Opinion
Index 23098/2012E
03-15-2019
Christopher Dugan and Kathleen Dugan Plaintiffs v. Port Authority of New York and New Jersey, V.R.H. Construction Corp., and JFK International Air Terminal LLC, Defendants.
Unpublished Opinion
DECISION/ORDER
PAUL L. ALPERT, JUDGE.
Recitation, as required by CPLR §2219(a), of the papers considered in the review of the motion as indicated below:
Papers
Numbered
Port Authority of New York and JFK International Air Terminal LLC Motion for Summary Judgment, Affirmation in Support & Exhibits............................................................
1
Plaintiffs Affirmation in Opposition.........................................................
2
VRH's Affirmation in Opposition & Exhibits...........................................
3
Reply Affirmation........................................................................................
4
VRH Motion for Summary Judgment, Affirmation in Support & Exhibits.....................................................................................................
5
Plaintiffs Affirmation in Opposition.........................................................
6
PANYJFK Affirmation in Opposition........................................................
7
VRH Reply Affirmation...............................................................................
8
Plaintiffs motion for Summary Judgment, Affirmation in Support.......
9
PANYJFK Affirmation in Opposition.......................................................
10
Reply Affirmation........................................................................................
11
Upon the foregoing cited papers the Decision/Order on this motion is decided as follows:
The plaintiff commenced this action for personal injuries allegedly sustained as he was working at JFK Airport on August 29, 2012. He claims that he tripped and fell over debris and other refuse at Terminal 4 while attempting to manuever himself over jersey barriers. The defendants Port Authority of New York and New Jersey and JFK International Air Terminal, LLC (hereinafter "PANYJFK") move for summary judgment dismissing the plaintiffs claims under Labor Law §§ 200, 240(1) and 241(6). JFK International Air Terminal, LLC (hereinafter "JFK") moves separately for summary judgment on its cross-claim for contractual indemnification against V.R.H. Construction Corp (hereinafter "VRH"). The plaintiffs also moves for summary judgment on their claim under Labor Law § 241(6).
The plaintiff testified that he was working for Oxford at JFK Airport when he and other workers were erecting a jet bridge. He walked to an area cordoned off by jersey barriers and climbed over them to look for bolts to complete his work (see Exhibit I pg. 104 line 3-19). As he was leaving this material area he came upon a pile of debris (exhibit I pg. 119 line 4-8). He was in between the material and a pile of debris when he suspended a plank to get over the jersey barrier. (exhibit I pg. 124 line 12-22). The plank was sitting adjacent to the barrier Exhibit I pg. 123 line 11-14). The plank was about 12 inches wide and eight feet long and one foot off of the floor (Exhibit I. pg 123 line 19-22). He stepped onto the plank with his right foot and then fell into the barrier (Exhibit I. pg 126 line 24- pg. 127 line 3).
JFK operates terminal 4 and leases the land from the Port Authority of New York and New Jersey, which in turns leases the land from the City of New York (see exhibit L of PANYJFK motion pg. 13 line 16-18). JFK entered into a contract with VRH to perform renovation work on Gate 7 (see Edge EBT pg 8. line 21 -24). This contract identifies JFK as the "owner" and VRH as the "contractor".
PANYJFK move for summary judgment dismissing the plaintiffs Labor Law § 200 claim and argue that they did not create or had actual or constructive notice of a plank on the debris pile. Labor Law § 200 is a codification of an owner's or general contractor's common-law duty of care to provide construction site workers with a safe place to work. Labor Law § 200 falls into two categories: those whose injuries are a result of dangerous or defective premises conditions at a work site and those involving the manner in which the work is performed (see Cappabianca v. Skanska USA Building. Inc., 99 A.D.3d 139 [ A.D. 1st Dept 2012]; Bradley v. HWA 1290 HI LLC, 157 A.D.3d 627 [ A.D. 1st Dept 2018 ]). "Where an existing defect or dangerous condition caused the injury, liability attaches if the owner or general contractor created the condition or had constructive notice of it. Where the injury was caused by the manner and means of the work, including the equipment used, the owner or general contractor is liable if it actually exercised supervisory control over the injury (Cappabianca v. Skanska USA Building. Inc., 99 A.D.3d 139 [ A.D. 1st Dept 2012 ]).
