| McDonald v UICC Holding, LLC |
| 2010 NY Slip Op 08834 [79 AD3d 1220] |
| December 2, 2010 |
| Appellate Division, Third Department |
| Jason McDonald, Respondent-Appellant, v UICC Holding,LLC, Appellant-Respondent. |
—[*1] Poissant, Nichols, Grue & Vanier, Malone (Thomas A. Grue of counsel), forrespondent-appellant.
Kavanagh, J. Cross appeals from an order of the Supreme Court (Demarest, J.), entered October1, 2009 in Franklin County, which, among other things, partially granted defendant's motion forsummary judgment dismissing the complaint.
Plaintiff was injured in August 2007 when he fell through a stairway while working on a renovationproject at the Flanagan Hotel in the Village of Malone, Franklin County. The hotel had been vacantsince 1997, when it sustained significant damage as the result of a fire. Defendant acquired the buildingin 2004 and contracted with plaintiff's employer, Northern Lights Maintenance, Inc., to rehabilitate thehotel and refurbish it. Part of this project called for the demolition of an old elevator shaft and theremoval of an adjoining staircase. During the project, workers on scaffolds were inside the elevatorshaft and, as they began demolishing it, debris accumulated on the adjoining staircase. Plaintiff was inthe process of removing this debris from the staircase when a portion of it collapsed, causing him to fall10 to 12 feet to the building's basement and be seriously injured. He subsequently commenced thisaction against defendant asserting claims based on common-law negligence as well as violations ofLabor Law §§ 200, 240 (1) and § 241 (6). After discovery was completed, bothsides moved for summary judgment, and plaintiff also sought to amend his bill of particulars to add aclaim to his Labor [*2]Law § 241 (6) cause of action. SupremeCourt denied plaintiff's cross motion in its entirety and partially granted defendant's motion for summaryjudgment dismissing plaintiff's claims made pursuant to Labor Law § 240 (1) and § 241(6). Both parties now appeal.
Initially, we address plaintiff's contention that Supreme Court erred by concluding that at the time ofthe accident, the staircase was not a "device" that he was using to gain access to an elevated work siteand, on that basis, granted defendant's motion for summary judgment dismissing plaintiff's Labor Law§ 240 (1) claim. In that regard, this Court has previously held that a staircase that constitutes a"permanent passageway between two parts of the building" is not a "tool" or a "device" and cannot formthe basis of a Labor Law § 240 (1) claim (Williams v City of Albany, 245 AD2d 916,917 [1997], appeal dismissed 91 NY2d 957 [1998]; see Milanese v Kellerman, 41 AD3d 1058, 1060-1061 [2007];Riccio v Shaker Pine, 262 AD2d 746, 747 [1999], lv dismissed 93 NY2d 1042[1999]; Craft v Clark Trading Corp., 257 AD2d 886, 887 [1999]; Avelino v 26 RailroadAve., 252 AD2d 912, 913 [1998]). However, at the time of plaintiff's accident, this staircase wasbeing dismantled, a portion of it that extended towards the top of the building had already beenremoved and it could no longer be considered a permanent passageway in the building. Moreover, thestaircase was not being used by plaintiff as a passageway to gain access to other areas in the building;instead, it functioned as a scaffold that was being used to facilitate the work being performed in thedemolition of the adjoining air shaft. As a result, plaintiff, at the time of his accident, was using thestaircase to perform work on an elevated work site, and the collapse of the staircase "constitute[d] aprima facie violation of the statute" (Kindlon vSchoharie Cent. School Dist., 66 AD3d 1200, 1202 [2009]; see Beard v State of New York, 25 AD3d989, 991 [2006]; Foufana v City of New York, 211 AD2d 550, 550 [1995]). Moreover,defendant has offered no evidence to show that plaintiff had been given and was told to use any safetyharness or other safety device in connection with his work that would have protected him from theelevation-related hazard created by the condition of the staircase (see Kindlon v Schoharie Cent.School Dist., 66 AD3d at 1202). On these facts, plaintiff's cross motion for summary judgment onhis Labor Law § 240 (1) claim should have been granted (see Dalaba v City of Schenectady, 61 AD3d 1151, 1152 [2009]).
