| Doto v Astoria Energy II, LLC |
| 2015 NY Slip Op 04605 [129 AD3d 660] |
| June 3, 2015 |
| Appellate Division, Second Department |
[*1]
| Victor Doto, Appellant, v Astoria Energy II,LLC, et al., Defendants/Third-Party Plaintiffs-Respondents. Newtron Heat Trace, LLC,Third-Party Defendant-Respondent. |
Gropper Law Group, PLLC, New York, N.Y. (Joshua Gropper and David deAndrade of counsel), for appellant.
Martyn, Toher, Martyn & Rossi, Mineola, N.Y. (Frank P. Toher of counsel), fordefendants/third-party plaintiffs-respondents.
Marks, O'Neill, O'Brien, Doherty & Kelly, P.C., Elmsford, N.Y. (Danielle H.Garten-Koch of counsel), for third-party defendant-respondent.
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 (Taylor, J.),dated July 8, 2013, as denied his motion for summary judgment on the issue of liabilityon the cause of action alleging a violation of Labor Law § 240 (1), andgranted that branch of the defendants' cross motion which was for summary judgmentdismissing the complaint.
Ordered that the order is modified, on the law, (1) by deleting the provision thereofdenying the plaintiff's motion for summary judgment on the issue of liability on the causeof action alleging a violation of Labor Law § 240 (1), and substitutingtherefor a provision granting that motion, and (2) by deleting the provision thereofgranting those branches of the defendants' cross motion which were for summaryjudgment dismissing the causes of action alleging common-law negligence, violations ofLabor Law §§ 200 and 240 (1), and so much of the cause of actionalleging a violation of Labor Law § 241 (6) as was predicated on an allegedviolation of 12 NYCRR 23-1.7 (f), and substituting therefor a provision denying thosebranches of the cross motion; as so modified, the order is affirmed insofar as appealedfrom, with one bill of costs to the plaintiff payable by the respondents appearingseparately and filing separate briefs.
The plaintiff allegedly sustained injuries when he fell while climbing over a railingof a permanent platform at a power plant, which was under construction and owned bythe defendant Astoria Energy II, LLC (hereinafter Astoria). The plaintiff's employer, thethird-party defendant, Newtron Heat Trace, LLC (hereinafter Newtron), had been hiredto install electric heat tracing for the construction project. The plaintiff commenced thisaction against Astoria, as well as the general contractor, the defendant SNC-LavalinConstructors, Inc. (hereinafter SNC), and a scaffolding company hired by Astoria, thedefendant Peterson Industrial Scaffolding, Inc. (hereinafter Peterson), allegingcommon-law negligence and violations of Labor Law §§ 200, 240 (1)and 241 (6). Subsequently, the plaintiff moved for summary judgment on the issue ofliability on the cause of action alleging a violation of Labor Law § 240 (1),and the defendants cross-moved for summary judgment dismissing thecomplaint.
[*2] According to the plaintiff'sdeposition testimony and affidavit, he had been assigned to work on the permanentplatform, which was three or four stories above the ground, but had not received anyinstructions on how to access the platform. The plaintiff stated that the only route he wasaware of required him to climb up a scaffolding ladder near the platform, step onto ascaffolding gate that provided access to a narrow board next to the platform but not tothe platform itself, and then climb from the gate onto and over the3
The ladder, the gate, and the board were part of a temporary scaffolding erected byPeterson for the construction project. SNC's site safety manager testified at his depositionthat the scaffolding on the large construction site was "like a maze." While there "wereseveral options available" to access the plaintiff's work area, the plaintiff "went the mostdirect route." The safety manager also testified that many construction workers climbedthe scaffolding instead of using ladders, that the workers on the site could climb overrailings to access platforms as long as they were secured with a harness and lanyards, andthat the gate in the area of the plaintiff's accident should have been modified to provideaccess to the platform. Although the plaintiff wore a harness with two six-foot lanyardsat the time of the accident, the lanyards did not prevent his fall from the railing onto theplatform.
Labor Law § 240 (1) imposes absolute liability on owners, contractors,and their agents when their "failure to provide proper protection to workers employed ona construction site proximately causes injury to a worker" (Wilinski v 334 E. 92nd Hous. Dev.Fund Corp., 18 NY3d 1, 7 [2011] [internal quotation marks omitted];see Labor Law § 240 [1]; Nicometi v Vineyards of Fredonia, LLC, 25 NY3d 90, 96[2015]). However, liability may "be imposed under the statute only where the 'plaintiff'sinjuries were the direct consequence of a failure to provide adequate protection against arisk arising from a physically significant elevation differential' " (Nicometi vVineyards of Fredonia, LLC, 25 NY3d at 97, quoting Runner v New York Stock Exch.,Inc., 13 NY3d 599, 603 [2009]; see Wicks v Leemilt's Petroleum, Inc., 103 AD3d 793,794-795 [2013]; Jimenez v RCChurch of Epiphany, 85 AD3d 974, 975 [2011]).
