Opinion
27933/03.
Decided July 25, 2008.
Defendants move seeking an Order granting them summary judgment over and against plaintiffs. Defendants aver that insofar as plaintiff alleges violations of the Labor Law, defendants are entitled to summary judgment as a matter of law. Specifically, defendants avert that insofar as plaintiffs allege a violation of Labor Law § 200, defendants are entitled to summary judgment insofar as they neither supervised nor controlled plaintiff's work, nor did they have notice of the condition alleged to have caused plaintiff's accident. Defendant's aver that insofar as plaintiffs allege a violation of Labor Law § 240(1), defendants are entitled to summary judgment because plaintiff CHRISTOPHER DIPALMA's (Christopher) accident involved no gravity related risk. Lastly, defendants aver that insofar as plaintiffs allege a violation of Labor Law § 241(6), defendants are entitled to summary judgment inasmuch as the statutory predicates, which plaintiffs allege defendants violated, are either not concrete, not applicable to the circumstances of Christopher's accident, or not predicates upon which a cause of action pursuant to Labor Law § 241(6) can be premised. Plaintiffs oppose the instant motion only to the extent that defendants seek summary judgment with regard to Labor Law §§ 200 and 241(6) . With regard to plaintiffs' Labor Law § 200 claim, plaintiffs aver that summary judgment must be denied insofar as questions of fact exist with regard to whether defendants maintained an unreasonably dangerous work environment and had constructive notice of condition which allegedly caused Christopher's accident. With regard to plaintiffs Labor Law § 241(6) claim, plaintiff's aver that summary judgment must be denied insofar as there are questions of fact with regard to whether defendants violated Industrial Code §§ 23-1.7(e)(2) and 23-1.30.
To the extent that plaintiffs only oppose the portion defendants' motion seeking summary judgment to the extent that defendants seek summary judgment over plaintiffs' Labor Law §§ 200 and 241(6) claims, the Court concludes that plaintiff concedes that their Labor Law § 240(1) claim is not viable. Thus, defendants' motion with regard to said claim is granted without opposition and the Court will not endeavor to determine or even discuss whether said cause of action is viable or whether defendants established entitlement to summary judgment with regard to said claim. To the extent that plaintiffs only oppose defendants' motion seeking summary judgment with regard to their Labor Law § 241(6) claim by arguing that defendants' violated Industrial Code §§ 23-1.7(e)(2) and 23-1.30, the Court shall not endeavor to discuss or determine whether the other statutory predicates alleged by plaintiffs within their pleadings establish a violation of Labor Law § 241(6). In fact, with regard to Labor Law § 241(6), plaintiffs have in fact withdrawn all other statutory predicates with the exception of the two mentioned above.
For the reasons that follow hereinafter, defendants' motion is granted in part.
The instant action is for alleged personal injuries premised upon violations of Labor Law §§ 200, 240(1), and 241(6). The amended complaint alleges the following. On January 6, 2003, Christopher was injured while within premises known as the MTA Highbridge Maintenance Facility (HMF). The premises herein was owned by defendants METROPOLITAN TRANSPORTATION AUTHORITY (MTA) and METRO NORTH COMMUTER RAILROAD (Metro North). MTA and Metro North retained defendants SLATTERY SKANSKA (Slattery) and SLATTERY SKANSKA EDWARDS KELSEY D/B/A HIGHBRIDGE YARD CONSTRUCTOR (Constructor) as a general contractor for construction at the HMF. Constructor in turn hired non-party F B CONSTRUCTION (F B) to perform work at the HMF. Christopher was employed by F B. Defendants violated Labor Law §§ 200, 240(1), and 241(6). Defendants also violated 12 NYCRR §§ 23-1.7, 23-2.1, 23-1.30, and 23-4. Defendants also violated Article 1926 of OSHA. Plaintiff NIKKI JO DIPALMA (Nikki) asserts an derivative action for loss of services.
In support of the instant motion, defendants submit a copy of the pleadings in the instant action, discovery orders, and plaintiffs' Note of Issue.
Defendants submit an affidavit from Willie Cruz (Cruz), wherein he states, in pertinent part, as follows. On January 6, 2003, Cruz was employed by Slattery as an Assistant Superintendent at a worksite known as the HMF. On January 9, 2003, Cruz was working in a building referred to as the Car Maintenance Facility (CAF). The CAF contained two parallel concrete troughs, each of which was 900 feet long, 3.10 inches wide and 2 feet deep. Cruz reviewed several photographs depicting the CAF and submitted by defendants in support of the instant motion. Cruz states that said photographs are fair and accurate depictions of the conditions in the CAF on January 6, 2003. Cruz then proceeds to describe the photographs. According to Cruz, the first photograph depicts the inside of the CAF as it appeared on January 6, 2003. The second photograph depicts the interior of one of the troughs. Said trough has blue pedestals atop its walls and said pedestals were being affixed by ironworkers on January 6, 2003. Railroad tracks ran across and on top of the pedestals. The third photograph depicts concrete stairs leading into the troughs from the floor above. Each trough had several sets of concrete stairs leading into it, running down its 900 foot span, and spaced approximately 75 feet apart. The stairs were arranged in sets of two so that each set was directly across from another set in each trough. The fourth photograph depicts a set of concrete steps leafing into the trough flanked by yellow railing. Said railing according to Cruz did not exist on January 6, 2003. On January 6, 2003, the steps leading into the trough from the center floor, the floor between each of the troughs, were unobstructed and available to all workers. The stairs leading from the outer floor and into the troughs were temporarily covered because scissor lifts were being used on the outer floor. Movable wooden bridges and 4x4 pieces of wood were provided like those pictured in photograph one. By using said bridges and wood, workers could cross the troughs to access uncovered stairways. A-frame ladders like those pictured in photograph one were provided to workers on January 6, 2003, so that they can enter and exit the troughs. The CAF was flanked by windows on both sides as depicted in photograph one. Said windows were 25 feet by 15 feet and allowed the entry of natural light. Photograph one represents a fair and accurate depiction of the light emanating from the windows and into the CAF on January 6, 2003.
