| Marshall v Glenman Indus. & Commercial Contr.Corp. |
| 2014 NY Slip Op 02987 [117 AD3d 1124] |
| May 1, 2014 |
| Appellate Division, Third Department |
[*1]
| Robert Marshall, Appellant, v Glenman Industrial& Commercial Contractor Corporation et al.,Respondents. |
Law Office of Martin J. Coleman, P.C., Woodbury (Martin J. Coleman of counsel),for appellant.
Carter, Conboy, Case, Blackmore, Maloney & Laird, PC, Albany (James A.Resila of counsel), for Glenman Industrial & Commercial Contractor Corporation,respondent.
Clausen Miller, PC, Chicago, Illinois (Joseph J. Ferrini, pro hac vice), for Model IronWorks, respondent.
McCarthy, J. Appeal from an order of the Supreme Court (Zwack, J.), enteredNovember 26, 2012 in Ulster County, which, among other things, granted defendants'cross motions for partial summary judgment dismissing the Labor Law§ 200 cause of action and, sua sponte, dismissed the Labor Law§ 241 (6) cause of action against defendant Glenman Industrial &Commercial Contractor Corporation.
Plaintiff was employed as a tile and marble worker at a building undergoingextensive renovations when, while carrying materials to his work site, he allegedly felldown the stairs after his boot became caught on a piece of metal protruding from a stair.Defendant Glenman Industrial & Commercial Contractor Corporation was thegeneral contractor for the project and Glenman subcontracted, among other things, theflooring work to plaintiff's employer and the welding and metal work to defendant ModelIron Works, Inc. According to plaintiff, the accident happened between the second andthird floors while he was descending "[s]tairwell B," [*2]a stairway regularly used by the various workers andsubcontractors engaged in the renovation. As he attempted to step onto the landing, hisboot was pierced and caught by a protruding piece of metal that projected approximatelytwo to three inches from the stairwell post, causing him to tumble down the stairs to thelanding of the next floor. Plaintiff described the protrusion as a flat piece of "[b]lackstock steel," approximately one-eighth-inch thick and 1
Subsequently, plaintiff commenced this action against Glenman and Model Iron,alleging causes of action asserting violations under Labor Law §§ 200and 241 (6) against Glenman, and a cause of action alleging a violation of Labor Law§ 200 against Model Iron. Plaintiff alleged, among other things, that ModelIron, the subcontractor performing metal work for the project, must have welded themetal piece to the staircase and failed to properly trim it back out of harm's way. Hefurther maintained that Glenman breached its duty to maintain the stairways and otherpassageways in a safe condition as required by safety regulations and failed to correct anunsafe condition caused by Model Iron. Following discovery, plaintiff moved for partialsummary judgment against Glenman with respect to the Labor Law § 241(6) cause of action. Defendants separately cross-moved for partial summary judgmentdismissing plaintiff's Labor Law § 200 and/or negligence cause of action. Inseeking dismissal of these latter claims, defendants relied on proof indicating that ModelIron was not assigned to perform any work on stairwell B and reportedly did not weld themetal piece that allegedly caused plaintiff to trip and fall. Supreme Court, among otherthings, denied plaintiff's motion for partial summary judgment and granted defendants'cross motions. Additionally, the court, sua sponte, granted summary judgment toGlenman dismissing plaintiff's Labor Law § 241 (6) cause of action.Accordingly, the court dismissed the complaint in its entirety, prompting this appeal byplaintiff.
Supreme Court improvidently dismissed plaintiff's Labor Law § 241 (6)claim against Glenman. Notably, "Labor Law § 241 (6), by its very terms,imposes a nondelegable duty of reasonable care upon owners and contractors toprovide reasonable and adequate protection and safety to persons employed in, orlawfully frequenting, all areas in which construction, excavation or demolition work isbeing performed" (Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 348 [1998][internal quotation marks and citations omitted]). "To establish a claim under Labor Law§ 241 (6), [a] plaintiff must allege that [the] defendant[ ] violated a rule orregulation promulgated by the Commissioner of Labor that sets forth a specific standardof conduct" (St. Louis v Townof N. Elba, 70 AD3d 1250, 1250 [2010], affd 16 NY3d 411 [2011][citation omitted]; see Oakes vWal-Mart Real Estate Bus. Trust, 99 AD3d 31, 40 [2012]). "[O]nce it has beenalleged that a concrete specification of [such a rule or regulation] has been violated, it isfor the jury to determine whether the negligence of some party to, or participant in, theconstruction project caused plaintiff's injury" (Rizzuto v L.A. Wenger Contr. Co.,91 NY2d at 350).
Here, plaintiff relies upon 12 NYCRR 23-1.7 (e) (1), which provides: "(e) Trippingand other hazards. (1) Passageways. All passageways shall be kept free fromaccumulations of dirt and debris and from any other obstructions or conditions whichcould cause tripping. Sharp projections which could cut or puncture any person shall beremoved or covered." [*3]This regulation appropriately"mandat[es] compliance with concrete specifications" as required to state a claim underLabor Law § 241 (6) (Ross v Curtis-Palmer Hydro-Elec. Co., 81NY2d 494, 505 [1993]; seeMugavero v Windows By Hart, Inc., 69 AD3d 694, 695 [2010]; Farina vPlaza Constr. Co., 238 AD2d 158, 159 [1997]; Colucci v Equitable Life Assur.Socy. of U.S., 218 AD2d 513, 514-515 [1995]). In fact, 12 NYCRR 23-1.7 (e) (1)fits squarely within the largely unchallenged version of events described by plaintiff,namely that, while utilizing a passageway commonly used by workers engaged in therenovation project, he encountered an "obstruction[ ] or condition[ ]" in the form of aprojecting piece of sharp metal that cut his work boot and caused him to trip and sustaininjuries.