Contrary to the contention of the defendants and Newtron, Labor Law§ 240 (1) applies to the facts of this case, even though the plaintiff fell onlyfrom the railing to the platform (see Abreo v URS Greiner Woodward Clyde, 60 AD3d 878[2009]; Mann v Meridian Ctr.Assoc., LLC, 17 AD3d 1143, 1144-1145 [2005]; see also Gatto v Clifton ParkSenior Living, LLC, 90 AD3d 1387, 1387 [2011]; De Jara v 44-14Newtown Rd. Apt. Corp., 307 AD2d 948, 950 [2003]). The plaintiff established hisprima facie entitlement to judgment as a matter of law on the issue of liability on hiscause of action alleging a violation of Labor Law § 240 (1) by submittingevidence demonstrating that the defendants failed to provide him with an adequate safetydevice, and that such failure was a proximate cause of his injuries (see Olea v Overlook TowersCorp., 106 AD3d 431, 431-432 [2013]; Wicks v Leemilt's Petroleum,Inc., 103 AD3d at 795; Susko v 337 Greenwich LLC, 103 AD3d 434, 435 [2013];Bin Gu v Palm Beach Tan,Inc., 81 AD3d 867, 868 [2011]).
In opposition, the defendants failed to raise a triable issue of fact as to whether theplaintiff's actions in using the scaffolding and climbing over the railing, rather than usinga permanent ladder that was approximately 25 to 30 feet from the scaffolding ladder, toaccess the permanent platform was the sole proximate cause of his injuries. A plaintiff'snegligence is the sole proximate cause of his or her injuries "when the safety devices thatplaintiff alleges were absent were readily available at the work site, albeit not in theimmediate vicinity of the accident, and plaintiff knew he [or she] was expected to usethem but for no good reason chose not to do so, causing an accident" (Gallagher v New York Post, 14NY3d 83, 88 [2010]; seePrzyborowski v A&M Cook, LLC, 120 AD3d 651, 653-654 [2014]). Here,there is no evidence that anyone instructed the plaintiff that he was "expected to" use thepermanent ladder rather than the scaffolding (Gallagher v New York Post, 14NY3d at 88; see Przyborowski v A&M Cook, LLC, 120 AD3d at 654; Nacewicz v Roman CatholicChurch of the Holy Cross, 105 AD3d 402, 403-404 [2013]; Kin v State of New York, 101AD3d 1606, 1608 [2012]).
Accordingly, the Supreme Court should have granted the plaintiff's motion forsummary judgment on the issue of liability on the cause of action alleging a violation ofLabor Law § 240 (1), and denied that branch of the defendants' crossmotion which was for summary judgment dismissing that cause of action.
[*3] The Supreme Court also should have denied thatbranch of the defendants' cross motion which was for summary judgment dismissing thecauses of action alleging common-law negligence and a violation of Labor Law§ 200. Labor Law § 200 is a codification of the common-lawduty of owners, contractors, and their agents to provide workers with a safe place towork (see Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 352 [1998]; Annicaro v Corporate Suites,Inc., 98 AD3d 542, 544 [2012]; Guclu v 900 Eighth Ave. Condominium, LLC, 81 AD3d592, 593 [2011]). Where, as here, a plaintiff contends that an accident occurredbecause a dangerous condition existed on the premises where the work was beingundertaken, an owner moving for summary judgment dismissing causes of actionalleging common-law negligence and a violation of Labor Law § 200 mustmake "a prima facie showing that it neither created the dangerous condition nor hadactual or constructive notice of [it]" (Costa v Sterling Equip., Inc., 123 AD3d 649, 650 [2014];see Navarro v City of NewYork, 75 AD3d 590, 592 [2010]; Chowdhury v Rodriguez, 57 AD3d 121, 128, 131-132[2008]; cf. Ortega v Puccia,57 AD3d 54, 61-63 [2008]). A contractor may be liable in common-law negligenceand under Labor Law § 200 in cases involving an allegedly dangerouspremises condition "only if it had control over the work site and either created thedangerous condition or had actual or constructive notice of it" (Martinez v City of New York,73 AD3d 993, 998 [2010]; see Schultz v Hi-Tech Constr. & Mgt. Servs., Inc., 69AD3d 701, 701-702 [2010]). Moreover, an entity is not deemed to be an agent of anowner or contractor for purposes of Labor Law § 200 if it "lacked sufficientcontrol over the premises and the activity that brought about the injury" (Navarro vCity of New York, 75 AD3d at 592; see Dos Santos v STV Engrs., Inc., 8 AD3d 223, 224-225[2004]).