Defendants submit Cruz' deposition transcript, wherein he testified, in pertinent part, as follows. Back in January 2003, he was employed by Slattery as an assistant superintendent. Slattery was employed at the HMF and was constructing three buildings thereat, a maintenance facility and two platforms. Slattery had several employees on site, including 20 laborers, 20 assistant superintendents, and a project manager, a project engineer, a safety engineer, three field engineers, a time keeper and a superintendent. Besides Slattery and its employees, there were other contractors working at the site herein. Slattery was tasked with doing all the excavation, concrete work, and the installation of tracks. Slattery was responsible, through its assistant superintendents for the track installation, trenching and utility installation within the maintenance facility, and the overall maintenance of the facility. Slattery's safety engineer was on site daily and was tasked with adherence to site safety. Slattery through its superintendents and Cruz had the authority to stop work in the event of an unsafe condition. Slattery would conduct tool box safety meetings with Slattery personnel. Slattery was responsible for debris removal at the worksite. Cruz was personally tasked with the excavations for utilities installations and the placement of concrete. Cruz walked the worksite daily looking for unsafe conditions related to his work. The maintenance facility had two troughs running its length. The troughs were 900 feet long and about 2 feet deep. Pedestals were installed within the troughs and on top of the pedestals rails or tracks were laid. The track pedestals were installed by ironworkers not employed by Slattery and not under Slattery's supervision. Ironworkers gained access into and out of the troughs by several sets of concrete steps leading into the same. Some of the steps were covered by steel plates, because of scissor lifts operating in the area. Workers were supplied with platforms to cross over the troughs and had the option of removing the steel plates covering certain steps. Natural light came into the maintenance facility. Cruz filled out two accident reports regarding Christopher's accident, the first prepared in the ordinary course of business, but could not remember details regarding the same. With regard to a piece of wood alleged to have caused Christopher's accident, Cruz never saw the same. Christopher was employed by F B at the time of his accident.
Defendants submit Glenn Blackman's (Blackman) deposition transcript, wherein he testified, in pertinent part, as follows. On January 6, 2003, Blackman was employed by MTA and Metro North as a construction site representative. At the time he was working at the HMF, where there had been ongoing construction since September 2001. The project entailed the construction of a car appearance facility and a storage yard for railroad equipment. MTA and Metro North owned the facility herein. MTA and Metro North hired Slattery and Constructor to aide in the construction and they were hired as general contractors. Slattery and Constructor in turn hired other trades to aide in the construction and they coordinated those trades. Metro North or the MTA had no one else on site and did not have the power to stop the work. Unsafe conditions would be brought, upon discovery, to Slattery and Constructor's attention. MTA and Metro North also hired construction managers. Slattery, Constructor, and the Construction managers held safety meetings. General housekeeping was the responsibility of Slattery and Constructor. The car appearance facility contained two troughs, approximately 1000 feet long, 3 feet wide and 18-24 inches deep. The troughs were separated by a distance of 20 feet. The troughs would provide access to the underside of railroad equipment. F B employees were tasked with the installation of pedestals in the troughs over which rail would be laid. There were several sets of stairs for entry into the troughs. At times some of the steps leading into the troughs would be covered with plywood to prevent people from falling into the troughs. The plywood could be removed if anybody need to gain entry into the troughs. Ramps were also provided to allow access over the troughs. In January 2003 there was no permanent lighting within the building herein. There was temporary lighting and considerable light from the windows in the building. At times Slattery and Constructor had to cut the lights off. Hours after learning of Christopher's accident, Blackman reported to the location of the accident. He did not notice any wood thereat.
Defendants submit Christopher's 50-h transcript, wherein he testified, in pertinent part as follows. On January 6, 2003, Christopher was involved in an accident while employed for F B as an ironworker. At the time Christopher was working at an MTA building in the Bronx. Slattery was the general contractor and the construction entailed the erection of a building. The building had several entrances and several windows. Christopher was tasked with the installation of pedestals on top of which train tracks would be laid. Christopher's supervisor was Don Miller (Miller) an F B employee who would give Christopher his instructions. On the date herein sometime in the middle of the morning, Christopher was going to step into a 2 foot deep trough, when the permanent lights within the building were turned off. Christopher stepped into the trough and his foot made contact with an object therein causing him to fall. Christopher never saw the object he stepped on to prior to his fall. Christopher had seen debris, consisting of wood, concrete, bolts and nuts, in the trough prior to his fall. When the lights went out, Christopher could still see the top and bottom of the trough, insofar as there was light emanating from the various windows in the building. Prior to his fall Christopher would routinely step into the trough because stairs leading into the same were covered with plywood. Said plywood was placed over the stairs by the general contractor Slattery. No ladders were made available to Christopher prior to his accident. With regard to the debris in the trough, Christopher had previously complained to Miller about the same. Miller complained to Slattery regarding the debris. In the weeks prior to his accident, Christopher would see Slattery laborers clean the building herein.
Defendants submit Christopher's deposition transcript, wherein, he testified, in pertinent part, as follows. On January 6, 2003 at approximately 9AM,, he was involved in an accident while employed as an ironworker with F B. While employed by F B his duties entailed the installation of pillars, stairways and decking at an MTA facility, the HMF. Slattery was the general contractor on the project. Christopher reported to Miller, his foreman and George the assistant foreman, both of whom were F B employees. These individuals would tell Christopher what he would do each and every day. The HMF was a large, hangar-like building with several entrances. It was being constructed and when finished would serve as train repair facility. F B was hired to install pillars in two troughs. Tracks would ultimately be laid on top of the troughs. The HMF had two troughs running down its length. Said troughs were about 1000 yards long, 2 to 2.5 feet deep, and 3 feet wide. The pillars Christopher was installing would be placed on rods extending from the concrete in the troughs at a specified height. Generally, when F B employees were working in the troughs no other trades would work therein. Christopher never saw any other trades perform work in the troughs but knew that the electricians were performing work therein insofar as he would see equipment installed by the electricians in the trough. Christopher also observed laborers in the trough moving debris, such as insulation and 2X4s. Entry and exit into and out of the troughs would be accomplished by stepping into and out of the same. There were stairs that lead into the troughs, but the same were covered by plywood bolted to enable lifts to operate in the HMF. On January 6, 2003, Christopher was working with George and another F B employee. They were setting the height for the installation of pillars using nuts and other tools, such as a wrench, a transit, and a measuring stick. Christopher had installed about five or six pillars, each time exiting and reentering the trough. As he was preparing to enter the trough, the temporary lights running the length of the building lights went out, having been cut off by the electricians. He was told by Miller to continue working. At this point, there was light from the windows in the building. It wasn't pitch black and Christopher was able to see the person next to him . Christopher could see the trough and his foot landed on an object small enough to fit under his foot. Thereafter he fell. Prior to his fall he had observed dirt, wood, and concrete inside the trough. However, he had not seen any such items in the exact spot where he fell. Christopher does not know what it was he stepped on. Prior to his fall he had complained to Miller about the accumulation of debris at the HMF. He had observed Miller convey said complain to Cruz, an employee of Slattery. After his fall, he observed Cruz fill out an accident report.
