| Klimowicz v Powell Cove Assoc., LLC |
| 2013 NY Slip Op 07158 [111 AD3d 605] |
| November 6, 2013 |
| Appellate Division, Second Department |
| Zdzislaw Klimowicz, Appellant, v Powell CoveAssociates, LLC, et al., Defendants/Third-Party Plaintiffs-Respondents. VinnyConstruction Corp., Third-Party Defendant-Respondent. |
—[*1] French & Casey, LLP, New York, N.Y. (Douglas R. Rosenzweig of counsel andRusso & Toner, LLP [John J. Komar], former of counsel on the brief), fordefendants/third-party plaintiffs-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, Queens County (James J.Golia, J.), dated December 12, 2011, as granted those branches of the cross motion of thedefendants/third-party plaintiffs, and those branches of the separate cross motion of thethird-party defendant, which were for summary judgment dismissing the causes of actionalleging violations of Labor Law §§ 200 and 241 (6).
Ordered that the order is modified, on the law, by deleting the provisions thereofgranting those branches of the cross motion of the defendants/third-party plaintiffs, andthose branches of the separate cross motion of the third-party defendant, which were forsummary judgment dismissing the cause of action alleging violations of Labor Law§ 200 and so much of the cause of action alleging violations of Labor Law §241 (6) as was predicated upon alleged violations of 12 NYCRR 23-5.1 (c), (e) (1) and23-5.3 (f), and substituting therefor provisions denying those branches of the separatecross motions; as so modified, the order is affirmed insofar as appealed from, with onebill of costs payable to the appellant by the defendants/third-party plaintiffs-respondentsand the third-party defendant-respondent.
The plaintiff, a bricklayer employed by the third-party defendant, allegedly injuredhis right shoulder when, while working on an elevated scaffold at a construction site, hisright foot fell through an opening created by missing planks and he grabbed ontooverhead planks to stop himself from falling.
The Supreme Court improperly granted those branches of the cross motion of thedefendants/third-party plaintiffs, and those branches of the separate cross motion of thethird-party defendant, which were for summary judgment dismissing so much of thecause of action alleging [*2]violations of Labor Law§ 241 (6) as was predicated upon alleged violations of 12 NYCRR 23-5.1 (c), (e)(1) and 23-5.3 (f), as the movants failed to establish, prima facie, their entitlement tojudgment as a matter of law in this regard.
Although a plaintiff asserting a Labor Law § 241 (6) cause of action mustallege a violation of a specific and concrete provision of the Industrial Code (seeRoss v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 503 [1993]; Kowalik v Lipschutz, 81AD3d 782, 783 [2011]; Samuel v A.T.P. Dev. Corp., 276 AD2d 685, 686[2000]), a failure to identify the Code provision in the complaint or bill of particulars isnot fatal to such a claim (seeGalarraga v City of New York, 54 AD3d 308, 310 [2008]; Kelleir vSupreme Indus. Park, 293 AD2d 513, 513-514 [2002]; Noetzell v Park Ave. HallHous. Dev. Fund Corp., 271 AD2d 231 [2000]). The plaintiff's belated allegationsthat the defendants/third-party plaintiffs violated 12 NYCRR 23-5.1 (c), (e) (1); (f) and23-5.3 (f) involved no new factual allegations, raised no new theories of liability, andcaused no prejudice to the defendants/third-party plaintiffs (see Kelleir v SupremeIndus. Park, 293 AD2d at 513-514; Noetzell v Park Ave. Hall Hous. Dev. FundCorp., 271 AD2d 231 [2000]; see also O'Connell v Consolidated Edison Co. ofN.Y., 276 AD2d 608, 610 [2000]). The defendants/third-party plaintiffs were put onsufficient notice that the cause of action alleging violations of Labor Law § 241(6) related to missing scaffold planks through the plaintiff's bill of particulars anddeposition testimony. Thus, they cannot reasonably claim prejudice or surprise.
Moreover, 12 NYCRR 23-5.1 (c), (e) (1) and 23-5.3 (f) set forth specific, rather thangeneral, safety standards, and are sufficient to support a Labor Law § 241 (6)cause of action (see Abreo vURS Greiner Woodward Clyde, 60 AD3d 878, 880 [2009]; Tomyuk v Junefield Assoc., 57AD3d 518, 521 [2008]; Soltes v Brentwood Union Free School Dist., 47 AD3d804, 805 [2008]; O'Connorv Spencer [1997] Inv. Ltd. Partnership, 2 AD3d 513, 515 [2003]; Sopha vCombustion Eng'g, 261 AD2d 911, 912 [1999]). The defendants/third-partyplaintiffs and the third-party defendant did not establish either that those Industrial Codeprovisions were inapplicable to the facts of this case, or that the alleged violation of thoseprovisions was not a proximate cause of the damages alleged (see Ross vCurtis-Palmer Hydro-Elec. Co., 81 NY2d at 501-505; Treu v Cappelletti, 71 AD3d994, 998 [2010]; Abreo v URS Greiner Woodward Clyde, 60 AD3d at 880).However, 12 NYCRR 23-5.1 (f) does not support the cause of action alleging violationsof Labor Law § 241 (6) because that Industrial Code provision sets forth a general,rather than a specific, safety standard (see Sopha v Combustion Eng'g, 261 AD2dat 912; Moutray v Baron, 244 AD2d 618, 619 [1997]).
"Labor Law § 200 (1) is a codification of the common-law duty of an owner orgeneral contractor to provide workers with a safe place to work" (Ortega v Puccia, 57 AD3d54, 60 [2008]; see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d at 505).Where, as here, a plaintiff's claim arises out of alleged defects or dangers in the methodsor materials of the work, to prevail on a Labor Law § 200 cause of action, theplaintiff must show that the defendant "had the authority to supervise or control theperformance of the work" (Ortega v Puccia, 57 AD3d at 61; see Pilato v 866 U.N. Plaza Assoc.,LLC, 77 AD3d 644, 646 [2010]). "A defendant has the authority to supervise orcontrol the work for purposes of Labor Law § 200 when that defendant bears theresponsibility for the manner 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 workif a safety violation 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 Cambizaca v New York City Tr. Auth., 57 AD3d 701,702 [2008]).
Here, the defendants/third-party plaintiffs and the third-party defendant failed tomake a prima facie showing that the defendants/third-party plaintiffs did not have theauthority to supervise or control the manner in which the plaintiff's work was performed(see Torres v Perry St. Dev.Corp., 104 AD3d 672, 676 [2013]; Hurtado v Interstate Materials Corp., 56 AD3d 722, 723[2008]). Accordingly, those branches of the respective cross motions which were forsummary judgment dismissing the cause of action alleging violations of Labor Law§ 200 should have been denied, regardless of the sufficiency of the oppositionpapers (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Angiolillo,J.P., Hall, Austin and Miller, JJ., concur. [Prior Case History: 2011 NY Slip Op33513(U).]