walkway in the parking lane along West 42nd Street.
Both plaintiff and Voyiatzis testified at their depositions that a BRF Construction foreman directed plaintiff to place salt on the snow and ice on the walkway, to make it safer for workers' passage and transport of materials to different work areas as well as for pedestrians passing by. Plaintiff further testified, without contradiction, that, upon accomplishing that task, in traversing from the asphalt walkway back to the front entrance of the building under construction for his next assignment, he slipped on icy plywood planking underfoot on the dirt sidewalk area and hit his knee on a rock. No evidence suggests plaintiff's work was separate from the work of the general contractor's other employees or separate from defendants' construction project.
As long as plaintiff's work related to the work of defendant owner or its agents and was part of their construction project, he was a worker covered by the Labor Law. Longo v. Metro-North Commuter R.R., 275 AD2d 238, 239-40 (1st Dep't 2000). See Long v. Battery Park City Auth., 295 AD2d 204 (1st Dep't 2002). Even if he were not "an integral part of the work crew, full time on a daily basis," the undisputed evidence shows, at minimum, that he was "performing work necessary and incidental to" the building construction when he was injured. Longo v. Metro-North Commuter R.R., 275 AD2d at 239. See Spadola v. 260/261 Madison Equities Corp., 19 AD3d 321, 323 (1st Dep't 2005); Agli v. Turner Constr. Co., 246 AD2d at 21.
These facts distinguish plaintiff from persons who, although hired by a building owner or its general contractor, are not involved with the construction at the site and therefore not entitled to the Labor Law's protection. Spadola v. 260/261 Madison Equities Corp., 19 AD3d at 323; Long v. Battery Park City Auth., 295 AD2d 204; Valinoti v. Sandvik Seamco, 246 AD2d 344, 345-46 (1st Dep't 1998); Somervile v. Usdan, 255 AD2d 500, 501 (2nd Dep't 1998). Although plaintiff may have been performing routine maintenance at the building and adjacent sidewalk undergoing construction, those duties were directly related to the construction process. See Blandon v. Advance Contr. Co., 264 AD2d at 552; Agli v. Turner Constr. Co., 246 AD2d at 24. The evidence therefore demonstrates that he was injured while performing work integral to the construction project undertaken by 42/43 Realty and its agents, rather than engaged in mere routine maintenance outside the Labor Law's scope. Spadola v. 260/261 Madison Equities Corp., 19 AD3d at 323; Longo v. Metro-North, Commuter R.R., 275 AD2d at 239.
V. LABOR LAW § 241(6) CLAIM
Labor Law § 241 requires that:
All contractors and owners and their agents, . . . when constructing or demolishing buildings or doing any excavation 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. . . . 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 . . . shall comply forthwith.
A. Defendants' Liability
The duty to comply with the regulations under § 241(6) is non-delegable, subjecting the owner of the premises to liability for a violation even if the owner exercised no supervision or control and had no notice of worksite conditions. Comes v. New York State Elec. Gas Corp., 82 NY2d 876, 878 (1993); Ross v. Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 502-503 (1993). While a failure to provide the safety protections required by this statute, proximately causing injury, does not impose absolute liability absent negligence, the statute imposes liability on the owner for injuries caused by another party's negligence regardless of defendant owner's own negligence. Rizzuto v. Wegner Contr. Co., 91 NY2d 343, 349-50 (1998); Ross v. Curtis-Palmer Hydro-Elec. Co., 81 NY2d at 502 n. 4.
Where, as here, liability is predicated on a hazardous condition of the worksite premises, rather than plaintiff's work methods, defendant subcontractor is liable for injuries caused by a hazardous condition in the area of the work delegated to the subcontractor and over which it had authority. Russin v. Louis N. Picciano Son, 54 NY2d 311, 318 (1981); Morales v. Spring Scaffolding, Inc., 24 AD3d 42, 46-47 (1st Dep't 2005); Smith v. McClier Corp., 22 AD3d 369, 371 (1st Dep't 2005); Piazza v. Frank L. Ciminelli Constr. Co., Inc., 12 AD3d 1059, 1060 (4th Dep't 2004). Plaintiff claims Biltmore Construction was negligent in creating or permitting an unsafe worksite condition and failing to remedy it, in a work area over which the subcontractor exercised supervision and control. Voyiatzis and Biltmore Construction's foreman deny, however, that Biltmore laid the plywood planking or undertook responsibility for the means of ingress to or egress from the building.
Nonetheless, if the pedestrian walkway was in the street's parking lane, the sidewalk under construction was between the walkway and the building entrance, and the plywood planking was between the walkway and the building, all of which is undisputed, then the plywood must have been in the sidewalk demolition and construction areas. Subcontractor Biltmore Construction admits responsibility for that sidewalk demolition and construction as well as for the walkway. Therefore the subcontractor was responsible for maintaining the safety of those areas, including a safe means of traversing over or around the sidewalk demolition and construction between the walkway and the building entrance.
