Opinion
# 2018-015-105 Claim No. 126559 Motion No. M-91466
02-13-2018
WANDERLEI FERNANDES v. NEW YORK STATE THRUWAY AUTHORITY
Law Offices of Lawrence P. Biondi By: Lawrence P. Biondi, Esq. Goldberg Segalla, LLP By: William J. Greagan, Esq. and James F. Faucher, II, Esq.
Synopsis
Claim by bridge painter for personal injuries arising from a slip and fall on a bridge during the course of vacuuming debris was dismissed except to the extent it alleged a Labor Law § 241 (6) cause of action premised upon one section of the Industrial Code.
Case information
| UID: | 2018-015-105 |
| Claimant(s): | WANDERLEI FERNANDES |
| Claimant short name: | FERNANDES |
| Footnote (claimant name) : | |
| Defendant(s): | NEW YORK STATE THRUWAY AUTHORITY |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 126559 |
| Motion number(s): | M-91466 |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Law Offices of Lawrence P. Biondi By: Lawrence P. Biondi, Esq. |
| Defendant's attorney: | Goldberg Segalla, LLP By: William J. Greagan, Esq. and James F. Faucher, II, Esq. |
| Third-party defendant's attorney: | |
| Signature date: | February 13, 2018 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant moves for summary judgment dismissing the instant claim alleging causes of action for violations of Labor Law §§ 200, 241 (6) and common law negligence pursuant to CPLR 3212.
Atlas Painting and Sheeting Company (Atlas) entered into a contract with the defendant, New York State Thruway Authority, to strip old paint from the Castleton-on-Hudson Bridge and repaint it (Parker affidavit, ¶ 8). Claimant, an employee of Atlas, was assigned to vacuum the steel "shot" or "grit" which was used to sandblast the old paint from the bridge. As the sandblasters worked on the upper level of the bridge, the claimant and a co-worker were situated on a containment platform beneath the bridge vacuuming steel shot that had fallen onto the platform. Claimant's accident occurred on July 14, 2015, his second day of work, when a section of the vacuum hose he was using disconnected from a larger hose section, allegedly causing him to "suddenly" move forward and slip on the steel shot created by the sandblasting (defendant's Exhibit D, pp. 59, 63). Claimant testified that he struck his shoulder and head on a bridge appurtenance situated approximately 10 to 15 feet from where he was standing when the hoses separated (defendant's Exhibit D, p. 62). He described the accident as follows:
"[T]he Thruway Authority is a public benefit corporation created by a special act of the Legislature (L 1950, ch 143) and responsible for constructing and maintaining the New York State Thruway" (Matter of New York State Ch., Inc., Associated Gen. Contrs. of Am. v New York State Thruway Auth., 88 NY2d 56 [1996]; see Public Authorities Law §§ 352, 353). It is empowered "[t]o acquire and hold in the name of the state by purchase or appropriation real property" (Public Authorities Law § 354 [4]) and enter into contracts (Public Authorities Law § 354 [7]), as it did here. Thus, the Thruway Authority is a statutory agent of the owner, the State of New York, for the purposes of imposing vicarious liability under Labor Law § 241 (6).
"Q. How did you get from where you were standing to where you hit something 10 to 15 feet away? . . .
A. I was pulling on the hose, it disconnected, so I went forward, slipped and hit. I don't know the exact distance because everything is dark in there, so I don't know exactly what the distance was.
Q. What did you slip on?
A. On steel shot, on garbage. There's a lot of stuff inside the containment.
Q. A lot of stuff that's created by the sandblasting, is that what you mean? . . .
A. Yes" (defendant's Exhibit D, p. 63).
Claimant alleges, among other things, that the hose connections were improperly secured using duct tape of insufficient strength and quality, and that a coupling device rather than duct tape should have been used to secure the hose connections.
In support of its motion for summary judgment, defendant argues that the claimant's Labor Law § 241 (6) cause of action must be dismissed because the Industrial Code sections on which he relies are either insufficiently specific or inapplicable to the facts of his claim. With respect to claimant's causes of action alleging negligence and a violation of Labor Law § 200, the defendant contends dismissal is required because it neither supervised nor controlled the claimant's work.