Nevertheless, Supreme Court searched the record and dismissed this cause of actionbased solely on the absence of definitive proof from plaintiff, the injured worker, as tothe precise person or entity responsible for creating the alleged tripping hazard.Specifically, the court, citing the Court of Appeals' decision in Rizzuto v L.A.Wenger Contr. Co. (supra), held that there can be no liability, as a matter oflaw, "unless and until it is shown that another party's negligence caused the injuries."Under the circumstances, the court's holding was too restrictive and prematurely decidedissues more appropriately left for a jury's consideration.
Significantly, the Court of Appeals, in Rizzuto, held that a Labor Law§ 241 (6) claim invoking an otherwise appropriate regulation wasimproperly dismissed despite the absence of any notice of the hazard to the generalcontractor where a jury could "have rationally concluded that someone within the chainof the construction project was negligent in not exercising reasonable care, or actingwithin a reasonable time, to prevent or remediate the hazard, and that [the] plaintiff'sslipping, falling and subsequent injury proximately resulted from such negligence"(Rizzuto v L.A. Wenger Contr. Co., 91 NY2d at 351 [emphasis added]). Asimilar situation is presented here, inasmuch as plaintiff has presented a scenariowhereby a jury could find that "someone" working on the renovation project could haveaffixed the protruding metal piece and/or failed to timely discover and remove thehazard. Notably, Glenman's president acknowledged that any discovery of such acondition would have prompted his employees to block off the area and remove theobstruction. In any event, as the Court of Appeals made clear, "once it has been allegedthat a concrete specification of the [Industrial] Code has been violated, it is for the jury todetermine whether the negligence of some party to, or participant in, the constructionproject caused [the] plaintiff's injury" (id. at 350). Inasmuch as it appears that thisissue was improperly decided as a matter of law, dismissal of that claim wasinappropriate.
As for plaintiff's argument that he was entitled to partial summary judgment on thisclaim because the alleged violation of 12 NYCRR 23-1.7 (e) (1) is "not conclusive on thequestion of negligence" (Rizzuto v L.A. Wenger Contr. Co., 91 NY2d at 351),Supreme Court properly denied plaintiff's motion. "[T]he issue of whether the. . . operation or conduct at the worksite was reasonable and adequate underthe particular circumstances" is more appropriately left for resolution by a jury(id.).
Turning to Supreme Court's dismissal of plaintiff's Labor Law § 200claims and, as amplified by the bill of particulars, related common-law negligence claimsagainst defendants, we find no basis for reversal. With respect to the statutory claimagainst Model Iron, "[t]hat statute is directed at owners and general contractors, and therare case where a subcontractor may be liable under the statute must include a showingthat the subcontractor had authority and control over [the] plaintiff's work" (Frisbee v 156 R.R. Ave. Corp.,85 AD3d 1258, 1259 [2011] [internal quotation marks and citation omitted]; seeRyder v Mount Loretto Nursing Home, 290 [*4]AD2d 892, 894 [2002]). Given the absence of any proofthat Model Iron, the metal subcontractor, had any authority or control over plaintiff'swork as a tile installer, such claim must fail (see Oakes v Wal-Mart Real Estate Bus.Trust, 99 AD3d at 42; Bellv Bengomo Realty, Inc., 36 AD3d 479, 481 [2007]). As for any claims againstModel Iron sounding in common-law negligence, "[w]here a subcontractor creates acondition on the premises that results in an unreasonable risk of harm and that conditionis a proximate cause of a worker's injuries, then common-law negligence may beimplicated" (Frisbee v 156 R.R. Ave. Corp., 85 AD3d at 1259; see Ryder vMount Loretto Nursing Home, 290 AD2d at 894). Here, however, plaintiff failed toproduce any nonspeculative proof in opposition to Model Iron's motion that would defeatthat party's showing that it was not assigned any work on stairwell B and did not weld themetal piece that allegedly caused plaintiff to fall.
Supreme Court properly dismissed the Labor Law § 200 andcommon-law negligence claims against Glenman. To the extent that they are premisedupon the failure to correct negligent acts by Model Iron, given the absence of anyevidence that Glenman "had a direct hand, through either control or supervision, in theinjury-producing work" (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d at504), plaintiff's negligence and Labor Law § 200 claims must fail.Regarding the argument that Glenman was negligent in performing its generalsupervisory function of inspecting the work site and ameliorating, through its hiredlaborers, a "premises defect," this claim was also properly dismissed under thecircumstances herein, given the absence of proof that Glenman had actual or constructivenotice of the alleged hazardous condition (compare Oakes v Wal-Mart Real EstateBus. Trust, 99 AD3d at 41).
All remaining contentions not specifically addressed above have been examined andfound to be unpersuasive.
Stein, J.P., Rose and Egan Jr., JJ., concur. Ordered that the order is modified, on thelaw, without costs, by reversing so much thereof as, sua sponte, granted partial summaryjudgment dismissing the Labor Law § 241 (6) cause of action againstdefendant Glenman Industrial & Commercial Contractor Corporation, and, as somodified, affirmed.