DOUGHERTY v. QUEENS BALLPARK CO., LLC

Full title: DARREN DOUGHERTY and CHRISTIAN DOUGHERTY, Plaintiffs, v. QUEENS BALLPARK…

Court: Supreme Court of the State of New York, New York County

Date published: Feb 8, 2011

2011 N.Y. Slip Op. 30353 (N.Y. Sup. Ct. 2011)

2011 N.Y. Slip Op. 50334

Opinion

114984/08.

February 8, 2011.

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] JOAN MADDEN, J.

In this action to recover damages for the injuries allegedly sustained by plaintiff Darren Dougherty ("Dougherty") as the result of a workplace accident, defendants Queens Ballpark Company, LLC ("Queens Ballpark") and Hunt-Bovis, a joint venture, Bovis Lend Lease LMB, Inc. and Hunt Construction Group, Inc. ("Hunt-Bovis") move for summary judgment dismissing the complaint against them. Plaintiffs oppose the motion to the extent that defendants seek to dismiss the claims under Labor Law § 241(6) against both defendants and the Labor Law § 200 and common law negligence claims as against Hunt-Bovis and withdraw the Labor Law § 240(1) claims against both Queens Ballpark and Hunt-Bovis, and the Labor Law § 200 claim and common law negligence claims against Queens Ballpark.

BACKGROUND

Dougherty was employed as a journeymen iron worker by non-party Vision Enterprises a/k/a American Industries ("Vision") in connection with the construction of the new Mets Stadium ("the Project") commonly referred to as Citifield, in Queens, New York ("the Stadium"), a property owned by Queens Ballpark. Hunt-Bovis was the general contractor/construction manager on the Project.

Dougherty alleges that he was injured on October 24, 2008, when he tripped over a large piece of loose wooden plywood on the ground when he was walking back to the job site after taking a coffee break. According to Dougherty he left the job site to purchase a coffee from a coffee truck in the parking lot on the Roosevelt Avenue side of the Stadium (Dougherty Dep. at 59, 62, 66-69). The accident occurred when Dougherty was walking back to the job site "through a passageway" leading to a temporary stairs near an area where the outside elevators or dumpster are generally kept (Id., at 40, 62, 68). Dougherty testified that the area where the accident occurred was full of garbage and debris and that the condition was present for a long enough time that a man made passageway was made through the garbage and debris (Id., at 78). However, Dougherty testified that he was unaware of any complaints made regarding the specific area where the accident occurred and did not know how long the plywood was there before he fell over it who placed the plywood in the area. (Id., at 78, 94).

Stephen Colbrook ("Colbrook"), the Assistant Safety Manager and Fire Warden for Hunt-Bovis, made rounds daily "to check for unsafe conditions" (Colbrook Dep. at 10-11). He testified that he did not interact with anyone from Vision. (Id, at 17). According to Colbrook, Hunt-Bovis had approximately 12-14 laborers on the Project who were responsible for cleaning the site and that he had the authority to cordon off an unsafe area if it was full of debris but that he never had to (Id, at 17-19, 22). Colbrook testified that he never received complaints about debris on the Project and was not aware of any such complaint (Id, at 23-24). He also testified that on the accident date he performed a safety walk through of the area where Dougherty fell and that he did not recall observing any debris in the area or loose wood or plywood (Id., at 38-39).

Defendants now move for summary judgment, arguing that the Industrial Code violations asserted by plaintiffs are either insufficiently specific to provide a basis for a Labor Law § 241(6) or are inapplicable to the facts of the case. As for the Labor Law § 200 and common law negligence claims, defendants argue that Hunt-Bovis cannot be held liable as it did not control or supervise Doughtery's work. In addition, defendants argue that Hunt-Bovis did not create the condition or have any notice of it, noting that Dougherty testified that he was unaware of any prior complaints and did not know who placed the plywood in the area of the fall. Defendants also note that Cobrook testified that although he walked through the Project site on the date of the accident he did not remember observing an plywood or debris in the area of the accident.

Plaintiffs oppose the motion, arguing that there are triable issues of fact as to whether defendants are liable to it under Labor Law § 241(6) based on violations of Industrial Code §§ 23-1.7(e)(1) (2), and 23-2.1(a)(1).¹ They also argue that the record raises factual issues as to whether the laborers employed by Hunt-Bovis caused or created that condition on which Dougherty fell and whether Hunt-Bovis had actual or constructive notice of the relevant condition. In support of their position, plaintiffs submit the affidavits of Robert Callanan ("Callanan") who was employed by a subcontractor performing window installation and Project, and John Sauerbrey ("Sauerbrey"), the Shop Steward for Vision

1 In its complaint and verified bill of particulars, plaintiffs also allege violations of Industrial Code §§ 23-1.5, 23-1.30, 23-2.2 and Article 1926 of O.S.H.A. As plaintiffs do not argue that these provisions provide a predict to liability under Labor Law 241 (6), they will be considered abandoned.

