| Ramirez v Metropolitan Transp. Auth. |
| 2013 NY Slip Op 03314 [106 AD3d 799] |
| May 8, 2013 |
| Appellate Division, Second Department |
| Marcos Ramirez, Respondent, v MetropolitanTransportation Authority et al., Appellants. |
—[*1] Lawrence P. Biondi (Lisa M. Comeau, Garden City, N.Y., of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants appeal from anorder of the Supreme Court, Queens County (Rosengarten, J.), entered February 21,2012, which granted the plaintiff's motion for summary judgment on the issue of liabilityon the cause of action alleging a violation of Labor Law § 240 (1), and deniedtheir cross motion for summary judgment dismissing the complaint.
Ordered that the order is modified, on the law, by deleting the provision thereofdenying that branch of the defendants' cross motion which was for summary judgmentdismissing the cause of action to recover damages for violation of Labor Law §241 (6) insofar as predicated on alleged violations of Industrial Code (12 NYCRR)§§ 23-1.7, 23-1.15, 23-1.16, 23-1.17 and 23-3.3, and substituting therefor aprovision granting that branch of the cross motion; as so modified, the order is affirmed,with costs to the plaintiff.
The plaintiff allegedly was injured while working on elevated subway tracks, when aplank on a catwalk on which he was standing broke. The plaintiff fell part of the waythrough the catwalk to his thigh, catching himself with his arm. Thereafter, hecommenced this action to recover damages for personal injuries, alleging violations ofLabor Law §§ 200, 240 and 241 (6).
In opposition to the plaintiff's prima facie showing of entitlement to judgment as amatter of law on the issue of liability on the cause of action alleging a violation of LaborLaw § 240 (1) (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986];Zuckerman v City of New York, 49 NY2d 557 [1980]), the defendants failed toraise a triable issue of fact. Contrary to their contention, Labor Law § 240 appliedto the catwalk at issue, because it was the functional equivalent of scaffolding (see e.g. Nunez v City of NewYork, 69 AD3d 696 [2010]; Gomez v City of New York, 63 AD3d 511, 512 [2009];De Jara v 44-14 Newtown Rd. Apt. Corp., 307 AD2d 948 [2003]; Jablonski vEverest Constr. & Trade Corp., 264 AD2d 381, 382 [1999]; Struble v JohnArborio, Inc., 74 AD2d 55, 57 [1980]), and not a mere passageway (cf. Paul v Ryan Homes, 5AD3d 58, 60 [2004]). Further, the defendants failed to raise a triable issue of fact asto whether the injured plaintiff's own conduct was the sole proximate cause of hisaccident (see Jara v New YorkRacing Assn., Inc., 85 AD3d 1121, 1123 [2011]; Durmiaki v International Bus.Machs. Corp., 85 AD3d 960, 961 [2011]; Beharry v Public Stor., Inc., 36 AD3d 574 [2007]; cf. Allan v DHL Express [USA],Inc., 99 AD3d 828, 833 [2012]). For the same reasons, the Supreme Courtproperly denied that [*2]branch of the defendants' crossmotion which was for summary judgment dismissing the cause of action alleging aviolation of Labor Law § 240 (1).
"To recover under Labor Law § 241 (6), a plaintiff must establish the violationin connection with construction, demolition or excavation, of an Industrial Codeprovision which sets forth specific, applicable safety standards" (Wein v Amato Props., LLC, 30AD3d 506, 507 [2006]; seeZastenchik v Knollwood Country Club, 101 AD3d 861 [2012]). Here, theSupreme Court properly determined that the defendants failed to demonstrate the absenceof a factual issue as to whether Industrial Code (12 NYCRR) § 23-5.1 (c)("Scaffold structure") applied to the facts of this case (see 12 NYCRR 23-5.1 [c][1]; Treu v Cappelletti, 71AD3d 994, 998 [2010]) and, therefore, properly denied that branch of thedefendants' cross motion which was for summary judgment dismissing the Labor Law§ 241 (6) cause of action insofar as predicated on that regulation.