Labor Law § 241 imposes a nondelegable duty upon owners, contractors and their agents to comply with the specific safety rules promulgated by the Commissioner of the Department of Labor "when constructing or demolishing buildings or doing any excavating in connection therewith" (Labor Law § 241 [6]; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501-503 [1993]). To prevail on a Labor Law § 241 (6) cause of action it must be established that the defendant "violated a regulation that sets forth a specific standard of conduct and not simply a recitation of common-law safety principles" and, further, that the violation was a proximate cause of the injuries complained of (St. Louis v Town of N. Elba, 16 NY3d 411, 414 [2011]; Hall v Queensbury Union Free Sch. Dist., 147 AD3d 1249, 1251 [3d Dept 2017]; Hebbard v United Health Servs. Hosps., Inc., 135 AD3d 1150, 1151 [3d Dept 2016], Scribner v State of New York, 130 AD3d 1207 [3d Dept 2015]). Since the duty is nondelegable, a showing of actual supervision or control is unnecessary for liability to attach under the statute (St. Louis, 16 NY3d 411). "Nonetheless, comparative negligence remains a cognizable affirmative defense to a section 241 (6) cause of action" (id. at 414).
Despite its express terms, the application of Labor Law § 241 (6) is not limited to building sites and includes work performed on highways and bridges (Mosher v State of New York, 80 NY2d 286 [1992]; Ares v State of New York, 80 NY2d 959 [1992]). Moreover, the term "construction" in the statute has been broadly interpreted to include painting of bridges (Love v New York State Thruway Auth. 17 AD3d 1000 [4th Dept 2005], lv denied 20 AD3d 946 [4th Dept 2005]; see also 12 NYCRR 23-1.4 [b]).
In support of his Labor Law § 241 (6) cause of action, the claimant alleges violations of 12 NYCRR §§ 23-1.5 (c) (3); 23-1.7 (d) and (e); 23-1.10 (b) (2); 23-2.1 (a) (1) and (b); 23-1.30 and 23-9.2 (a).
Section 23-1.5 (c) (3) of the Industrial Code (12 NYCRR), entitled General Responsibility of Employers, requires that "[a]ll safety devices, safeguards and equipment in use shall be kept sound and operable, and shall be immediately repaired or restored or immediately removed from the job site if damaged." In Misicki v Caradonna (12 NY3d 511 [2009]), the Court of Appeals analyzed a similar provision of the Industrial Code, 12 NYCRR 23-9.2 (a), and determined that the first two sentences requiring that all power operated equipment be maintained in "good repair" and "proper operating condition", and that "[s]ufficient inspections of adequate frequency" be performed, were not specific enough to permit recovery under Labor Law § 241 (6). However, the third sentence, requiring "repairs or replacement" of any structural defect or unsafe condition "[u]pon discovery", was found to be sufficiently specific to form a predicate for liability under Labor Law § 241 (6). Finding § 23-1.5 (c) (3) to be "functionally indistinguishable" from the third sentence of § 23-9.2 (a), the Appellate Divisions of the First and Second Departments have concluded that § 23-1.5 (c) (3) is sufficiently specific to support a Labor Law § 241 (6) cause of action (see Becerra v Promenade Apts. Inc., 126 AD3d 557, 558 [1st Dept 2015]; Tuapante v LG-39, LLC, 151 AD3d 999 [2d Dept 2017]; Williams v River Place II, LLC, 145 AD3d 589 [1st Dept 2016]; Perez v 286 Scholes St. Corp., 134 AD3d 1085 [2d Dept 2015]). Both before and after Misicki was decided, however, the Appellate Divisions of the Third and Fourth Departments have concluded otherwise (see Trombley v DLC Elec., LLC, 134 AD3d 1343 [3d Dept 2015]; Kropp v Town of Shandaken, 91 AD3d 1087 [3d Dept 2012]; Danchick v Contegra Servs., 299 AD2d 923 [4th Dept 2002]; Webster v Wetzel, 262 AD2d 1038 [4th Dept 1999]; Creamer v Amsterdam High School, 241 AD2d 589 [3d Dept 1997]; Williams v White Haven Mem. Park, 227 AD2d 923 [4th Dept 1996]; Basile v ICF Kaiser Engrs. Corp., 227 AD2d 959 [4th Dept 1996]). Inasmuch as the doctrine of stare decisis requires trial courts to follow the precedent set by the Appellate Division within their department (Mountain View Coach Lines v Storms, 102 AD2d 663, 664 [2d Dept 1984]), the Appellate Division, Third Department's determinations in Trombley, Kropp and Creamer that § 23-1.5 (c) (3) is too general to support a Labor Law § 241 (6) cause of action must be followed here. Accordingly, 12 NYCRR § 23-1.5 (c) (3) may not be used as a basis for the imposition of liability under Labor Law § 241 (6).
