| Jara v New York Racing Assn., Inc. |
| 2011 NY Slip Op 05670 [85 AD3d 1121] |
| June 28, 2011 |
| Appellate Division, Second Department |
| Angel Jara, Appellant, v New York Racing Association,Inc., et al., Respondents. (And Third-Party Actions.) |
—[*1] Bee Ready Fishbein Hatter & Donovan, LLP, Mineola, N.Y. (Joshua M. Jemal of counsel),for respondents New York Racing Association, Inc., and Aqueduct Race Track. Jones Hirsch Connors & Bull, P.C., New York, N.Y. (Mark D. Wellman and Miller &Associates, P.C. [Scott E. Miller], of counsel), for respondent Tishman Construction Corporationof New York.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by hisbrief, from so much of an order of the Supreme Court, Queens County (Agate, J.), dated February25, 2010, as granted those branches of the separate motions of the defendant TishmanConstruction Corporation of New York and the defendants New York Racing Association, Inc.,and Aqueduct Race Track which were for summary judgment dismissing the causes of actionunder Labor Law § 240 (1) and § 241 (6) insofar as asserted against each of them,and denied his separate cross motions for summary judgment on the issue of liability on hisLabor Law § 240 (1) cause of action, and for leave to supplement his bill of particulars toallege violations of certain sections of the Industrial Code and to deem the bill of particulars, assupplemented, timely served.
Ordered that the order is modified, on the law, (1) by deleting the provisions thereof grantingthose branches of the separate motions of the defendant Tishman Construction Corporation ofNew York and the defendants New York Racing Association, Inc., and Aqueduct Race Trackwhich were for summary judgment dismissing the causes of action under Labor Law § 240(1) and § 241 (6) insofar as asserted against each of them and substituting thereforprovisions denying those branches of the motions, (2) by deleting the provision thereof denyingthe plaintiff's cross motion for summary judgment on the issue of liability on his cause of actionunder Labor Law § 240 (1) and substituting therefor a provision granting that crossmotion, and (3) by deleting the provision thereof denying that branch of the plaintiff's separatecross motion which was for leave to supplement his bill of particulars to allege a violation ofIndustrial Code (12 NYCRR) § 23-1.7 (e) (1) and (2), and to deem the bill of particulars,as supplemented, timely served, and substituting therefor a provision granting that branch of thecross motion; as so modified, the order is affirmed insofar as appealed from, with one bill ofcosts to the appellant payable by the respondents appearing separately and filing separate briefs.[*2]
The plaintiff, an employee of the third-party defendant,Seasons Contracting Corp. (hereinafter Seasons), allegedly was injured while performingdemolition work at the defendant Aqueduct Race Track (hereinafter Aqueduct), which wasowned by the defendant New York Racing Association, Inc. (hereinafter NYRA). The defendantTishman Construction Corporation of New York (hereinafter Tishman), in its capacity asconstruction manager of a construction project at Aqueduct, had retained Seasons as thedemolition subcontractor. On July 30, 2003, after unplugging an electric saw from a power outletin an adjacent room, the plaintiff was climbing over an eight-foot- high, partially demolishedwall and a pile of demolition debris which was blocking the doorway in order to return to thearea where he was working, when he tripped and fell over the eight-foot wall and landed on thefloor below.
The Supreme Court erred in granting those branches of the defendants' separate motionswhich were for summary judgment dismissing the cause of action under Labor Law § 240(1) insofar as asserted against each of them, and in denying the plaintiff's cross motion forsummary judgment on the issue of liability on that cause of action. "Labor Law § 240 (1)imposes a nondelegable duty upon owners and general contractors to provide safety devices toprotect workers from elevation-related risks" (Poracki v St. Mary's R.C. Church, 82 AD3d 1192, 1194 [2011])."To recover under Labor Law § 240 (1), the plaintiff must demonstrate a violation of thestatute and that such violation proximately caused his or her injuries" (Poracki v St. Mary'sR.C. Church, 82 AD3d at 1194; seeRobinson v East Med. Ctr., LP, 6 NY3d 550, 554 [2006]; Cahill v Triborough Bridge & TunnelAuth., 4 NY3d 35, 39 [2004]; Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 287[2003]). "[T]he single decisive question [in determining whether Labor Law § 240 (1) isapplicable] is whether plaintiff's injuries were the direct consequence of a failure to provideadequate protection against a risk arising from a physically significant elevation differential" (Runner v New York Stock Exch., Inc.,13 NY3d 599, 603 [2009]; see LaVeglia v St. Francis Hosp., 78 AD3d 1123, 1127 [2010]).