PANYJFK contend that if the injury was caused by the manner and means of the work, they did not provide any direction or control over the plaintiffs work, or created the dangerous condition. The plaintiff testified that Oxford employees told him what type of work to do and provided daily supervision (Exhibit I pg. 164 line 20- line 25). PANYJFK established that it did not exercise supervisory control over the plaintiffs work and is not liable under the method and means category.
PANYJFK argues that it did not create or remedy the dangerous condition. However they failed to establish that they did not have constructive notice of the dangerous condition. "A defendant is charged with constructive notice of a defective condition when the condition is visible, apparent and exists for a sufficient length of time prior to the happening of an accident to permit the defendant to discover and remedy it" (Lopez v. Pagan, 98 A.D.3d 436, 488 [ A.D. 1st Dept 2012 ]). PANYJFK did not meet its prima facie burden entitling them to summary judgment dismissing the plaintiffs Labor Law § 200 claim and this branch of their motion is denied.
PANYJFK also move for summary judgment dismissing the plaintiffs Labor Law § 240(1) claim. Labor Law § 240(1) applies to scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person. This section of the Labor Law is inapplicable to the facts in this case where the plaintiff fell off of a board in a debris pile. The defendants' motion for summary judgment dismissing the plaintiffs Labor Law § 240(1) is granted.
PANYJFK move for summary judgment and dismissal on the plaintiffs Labor Law § 241(6) claim. To prevail under a Labor Law § 241(6) claim a plaintiff must plead and prove the violation of a specific section of a statutory provision (see Ross v. Curtis-Palmer Hydro-Electric Company, 81 N.Y.2d 494 [ Ct App 1993 ]). Here, the plaintiff has alleged violations of §§ 23-1.5, 23-1.7, 23-2.1, 23-1.30 of Rule 23 of the Industrial Code of the State of New York and Article 1926 of OSHA.
Section 23-1.5 of the Industrial Code is titled general responsibility of employers and has been held to be too general to support a cause of action for violating Labor Law § 241(6) claim f see Kochman v. City of New York, 110 A.D.3d 477 [ A.D. 1st Dept 2013 ]: Martinez v. 342 Property LLC, 128 A.D.3d 408 [ A.D. 1st Dept 2015 ]). The defendants' motion for summary judgment dismissing the plaintiffs Labor Law § 241(6) for violating § 23-1.5 of the Industrial Code is granted .
Section 23-1.7 of the Industrial Code provides protection from general hazards. Sections 23-1.7(a), (b), (c), (d) address overhead hazards, falling hazards, drowning hazards and slipping hazards which are inapplicable to the facts of the matter. Section 23-1.7 (e) addresses tripping and other hazards on passageways and working areas. The defendants argue that the area where the plaintiff was working constitutes a material storage area and not a passageway or working area. The plaintiff testified that he was in the area looking for equipment that is stored in this area. He also testified that there was no entrance into this area.
The plaintiff opposes this branch of the motion, arguing that the area where he fell constitutes a working area. He relies on case law for the contention that the area where his accident occured qualifies as a working area because he retrieved bolts that were kept in this area and then traverse back to his own work area. In Smith v. Hines GS Properties, Inc.. 29 A.D.3d 433 f A.D. 1st Dept 2006 ]) the court determined that a question of fact remained if the spot where the plaintiffs fall occured was a "working area" within the meanting of 12 NYCRR 23-1.7(e)(2). The court held that the open area between the building and the material storage trailers was arguably an integral part of the work site because tradesmen routinely traversed this physically defined area as their only access to equipment and materials (see also Canning v. Barney's New York, 289 A.D.2d 32 [ A.D. 1st Dept 2001]; Maza v. University Ave. Dev. Corp. 13 A.D.3d 65 [ A.D. 1st Dept 2004]). JFK's facility manager, Nuzzo, testified that the parts and materials for the jet bridge were stored in the captured area and that he saw Oxford employees working in that area (exhibit M pg. 25 line 9-12).