In fact Voyiatzis' testimony acknowledges Biltmore Construction's responsibility for the clean-up, including debris removal, and safety of the sidewalk demolition and construction areas and its awareness that workers at the site had to traverse those areas to gain access to the remainder of the construction site. Rizzo v. Hellman Elec. Corp., 281 AD2d 258, 259 (1st Dep't 2001); Leon v. Peppe Realty Corp., 190 AD2d 400, 408 (1st Dep't 1993); Piazza v. Frank L. Ciminelli Constr. Co., Inc., 12 AD3d at 1061. Responsibility under Labor Law § 241(6) extends not only to where work currently was being conducted, but to the entire worksite, including ensuring the safe passage of workers transporting materials or tools or simply proceeding, like plaintiff, to and from their workplaces. Smith v. McClier Corp., 22 AD3d at 370-71; Whalen v. City of New York, 270 AD2d 340, 342 (2nd Dep't 2000).
To the extent Voyiatzis' testimony indicates the general contractor BRF Construction may have tried to provide a means of traversing Biltmore Construction's work area when the subcontractor failed in its responsibility, that evidence does not relieve the subcontractor of liability. No evidence suggests BRF Construction was responsible for the plywood underfoot that plaintiff slipped on, whether it was planking as a means of passage or was debris hindering passage. The evidence establishes only that BRF Construction, through its employee, plaintiff, undertook to salt the pedestrian walkway because of icy conditions that had developed in the walkway in the early morning of January 29, 2003, before Biltmore Construction personnel arrived at the site at approximately 11:00 a.m.: in sum, to make safe what the subcontractor had left unsafe. Most significantly, the area BRF Construction undertook to make safe was the pedestrian walkway on the street, not any passageway or walkway across the sidewalk demolition and construction between the pedestrian walkway and the building.
Even assuming BRF Construction attempted to alleviate the hazard Biltmore Construction had left across the sidewalk demolition and construction near the building entrance, such efforts would only be a normal consequence of the hazardous condition Biltmore Construction was responsible for and would not absolve it of liability. Gordon v. Eastern Ry. Supply, 82 NY2d 555, 562 (1993); Lynch v. Bay Ridge Obstetrical Gynecological Assocs., 72 NY2d 632, 636-37 (1988); Van Eken v. Consolidated Edison Co. of NY, 294 AD2d 352, 253 (2nd Dep't 2002). See Baumann v. Metropolitan Life Ins. Co., 17 AD3d 260, 261-62 (1st Dep't 2005); Alomia v. New York City Tr. Auth., 292 AD2d 403, 405 (2nd Dep't 2002). Placement of makeshift plywood planking in the sidewalk demolition or construction area, whether unexplained or by a specified party, would not constitute a superseding cause of plaintiff's injury, because, had the responsible party, Biltmore Construction, provided a clear, secure passageway or erected a barrier against passage, plaintiff never would have slipped where he did. Ageitos v. Chatham Towers, 283 AD2d 234 (1st Dep't 2001).
At best, Voyiatzis' testimony indicates liability might be shared by a party against which plaintiff may not claim, but against which Biltmore Construction might have, but has not claimed. Plaintiff's testimony, that he previously had experienced a slippery condition on the plywood, similarly may be evidence of comparative negligence, but does not relieve defendants of their liability.
Thus defendants have failed to show that Biltmore Construction did not have supervision and control over the safety of the area that caused plaintiff's injury. Rizzo v. Hellman Elec. Corp., 281 AD2d at 259; Leon v. Peppe Realty Corp., 190 AD2d at 408; Piazza v. Frank L. Ciminelli Constr. Co., Inc., 12 AD3d at 1061. Since Biltmore Construction had that supervision and control, the subcontractor was responsible to prevent or remedy slipping hazards, to remove debris, and either to provide a safe surface for passage over the subcontractor's sidewalk demolition and construction areas known to be used for passage or to guard against passage over an unsafe area.
B. Defendants' Violation of Safety Regulations
Plaintiff pursues various related theories. (1) The means that Biltmore Construction provided or permitted for traversing its work area was insecure, slippery plywood planking. (2) The plywood was part of debris, from demolition of the old sidewalk or installation of the new one, that rendered passage across the work area slippery and hazardous. (3) If the work area was simply too hazardous for safe passage, Biltmore Construction should have erected protective devices to warn of the hazard or to prohibit passage.
For purposes of plaintiff's motion for partial summary judgment on his Labor Law § 241(6) claim, the court focuses on defendants' violations alleged in his original bill of particulars or his complaint: violation of 12 N.Y.C.R.R. § 23-1.7(d). This section requires that:
Employers shall not suffer or permit any employee to use a floor, passageway, walkway, scaffold, platform or other elevated working surface which is in 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. (emphases added) This regulatory provision's specific mandate furnishes a basis for plaintiff's claim under Labor Law § 241(6). O'Brien v. Triborough Bridge Tunnel Auth., 17 AD3d 105, 106 (1st Dep't 2005); Jennings v. Lefcon Partnership, 250 AD2d 388, 389 (1st Dep't 1998); Farina v. Plaza Constr. Co., 238 AD2d 158, 159 (1st Dep't 1997); McCormack v. Helmsley-Spear, Inc., 233 AD2d 203, 204 n. (1st Dep't 1996).
