| Gonzalez v Perkan Concrete Corp. |
| 2013 NY Slip Op 06835 [110 AD3d 955] |
| October 23, 2013 |
| Appellate Division, Second Department |
| Pedro Gonzalez, Appellant, v Perkan ConcreteCorp. et al., Respondents. |
—[*1] Fabiani Cohen & Hall, LLP, New York, N.Y. (Kevin B. Pollack and P. MichelleKucsma of counsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals, as limitedby his brief, from so much of an order of the Supreme Court, Kings County (Vaughan,J.), dated May 2, 2012, as granted those branches of the defendants' motion which werefor summary judgment dismissing the causes of action to recover damages forcommon-law negligence and violations of Labor Law §§ 200 and 241 (6).
Ordered that the order is modified, on the law, (1) by deleting the provisions thereofgranting those branches of the defendants' motion which were for summary judgmentdismissing so much of the cause of action pursuant to Labor Law § 241 (6) as wasbased on alleged violations of Industrial Code (12 NYCRR) §§ 23-9.5 (g)and 23-9.2 (a), and substituting therefor provisions denying those branches of thedefendants' motion, and (2) by deleting the provision thereof granting that branch of thedefendants' motion which was for summary judgment dismissing the cause of action torecover damages for common-law negligence and violations of Labor Law § 200insofar as asserted against the defendant Perkan Concrete Corp., and substituting therefora provision denying that branch of the defendants' motion; as so modified, the order isaffirmed insofar as appealed from, with one bill of costs payable to the plaintiff.
On November 14, 2007, the plaintiff was part of a crew of workers that wasreplacing a sidewalk in front of a New York City public school in Brooklyn. As theplaintiff leaned over to hammer a two-by-four piece of wood into a tree well so thatcement for the new sidewalk could be poured around the tree well, a Bobcat excavatingmachine operated by one of his coworkers ran over his left foot. The plaintiffcommenced this action against Perkan Concrete Corp. (hereinafter Perkan), the NewYork City School Construction Authority (hereinafter the SCA), the City of New York,and the New York City Department of Education to recover damages for the resultinginjuries. Perkan had subcontracted with Manny P Concrete Co., Inc. (hereinafter MannyP), the plaintiff's employer, to perform the concrete work for the sidewalk. Subsequently,the defendants moved for summary judgment dismissing the complaint. In the orderappealed from, the Supreme Court granted the motion in its entirety, and the plaintiffappeals from certain portions of the order.[*2]
Labor Law § 241 (6) "imposes anondelegable duty of reasonable care upon owners and contractors 'to providereasonable and adequate protection and safety' to persons employed in, or lawfullyfrequenting, all areas in which construction, excavation or demolition work is beingperformed" (Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 348 [1998],quoting Labor Law § 241 [6]). To state a cause of action pursuant to Labor Law§ 241 (6), a plaintiff must allege that the property owners violated a regulation thatsets forth a specific standard of conduct and not simply a recitation of common-lawsafety principles (see St. Louis vTown of N. Elba, 16 NY3d 411, 414 [2011]; Ross v Curtis-PalmerHydro-Elec. Co., 81 NY2d 494, 501-502 [1993]). Since this section imposes anondelegable duty on owners, a plaintiff need not show that a defendant exercisedsupervision or control over the worksite in order to establish a right of recovery (seeSt. Louis v Town of N. Elba, 16 NY3d at 413; Hossain v Kurzynowski, 92 AD3d 722, 724 [2012]).
The Supreme Court erred in granting that branch of the defendants' motion whichwas for summary judgment dismissing so much of the cause of action pursuant to LaborLaw § 241 (6) as was based on an alleged violation of Industrial Code (12NYCRR) § 23-9.5 (g). The defendants failed to demonstrate, prima facie, that 12NYCRR 23-9.5 (g), which requires "mobile power-operated excavating machines exceptfor crawler mounted equipment" to be equipped with "an approved warning device soinstalled as to automatically sound a warning signal when such machine is backing," wasinapplicable under the facts presented. Contrary to their contention, at the time of theaccident, the Bobcat was being used as an excavating machine for excavating workwithin the meaning of Industrial Code (12 NYCRR) § 23-1.4 (b) (18) and (19).Moreover, the defendants failed to demonstrate, prima facie, that the Bobcat wasequipped with the requisite device or that the Bobcat was not backing up when theaccident occurred. Since the defendants failed to make a prima facie showing, thatbranch of the motion which was for summary judgment dismissing so much of the causeof action pursuant to Labor Law § 241 (6) as was based on an alleged violation of12 NYCRR 23-9.5 (g) should have been denied, regardless of the sufficiency of theopposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853[1985]).
