| Giordano v Forest City Ratner Cos. |
| 2007 NY Slip Op 06950 [43 AD3d 1106] |
| September 25, 2007 |
| Appellate Division, Second Department |
| Brian Giordano, Appellant, v Forest City RatnerCompanies et al., Respondents. |
—[*1] Kopff, Nardelli & Dopf, LLP, New York, N.Y. (Martin B. Adams of counsel), forrespondents.
In a consolidated action to recover damages for personal injuries, the plaintiff appeals, aslimited by his brief, from so much of an order of the Supreme Court, Kings County (Schneier,J.), entered October 12, 2006, as granted that branch of the defendants' motion which was forsummary judgment dismissing so much of the complaint as sought to recover damages pursuantto Labor Law § 241 (6) based on violations of 12 NYCRR 23-2.2 (a) and 23-2.4 insofar asasserted against the defendants F.C. Foley Square Associates, LLC, and FCR ConstructionServices, LLC.
Ordered that the order is modified, on the law, by deleting the provision thereof granting thatbranch of the defendants' motion which was for summary judgment dismissing so much of thecomplaint as sought to recover damages pursuant to Labor Law § 241 (6) based on aviolation of 12 NYCRR 23-2.2 (a) insofar as asserted against the defendants F.C. Foley SquareAssociates, LLC, and FCR Construction Services, LLC, and substituting therefor a provisiondenying that branch of the motion; as so modified, the order is affirmed insofar as appealed from,with costs to the plaintiff.
The plaintiff, Brian Giordano, a carpenter, allegedly was injured at a construction site when agust of wind blew a 4' by 8' sheet of plywood into the back of his head. The impact knocked himto the deck. The plaintiff commenced two actions, later consolidated, against the defendantsasserting, inter alia, a claim to recover damages pursuant to Labor Law § 241 (6) based onviolations, among other things, of two sections of the Industrial Code. The plaintiff alleged in hisamended bill of particulars that the defendants violated a number of provisions of the IndustrialCode including 12 NYCRR 23-2.2, relating to concrete work, and 12 NYCRR 23-2.4, relating toflooring requirements in building construction. The plaintiff asserted that the sheet of plywoodthat struck [*2]him was both part of the floor on which he wasworking and the base of the form into which concrete would ultimately be poured. He claimedthat a laborer's failure to tack the sheet of plywood in place was a violation of both cited sectionsof the Industrial Code.
The building on which the plaintiff was working was being constructed by pouring concreteto create the floors and pillars of the structure. The provisions of 12 NYCRR 23-2.4 (a) and (b)relate to temporary and permanent flooring in skeleton steel construction. Subdivision (c) ofsection 23-2.4 relates to buildings with single wood flooring, double wood flooring, or bar jointconstruction. The cited code provision has no applicability to the poured concrete construction onthe site where the plaintiff was injured (see Bennion v Goodyear Tire & Rubber Co., 229AD2d 1003 [1996]; cf. Portillo v RobyAnne Dev., LLC, 32 AD3d 421, 422 [2006]; Aloi v Structure-Tone, Inc., 2 AD3d 375, 376 [2003]).Accordingly, the Supreme Court correctly dismissed the plaintiff's complaint to the extent italleges a claim for damages pursuant to Labor Law § 241 (6) based on a violation ofIndustrial Code (12 NYCRR) § 23-2.4.
12 NYCRR 23-2.2 (a) provides: "Forms, shores and reshores shall be structurally safe andshall be properly braced or tied together so as to maintain position and shape."
The plaintiff was in the process of creating the form for the concrete before concrete wouldbe poured; however, metal workers would have to install the rebar. The Supreme Court, citingthe Appellate Division, First Department's decision in Morris v Pavarini Constr. (30 AD3d 177 [2006], revd 9 NY3d 47 [2007]), ruled thatsection 23-2.2 (a) does not apply because the form had not yet been completed. In Morris vPavarini Constr., the First Department held section 23-2.2 (a) inapplicable to forms that hadnot been completed. The Court of Appeals has since reversed the First Department's decisionbased on the inadequacy of the record (see Morris v Pavarini Constr., 9 NY3d 47 [2007]).In that case, no experts were advanced by the defendants, and the plaintiff's engineer did notaddress whether the words of the Industrial Code rule could sensibly be applied to anything butcompleted forms. Likewise, at bar we have no expert opinion addressing this issue.Consequently, the defendants F.C. Foley Square Associates, LLC, and FCR ConstructionServices, LLC, as the proponents of the motion, did not establish their prima facie entitlement tosummary judgment dismissing the complaint to the extent the complaint relied on an allegedviolation of section 23-2.2 (a) (see Winegrad v New York Univ. Med. Ctr., 64 NY2d851, 853 [1985]), and the Supreme Court thus erred in granting their motion to that extent.Crane, J.P., Goldstein, Dillon and Carni, JJ., concur.