Even though Biltmore Construction was not plaintiff's employer, 12 N.Y.C.R.R. § 23-1.7(d) applies to any subcontractor, as the general contractor's agent, and to all employees involved in the construction operations. 12 N.Y.C.R.R. § 23-1.3. Consequently, this provision required Biltmore Construction to guard against plaintiff's use of a slippery passageway through the subcontractor's work area and to remove, sand, or cover any ice, snow, or other material that might have caused slippery footing there. Whalen v. City of New York, 270 AD2d at 342. Biltmore Construction's lack of control over plaintiff's work assignment does not render the safety regulation inapplicable to its work area. Smith v. McClier Corp., 22 AD3d at 371; Kane v. Coundorous, 293 AD2d 309, 311 (1st Dep't 2002); Rizzo v. Hellman Elec. Corp., 281 AD2d at 259; Piazza v. Frank L. Ciminelli Constr. Co., Inc., 12 AD3d at 1061.
As set forth above, plaintiff's assignment was to salt the pedestrian walkway on the street, not any passageway or walkway across the sidewalk demolition and construction between the pedestrian walkway and the building entrance. The hazard he encountered in this latter area was not the hazard he was assigned to alleviate. Singh v. Young Manor, Inc., 23 AD3d 249 (1st Dep't 2005); Maza v. University Ave. Dev. Corp., 13 AD3d 65, 66 (1st Dep't 2004).
Finally, plaintiff's testimony is unequivocal and uncontradicted that he slipped on the passageway over the sidewalk demolition and construction between the pedestrian walkway and the building entrance. Plaintiff thus establishes the condition contemplated by 12 N.Y.C.R.R. § 23-1.7(d) and defendants' violation of those regulatory requirements under Labor Law § 241(6). O'Gara v. Humphreys Harding, 282 AD2d 209 (1st Dep't 2001); Roppolo v. Mitsubishi Motor Sales of Am., 278 AD2d 149, 150 (1st Dep't 2000); Beltrone v. City of New York, 299 AD2d 306, 308 (2nd Dep't 2002). See Murphy v. Columbia Univ., 4 AD3d 200, 201 (1st Dep't 2004); Greenfield v. New York Tel. Co., 260 AD2d 303, 304 (1st Dep't 1999). Since defendants fail to rebut that evidence, the court grants plaintiff's cross-motion for summary judgment on defendants' liability under § 241(6) and denies defendants' motions insofar as they seek dismissal of that statutory claim. C.P.L.R. § 3212(b) and (e); Hayden v. 845 UN Ltd. Partnership, 304 AD2d 499, 500 (1st Dep't 2003); Keena v. Gucci Shops, 300 AD2d 82, 83 (1st Dep't 2002).
VI. LABOR LAW § 200 AND ORDINARY NEGLIGENCE CLAIMS
At oral argument, plaintiff stipulated to discontinue his claims for violation of Labor Law § 200 and for ordinary negligence against both defendants if the court granted him summary judgment against them on his § 241(6) claim. Therefore the court grants both defendant Biltmore Construction and defendant 42/43 Realty summary judgment dismissing plaintiff's claims for violation of Labor Law § 200 and for ordinary negligence. C.P.L.R. §§ 3212(b) and (e), 3217(b).
VII. INDEMNIFICATION CLAIMS
At oral argument, defendant Biltmore Construction also clarified that, if the court denied Biltmore Construction summary judgment dismissing the complaint, defendant subcontractor withdrew its motion insofar as it sought dismissal of co-defendant 42-43 Realty's cross-claims for indemnification. Furthermore, Biltmore Construction does not deny the absence of any contract providing for 42-43 Realty's indemnification of the subcontractor, nor does it or plaintiff offer any evidence that 42/43 Realty was negligent in supervising his work, in creating the condition that caused his injury, or in failing to remedy a hazardous condition of which the owner had notice. Therefore the court grants 42-43 Realty's motion for summary judgment insofar as it seeks dismissal of Biltmore Construction's cross-claims for contractual and implied indemnification. C.P.L.R. § 3212(b) and (e).
VIII. CONCLUSION
To recapitulate, the court dismisses plaintiff's claims against defendants based on Labor Law § 200 and ordinary negligence, pursuant to plaintiff's stipulation. The court denies defendants' motions for summary judgment insofar as they seek to dismiss plaintiff's claim under Labor Law § 241(6). The court grants plaintiff's cross-motion for partial summary judgment against defendants on his claim that they are liable under Labor Law § 241(6); permits plaintiff's Supplemental Verified Bill of Particulars served November 7, 2005, insofar as it is not academic given the preceding relief; and otherwise denies plaintiff's cross-motion.
The court further grants 42/43 Realty's motion for summary judgment insofar as it seeks dismissal of Biltmore Construction's cross-claims for indemnification. Biltmore Construction withdraws its motion for summary judgment insofar as it seeks dismissal of 42/43 Realty's cross-claims for indemnification.
This decision constitutes the court's order and judgment on liability against defendants. The court will provide copies to the parties' attorneys.