Defendants submit an unsworn uncertified diagram for which no foundation is laid. Defendants also submit the four photographs whose foundation was laid by Cruz. The first photograph depicts the HMFand depicts the troughs therein. The windows depicted therein are numerous and run the length of the building. Ample light emanates from said windows. The second photograph depicts the inside of one of the troughs herein. There are rows of pedestals therein. The third 'photograph depicts a set of steps leading into the one of the troughs herein. The fourth photograph depicts several sets of stairs leading into the troughs herein.
Defendants submits a certified climatological report which evinces that on January 6, 2003, the sun rose at 7:20AM.
With their reply papers, defendant's submit evidence, namely an affidavit from an expert, which to the extent the same seeks to cure a defect in defendants' moving papers shall not be considered.
In opposition to the instant motion, plaintiff submits a host of unsworn and uncertified documents, for which no foundation is laid. Specifically plaintiff submits several accident reports and contracts/agreements.
Plaintiff submits an affidavit from George Owen's (George), who states, in pertinent part, as follows. On January 6. 2003, George was employed by F B as foreman. F B was working at a premises under construction known as the HMF. F B was hired by Slattery the general contractor for the project herein. F B was hired to install pedestals inside the HMF. The pedestals were being installed on the within troughs therein. Said troughs were about 1000 feet long and 2-2.5 feet deep. The troughs had several steps leading into them, but the same were covered on the date of Christopher's accident. Said stairs had been covered for the several weeks prior to Christopher's accident and as such the troughs were accessed by stepping into them. Christopher worked in George's crew and George was Christopher's foreman on the date herein. No other contractors performed work in the troughs when F B performed its work. However, other contractors did perform work in the troughs when F B was not working within the same. George would see the product of the electrician and plumber' work within the troughs. F B used nuts and bolts to perform its work. The electricians and plumbers used pipe, cable, and wood to perform their work. On January 6, 2003, Christopher had just finished installing pedestals in the trough and was standing outside the trough with George. Suddenly all the lights went out. While there where windows throughout the facility, it was significantly darker in the absence of light. Christopher stepped into the trough at a location within which he had not previously worked. George heard a scream and walked to over to its source. Christopher was on the floor in the trough stating that he had fallen due to a piece of wood in the trough. George saw a piece of wood like those used by the carpenters.
The Law and Standard on Summary Judgment
The proponent of a motion for summary judgment carries the initial burden of tendering sufficient admissible evidence to demonstrate the absence of a material issue of fact as a matter of law. Alvarez v. Prospect Hospital, 68 NY2d 320 (1986); Zuckerman v. City of New York, 49 NY2d 557 (1980). There is no requirement that the proof for said motion be submitted in affidavit form, rather, the requirement is that the evidence proffered be in admissible form. Muniz v. Bacchus, 282 AD2d 387 (1st Dept. 2001). Accordingly, affirmations from attorneys having no personal knowledge of the facts are not evidence and offer nothing more than hearsay. Reuben Israelson v. Sidney Rubin, 20 AD2d 668 (2nd Dept. 1964); Erin Federico v. City of Mechanicville, 141 AD2d 1002 (3rd Dept. 1988); Harry L. Cohen v. Genesee Supply Co., 7 AD2d 886 (4th Dept. 1959). Consequently any such submissions are inadmissible and cannot be the basis for creating an issue of fact sufficient to preclude summary judgment. Johnson v. Phillips, 261 AD2d 269 (1st Dept. 1999); Rue v. Stokes, 191 AD2d 245 (1st Dept. 1993). Similarly, unsworn accident reports are inadmissible and cannot be considered by the court. Id.; Reed v. New York Coty Transit Authority, 299 AD2d 330 (2nd Dept. 2002); Hegy v. Coller, 262 AD2d 606 (2nd Dept. 1999).
Once movant meets his initial burden, the burden shifts to the opponent, who must then produce sufficient evidence, also in admissible form, to establish the existence of a triable issue of fact. Zuckerman v. City of New York, 49 NY2d 557 (1980). The burden, however, always remains where it began, with the movant on the issue. Hence, "if the evidence on the issue is evenly balanced, the party that bears the burden must loose." Director Office of Workers Compensation Programs v. Greenwich Collieris, 512 U.S. 267 (1994); 300 East 34th Street Co. V. Habeeb, 248 AD2d 50 (1st Dept. 1997).
It is worth noting, however, that while the movant's burden to proffer evidence in admissible form is absolute, the opponent's burden is not. On this issue the Court of Appeals has stated
[t]o obtain summary judgment it is necessary that the movant establish his cause of action or defense sufficiently to warrant the court as a matter of law in directing summary judgment' in his favor, and he must do so by the tender of evidentiary proof in admissible form. On the other hand, to defeat a motion for summary judgment the opposing party must show facts sufficient to require a trial of any issue of fact.' Normally if the opponent is to succeed in defeating a summary judgment motion, he too, must make his showing by producing evidentiary proof in admissible form. The rule with respect to defeating a motion for summary judgment, however, is more flexible, for the opposing party, as contrasted with the movant, may be permitted to demonstrate acceptable excuse for his failure to meet strict requirement of tender in admissible form. Whether the excuse offered will be acceptable must depend on the circumstances in the particular case. (Internal citations omitted).
