Opinion
42762009.
Decided June 15, 2011.
Plaintiff, alleges that he sustained injuries on November 25, 2008, in the course of his employment with third-party defendant/second third-party defendant Millenium, when, while sweeping construction debris off a stairway between the 20th and 21st floors, which floors were under renovation, in a building located at 757 Third Avenue, New York, New York, he slipped and fell on a threaded rod. The building is owned by defendant/second third-party plaintiff 757 and managed by defendant/second third-party plaintiff RFR. Defendant/third-party plaintiff Corporate Suites is the tenant of the 20th and 21st floors of the building. Defendant/third-party plaintiff Corporate Suites hired third-party defendant/second third-party defendant Millenium to clean the job site.
Plaintiff testified as follows: He is a member of Local 79, the Laborers International Union, which is for general laborers. His general duty as a laborer is to clean up the job site after the trades. At the time of the subject incident, he was working for Millenium and was the only laborer, as well as the shop steward, for the subject renovation project. When he arrived at the site, he reported to Hans, a supervisor for Corporate Suites. While working at the site, he cleaned up with a broom and shovel, dumped containers, took down duct work and performed other tasks for the trades on the job. In addition, he cleaned the floors, cleaned each office, and picked up and threw away construction debris to maintain a safe environment for the job site. He also swept the subject stairway every day.
On the morning of the incident, he reported to Hans, who instructed him to scrape, protect and clean the floors and to clean up the debris. Just before the incident, he picked up construction debris. At the time of the incident, pursuant to Hans' instructions, plaintiff was sweeping the subject stairway to prepare it for carpeting. The stairway was unfinished, that is, its walls were sheet rock and its stairs were bare concrete. He worked from the top of the subject stairway on the 21st floor, which he had accessed by elevator. While holding a broom in both hands, plaintiff walked backwards down the stairs one step at a time, pushing the dirt and construction debris as he went down the stairs. The accident occurred on or about the eighth step from the bottom. He went to put the back of his foot down on the next step and something under his foot caused him to trip and fall down the stairs. After plaintiff fell, he realized that he had tripped on a threaded rod, which he described as construction debris, which he would have picked up and thrown out if he had seen it.
The witness for defendants/second third-party plaintiffs 757 and RFR, Morris Weisenberg, the building's property manager employed by RFR, testified that, on the date of plaintiff's accident, defendant/third-party plaintiff Corporate Suites was renovating its leased space on the 20th and 21st floors; that Hans Kullesaid was defendant/third-party plaintiff Corporate Suites' onsite supervisor for the renovation; and that Corporate Suites hired its own laborers for the renovation. Mr. Weisenberg also testified that the subject stairway is a convenience stairway, which means that it goes from one portion of the tenant's premises to another and serves only that tenant's purposes. Mr. Weisenberg further stated that while he occasionally walked through the job site, he did not use the subject stairway and instead used the building staircase or elevator. He further testified that he saw the subject stairway in its raw uncarpeted concrete form and when it was finished with carpeting. Mr. Weisenberg did not recall ever seeing any debris on the stairway.
Plaintiff, in his complaint, interposes claims for negligence and violations of Labor Law §§ 200, 240(1) and § 241(6).
The insurer of third-party defendant/second third-party defendant Millenium has taken over the defense of defendants/second third-party plaintiffs 757 and RFR, and defendant/third-party plaintiff Corporate Suites.
A similarly named party, defendant Corporate Suites, Inc., previously moved for summary judgment, which was granted in an order of this court dated December 9, 2010.
The proponent of a summary judgment motion has the burden of submitting evidence in admissible form demonstrating the absence of any triable issues of fact and establishing an entitlement to judgment as a matter of law ( see, Giuffrida v Citibank Corp., 100 NY2d 72; see also Ayotte v Gervasio, 81 NY2d 1062; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851). Once the requisite showing has been made, the burden shifts to the opposing party to produce admissible evidence sufficient to establish the existence of a triable issue of fact ( see, Giuffrida v Citibank Corp., supra; see also Alvarez v Prospect Hosp., 68 NY2d 320; Winegrad v New York Univ. Med. Ctr., supra).
Labor Law § 200 is a "codification of the common-law duty imposed upon an owner or general contractor to provide construction site workers with a safe place to work" ( Comes v New York State Elec. Gas Corp., 82 NY2d 876, 877). It follows that the party charged with responsibility must have the authority to control the activity that caused the injury, or have actual or constructive notice of the alleged unsafe condition to be liable under common-law negligence and/or Labor Law § 200 ( see, Comes v New York State Elec. Gas Corp., supra; see also Duarte v State of New York , 57 AD3d 715 ; Dennis v City of New York, 304 AD2d 611).
Although defendants/second third-party plaintiffs 757 and RFR, defendant/third-party plaintiff Corporate Suites and third-party defendant/second third-party defendant Millenium failed to establish that defendant/third-party plaintiff Corporate Suites did not exercise supervisory control over the work performed and that it and defendants/second third-party plaintiffs 757 and RFR did not have actual notice of the alleged hazardous condition of the threaded pipe on the stairway, the maintenance of this stairway and the remedying of this condition was precisely the work that plaintiff was hired to perform. The common law duty of defendants/second third-party plaintiffs 757 and RFR and defendant /third-party plaintiff Corporate Suites does not extend to the hazards which are part of and inherent in the very work which was to be performed by plaintiff ( see, Gasper v Ford Motor Co., 13 NY2d 104, [1963]; see also Hansen v Trustees of the Methodist Episcopal Church of Glen Cove , 51 AD3d 725 ; Decker v C S Wholesale Grocers, Inc. , 13 AD3d 573 ; Cannon v State of New York, 232 AD2d 444). As such, dismissal of plaintiff's Labor Law § 200 and common law negligence claims against these parties is warranted.