Industrial Code § 23-1.7 (d) and (e) state the following:
"(d) Slipping hazards. Employers shall not suffer or permit any employee to use a floor, passageway, walkway, scaffold, platform or other elevated working surface which is in a slippery condition. Ice, snow, water, grease and any other foreign substance which may cause slippery footing shall be removed, sanded or covered to provide safe footing.
(e) Tripping and other hazards.
(1) Passageways. All passageways shall be kept free from accumulations of dirt and debris and from any other obstructions or conditions which could cause tripping. 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."
Although this section has been held sufficiently specific to support a Labor Law § 241 (6) cause of action (see Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343 [1998]; Baker v International Paper Co., 226 AD2d 1007 [3d Dept 1996]), it is inapplicable where the slipping or tripping hazard was an integral part of the work underway (see Lopez v Edge 11211, LLC, 150 AD3d 1214 [2d Dept 2017] [protective rosin paper on which tile setter slipped was an integral part of the work rendering § 23-1.7 (d) inapplicable]; Barros v Bette & Cring, LLC, 129 AD3d 1279 [3d Dept 2015] [§ 23-1.7 (d) does not apply when the injury is caused by the very condition a claimant was charged with removing]; Smith v Nestle Purina Petcare Co., 105 AD3d 1384 [4th Dept 2013] [§23-1.7 (d) was inapplicable because the grain dust on which plaintiff slipped was the very condition he was charged with vacuuming]; O'Sullivan v IDI Constr. Co., Inc., 7 NY3d 805 [2006] [plaintiff's Labor Law § 241 [6] cause of action based on § 23-1.7 (e) (1) and (2) failed because the electrical conduit the plaintiff tripped over was an integral part of the construction]; Trombley, 134 AD3d at 1344 [§ 23-1.7 (e) was inapplicable to injuries caused by conduits which are an integral part of the work]; Johnson v 923 Fifth Ave. Condominium, 102 AD3d 592 [1st Dept 2013] [§ 23-1.7 (e) (2) is inapplicable to injuries caused by a plank which was purposefully laid over the sidewalk to protect it]; DeLiso v State of New York, 69 AD3d 786 [2d Dept 2010] [hoses on which claimant tripped were an integral part of the work rendering § 23-1.7 (e) (1) and (2) inapplicable]; Schroth v New York State Thruway Auth., 300 AD2d 1044 [4th Dept 2002] [vacuum hose over which the claimant tripped while engaged in vacuuming debris from a platform suspended beneath a bridge was an integral part of the work]). Here, claimant's testimony makes clear that after the vacuum hoses disconnected, he slipped on steel grit which was the very material he was charged with removing. While claimant's expert, Richard W. Paul, opines that claimant was improperly permitted to work in an area below active sandblasting (claimant's Exhibit 4, ¶ 15), claimant himself testified that the vacuuming started 30 to 40 minutes after the sandblasting operation began (defendant's Exhibit D, pp. 30, 32). Moreover, to the extent Mr. Paul concludes that grit and debris falling simultaneously with the vacuuming operation is not an integral part of the vacuuming process, it need only be noted that claimant was not struck by falling debris, but allegedly slipped on the steel grit which he was charged with removing. Whether the grit and debris fell simultaneous with the vacuuming or not, the outcome would have been no different. Inasmuch as the removal of the steel grit was an integral part of claimant's job, §23-1.7 (d) and (e) are inapplicable. Moreover, § 23-1.7 (e) is inapplicable for the additional reason that the hazard this section is intended to protect against are tripping hazards, not slipping hazards of the type involved here (see Mendez v Jackson Dev. Group, Ltd., 99 AD3d 677 [2d Dept 2012] [§ 23-1.7 (e) (2) applies only to tripping hazards and was inapplicable to plaintiff's accident]).