Friends of Animals v. Associated Fur Manufacturers, Inc., 46 NY2d 1065, 1067-1068 (1979). Accordingly, generally, the opponent of a motion for summary judgment seeking to have court consider inadmissible evidence must proffer an excuse for proffering the inadmissible evidence in inadmissible form. Johnson v. Phillips, 261 AD2d 269 (1st Dept. 1999). Other cases seem to hold that otherwise inadmissable evidence may be used to defeat summary judgment if the inadmissable evidence would be admissible at trial and raises questions of fact. . Phillips v. Joseph Kantor Company, 31 NY2d 307 (1972); Buckley v. J.A. Jones/GMO , 38 AD3d 461 (1st Dept. 2007); Levbarg v. City of New York, 282 AD2d 239 (1st Dept. 2001); Eitner v. 119 West 71st Street Owners Corp., 253 AD2d 641 (1st Dept. 1998). In Phllips, for example, found that evidence submitted in inadmissible form in opposition to summary judgment might be admissible at trial and if so would support plaintiff's cause of action. Phillips v. Joseph Kantor Company, 31 NY2d 307 (1972). The Court thus denied summary judgment to the defendant. Id. Similarly, in Zuckerman v. City of New York, 49 NY2d 557 (1980), the court discounted an attorney affirmation as speculative, in that said attorney lacked no personal knowledge of the facts he was proffering. Id. The court, however, in recognizing that inadmissible evidence could be used to preclude summary judgment, stated that if said attorney had personal knowledge of a witnesses testimony and that witnesses' testimony created an issue fact, said affirmation would suffice to defeat summary judgment. Id.; See, Indig v. Finkelstein, 23 NY2d 728 (1968); Graso v. Angerami, 79 NY2d 813 (1991). In Buckley, a careful reading evinces that the court found that plaintiff raised an issue of fact sufficient to preclude summary judgment when he submitted an accident report containing hearsay. Buckley v. J.A. Jones/GMO , 38 AD3d 461 (1st Dept. 2007). The report was submitted in admissible form as it was undisputed that the same was created in the ordinary course of business. Id. The court held insofar as said report would be admissible at trial as a business record under CPLR § 4518, said report contained an inconsistent statement, and said report evinced a witness with knowledge, the same raised an issue of fact sufficient to preclude summary judgment. This Court reads the cases just cited as standing for the proposition that hearsay within documents submitted in inadmissable form, if admissible at trial, is sufficient to raise an issue of fact sufficient to preclude summary judgment. This Court still requires that submissions in opposition for summary judgment be submitted in admissible form of that evidence's inadmissibility be excused.
When deciding a summary judgment motion the role of the Court is to make determinations as to the existence of bonafide issues of fact and not to delve into or resolve issues of credibility. As the Court stated in Knepka v. Talman, 278 AD2d 811 (4th Dept. 2000):
Supreme Court erred in resolving issues of credibility in granting defendants' motion for summary judgment dismissing the complaint. Any inconsistencies between the deposition testimony of plaintiffs and their affidavits submitted in opposition to the motion present issues for trial. (Internal citations omitted).
See also, Yaziciyan v. Blancato, 267 AD2d 152 (1st Dept. 1999); Perez v. Bronx Park Associates, 285 AD2d 402 (1st Dept. 2001); Glick Dullock v. Tri-Pac Export Corp., 22 NY2d 439 (1968); Singh v. Kolcaj Realty Corp., 283 AD2d 350 (1st Dept. 2001).
Accordingly, the Court's function when determining a motion for summary judgment is issue finding and not issue determination. Sillman v. Twentieth Century Fox Film Corp., 3 NY2d 395 (1957). Lastly, because summary judgment is such a drastic remedy, it should never be granted when there is any doubt as to the existence of a triable issue of fact. Rotuba Extruders v. Ceppos, 46 NY2d 223 (1978). When the existence of an issue of fact is even debatable, summary judgment should be denied. Stone v. Goodson, 8 NY2d 167 (1960). It is well established that inadmissable hearsay is insufficient to raise any triable issues of fact sufficient to defeat summary judgment. Schwartz v. Nevatel Communications Corp., 778 NY2d 308 (2nd Dept. 2004); Zuckerman v. City of New York, 49 NY2d 557 (1980).
Self serving affidavits, meaning those which contradict previous deposition testimony, will not be considered by the Court in deciding summary judgment and cannot raise a triable issue of fact sufficient to defeat summary judgment. Lupinsky v. Windham Construction Corp., 293 AD2d 317 (1st Dept 2002); Joe v. Orbit Industries, Ltd., 269 AD2d 121 (1st Dept. 2000); Kistoo v. City of New York, 195 AD2d 403 (1st Dept. 1993).
A defendant seeking summary judgment must establish prima facie entitlement to such relief as a matter of law by affirmatively, with evidence demonstrating the merits of the claim or defense, and not merely by pointing to gaps in plaintiff's proof. Mondello v. DiStefano , 16 AD3d 637 (2nd Dept. 2005); Peskin v. New York City Transit Authority, 304 AD2d 634 (2nd Dept. 2003).
Labor Law § 200Labor Law § 200 reads:
All places to which this chapter applies shall be so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein or lawfully frequenting such places. All machinery, equipment, and devices in such places shall be so placed, operated, guarded, and lighted as to provide reasonable and adequate protection to all such persons. The board may make rules to carry into effect the provisions of this section.
Thus, Labor Law § 200 codifies an owner and general contractor's common law duty to provide workers with a safe place to work. Rizzutto v. Wagner Contracting Co., 91 NY2d 343 (1998); Comes v. New York State electric and Gas Corporation, 82 NY2d 876 (1993); Russin v. Picciano, 54 NY2d 311 (1981); Allen v. Cloutier Construction Corp., 44 NY2d 290 (1978). The lynchpin for purposes of liability pursuant to Labor Law § 200 is supervision and control, in other words the party against whom liability is sough must "have the authority to control the activity bringing about the injury to enable it to avoid or correct an unsafe condition." Rizzutto v. Wagner Contracting Co., 91 NY2d 343, 352 (1998).
Owners and general contractors, will be found liable for accidents resulting from unsafe conditions on the owner's land, if the owner either exercised supervision and control over the activity causing the injury, caused or created the dangerous condition, or had actual or constructive notice of the unsafe condition. Ross v. Curtis-Palmer Hydro-Electric Company, 81 NY2d 494 (1993); Murphy v. Columbia University , 4 AD3d 200 (1st Dept. 2004); Higgins v. 1790 Broadway Associates, 261 AD2d 223 (1st Dept 1999); Cuartas v. Kourkoumelis, 265 AD2d 293 (2nd Dept. 2005); Paladino v. Society of New York Hospitals, 307 AD2d 343 (2nd Dept. 2003); Maggi v. Innovax Methods Group, Co., Inc., 250 AD2d 576 (2nd Dept. 1998). However, where the defect or dangerous condition arises from a sub contractor's methods and the owner or general contractor exercises no control or supervision over the activity at issue, the owner and general contractor will not be liable under Labor Law § 200, even if the same had notice of the sub-contractor's defective methods or the dangerous condition alleged. Comes v. New York State electric and Gas Corporation, 82 NY2d 876 (1993); Allen v. Cloutier Construction Corp., 44 NY2d 290 (1978); Dalanna v. City of New York, 308 AD2d 400 (1st Dept. 2003). Stated differently, with respect to the sub-contractor's improper methods or the use of defective materials, liability is only established when the owner has maintained the ability to control the work giving rise to the injury or has actually exercised supervision or control of the same. Allen v. Cloutier Construction Corp., 44 NY2d 290 (1978).