In his affidavit, Callanan, states that he saw Dougherty "trip and fall over a loose piece of plywood skidding that was on the ground [and that] he fell on his left side landing on more wood, rebar, bricks, and garbage that was on the ground" (Callanan Aff. ¶ 1). He also states that the accident in an area where there was "typically a dumpster kept where all the garbage and debris would be placed into [but that] for some reason the dumpster was missing and instead the Laborers on the site were just throwing their garbage and debris on the ground [and that he] saw the Laborers do this on dates prior to the accident" (Id., ¶ 2). According to Callanan, "[t]his area was like this for a few days because a passageway had formed in the middle of all this garbage and debris and people continually walking on it" (Id.).

Sauerbrey did not witness the accident but arrived at the scene shortly after Dougherty fell. According to Sauerbrey, before the accident:

Hunt-Bovis had removed the dumpster from the area and did not replace it. However, their Laborers continued to throw garbage and debris in the same location, causing a complete mess. This area was used by our workers to go from the inside of the building and as a work area to handle deliveries so I was concerned. I had made complaint to Bob Wright, the safety representative from Hunt-Bovis about this area and he said he would have his Laborers take care of it. However, nothing was done until after [Dougherty] had his accident.

Sauerbrey Affidavit, ¶ 2.

In reply, defendants argue, inter alia, that the court should not consider the affidavits of Callanan and Sauerbrey as these witnesses were not disclosed to them before the note of issue was filed.

DISCUSSION

On a motion for summary judgment, the proponent "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. . ." Winegrad v. New York Univ. Med. Center, 64 NY2d 851, 852 (1985). Once the proponent has made this showing, the burden of proof shifts to the party opposing the, motion to produce evidentiary proof in admissible form to establish that material issues of fact exist which require a trial. Alvarez v. Prospect Hospital, 68 NY2d 320, 324 (1986).

As a preliminary matter, contrary to defendants' argument in reply, even assuming plaintiffs failed to identify the witnesses providing the affidavits in support of their opposition prior to filing the note of issue, court may consider the affidavits since defendants have not demonstrated any prejudice or willful disobedience by plaintiffs of discovery requirements. Rancano v. Chase Manhattan Bank. 273 AD2d 51, 51-52 (1^st Dept 2000). In any event, as indicated below, even in the absence of the statements in the affidavits, the record is sufficient to raise triable issues of fact as to defendants liability under § 241(6) and Hunt-Bovis' liability under Labor Law § 200.

Labor Law § 241(6) Claim

Labor Law § 241(6) requires that owners and contractors `"provide reasonable and adequate protection and safety for workers and to comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor." Ross v Curtis-Palmer Hydro-Electric Co., supra, 81 NY2d at 502. Claimants must cite specific violations of the Industrial Code regulations for section 241(6) to apply. See, Amato v State of New York, 241 AD2d 400 (1^st Dept 1997), lv denied, 91 NY2d 805 (1998). "Only a violation of the State Industrial Code and regulations promulgated by the State Commissioner of Labor may serve as a basis for liability under that statutory section." Heller v 83rd St. Investors Ltd. Partnership, 228 AD2d 371, 372 (1st Dept), lv denied. 88 NY2d 815 (1996).

Here, plaintiff bases his Labor Law § 241(6) on an alleged violations of Industrial Code sections 23-1.7(e)(1) (2) and 23-2.1 (a)(1). 12 NYCRR 23-1.7 which provides that:

(e) Tripping and other hazards.

(1) Passageways. All passageways shall be kept free from accumulations of dirt and debris and from other obstructions or conditions which cause tripping. Sharp projections which could cut or puncture any person shall be removed or covered.

(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.

Sections 23-1.7(e)(1), and 23-1.7(e)(2) have been held to be sufficiently specific to provide a basis for liability under Labor Law § 241(6). Rizzuto v. Wenger Construction. Co., 91 NY2d 343, 350-51; Corbi v. Ave. Woodward Corp., 260 AD2d 255 (1^st Dept 1999).

Defendants argues that § 23-1.7(e)(1) only concerns accidents that occur in passageways, and that the area where Dougherty fell does not constitute a passageway and therefore this provision is not applicable to the facts of this case. In addition, defendants assert that § 23-1.7(e)(2) does not apply as plaintiff was not working in the area where he fell. These arguments are unavailing, and questions of fact are raised as to whether either of the two provision of paragraph 23-1.7 (2) apply. See Costabile v. Damon G. Douglas, Co., 66 AD3d 436 (1^st Dept 2009).