12 NYCRR 23-1.7(e)(2) is titled working areas and provides that 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. The plaintiff and Nuzzo's testimony raise a question of fact on whether the area where his accident occured constitutes a working area under 12 NYCRR 23-1.7(e)(2). Here the testimony of Nuzzo establishes that although the area where the plaintiff fell is not part of a floor or platform, it could be considered a similar area as stated in the statute. Nuzzo testified that Oxford workers worked in the area assembling an elevating rotunda. This demonstrates that there were workers working in the area. The plaintiffs testimony raises a question of fact as to whether the plaintiff had no choice other than to traverse the area where he fell to get back to his own work area. The testimony is unclear if the area where the plaintiff fell is regularly traversed by other workers. There is a question of fact of whether the area where he fell constitutes a working area. The defendants' motion for summary judgment dismissing Labor Law 241(6) based on violation of 12 NYCRR 23-1.7(e)(2) is denied.
The defendants move for summary judgment and dismissal under Labor Law § 241(6) based on the violation of 12 NYCRR 23-2.1. Industrial Code § 23-2.1 regulates the storage of material or equipment. 12 NYCRR23-2.l(a) (1) and (2) are inapplicable because the testimony from the plaintiff clearly establishes that the accident did not occur in a passageway, walkway, stairway or other thoroughfare, nor did it occur on a floor, platform or scaffold. However, the defendants did not address 12 NYCRR 23-2.1(b) which is titled "Disposal of Debris". The plaintiff testified that he was standing in the middle of a pile of material and a pile of debris. He stood on a plank to get over the jersey barrier. The presence of the stored debris is relevant to the plaintiffs accident. The defendant's motion for summary judgment and dismissal under Labor Law § 241(6) based on a violation of 12 NYCRR §23-2.1(b) is denied.
PANYJFK's motion for summary judgment and dismissal under Labor Law § 241(6) based on a violation of 12 NYCRR 23-1.30 is granted. This code addresses illumination of the work site and is inapplicable to the facts of the instant matter. There is no allegation that the area where the plaintiff was injured was illuminated improperly.
PANYJFK also moves for summary judgment on the plaintiffs claim for OSHA violations. It has been held that OSHA regulations govern employee/employer relationships and do not impose a specific statutory duty on parties other than the plaintiffs employer (see Gallagher v. 109-02 Development. LLC, 137 A.D.3d 1073 [ A.D. 2nd Dept 2016 ]). Here, the plaintiff testified that he was employed by Oxford, therefore the defendants' motion for summary judgment dismissing the plaintiffs OSHA claim is granted.
PANYJFK moves for the Port Authority of New York and New Jersey to be dismissed because they are not a proper Labor Law defendant. In support of this branch of the motion it relies on the testimonoy of Patrice James, the principal property representative of Port Authority of New York and New Jersey. She testified that JFK owns and operates Terminal 4 and leases the land from Port Authority of New York and New Jersey which in turns leases the land from the City of New York (see Exhibit "L" pg. 13 line 6-18). Courts have held that in a Labor Law action dismissal against the Port Authority is appropriate when the Port Authority is not the owner of the subject premises nor the general contractor (see Imling v. Port Authority of New York and New Jersey, 289 A.D.2d 104 [ A.D. 1st Dept 2001 ]; Wong v. City of New York, 65 A.D.3d 1000 [ A.D. 2nd Dept 2009 ]). This branch of the motion is unopposed by the plaintiff. There is no testimony that the Port Authority is a general contractor or owned the premises upon which the plaintiffs accident occurred. PANYJFK's motion is granted and the plaintiffs action is dismissed against the Port Authority of New York and New Jersey.
JFK moves for summary judgment on its contractual indemnification claim against co-defendant VRH. This branch of the motion is denied as the movant has not established that VRH caused the accident in whole or in part.
The defendant VRH moves for summary judgment dismissing the plaintiffs claims under Labor Law §§ 240(1), 241(6) and 200 based on it not being subject to statutory liability. VRH argues that it had a contract with JFK to renovate and make repairs to Gate 7 in Terminal 4. Gerard Edge, the Project Superintendent for VRH, testified that VRH was responsible for renovating the gate portion of the terminal (see Exhibit J pg. 8 line 21- pg. 9 line 15). He stated that this portion was separate from the jet bridge that the plaintiff was working on (exhibit J pg. 8 line 21- pg. 9 line 15).