For liability to be imposed upon an owner or general contractor, more than general control over the work giving rise to the injury must be established the retention of the right to generally supervise the work, to stop the contractor's work if a safety violation is noted, or to ensure compliance with safety regulations, does not amount to the supervision and control of the work site necessary to impose liability on an owner or general contractor pursuant to Labor Law § 200.
Dennis v. City of New York, 394 AD2d 611, 612 (2nd Dept. 2003); Brown v. New York City Economic Development Corporation, 234 AD2d 33 (1st Dept. 1996) (Court held that oversight responsibility as opposed to specific work of any subcontractor was insufficient to impose liability for a Labor Law § 200 upon the owner.); Carty v. Port Authority of New York and New Jersey, 32 AD3d 732 (1st Dept. 2006).
Labor Law § 241(6)
Labor Law § 241states that:
All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, when constructing or demolishing buildings or doing any excavating in connection therewith, shall comply with the following requirements:
For purposes of Labor Law § 241(6), those requirements are found in subsection (6), which mandates that:
All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places. The commissioner may make rules to carry into effect the provisions of this subdivision, and the owners and contractors and their agents for such work, except owners of one and two-family dwellings who contract for but do not direct or control the work, shall comply therewith.
Thus, Labor Law § 241(6) imposes a duty of reasonable care upon owners, contractors and their agents. Owners, contractors and their agents must provide reasonable and adequate protection to those employed in all areas where construction, excavation, or demolition is being conducted. Rizzutto v. Wagner Contracting Co., 91 NY2d 343 (1998); Ross v. Curtis-Palmer Hydro-Electric Company, 81 NY2d 494 (1993). The duty imposed by the this section of the labor law is nondelegable. This means that an owner, contractor or agent can be held liable for the breach of the statute absent supervision or control of the particular work site at issue. Rizzutto v. Wagner Contracting Co., 91 NY2d 343 (1998); Ross v. Curtis-Palmer Hydro-Electric Company, 81 NY2d 494 (1993). A violation of Labor Law § 241(6) necessarily requires a failure to comply or adhere to external rules and statutes. Id. Thus, a violation of this provision of the labor law requires ". . . reference to outside sources to determine the standard by which a defendant's conduct must be measured.'" Id. at 503, quoting, Zimmer v. Chemmung County Performing Arts, Inc., 65 NY2d 513, 521-523 (1985).
In order to establish a violation of Labor Law § 241(6), the underlying statute or rule that the violation of Labor Law § 241(6) is premised upon, must be one that mandates concrete specifications rather than a general safety standard. Rizzutto v. Wagner Contracting Co., 91 NY2d 343 (1998); Ross v. Curtis-Palmer Hydro-Electric Company, 81 NY2d 494 (1993). The rule alleged to have been violated, must be applicable to the facts of the action therein. Buckley v. Columbia Grammar and Preparatory , 44 AD3d 263 (1st Dept. 2007).
While a violation of Labor Law § 241(6) subjects an owner, contractor aor agent to absolute liability, it does so only to the extent that the duty imposed by the Labor Law § 241(6) cannot be delegated to a third-party. Long v. Forest-Fehlhaber, 55 NY2d 154 (1982). In other words, absolute liability simply means, as discussed above, that an owner contractor or agent can be liable for breach of Labor law § 241(6) absent control or supervision of the work site. Allen v. Cloutier Construction Corp., 44 NY2d 290 (1978). Based on the theory of vicarious liability, an owner, contractor or agent can be vicariously liable for the breach of Labor Law § 241(6) without a showing of active negligence by the person vicariously liable. Kane v. Peter Couundorous, 293 AD2d 309 (1st Dept. 2002). Unlike a violation of Labor Law § 240(1) which establishes conclusive negligence, a violation of Labor Law § 241(6) does not conclusively establish negligence and instead is "merely some evidence of negligence which the jury may consider on the question of defendant's negligence.'" Rizzutto v. Wagner Contracting Co., 91 NY2d 343, 349 (1998), quoting, Teller v. Prospect Hgts. Hosp., 280 NY 456, 460 (1939); Long v. Forest-Fehlhaber, 55 NY2d 154 (1982). Thus, a party may not be liable under Labor Law § 241(6), even if it is established that said party failed to comply with an applicable predicate statute. Unlike Labor Law § 240(1), contributory and comparative negligence are valid defenses to any allegation pursuant to Labor Law § 241(6). Id.
While an owner and general contractor are statutorily liable for a violation of Labor Law § 241(6), an agent, i.e, a subcontractor, is liable for a violation of Labor Law § 241(6), When he the same has been delegated supervision or control of a the accident causing activity. Russin v. Picciano, 54 NY2d 311 (1981); Serpe v. Eyris Production, Inc., 243 AD2d 375 (1st Dept. 1997); Everitt v. Nozkowski, 285 A.D.2d 442 (2nd Dept. 2001). Said subcontractor's or agent's liability under Labor Law § 240(1) is limited to a breach of Labor Law § 241(6) with respect to those areas and activities and control actually delegated to agent or contractor. Id. In other words, a subcontractor cannot be liable for a breach of the labor law in an area of the work site or for an activity falling outside the ambit of the control or supervision delegated. Id. Stated another way, a subcontractor is only liable under Labor Law § 241(6), if it established that said subcontractor either controlled or had the ability to control or supervise the work giving rise to the accident. Id.
For purposes of the labor law, a lessee of a particular property is deemed an owner and thus subject to liability for a breach of the labor law. Kane v. Peter Coundorous, 293 AD2d 309 (1st Dept. 2002).
Prima facie entitlement to summary judgment, is established when plaintiff demonstrates that Labor Law § 241(6) has been violated because defendant has violated a rule or regulation promulgated by the Commissioner of Labor, which mandates compliance with concrete specifications. ICF Kaiser Enfineers Corp v. Charles Shutrump Sons Co., 227 AD2d 959 (4th Dept. 1996). Further, it is axiomatic that plaintiff must also establish that any breach of the labor law was the proximate cause of the injuries alleged. Kane v. Peter Coundorous, 293 AD2d 309 (1st Dept. 2002).
Violations of the Occupational Safety and Health Administration (OSHA) regulations, do not form the basis for liability under Labor Law § 241(6). Schiulaz v. Arnell Construction Corp., 261 AD2d 247 (1st Dept. 1999); Pellescki v. City of Rochester, 198 AD2d 762 (4th Dept. 1993); Bender v. TBT Operating Corporation, 186 Misc 2d 394 (Supreme Court New York County 2000).