Next, claimant alleges violations of the Industrial Code provision applicable to "Electrical and pneumatic hand tools" (12 NYCRR § 23-1.10 [b] [2]). 12 NYCRR § 23-1.10 (b) (2) states: "Electric and hose lines shall be guarded by location or by covering to prevent severe abrasion and to prevent any tripping hazard." Whether the subject vacuum equipment was a hand tool covered by § 23-1.10 (b) is an issue of law for the Court to decide (Rivera v 15 Broad St., LLC, 76 AD3d 621, 622 [2d Dept 2010]; Szafranski v Niagara Frontier Transp. Auth., 5 AD3d 1111,1113 [4th Dept 2004]). The vacuum used by the claimant at the time of his accident was part of the same machine used to blast the paint from the steel bridge. A truck pulled the blasting/vacuum equipment to the main deck of the bridge and multiple hoses were used to blast the paint from the bridge, vacuum the steel grit, and re-circulate the steel grit back to the machine for further use in blasting (defendant's Exhibit D, p. 32; Parker affidavit, ¶ 12). The Court agrees with defendant's contention that the vacuum equipment used in this case is not a hand tool to which the protections of § 23-1.10 (b) (2) apply (see Willis v Plaza Constr. Corp., 151 AD3d 568 [1st Dept 2017]; Coleman v ISG Lackawanna Servs., LLC, 74 AD3d 1825 [4th Dept 2010][diesel-powered water blasting unit was not a hand tool within the meaning of § 23-1.10 (b)]; Rivera, 76 AD3d 621 [core drilling machine was not a hand tool within the meaning of § 23-1.10 (b)]; Szafranski, 5 AD3d 1111 [neither an air compressor nor its gauge was a hand tool within the meaning of § 23-1.10 (b)]). Moreover, this section clearly is intended to protect electrical lines from abrasion and prevent tripping hazards. Inasmuch as claimant's injuries were neither the result of a failure to protect electrical lines from abrasion nor a trip on a hose line this section is inapplicable.
Claimant alleged in his bill of particulars a violation of 12 NYCRR § 23-2.1 and his initial expert witness disclosure, in which Daniel S. Burdette, P.E. was identified as his expert witness, alleged only a violation of § 23-2.1 (a). In opposition to the instant motion, claimant has abandoned his argument that § 23-2.1 (a) was violated and submits a supplemental expert witness disclosure in which Mr. Paul is identified, for the first time, as one of his experts, and Mr. Paul's affidavit, both of which allege a violation of § 23-2.1 (b). While defendant objects to claimant's belated disclosure of Mr. Paul as an expert witness and his reliance on a previously undisclosed subsection, CPLR 3212 (b) was amended effective December 11, 2015 to provide the following:
"Where an expert affidavit is submitted in support of, or opposition to, a motion for summary judgment, the court shall not decline to consider the affidavit because an expert exchange pursuant to subparagraph (i) of paragraph (1) of subdivision (d) of section 3101 was not furnished prior to the submission of the affidavit" (see also Moreland v Huck, 156 AD3d 1396 [4th Dept 2017]).
Thus, claimant's failure to previously identify Mr. Paul as one of his experts, standing alone, provides no basis for precluding consideration of his affidavit, or the opinions stated therein, in opposition to defendant's motion. Moreover, defendant has provided no evidence that claimant's failure to disclose expert witness information was willful or that it suffered any prejudice as a result of the delay (Romano v Persky, 117 AD3d 814 [2d Dept 2014]).