Accordingly, that branch of the cross-motion of defendants/second third-party plaintiffs 757 and RFR, defendant/third-party plaintiff Corporate Suites and third-party defendant/second third-party defendant Millenium for summary judgment dismissing plaintiff's Labor Law § 200 and common-law negligence causes of action and any and all related cross-claims is granted.
The portion of the cross-motion of defendants/second third-party plaintiffs 757 and RFR, defendant/third-party plaintiff Corporate Suites and third-party defendant/second third-party defendant Millenium for summary judgment dismissing plaintiff's Labor Law § 240(1) cause of action and any and all related cross claims is also granted as the staircase upon which plaintiff was injured was a normal appurtenance to the building and was not designed as a safety device to protect plaintiff from an elevation-related risk ( see, Parsuram v I.T.C. Bargain Stores, Inc. , 16 AD3d 471; see also Norton v Park Plaza Owners Corp., 263 AD2d 531; Williams v City of Albany, 245 AD2d 916).
Labor Law § 241(6) imposes a non-delegable duty of reasonable care upon owners, contractors and their agents, regardless of their control or supervision of the work site, to provide reasonable and adequate protection and safety to all persons employed in, or lawfully frequenting, all areas in which construction, excavation or demolition work is being performed ( see, Rizzuto v L.A. Wenger Contracting Co., Inc., 91 NY2d 343; see also Ross v Curtis-Palmer Hydro-Electric Co., 81 NY2d 494; Miranda v City of New York, 281 AD2d 403). In order to support a Labor Law § 241(6) cause of action, a plaintiff must allege a New York Industrial Code violation ( 12 NYCRR 23-1.1 et seq.) that is both concrete and applicable given the circumstances surrounding the accident ( see, Rizzuto v L.A. Wenger Contracting Co., Inc., supra).
Plaintiff, in his cross-motion and answering papers, alleges that the defendants violated OSHA regulations and the following sections of Rule 23 of the Industrial Code: 23-2.1(a); 23-1.30; 23-1.7(b)(1); 23-2.7; and 23-1.7(e). However, the alleged violations of OSHA cannot support a Labor Law § 241(6) claim ( see, Greenwood v Shearson, Lehman Hutton, 238 AD2d 311; see also Ciraolo v Melville Court Assocs., 221 AD2d 582; Vernieri v Empire Realty Co., 219 AD2d 593). However, although section 23-2.1(a) of the Industrial Code, which concerns "Storage of materials or equipment", is specific enough to support a Labor Law § 241(6) cause of action ( see. Rosado v Briarwoods Farm, Inc. , 19 AD3d 396 ), it does not apply to the facts of this case. Section 23-1.30 of the Industrial Code, which pertains to illumination of work areas, is likewise inapplicable because plaintiff's vague testimony that "there was no kind of lights on the staircase" is "insufficient to create an inference that the amount of lighting fell below the specific statutory standard" ( Cahill v Triborough Bridge Tunnel Auth. , 31 AD3d 347 , 349). In addition, under the facts as alleged, including plaintiff's walking backwards down the stairs while sweeping, the alleged violation of this regulation was not a proximate cause of plaintiff's injuries.
Section 23-1.7(b)(1), which concerns "Hazardous openings"is also inapplicable to this case since the stairway from which plaintiff fell did not constitute a hole or hazardous opening ( see, Rookwood v Hyde Park Owners Corp. , 48 AD3d 779; see also Godoy v Baisley Library Corp. , 40 AD3d 920 ; Garlow v Chappaqua Cent. School Dist. , 38 AD3d 712).
Section 23-2.7, which deals with stair requirements in the construction of buildings, is inapplicable because it concerns the construction of "temporary" rather than "permanent" stairs. In addition, 23-2.7(e), which requires protective railings on stairways, is inapplicable because the lack of a safety railing was not the proximate cause of plaintiff's injuries. Plaintiff testified that he was holding the broom with both hands when he tripped and tumbled down the stairway. Thus, the lack of a safety railing did not cause plaintiff's fall.
Sections 23-1.7(e)(1) and (2) pertain to "Tripping and other hazards" and provide in pertinent part:
"(1) Passageways. All passageways shall be kept free from accumulations of dirt and debris and from any other obstructions or conditions which could cause tripping . . .
(2) Working Areas. The parts of floors, platforms and similar areas where persons work or pass shall be kept free from accumulations of dirt and debris and from scattered tools and materials . . . insofar as may be consistent with the work being performed."
( 12 NYCRR 23-1.7[e][1], [2]).
It is undisputed that the subject stairway on which plaintiff fell was both a passageway and part of his work area. Cleaning up dirt and debris, however, was an integral part of the work plaintiff was performing ( see, Appelbaum v 100 Church L.L.C. , 6 AD3d 310 ; see also Alvia v Teman Elec. Contr., Inc., 287 AD2d 421.) Consequently, sections 23-1.7(e)(1) and (2) of the Industrial Code, although sufficiently specific ( see Jicheng Liu v Sanford Tower Condominium, Inc. , 35 AD3d 378 ), here, do not support a cause of action under Labor Law § 241 (6).
Accordingly, the branch of the cross motion of defendants/second third-party plaintiffs 757 and RFR, defendant/third-party plaintiff Corporate Suites and third-party defendant/second third-party defendant Millenium for summary judgment dismissing plaintiff's Labor Law § 241(6) cause of action and any and all related cross claims is granted.
As the instant complaint has now been dismissed in its entirety, plaintiff's motion for summary judgment is denied as moot.