Here, the defendants failed to establish their prima facie entitlement to judgment as amatter of law dismissing the causes of action alleging common-law negligence and aviolation of Labor Law § 200 (see Costa v Sterling Equip., Inc., 123AD3d at 650; Schultz v Hi-Tech Constr. & Mgt. Servs., Inc., 69 AD3d at702). Thus, the Supreme Court should have denied that branch of the defendants' crossmotion which was for summary judgment dismissing those causes of action, regardless ofthe sufficiency of the opposition papers (see Winegrad v New York Univ. Med.Ctr., 64 NY2d 851, 853 [1985]; Costa v Sterling Equip., Inc., 123 AD3d at650).
Furthermore, the Supreme Court improperly granted that branch of the defendants'cross motion which was for summary judgment dismissing so much of the cause ofaction alleging a violation of Labor Law § 241 (6) as was predicated uponan alleged violation of 12 NYCRR 23-1.7 (f). The plaintiff alleged that the defendantsviolated 12 NYCRR 23-1.7 (f) for the first time in his motion. Although a plaintiffasserting a Labor Law § 241 (6) cause of action must allege a violation of aspecific and concrete provision of the Industrial Code (see Ross v Curtis-PalmerHydro-Elec. Co., 81 NY2d 494, 503 [1993]), the failure to identify the codeprovision in the complaint or bill of particulars is not fatal to such a cause of action(see Przyborowski v A&M Cook, LLC, 120 AD3d at 654). Here, theplaintiff's belated allegation that the defendants violated 12 NYCRR 23-1.7 (f) involvedno new factual allegations, raised no new theories of liability, and caused no prejudice tothe defendants (see Przyborowski v A&M Cook, LLC, 120 AD3d at 654; Klimowicz v Powell Cove Assoc.,LLC, 111 AD3d 605, 606-607 [2013]; Ramirez v Metropolitan Transp. Auth., 106 AD3d 799, 800[2013]). Moreover, 12 NYCRR 23-1.7 (f) sets forth a specific, rather than general, safetystandard and is sufficient to support a Labor Law § 241 (6) cause of action(see Baker v City ofBuffalo, 90 AD3d 1684, 1685 [2011]; Intelisano v Sam Greco Constr., Inc., 68 AD3d 1321, 1323[2009]; Miano v Skyline NewHomes Corp., 37 AD3d 563, 565 [2007]). In support of their cross motion, thedefendants did not establish, prima facie, either that 12 NYCRR 23-1.7 (f) wasinapplicable to the facts of this case, or that the alleged violation of the provision was nota proximate cause of the plaintiff's injuries (see Baker v City of Buffalo, 90AD3d at 1685; Harris vHueber-Breuer Constr. Co., Inc., 67 AD3d 1351, 1353 [2009]; Miano vSkyline New Homes Corp., 37 AD3d at 565). Accordingly, the Supreme Courtshould have denied that branch of the defendants' cross motion which was for summaryjudgment dismissing so much of the cause of action alleging a violation of Labor Law§ 241 (6) as was predicated upon an alleged violation of that provision,without regard to the sufficiency of the opposition papers (see Winegrad v New YorkUniv. Med. Ctr., 64 NY2d at 853).
However, the Supreme Court properly granted that branch of the defendants' crossmotion which was for summary judgment dismissing so much of the cause of actionalleging a violation of Labor Law § 241 (6) as was predicated upon allegedviolations of 12 NYCRR 23-1.7 (e) (1) (see O'Sullivan v IDI Constr. Co., Inc., 7 NY3d 805, 806[2006]; DeLiso v State of NewYork, 69 AD3d 786, 786 [2010]) and 12 NYCRR 23-5.1 (f) and (h) (seeKlimowicz v Powell Cove Assoc., LLC, 111 [*4]AD3d at 607; Allan v DHL Express [USA], Inc., 99 AD3d 828, 831[2012]).
Newtron's remaining contention is without merit. Mastro, J.P., Sgroi, Cohen andDuffy, JJ., concur. [Prior Case History: 2013 NY Slip Op 31857(U).]