As for plaintiff's contention that he was also entitled to summary judgment on his claims based oncommon-law negligence and Labor Law § 200, we begin with the fundamental premise that anowner has a statutory and common-law duty to provide employees with a safe place to work (seeRiccio v Shaker Pine, 262 AD2d at 747). Here, plaintiff argues that he has established as a matterof law that the work being performed on the hotel—and, in particular, the method used indismantling and demolishing the elevator shaft and the staircase—was inherently dangerous andserved to render the work site an unsafe place to work. Moreover, he contends that defendant, in itscapacity as owner of the premises, was aware of the dangers posed to workers on this site as a resultof the conditions that existed and, despite being in control of the site, took no steps to insure that it wassafe. In such a circumstance, an owner of property will be held liable if it " 'exercised supervisorycontrol over plaintiff's work and had actual or constructive knowledge of the unsafe manner in whichthe work was being performed' " (Biance v Columbia Washington Ventures, LLC, 12AD3d 926, 927 [2004], quoting Turner vSano-Rubin Constr. Co., 6 AD3d 910, 911 [2004]; see Rought v Price ChopperOperating Co., Inc., 73 AD3d 1414, 1416 [2010]; Bonse v Katrine Apt. Assoc., 28 AD3d 990, 991 [2006]; Foote v Lyonsdale Energy Ltd. Partnership,23 AD3d 924, 927-928 [2005]). However, simply because the owner was present on the site andretained general supervisory control over it, including the "authority to enforce safety standards," doesnot mean that it was in control of the work site and, therefore, legally responsible for it (Biance vColumbia Washington Ventures, LLC, 12 AD3d at 927).[*3]
On this issue, each side presented competing testimony fromwitnesses as to the level of control and supervision that defendant exercised over the work site at thetime of plaintiff's accident and, in particular, its involvement in the demolition of the elevator shaft andremoval of the staircase. For example, defendant points to the testimony of plaintiff's immediatesupervisor that he was in charge of all Northern Lights employees on the site, including plaintiff, anddirectly supervised the manner and method of their work. However, two key members of defendant'sstaff—its construction supervisor and assistant project manager—acknowledged that theywere constantly on site and retained the right to direct the manner in which the work was beingperformed during the project. They also claim to have the final authority to resolve any issue that mightarise regarding this work and how it was to be performed, including the implementation of safetymeasures needed to secure the site. These conflicting descriptions of defendant's role at thesite—and the degree of supervision and control it exercised over the work being performedduring this project—necessarily created questions of fact that belie the grant of summaryjudgment.
Plaintiff also argues that he was entitled to summary judgment because, at the time of his accident,the staircase had so deteriorated that it constituted a dangerous condition on the property anddefendant had constructive, if not actual, notice of it (see Cook v Orchard Park Estates, Inc., 73 AD3d 1263, 1264-1265[2010]; Weinberg v Alpine Improvements, LLC, 48 AD3d 915, 918-919 [2008];Wolfe v KLR Mech., Inc., 35 AD3d 916, 919 [2006]). In that regard, evidence waspresented that the staircase was inspected both before and after the work on the project had begun,and certain safety measures were implemented to address any risks that might arise as the result ofworkers on the site using it. However, factual issues exist as to whether, despite these efforts, thestaircase, at the time of plaintiff's accident, constituted a dangerous condition and, if so, whether theseinspections serve to put defendant on notice as to the existence of this condition. In addition, a questionremains as to whether the measures taken by defendant in response to these inspections served tosatisfy its obligation to insure that the staircase was safe while it was being used during this constructionproject (see Cook v Orchard Park Estates, Inc., 73 AD3d at 1264-1265).
Finally, plaintiff argues that Supreme Court abused its discretion when it denied his application toamend his bill of particulars to include a new regulation (12 NYCRR 23-3.3) as part of his Labor Law§ 241 (6) claim. However, plaintiff made this application after the note of issue had been filedand defendant had moved for dismissal of this claim on the ground that the regulation used to supportplaintiff's Labor Law § 241 (6) claim (12 NYCRR 23-2.7) did not apply to the circumstancessurrounding this accident.[FN*]Given that plaintiff has failed to account for the delay in making this cross motion, and the prejudice thatwould obviously enure to defendant if it were granted, Supreme Court did not, in our view, abuse itsdiscretion in denying this application (seeDesharnais v Jefferson Concrete Co., Inc., 35 AD3d 1059, 1061 [2006]; Gavigan vBunkoff Gen. Contrs., 247 AD2d 750, 751 [1998]; compare Jock v Landmark [*4]HealthcareFacilities, LLC, 62 AD3d 1070, 1074 [2009]; McGuire v Independent CementCorp., 255 AD2d 646, 649 [1998]).
Peters, J.P., Spain, Lahtinen and Garry, JJ., concur. Ordered that the order is modified, on thelaw, without costs, by reversing so much thereof as granted defendant's motion for summary judgmentdismissing the Labor Law § 240 (1) cause of action and denied plaintiff's cross motion as to saidcause of action; defendant's motion denied to that extent, plaintiff's cross motion granted to that extentand summary judgment awarded to plaintiff on said cause of action; and, as so modified, affirmed.
Footnote *: 12 NYCRR 23-3.3 refers to thedemolition by hand of walls and partitions at a construction project, inspections performed on stairwaysand hazards created by "falling debris or materials." 12 NYCRR 23-2.7, as pleaded by plaintiff inconnection with his Labor Law § 241 (6) claim, concerns the placement and construction oftemporary stairways at a construction site.