First, the record contains evidence, including Dougherty's testimony, that the area in which he fell was a passageway and that it contained plywood and debris such that section 23-1.7(e)(1) was potentially violated. Alternatively, if the fact finder determines that the place of that accident is not a passageway but rather "an open area between the job site and the street," then section 23-1.7(e)(2), which concerns working areas may be applicable. See Delanna v. City of New York, 308 AD2d 400, 401 (1st Dept 2003). In addition, contrary to defendants' position, although Dougherty did not fall in an area where he was working, this does not preclude a finding that the accident occurred within "a working area" covered by section 23-1.7(e)(2) as there is evidence in the record that the area was regularly traversed by workers. See Smith v. Hines GS Properties. Inc., 29 AD3d 433 (1^st Dept 2006) (where workers regularly traversed spot where accident occurred a questions of fact was presents as to whether plaintiff's fall occurred in "a working area" within the meaning of section 23-1.7(e)(2)); Canning v. Barney's New York, 289 AD2d 32, 34 (1^st Dept 2001) (finding although accident did not occur in plaintiff's own working area, the area where plaintiff fell was a working area under section 23-1.7(e)(2) since plaintiff was required to pass through the area to reach his work area).

Next, section 23-2.1(a) of the Industrial Code, regarding storage of material and equipment, provides that "(1) [a]ll building materials and equipment shall be stored in a safe and orderly manner. Material piles shall be stable under all conditions and so located that they do not obstruct any passageway, walkway, stairway or other thoroughfare." This provision is sufficient to support a claim under Labor Law § 241(6).Scannell v. Mt. Sinai Medical Center, 256 AD2d 214 (1^st Dept 1998). Moreover, as indicated above, there is evidence that Dougherty fell in a passageway. In addition, plywood on which Dougherty asserts he fell is a "building material" which is required to be stored properly under the provision. Randazzo v. Consolid Edison of New York, 271 AD2d 667 (2d Dept 2000). Accordingly, section 23-2.1(a) provides a potential predicate for defendants' liability under 241(6).

Labor Law § 200 Claim

"Where the alleged defect or dangerous condition arises from the contractor's methods and the owner exercises no supervisory control over the operation, no liability attaches to owner under the common law or under Labor Law § 200." Comes v New York State Elec. and Gas Corp., 82 NY2d 876, 877 (1993). Moreover, liability will not be found under 200 "solely because the owner had notice of the unsafe manner in which work is performed." Id., at 878. To be charged with liability under Labor Law § 200, an owner or general contractor must perform more than their "general duty to supervise the work and ensure compliance with safety regulations." De La Rosa v Philip Morris Management Corp., 303 AD2d 190, 192 (1st Dept 2003); see also Vasiliades v Lehrer McGovern Bovis, Inc., 3 AD3d 400 (1st Dept 2004);Reilly v Newireen Associates, 303 AD2d 214 (1st Dept), lv denied, 100 NY2d 508 (2003).

"[M]onitoring and oversight of the timing and quality of the work is not enough to impose liability under section 200, [n]or is a general duty to ensure compliance with safety regulations or the authority to stop work for safety reasons." Dalanna v City of New York, 308 AD2d at 400 (1st Dept 2003). Instead, it must be shown that the owner "` had authority to control the activity bringing about the injury to enable it to avoid or correct the unsafe condition'." Hughes v. Tishman Construction Corp., 40 AD3d 305 (1^st Dept 2007) (emphasis in the original), quoting, Ruzzuto v. Wenger Construct. Co., 91 NY2d at 352.

However, even when a general contractor does not exercise supervision over the work site sufficient to give rise to potential liability under Labor Law § 200, such supervision is not necessary when the owner or general contractor either has actual or constructive notice of the condition causing the injuries, which does not arise out of the means and methods of the subcontractor, and/or caused or created the condition.See e.g., Bonura v. KWK Associates. Inc., 2 AD3d 207 (1^st Dept 2003);Murphy v. Columbia University, 4 AD3d 200, 202 (1st Dept 2000).

Here, the record raises triable issues of fact as to whether Hunt-Bovis had actual or constructive notice of the condition at issue caused or created it. With respect to notice, assuming arguendo that Colbrook's testimony that he did not receive any complaints regarding the condition of the area where Dougherty fell and "did not recall" observing any materials or debris in the area on the date of the accident were sufficient to make a prima facie showing that Hunt-Bovis lacked notice of the condition, plaintiffs have controverted this showing. In particular, plaintiffs have submitted evidence that Hunt-Bovis knew or should have known of the condition, including Sauerbrey's statement that he made a complaint to Hunt-Bovis about the condition, Callanan's statement that the condition existed for two days before the accident, and Dougherty's testimony that the condition of the area had been present for a sufficient amount of time that a passage way through the debris had been made by the workers. In addition, the record raises a triable issue of fact as to whether Hunt-Bovis' employees created the condition by dumping garbage and construction materials in the area of the accident.

Accordingly, the motion for summary judgment dismissing the Labor Law § 200 claim against Hunt-Bovis must be denied.

CONCLUSION

In view of the above, it is

ORDERED that defendants' motion for summary judgment is granted to the extent of dismissing plaintiffs' Labor Law § 240(1) claim and Labor Law § 200 and common law negligence claims as against defendant Queens Ballpark Company, LLC only and is otherwise denied; and it is further

ORDERED that the parties shall appear for a pre-trial conference on February 24, 2011 at 2:30 pm in Part 11, room 351, 60 Centre Street, New York, NY 10007.