§ 23-2.1 (b) states the following:
"Disposal of debris. Debris shall be handled and disposed of by methods that will not endanger any person employed in the area of such disposal or any person lawfully frequenting such area."
There is, once again, disagreement among the Appellate Divisions as to whether this subsection is sufficiently specific to support a Labor Law § 241 (6) cause of action. The Appellate Divisions of the First and Second Departments hold that it is not sufficiently specific (Ginter v Flushing Terrace, LLC, 121 AD3d 840, 844 [2d Dept 2014]; Venezia v State of New York, 57 AD3d 522 [2d Dept 2008]; Canning v Barneys N.Y., 289 AD2d 32, 33-34 [1st Dept 2001]) while the Fourth Department holds that it is (Finocchi v Live Nation Inc., 141 AD3d 1092 [4th Dept 2016]; Matter of Mitchell v NRG Energy, Inc., 125 AD3d 1542 [4th Dept 2015], rearg denied 128 AD3d 1426 [2015]; DiPalma v State of New York, 90 AD3d 1659 [4th Dept 2011]). No Third Department case has decided the point, so far as the Court can determine. While this Court tends to agree with the views expressed by the First and Second Departments, that § 23-2.1 (b) imposes no more than a general duty to safely dispose of debris, the issue need not be decided as the failure to properly dispose of debris was not a proximate cause of claimant's alleged injury and the removal of the steel grit on which claimant allegedly slipped was integral to the performance of his work. Accordingly, liability under Labor Law § 241 (6) may not be predicated upon an alleged violation of § 23-2.1 (b).
While claimant's bill of particulars alleged a violation of 12 NYCRR § 23-1.30, requiring that owners and contractors provide certain minimum standards of illumination, in opposition to the instant motion claimant does not dispute defendant's contention that the claimant's work area was sufficiently illuminated. Accordingly, claimant has abandoned his reliance on a violation of § 23-1.30 (Salzer v Benderson Dev. Co., LLC, 130 AD3d 1226 [3d Dept 2015]).
While the vacuum equipment in use at the time of claimant's accident may not be considered a hand tool for the purpose of imposing a nondelegable duty under 12 NYCRR § 23-1.10, it may be considered "power-operated heavy equipment or machinery" to which the provisions of § 23-9.2 (a) apply (see 12 NYCRR § 23-9.1; cf. Cabrera v Revere Condominium, 91 AD3d 695 [2d Dept 2012], lv denied 19 NY3d 802 [2012] [hand-held grinder was not heavy equipment within the meaning of § 23-9.2 [a]]). This section states the following:
"All power-operated equipment shall be maintained in good repair and in proper operating condition at all times. Sufficient inspections of adequate frequency shall be made of such equipment to insure such maintenance. Upon discovery, any structural defect or unsafe condition in such equipment shall be corrected by necessary repairs or replacement. The servicing and repair of such equipment shall be performed by or under the supervision of designated persons. Any servicing or repairing of such equipment shall be performed only while such equipment is at rest" (12 NYCRR § 23-9.2 [a]).
The Court of Appeals has made clear that "[t]he Industrial Code should be sensibly interpreted and applied to effectuate its purpose of protecting construction laborers against hazards in the workplace" (St. Louis, 16 NY3d 411 at 416). Courts are required to consider both the function of the equipment in issue and the objectives of the Industrial Code when determining the applicability of a regulation (id.). Considering both the function of the vacuum equipment at issue here and the remedial objectives of the regulation leads the Court to conclude that it is indeed a piece of power-operated heavy equipment within the ambit of § 23-9.2 (a).