At one time the First Department held that violations of the Industrial Code, raised for the first time in opposition to a motion for summary judgment is acceptable, provided that the allegations in plaintiff's pleadings evince a violation of the sections asserted. Murtha v. Integral Construction Corp., 253 AD2d 637 (1st Dept. 1998). However, since that time the First Department has refused to consider any violations of the Industrial Code which are not pled within plaintiff's bill of particulars. Reilly v. Newireen Associates, 303 AD2d 214 (1st Dept. 2003 (In granting defendant's motion for summary judgment, court dismissed plaintiff's Labor Law § 241(6) claim holding that plaintiff failed to plead any Industrial Code violations in his bill of particulars.) Obviously, Industrial Code violations raised for the first time within reply papers cannot be considered and thus do not preclude summary judgment. Schiulaz v. Arnell Construction Corp., 261 AD2d 247 (1st Dept. 1999).
12 NYCRR § 23-1.7(e)(2)12 NYCRR § 23-1.7(e) is titled "Tripping and other hazzards." 12 NYCRR § 23-1.7(e)(2) states
(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 and from sharp projections insofar as may be consistent with the work being performed.
It is well settled that for purposes of Labor Law § 241(6), 12 NYCRR § 23-1.7(e)(2) is a concrete regulation, which when applicable is a sufficient predicate for purposes of liability. Singh v. Manor , 23 AD3d 249 (1st Dept. 2005); Murphy v. Columbia University , 4 AD3d 200 (1st Dept. 2004); DeSimone v. Structure Tone, Inc., 306 AD2d 90 (1st Dept. 2003); Canning v. Barney's New York, 289 AD2d 32 (1st Dept. 2001); Bradshaw v. 845 U.N. Limited Partnership , 2 AD3d 191 (1st Dept. 2003); Laboda v. VJV Development Corp., 296 AD2d 441 (2nd Dept. 2002); Lampert v. Federated Department Stores, Inc., 202 NY Slip Op. 50283(U) (Appellate Term, First Dept. 2002). As made plain by the language of the regulation, the same does not apply unless the evidence demonstrates that the plaintiff tripped while within his/her work area and that he/she tripped on tools debris, or sharp projections. Waitkus v. Metropolitan Housing Partners, 2008 NY Slip Op. 852017 (1st Dept. 2008). Items such as wood, sheetrock and snow/ice are debris and scattered materials within the meaning of the statute. Maza v. University Avenue Development Corp., 13 AD3d 65 (1st Dept. 2004).
It has been made abundantly clear that 12 NYCRR 23-1.7(e)(2) is not violated and thus neither is Labor Law § 241(6), when the debris or tripping instrumentality alleged is caused by the work being performed and is an integral part of the work being performed by the plaintiff at the time of his/hr accident. Tighe v. Hennegan Construction Co., Inc. , 48 AD3d 201 (1st Dept. 2008); Salinas v. Barney Skanska Construction Co. , 2 AD3d 619 (2nd Dept. 2003); Harvey v. Morse Diesel International, Inc., 299 AD2d 451 (2nd Dept. 2002); Alvia v. Teman Electrical Contracting, Inc., 287 AD2d 421 (2nd Dept. 2001); Sharrow v. Dick Corporation, 233 A.D2d 858 (4th Dept. 1996).
12 NYCRR § 23-1.3012 NYCRR § 23-1.30 is titled "Illumination" and states
Illumination sufficient for safe working conditions shall be provided wherever persons are required to work or pass in construction, demolition and excavation operations, but in no case shall such illumination be less than 10 foot candles in any area where persons are required to work nor less than five foot candles in any passageway, stairway, landing or similar area where persons are required to pass.
For purposes of Labor Law § 241(6), 12 NYCRR § 23-1.30 is a concrete and specific regulation, whose violation can serve as a predicate for a liability. Murphy v. Columbia University , 4 AD3d 200 (1st Dept. 2004); Giglio v. St. Joseph Intercommunity Hospital, 309 AD2d 1266 (4th Dept. 2003); Herman v. St. John's Episcopal Hospital, 242 AD2d 316 (2nd Dept. 1997). In order to establish a violation of 12 NYCRR § 23-1.30, a plaintiff must offer more than vague evidence evincing that the lighting in the are where he had his accident was dark, poor, or a little dark. Carty v. Port Authority of New York and New Jersey, 32 AD3d 732 (1st Dept. 2006); Cahill v. Triborough Bridge Tunnel Authority , 31 AD3d 347 (1st Dept. 2006); Herman v. St. John's Episcopal Hospital, 242 AD2d 316 (2nd Dept. 1997). Instead, the evidence proffered to demonstrate inadequate lighting falling below the standard prescribed by the regulation must be of the kind which conclusively establishes an absence of light. In Hernandez, the court held that evidence that the lighting conditions were poor coupled with evidence indicating that the only light was 150 to 200 feet away was sufficient to raise an issue of fact as to whether 12 NYCRR § 23-1.30 was violated. Hernandez v. Columbus Centre, LLC, 2008 NY Slip Op. 03976 (1st Dept. 2008). In Murphy, evidence that the area where the accident occurred was pitch black and that light was nonexistent was sufficient to establish a violation of 12 NYCRR § 23-1.30. Murphy v. Columbia University , 4 AD3d 200 (1st Dept. 2004). In Verel, evidence that the area where plaintiff fell was dark enough so that plaintiff could not read a newspaper was sufficient to establish a violation of 12 NYCRR § 23-1.30. Verel v. Ferguson Electric Construction, 41 AD3d 1154 (4th Dept. 2007).
Reply Papers
Generally arguments proffered for the first time within reply papers shall not be considered by the court. Wal-Mart Stores, Inc., v. United States Fidelity and Guaranty Company, 11 AD3d 300 (1st Dept. 2004); Johnston v. Continental Broker-Dealer Corp., 287 AD2d 546 (1st Dept. 2001); Dannasch v. Bifulco, 184 AD2d 415 (1st Dept. 1992). This is because the purpose of reply papers is to address the arguments made by the opponent in response to movant's motion and the opponent generally has no opportunity to respond to any newly raised arguments absent leave of court. Id. However, a review of the cases indicates that, the prohibition is meant to address cases where the reply papers seek to introduce new evidence to cure deficiencies in the moving papers. Migdol v. City of New York, 291 AD2d 201 (1st Dept. 2002) (Court rejected affidavit submitted with reply papers since it sought to remedy basis deficiencies in motion rather than respond to arguments made by opponent.); Lumbermens Mutual Casualty Company v. Morse Shoe Company, 218 AD2d 624 (1st Dept. 1995) (Court rejected defendant's reply papers which included two new documents provided to support a new assertion not previously made in initial motion.); Ritt v. Lenox Hill Hospital, 182 AD2d 560 (1st Dept. 1992) (Court rejected defendant's reply papers which contained a medical affidavit designed to cure the conclusory affidavit submitted with its initial motion). In Sanford v. 27-29 W. 181st Street Association Inc., 300 AD2d 250 (1st Dept. 2002), the court held that an affidavit submitted with movant's reply mandated consideration because it was not meant to cure a deficiency in the initial motion. The Court also reiterated that the law regarding reply papers excludes only those replies where the proponent of summary judgment seeks to "remedy a fundamental deficiency in the moving papers by submitting evidentiary material with the reply." Id. at 251.