The Supreme Court properly granted that branch of the defendants' motion whichwas for summary judgment dismissing so much of the cause of action pursuant to LaborLaw § 241 (6) as was based on an alleged violation of Industrial Code (12NYCRR) § 23-9.4 (h) (4), which governs "[p]ower shovels and backhoes used formaterial handling" and provides that "[u]nauthorized persons shall not be permitted inthe cab or immediately adjacent to any such equipment in operation." The defendantsdemonstrated, prima facie, that 12 NYCRR 23-9.4 (h) (4) was not violated since, as amember of the work crew replacing the sidewalk, the plaintiff was not an unauthorizedperson within the meaning of the provision (see Ferreira v City of New York, 85 AD3d 1103, 1105[2011]; Carroll v County ofErie, 48 AD3d 1076, 1078 [2008]; Mingle v Barone Dev. Corp., 283AD2d 1028, 1029 [2001]). In opposition, the plaintiff failed to raise a triable issue offact.
The Supreme Court erred in granting that branch of the defendants' motion whichwas for summary judgment dismissing so much of the cause of action pursuant to LaborLaw § 241 (6) as was based on an alleged violation of Industrial Code (12NYCRR) § 23-9.2 (a), which sets forth, among other things, that "[u]pondiscovery, any structural defect or unsafe condition in [power-operated] equipment shallbe corrected by necessary repairs or replacement." Although the plaintiff failed toidentify 12 NYCRR 23-9.2 in his complaint or bill of particulars, that omission is notfatal to his claim (see Jara vNew York Racing Assn., Inc., 85 AD3d 1121, 1124 [2011]; D'Elia v City of New York, 81AD3d 682, 684 [2011]; Galarraga v City of New York, 54 AD3d 308, 310 [2008]).In asserting 12 NYCRR 23-9.2 (a) in opposition to the defendants' prima facie showingof entitlement to judgment as a matter of law on this branch of their motion, the plaintiffraised a triable issue of fact as to whether the defendants were liable under Labor Law§ 241 (6) based on a violation of that provision (see Cappabianca v Skanska USABldg. Inc., 99 AD3d 139, 146-147 [2012]; Salsinha v Malcolm Pirnie, Inc., 76 AD3d 411, 411-412[2010]; Hricus v AuroraContrs., Inc., 63 AD3d 1004, 1005-1006 [2009]).
The Supreme Court properly granted that branch of the defendants' motion whichwas for summary judgment dismissing so much of the cause of action pursuant to LaborLaw § 241 (6) as was based on an alleged violation of Industrial Code (12NYCRR) § 23-9.2 (b) (1). Contrary to the plaintiff's contention, the provision is"merely a general safety standard that does not give rise [*3]to a nondelegable duty under the statute" (Hricus vAurora Contrs., Inc., 63 AD3d at 1005; see Scott v Westmore Fuel Co., Inc., 96 AD3d 520, 521[2012]; Berg v Albany LadderCo., Inc., 40 AD3d 1282, 1285 [2007], affd 10 NY3d 902 [2008]).