Here, it is undisputed that the plaintiff fell approximately eight feet from the top of a partiallydemolished wall and a pile of accumulated demolition debris which was blocking a doorwaywhile he was "gaining access to or working at" the demolition site (Rocovich v ConsolidatedEdison Co., 78 NY2d 509, 514 [1991]). According to the plaintiff, he had specifically beeninstructed to locate a functioning electrical outlet in the adjacent room. There was no means bywhich to move between the rooms other than climbing over the partially demolished wall and thepile of demolition debris. The plaintiff's expert asserted in his affidavit that "a fall arrest system,such as a scaffold, net, or platform erected on the outside of the wall," or "a rope, a wire, or othercordon, fence or railing, along the wall," should have been provided to prevent such a fall. Theplaintiff established his prima facie entitlement to judgment as a matter of law on his Labor Law§ 240 (1) cause of action by demonstrating that he was not provided with any safety deviceto properly protect him against the threat posed by the hazardous condition he was required totraverse, and that this failure proximately caused his accident (see Poracki v St. Mary's R.C.Church, 82 AD3d at 1194). In opposition, the defendants failed to raise a triable issue of fact.Contrary to the contention of NYRA and Aqueduct, the plaintiff's conduct was not the soleproximate cause of his injuries (seeBeharry v Public Stor., Inc., 36 AD3d 574, 575 [2007]).
"With respect to a claim pursuant to Labor Law § 241 (6), the plaintiff must allege aviolation of a specific and applicable provision of the Industrial Code" (D'Elia v City of New York, 81 AD3d682, 684 [2011]; see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 504-505[1993]). "A failure to identify the Industrial Code provision in the complaint or bill of particularsis not fatal to such a claim" (D'Elia v City of New York, 81 AD3d at 684; see Galarraga v City of New York, 54AD3d 308, 310 [2008]; Dowd vCity of New York, 40 AD3d 908, 911 [2007]). "Rather, leave to amend the pleadings toidentify a specific, applicable Industrial Code provision 'may properly be granted, even after thenote of issue has been filed, where the plaintiff makes a showing of merit, and the amendmentinvolves no new factual allegations, raises no new theories of liability, and causes no prejudice tothe defendant' " (D'Elia v City of New York, 81 AD3d at 684, quoting Galarraga vCity of New York, 54 AD3d at 310; see Dowd v City of New York, 40 AD3d at911). Here, the Supreme Court properly determined that the plaintiff's "belated identification ofspecific Industrial Code sections" resulted in no prejudice to the defendants. Among the sectionsof the Industrial Code which the plaintiff sought to add to his bill of particulars, Industrial Code(12 NYCRR) § 23-1.7 (e) (1) and (2), are both [*3]sufficiently specific to support a claim pursuant to Labor Law§ 241 (6) (see Mugavero vWindows By Hart, Inc., 69 AD3d 694, 696 [2010]; McDonagh v Victoria's Secret, Inc., 9 AD3d 395, 396 [2004]).Industrial Code (12 NYCRR) § 23-1.7 (e) (1) provides, in pertinent part, that "[a]llpassageways shall be kept free from accumulations of dirt and debris and from any otherobstructions or conditions which could cause tripping" (Industrial Code [12 NYCRR] §23-1.7 [e] [1]). Industrial Code (12 NYCRR) § 23-1.7 (e) (2) provides, "[t]he parts offloors, platforms and similar areas where persons work or pass shall be kept free fromaccumulations of dirt and debris and from scattered tools and materials and from sharpprojections insofar as may be consistent with the work being performed" (Industrial Code [12NYCRR] § 23-1.7 [e] [2]). The Supreme Court erred in concluding that these IndustrialCode sections were inapplicable to the circumstances here. Based on the evidence before theSupreme Court submitted by the defendants in support of those branches of their separatemotions which were for summary judgment dismissing the cause of action under Labor Law§ 241 (6) insofar as asserted against each of them, the defendants failed to eliminate alltriable issues of fact as to whether Industrial Code (12 NYCRR) § 23-1.7 (e) (1) and (2)applied. Accordingly, the Supreme Court should have granted that branch of the plaintiff's crossmotion which was for leave to supplement his bill of particulars to allege a violation of IndustrialCode (12 NYCRR) § 23-1.7 (e) (1) and (2), and to deem the bill of particulars, assupplemented, timely served, and denied those branches of the defendants' separate motionswhich were for summary judgment dismissing the cause of action under Labor Law § 241(6) insofar as asserted against each of them.
Leave to supplement the bill of particulars to allege violations of Industrial Code (12NYCRR) § 23-1.22 (b) (4) and (c) (2), § 23-3.3 (b) (4), and § 23-5.2 wasproperly denied, as those sections are inapplicable to the facts as alleged here. With regard toIndustrial Code (12 NYCRR) § 23-3.3 (l) and § 23-1.21 (a), the plaintiff did notraise these sections before the Supreme Court, and, thus, they are improperly raised for the firsttime on appeal (see Portillo v RobyAnne Dev., LLC, 32 AD3d 421, 422 [2006]).
Tishman's remaining contention is not properly before this Court. Angiolillo, J.P., Balkin,Dickerson and Cohen, JJ., concur. [Prior Case History: 2010 NY Slip Op 30832(U).]