Discussion
Defendants' motion seeking summary judgment over and against plaintiffs, with regard to their Labor Law § 240(1) claim, is hereby granted on default and without opposition. As discussed above in footnote No. 1, plaintiffs do not oppose defendants motion with regard to said claim. The Court thus finds that plaintiffs have thus conceded that said claim is not viable and that defendants are thus entitled to summary judgment with regard to the same. Therefore, on grounds of said concession that portion of defendants' motion is granted and the Court shall not endeavor to discuss or determine whether said cause of action is viable or whether defendants' are entitled to summary judgment with regard to the same.
Defendants motion seeking summary judgment over and against plaintiffs with respect to their Labor Law § 200 claim is hereby granted. The evidence tendered by defendants establishes that Christopher's accident occurred due to a condition arising from the a subcontractor's methods and that the moving defendants neither supervised or controlled Christopher's work. Owners and general contractors, will be found liable for accidents resulting from unsafe conditions on the owner's land, if the owner either exercised supervision and control over the activity causing the injury, caused or created the dangerous condition, or had actual or constructive notice of the unsafe condition. However, where the defect or dangerous condition arises from a sub contractor's methods and the owner or general contractor exercises no control or supervision over the activity at issue, the owner and general contractor will not be liable under Labor Law § 200, even if the same had notice of the sub-contractor's defective methods or the dangerous condition alleged.
The evidence tendered by defendants establishes prima facie entilement to summary judgment. Christopher testified that his accident occurred while he was employed by F B at a new construction project at an MTA facility known as the HMF. Christopher was an ironworker employed by F B and Slattery was the general contractor for the instant project. Christopher's job entailed the installation of pedestals within troughs at the premises herein. He was supervised by F B foreman Miller and F B assistant foreman George. He reported to these individuals at the beginning of his workday and they would tell him what to do. The accident herein occurred when, after the lights went out, he was told by Miller to get back to work. Christopher tripped and fell as he stepped on to an unidentified object within the trough into which he stepped. Christopher attributes his accident to an absence of lights and an accumulation of debris, namely wood, nuts, bolts, and concrete within the trough into which he stepped. Christopher testified that other trades worked in the trough when F B were not working therein. Christopher never saw the object which on to which he stepped prior to or after his fall. Cruz, assistant superintendent with Slattery testified that Slattery was responsible for debris removal from the site herein. Slattery, according to Cruz, did not supervise Christopher's work. Blackman, construction representative with Metro North and the MTA, testified that the MTA and Metro North owned the HMF. They hired Slattery and Constructor as general contractor to build the facility herein. Slattery and Constructor in turn hired all trades to perform work thereat. Slattery was responsible for site maintenance and the MTA and Metro North had no authority to stop the work herein. Based on the foregoing, it is clear that none of the defendants supervised or controlled plaintiff's work. Further, it is also clear that plaintiff tripped and fell on a condition, namely debris, created or caused by the work of the subcontractors on the project. The absence of lights, likewise was a condition arising from the work of the subcontractors herein. As such, the condition herein arose from the manner of the work performed and liability, as per Labor Law § 200 against an owner or general contractor, can only be found if it is established that defendants as owners and general contractors, supervised or controlled plaintiff's work. The evidence tendered by the defendants negates supervision and control and as such, defendants establish prima facie entitlement to summary judgment with regard to the Labor Law § 200 claim. To the extent that it can be argued that this condition was not one created by the methods employed subcontractors and was instead a condition existing upon the premises, which upon notice, defendants were responsible for abating, defendants nonetheless establish prima facie entitlement to summary judgment as notice is negated by Christopher's testimony that he never saw the object prior to or after his fall. This testimony not only negates constructive notice, but also negates actual notice since no notice can exist as to a condition which Christopher never saw. Thus, defendants establish prima facie entitlement to summary judgment with regard to plaintiff's Labor Law § 200 claim.With respect to the Labor Law § 200 claim, plaintiffs' opposition, consisting of only one piece of admissible evidence, fails to raise an issue of fact sufficient to preclude summary judgment. Contrary to plaintiffs' assertion, most of the evidence submitted was submitted in inadmissible form and no excuse was proffered for the failure to tender the same in admissible form. A such, with the exception of George's affidavit, the rest of the evidence submitted was not considered. On this issue, plaintiff's reliance upon Buckley v. J.A. Jones/GMO , 38 AD3d 461 (1st Dept. 2007) is misguided. In that case, the court held that hearsay in a properly admitted document raised an issue of fact sufficient to preclude summary judgment. The court additionally held that the document itself, whose admissibility as a business record was unchallenged, would also be admissible at trial and so would the hearsay, as the same constituted a prior inconsistent statement. In this case, the Court need not decide whether the hearsay in any of the documents submitted is sufficient to raise issues of fact by virtue of potential admissibility at trail insofar as none of the evidence tendered is accompanied by a proper foundation and no excuse for the same is tendered. With regard to the accident reports submitted by plaintiffs, plaintiffs are misguided in thinking that a foundation for the same is laid by virtue of deposition testimony submitted by defendants in support of the instant motion. Plaintiff's failure to tender evidence laying the foundation with their opposition renders the reports inadmissible.
Turning to the issue of whether George's affidavit raises an issue of fact sufficient to preclude summary judgment with regard to the Labor Law § 200 claim, the Court finds that it does not. George, within his affidavit, merely reiterates what Christopher testified to, adding that electricians and plumbers on the project herein used pipe, cable, and wood to perform their work. George also adds that after Christopher's accident, he saw wood in the trough like the wood used by the carpenters. To the extent that George's affidavit fails to establish that defendants in anyway directed or controlled Christopher's work, it fails to raise an issue of fact sufficient to preclude summary judgment with regard to the Labor Law § 200 claim. In fact, George's affidavit serves to bolster that fact that the condition herein arose from the methods of the subcontractors at the project herein, i.e., the wood like that used by the carpenters. George's affidavit is also bereft of any evidence regarding notice to the defendants about the condition which caused Christopher's accident. Accordingly, defendants' motion seeking summary judgment over plaintiffs Labor Law § 200 claim is hereby granted.