VRH also argues that JFK did not delegate any authority to them to supervise or control the plaintiffs work and unless they had supervisory control or authority over the plaintiffs work then there is no supervisory agency confirming liability under the Labor Law (see Villanueva v. 80-81 & First Associates, 141 A.D.3d 433 [ A.D. 1st Dept 2016 ]). Where a contractor does not take responsibility for overseeing the plaintiffs work or ensuring the overall safety of the project, there is no basis for the imposition of Labor Law liability (see Keenan v. Simpson Property Group, Inc., 106 A.D.3d 586 [ A.D. 1st Dept 2013 ]). Edge's testimony and the copy of the contract betweeen JFK and VRH demonstrates that VRH had a separate contract and responsibilities from the contract that JFK had with Oxford. Moreover, the contract between JFK and VRH did not delegate any authority to VRH to supervise or control the plaintiffs work.
The plaintiff opposes the motion and relies on Edge's testimony that VRH set up the jersey barriers (exhibit "j" pg. 20 line 8-9). He testified that VRH hired a subcontractor to install the jersey barriers (exhibit "j"pg. 20 line 18-20). He stated that VRH had material from its subcontractors stored inside the jersey barriers (exhibit J pg. 47 line 18-23). No other contractors kept material in that area (exhibit J pg. 47 line 25- pg. 48 line 2). He walked in the area within the jersey barriers daily (exhibit J pg.29 line 14-16). He testified that Oxford workers worked outside the barrier (exhibit J pg. 29 line 17-19).
A contractual obligation does not generally give rise to tort liability in favor of a third party (see Espinal v. Melville Snow Contractors Inc., 98 N.Y.2d 136 [ Ct App 2002 ]). However, a contractor is potentially liable in tort to third persons, where the contracting party "launches a force or instrument of harm'1, where the plaintiff suffers injury as a result of reasonable reliance on the defendants' continued performance of a contractual obligation, or where the contracting party has entirely displaced the other party's duty to maintain the premises safely" (Id. at 140).
The testimony by Mr. Edge raises an issue of fact as to whether VRH is potentially liable to the plaintiff because it created the barriers and in doing so "launched a force or instrument of harm" that resulted in the plaintiffs injury. Although it is unclear who deposited the material in the enclosed area within the jersey barriers, it appears from Edge's testimony that VRH allowed material from its subcontractors to be stored inside the area of the jersey barriers. There is a question of fact whether VRH had control over the area since it created the barriers and its project superintendent walked the enclosed area every day. The plaintiff testified that he stepped onto the plank to get over the debris pile. There is also a question of fact as to whether VRH owed a duty to the plaintiff as a result of it setting up the jersey barriers and patrolling the area on a daily basis for safety precautions. VRH's motion for summary judgment on the plaintiffs Labor Law § 200 negligence claim is denied.
VRH also claims that the common law negligence claim should be dismissed as a matter of law since the debris pile that the plaintiff fell over constitutes an open and obvious condition. VRH relies on cases where the plaintiff tripped or fell over items that were observed by the plaintiff prior to the injury. In Evlin Ruiz v. 221-223 E. 28th St.. LLC, 143 A.D.3d 553 [ A.D. 1st Dept 2016 ], the plaintiffs foot caught one of the garbage bags piled five feet high on the sidewalk resulting in her fall. The court held that garbage bags constituted an open and obvious condition and were not inherently dangerous. In Lazar v. Burger Heaven, 88 A.D.3d 591 [ A.D. 1st Dept 2011 ], the plaintiff was walking on a sidewalk and tripped over an occupied chair that was part of the defendants' sidewalk cafe. The court determined that the chair on the sidewalk was an open and obvious condition and not inherently dangerous. Moreover the plaintiff admittted to previously observing the chair and did not maintain that the chair was obscured. In Bavnes v. City of New York, 81 A.D.3d 423 (A.D. 1st Dept 2011), the plaintiff fell on gravel as she crossed the street and testified that she was looking down and observed the gravel prior to proceeding across the street. The court held that the gravel was an open and obvious condition and not inherently dangerous.
Here the plaintiff testified that he did not see the debris pile before he walked up to it (Dugan deposition pg. 120 line24 - pg 121 line 3). He only saw the debris pile a few seconds before the accident happened (Dugan deposition pg. 121 line 4-7 and line 13-16). He also did not see the debris pile on any other day before the accident (Dugan deposition pg. 121 line 8-12). Unlike the facts in the cases relied upon by VRH where the plaintiff seems to have had a sufficient amount of time to observe the open and obvious condition, Mr. Dugan did not see the debris pile until a few seconds before falling. The plaintiffs testimony raises a question of fact as to whether the debris pile constitutes an open and obvious condition and was not inherently dangerous. VRH's motion for summary judgment dismissing the claim under Labor Law § 200 is denied.