Additionally, although the plaintiff alleged a violation of Industrial Code §23-1.22 (c) (1) for the first time in opposition to the cross motion, this was not fatal to hisclaim, since no new factual allegations were involved, no new theories of liability wereset forth, and no prejudice was caused to the defendants (see Kelleir v SupremeIndus. Park, 293 AD2d 513, 514 [2002]). As to that claim, the defendants failed todemonstrate, prima facie, that the relevant section of the Industrial Code, which pertains,inter alia, to a platform used as a working area, was inapplicable to this action (see Silvas v Bridgeview Invs.,LLC, 79 AD3d 727 [2010]).
However, the Supreme Court should have granted that branch of the defendants'cross motion which was for summary judgment dismissing the Labor Law § 241(6) cause of action insofar as predicated on alleged violations of Industrial Code§§ 23-1.7, 23-1.15, 23-1.16, 23-1.17 and 23-3.3. The defendantsestablished, prima facie, that those sections of the Industrial Code are not applicable.Specifically, contrary to the plaintiff's contention, Industrial Code § 23-1.7 (b)applies to hazardous openings, not elevated hazards such as the one in this case (seeAllan v DHL Express [USA], Inc., 99 AD3d at 831; Forschner v Jucca Co., 63AD3d 996, 999 [2009]). In addition, Industrial Code § 23-1.15 concernsstandards for safety railings (see 12 NYCRR 23-1.15). Here, there was noallegation that the railing in this case failed, but, rather, that the planks on the catwalkbroke and the plaintiff fell through up to his thigh. Industrial Code § 23-1.16concerns safety belts, harnesses, tail lines, and lifelines (see 12 NYCRR 23-1.16)and, since it is undisputed that the plaintiff was not wearing any of these devices at thetime when he fell, and that such devices were offered, there was no violation of thisprovision. Industrial Code § 23-1.17 concerns life nets (see 12 NYCRR23-1.17). Therefore, since the plaintiff did not fall all of the way through the catwalk but,rather, fell only a few feet, the lack or failure of a life net could not be a proximate causeof his injury. Lastly, Industrial Code § 23-3.3 concerns "Demolition by hand" (12NYCRR 23-3.3). Here, since the plaintiff was not engaged in demolition, defined as"[t]he work incidental to or associated with the total or partial dismantling or razing of abuilding or other structure" (Industrial Code § 23-1.4 [b] [16]), this section doesnot apply.
Labor Law § 200 "is a codification of the common-law duty imposed upon anowner or general contractor to maintain a safe construction site" (Rizzuto v L.A.Wenger Contr. Co., 91 NY2d 343, 352 [1998]). Where, as here, a "premisescondition is at issue, property owners may be held liable for a violation of Labor Law§ 200 if the owner either created the dangerous condition that caused the accidentor had actual or constructive notice of the dangerous condition that caused the accident"(Ortega v Puccia, 57 AD3d54, 61 [2008]; see Aguilerav Pistilli Constr. & Dev. Corp., 63 AD3d 763, 764 [2009]). In opposition to thedefendants' prima facie showing that they lacked actual notice of a dangerous condition,the plaintiff's deposition testimony that he had seen rotten, discolored planks on thecatwalk and had reported the condition to the defendants' foreman on three occasions inthe two months prior to his accident was sufficient to raise a triable issue of fact as towhether the defendants had actual notice of the dangerous condition. Moreover,photographs of the broken catwalk in the record show cracked, warped, and discoloredplanks. Thus, the defendants failed to establish, prima facie, that they lacked constructivenotice of the alleged defect (see Aguilera v Pistilli Constr. & Dev. Corp., 63AD3d at 764). Accordingly, the Supreme Court properly denied that branch of thedefendants' cross motion which was for summary judgment dismissing the Labor Law§ 200 cause of action, regardless of the sufficiency of the opposition papers(see generally [*3]Winegrad v New York Univ. Med.Ctr., 64 NY2d 851, 853 [1985]). Mastro, J.P., Hall, Lott and Sgroi, JJ., concur.