Defendants' motion seeking summary judgment over and against plaintiffs with regard to the Labor Law § 241(6) claim is hereby denied. The Court notes that plaintiffs have withdrawn any claim that Labor Law § 241(6) was violated insofar as 12 NYCRR §§ 23-2.1, 23-4, and Article 1926 of OSHA were violated. Thus, the Labor Law § 241(6) claim is now solely premised upon violations of 12 NYCRR §§ 23-1.7(e)(2) and 23-1.30. With regard to the Labor Law § 241(6) claim, premised upon the remaining predicates, defendants have failed to establish prima facie entitlement to summary judgment. In order to establish a violation of Labor Law § 241(6), the underlying statute or rule that the violation of Labor Law § 241(6) is premised upon, must be one that mandates concrete specifications rather than a general safety standard. Further, the rule alleged to have been violated must be applicable to the facts of the action therein. It is thus axiomatic that in order to merit summary judgment, a defendant must establish one of the following, that the predicate statute or rule is not concrete and is instead general and specific, that the statute or rule while concrete is not applicable to the facts at issue, or that defendant did not violate the rule or statute alleged.
In this case, plaintiffs allege that defendants violated Labor Law § 241(6) insofar as they violated 12 NYCRR §§ 23-1.7(e)(2) and 23-1.30. Defendants never argue that the regulations just cited are not concrete or are not applicable to the facts herein. Instead, defendants argue that they never violated the regulations alleged. With regard to 12 NYCRR § 23-1.7(e)(2), defendants aver that the same was not violated insofar as Christopher tripped and fell over a condition created by him and constituting an integral part of his work. With regard to 12 NYCRR § 23-1.30, defendants aver that the same was not violated insofar as the lighting provided to Christopher was always that which is required by regulation.
12 NYCRR § 23-1.7(e)(2) requires that work areas be kept "free from accumulations of dirt and debris and from scattered tools and materials and from sharp projections insofar as may be consistent with the work being performed." It is well settled that for purposes of Labor Law § 241(6), 12 NYCRR § 23-1.7(e)(2) is a concrete regulation, which when applicable is a sufficient predicate for purposes of liability. Items such as wood, sheetrock and snow/ice are debris and scattered materials within the meaning of the statute. 12 NYCRR 23-1.7(e)(2) is not violated and thus neither is Labor Law § 241(6), when the debris or tripping instrumentality alleged is caused by the work being performed and is an integral part of the work being performed by the plaintiff at the time of his/hr accident. In the case the very evidence tendered by defendants, namely Christopher's deposition testimony evinces that he tripped on debris, not all of which was created by him or constituted an integral pert of his work. As discussed above, Christopher testified that although he did not know what caused him to fall, the area within which he fell was laden with debris, such wood, nuts, bolts, and concrete. Christopher also testified that there were other trades such as the electricians who worked within the troughs when F B was not working thereat. Thus, the very evidence submitted by defendants establishes that 12 NYCRR § 23-1.7(e)(2) was violated insofar as Christopher's worksite was not kept free of debris. Moreover, the very evidence submitted by defendants fails to establish that the debris upon which Christopher tripped was an integral part of his work. Contrary to defendants' contention, the evidence does not conclusively establish that Christopher tripped due to a nut, said item being integral to his work. Instead, the evidence establishes that Christopher tripped on unidentified debris, some of which was the product of his work and some of which was the product of the other trades working at the site herein. Accordingly, defendants fail to establish that they did not violated 12 NYCRR § 23-1.7(e)(2) and have thus failed establish prima facie entitlement to summary with regard to plaintiffs' Labor Law § 241(6) claim insofar as premised upon a violation of the aforementioned regulation.
For purposes of Labor Law § 241(6), 12 NYCRR § 23-1.30 is a concrete and specific regulation, whose violation can serve as a predicate for a liability. 12 NYCRR § 23-1.30 mandates that proper lighting be provided in work areas and that the same not be "less than 10 foot candles in any area where persons are required to work." In this case the very same evidence tendered by defendant fails to establish that the lighting provided to Christopher at the time of his accident was sufficient to meet the standard imposed by statute. Preliminarily, the Court notes that the only evidence considered with regard to this issue is that submitted with defendants' initial moving papers. Thus, while defendants tendered expert evidence on this issue with their reply papers, the Court could not consider the same. The purpose of reply papers is to address the arguments tendered by the opposition and not to raise new arguments or tender evidence to cure deficiencies in the moving papers. In this case, as will be discussed, the evidence tendered with defendants' moving papers was wholly insufficient to establish that 12 NYCRR § 23-1.30 had not ben violated, thus prompting defendants to cure said deficiency with new evidence tendered with their reply. Said evidence was not and could not be considered. Turning defendant's evidence with respect to the lighting conditions as the site herein and particularly the natural light available at all times. Christopher testified that when he had his accident, all electric lights had been shut off. At that point, while he conceded that light emanated from the numerous windows within the premises herein, he stated that he could not see the bottom of the trough. Cruz described the premises herein as flanked by windows on both sides allowing the entry of natural light. Climatological reports submitted by defendants evince that the sun had risen at the time of Christopher's accident. At least one of the photographs submitted by defendants evince that the premises herein had ample lighting. Notwithstanding the foregoing, defendants fail to establish that the light available to at the premises was commensurate with or exceeded the standard imposed by regulation. The regulation calls for a measure of light of at least 10 candles and none of the evidence submitted, save the inadmissible expert affidavit, established that the light available was at least 10 candles. The Court has no idea what 10 candles looks like and it would be improper for the Court to speculate that the light emanating from windows and depicted in photograph comports to the requisite standard. Accordingly, defendants fail to establish that they did not violate 12 NYCRR § 23-1.30 and have thus failed establish prima facie entitlement to summary with regard to plaintiffs' Labor Law § 241(6) claim insofar as premised upon a violation of the aforementioned regulation.
Insofar as defendants' failed to establish prima facie entitlement to summary judgment with regard to the Labor Law § 241(6) claim, the Court need not address the sufficiency of plaintiffs' opposition with regard to the same. It is hereby
ORDERED that plaintiffs Labor Law § 200 and 240(1) claim be hereby dismissed with prejudice. It is further
ORDERED that defendants serve a copy of this Order with Notice of Entry upon plaintiffs within thirty (30) days hereof.
This constitutes this Court's decision and Order.