The plaintiffs claim under Labor Law § 240(1) is inapplicable to the facts of this case as previously determined in this decision and this branch of VRH's motion is granted. The motion for summary judgment dismissing the claims under Labor Law § 241(6) against VRH is denied for the same reasons it was denied against PANYJFK as discussed earlier in the decision.
VRH moves for dismissal of JFK's cross-claims for common-law indemnification and contribution claiming it is not negligent. There are questions of fact regarding VRH's negligence under Labor Law §§ 200 and 241(6). VRH's motion to dismiss any cross-claims for common-law indemnification and contribution asserted by JFK is denied. Port Authority of New York and New Jersey is no longer a defendant in this action therefore, their cross-claims are moot.
VRH seeks dismissal of JFK's cross-claim for contractual indemnification. There are questions of fact on whether VRH created the condition that caused the plaintiffs injuries or had supervisory control over the area where the plaintiffs accident occurred. VRH's motion seeking dismissal of JFK's contractual indemnification claim is denied.
The plaintiff cross-moves for partial summary judgment on its claim under Labor Law § 241(6) based on the defendants' violation of Industrial Code 12 NYCRR 23-1.7(e)(2). Industrial Code 12 NYCRR 23-1.7(e)(2) provides that parts of floors, platforms, and similar areas shall be kept free from accumulation of dirt and debris and from scattered tools and materials insofar as may be consistent with the work being performed. He argues that VRH created the area where he fell by placing the jersey barriers on the tarmac and had the authority to control the work done in the captured area. Mr. Edge testified that he did daily walk-throughs of the area to ensure that activities and conditions in the area complied with safety rules and regulations. The defendant VRH opposes the motion arguing that it is untimely because it was filed beyond the deadline.
Courts may consider an untimely cross-motion for summary judgment even in the absence of good cause when a timely motion for summary judgment was made seeking relief 'nearly identical' to that sought by the cross motion (see Alonzo v. Safe Harbors of the Hudson Housing Development Fund Co., Inc., 104 A.D.3d 446 [ A.D. 1st Dept 2013]). The defendants moved for summary judgment dismissing the plaintiffs claim under Labor Law §241(6) based on a violation of the Industrial Code 23-1.7(e)(2). The court accepts the plaintiffs cross-motion because he is seeking relief nearly identical to the relief that the defendants sought in their motions for summary judgment. However, the motion is denied as the court has previously determined in this decision that there is an issue of fact as to whether the area where the plaintiff fell constitutes a working area under 12 NYCRR 23-1.7(e)(2). Based on the foregoing, it is hereby:
ORDERED AND ADJUDGED, that the defendant Port Authority of New York and New Jeresy's motion for summary judgment and dismissal of the plaintiffs claim is granted, and it is further.
ORDERED AND ADJUDGED, that the defendant JFK International Air Terminal, LLC, motion for summary judgment dismissing the plaintiffs claim under Labor Law 240(1) is granted, and it is further, ORDERED AND ADJUDGED, that the defendant JFK International Air Terminal, LLC, motion for summary judgment dismissing the plaintiffs claim under Labor Law §§ 200, 241(6) and OSHA violations is denied, and it is further, ORDERED AND ADJUDGED, that the defendant JFK International Air Terminal, LLC, motion for summary judgment dismissing the contractual indemnification claim against V, R.H. Construction Corp., is denied, and it is further, ORDERED AND ADJUDGED, that the defendant V.R.H. Construction Corp., motion for summary judgment dismissing the plaintiffs claim under Labor Law § 240(1) is granted, and it is further, ORDERED AND ADJUDGED, that the defendant V.R.H. Construction Corp., motion for summary judgment dismissing the plaintiffs claims under Labor Law §§ 200, 241(6) and JFK International Air Terminal, LLC's cross claim for contractual indemnification is denied, and it is further, ORDERED AND ADJUDGED, that the plaintiffs motion for partial summary judgment on its Labor Law § 241(6) claim is denied, and it is further, ORDERED AND ADJUDGED, that the defendant Port Authority of New York and New Jersey serve a copy of this order with notice of entry upon all other parties within twenty (20) days of the date of entry. .
This constitutes the Decision/Order of the court.