The Supreme Court properly granted that branch of the defendants' motion whichwas for summary judgment dismissing the cause of action to recover damages forcommon-law negligence and violations of Labor Law § 200 insofar as assertedagainst the SCA. "Labor Law § 200 (1) is a codification of the common-law dutyof an owner or general contractor to provide workers with a safe place to work" (Martinez v City of New York,73 AD3d 993, 997 [2010], citing Rizzuto v L.A. Wenger Contr. Co., 91NY2d 343 [1998]). "Where . . . a claim arises out of the means and methodsof the work, a [defendant] may be held liable for common-law negligence or a violationof Labor Law § 200 only if he or she had 'the authority to supervise or control theperformance of the work' " (Forssell v Lerner, 101 AD3d 807, 808 [2012], quoting Ortega v Puccia, 57 AD3d54, 61 [2008]). "A defendant has the authority to supervise or control the work forpurposes of Labor Law § 200 when that defendant bears the responsibility for themanner in which the work is performed" (Ortega v Puccia, 57 AD3d at 62)."[T]he right to generally supervise the work, stop the contractor's work if a safetyviolation is noted, or to ensure compliance with safety regulations and contractspecifications is insufficient to impose liability under Labor Law § 200 or forcommon-law negligence" (Austin v Consolidated Edison, Inc., 79 AD3d 682, 684[2010] [internal quotation marks omitted]; see Allan v DHL Express [USA], Inc., 99 AD3d 828, 832[2012]; Harrison v State of NewYork, 88 AD3d 951, 954 [2011]; Cambizaca v New York City Tr. Auth., 57 AD3d 701, 702[2008]; Peay v New York CitySchool Constr. Auth., 35 AD3d 566, 567 [2006]).
Here, the SCA demonstrated, prima facie, that it did not have the authority tosupervise or control the work being performed by Manny P's employees and that itsauthority over their work was "limited only to ensuring compliance with safetyregulations and contract specifications," which is insufficient to impose liability underLabor Law § 200 (Austin v Consolidated Edison, Inc., 79 AD3d at 684).In opposition, the plaintiff failed to raise a triable issue of fact.
However, the Supreme Court erred in granting that branch of the motion which wasfor summary judgment dismissing the cause of action to recover damages forcommon-law negligence and violations of Labor Law § 200 insofar as assertedagainst Perkan. Under Labor Law § 200, when a defendant lends allegedlydangerous or defective equipment to a worker that causes injury during its use, thatdefendant, in moving for summary judgment, must establish that it neither created thealleged danger or defect in the instrumentality nor had actual or constructive notice of thedangerous or defective condition (see Navarro v City of New York, 75 AD3d 590, 591-592[2010]; Chowdhury vRodriguez, 57 AD3d 121, 131-132 [2008]; Wein v Amato Props., LLC, 30 AD3d 506, 507-508[2006]). Perkan failed to demonstrate, prima facie, that it did not create a dangerouscondition by providing Manny P with a Bobcat that was not equipped with a workingbackup alarm or that it lacked actual or constructive notice that the Bobcat was not soequipped (see Navarro v City of New York, 75 AD3d at 592). In light ofPerkan's failure to make the requisite showing, the sufficiency of the plaintiff's papers inopposition in this regard need not be considered (see Winegrad v New York Univ.Med. Ctr., 64 NY2d 851, 853 [1985]). Moreover, in response to Perkan's prima facieshowing that it did not supervise or control the subject work, the plaintiff raised a triableissue of fact as to whether Perkan could be held liable, under a theory of negligentbailment, on the ground that the Bobcat it provided to Manny P was not safe for itsintended use because it lacked a working backup alarm (see Beazer v New York CityHealth & Hosps. Corp., 76 AD3d 405, 405 [2010], affd 18 NY3d 833[2011]; Fili v Matson Motors, 183 AD2d 324, 328-329 [1992]; Ruggiero vBraun & Sons, 141 AD2d 528, 529 [1988]; Dufur v Lavin, 101 AD2d 319,324-325 [1984]; Snyder v Kramer, 94 AD2d 860 [1983], affd 61 NY2d961 [1984]).
Finally, although the affidavits of the defendants' expert, which were notarizedoutside of New York, were not accompanied by certificates authenticating the authorityof the notaries who administered the oaths (see CPLR 2309 [c]), this omissionwas not a fatal defect (see CPLR 2001; Matter of Recovery of Judgment, LLC v Warren, 91 AD3d656, 657 [2012]; Betz vDaniel Conti, Inc., 69 AD3d 545, 545 [2010]; Smith v Allstate Ins. Co., 38AD3d 522, 523 [2007]). Rivera, J.P., Sgroi, Cohen and Hinds-Radix, JJ., concur.