As previously stated, the Court of Appeals in Misicki held that the third sentence of § 23-9.2 (a) requiring "repair or replacement" of any structural defect or unsafe condition "upon discovery" is sufficiently specific to permit recovery under Labor Law § 241 (6) (id. at 520-521; see also Hricus v Aurora Contrs., Inc., 63 AD3d 1004 [2d Dept 2009]). As the Misicki Court made clear, this provision "imposes an affirmative duty on employers to 'correct[ ] by necessary repairs or replacement' 'any structural defect or unsafe condition' in equipment or machinery '[u]pon discovery' or actual notice of the structural defect or unsafe condition" (Misicki, 12 NY3d at 521 [quoting the regulation]). Defendant contends that liability under Labor Law § 241 (6) may not be predicated on this regulation because claimant "cannot establish that there was any notice given to the Defendant that the hose connections were allegedly defective" (Greagan affidavit, ¶ 50). However, a defendant cannot establish its entitlement to summary judgment by merely pointing to gaps in the claimant's proof (Craft v New York Cent. Mut. Fire Ins. Co., 152 AD3d 940, 943 [3d Dept 2017]; Godlewski v Carthage Cent. School Dist., 83 AD3d 1571, 1572 [4th Dept 2011]). Rather, to make a prima facie showing of entitlement to judgment as a matter of law defendant was required to tender sufficient evidence to demonstrate the absence of any material issues of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Neither the testimony of Danny Durgen, Atlas' Project Manager, that it was the vacuum operator's job to ensure that the hoses were in good working order (defendant's Exhibit G, pp. 18, 69), nor the absence of testimony from the claimant regarding any prior complaints by him, affirmatively establishes the absence of actual notice of the claimed defect (see Greagan affidavit, ¶ 50). The absence of proof regarding lack of notice is all the more glaring in light of Mr. Durgen's testimony that those in charge of the work, Kostis Pontikos and Brian Parker, would "customarily look over everything and make sure it's up to snuff" (defendant's Exhibit G, p. 18). Thus, defendant failed to meet its burden of demonstrating lack of notice of the claimed defect in the vacuum hose connection and its motion for summary judgment dismissing claimant's Labor Law § 241 (6) claim predicated on a violation of § 23-9.2 (a) must be denied, regardless of the sufficiency of claimant's opposing papers.
Defendant's failure to meet its burden of proof aside, there is a significant issue regarding whether or not claimant may prevail on his Labor Law § 241 (6) cause of action premised upon § 23-9.2 (a) where, as here, a violation of the regulation is premised only on the contention that defendant caused or created the structural defect or unsafe condition. Claimant's expert Mr. Paul opined "that the use of duct tape as a hose connector as described by Claimant and the other witnesses hereing, and regardless of whether an additional PVC connector was also present, was unsafe . . . and not in accordance with good and accepted safety and engineering practices."
Defendant's contention that Mr. Paul's affidavit should not be considered because it was signed and sworn to out of state and was not accompanied by a certificate of conformity as required by CPLR 2309 (c) is rejected. A certificate of conformity was included in the filed motion papers and, event if it was not served, defendant was not prejudiced by the omission (Koskoboinyk v Trebisovsky, 154 AD3d 997 [2nd Dept 2017]; Sul-Lowe v Hunter, 148 AD3d 1326, 1329 [3d Dept 2017]).
In premises liability cases grounded upon allegations of negligence, a claimant cannot recover absent proof that the defendant "either created the claimed dangerous condition, or had actual or constructive notice thereof" (Mitchell v Uniforms USA, Inc., 82 AD3d 1474, 1474 [3d Dept 2011]; see also Vogler v Perrault, 149 AD3d 1298, 1300 [3d Dept 2017]). In Walsh v Super Value, Inc. (76 AD3d 371, 376 [2d Dept 2010]) the Appellate Division, Second Department, explained why notice is irrelevant where it is alleged that a defendant created the condition complained of:
" Usual questions of notice are irrelevant in creation cases only because an owner who creates a dangerous or defective condition usually knows about it. But not always. It is possible, even for a reasonable person acting reasonably, to create a dangerous or defective condition without realizing it, and to remain ignorant of it for a period of time" [internal quotation marks omitted].
The Court went on to hold that a property owner may be liable for the creation of a dangerous or defective condition "if a reasonable person in the owner's position would have known, or would have had reason to know, of the danger created, or would have had such knowledge imputed by operation of law" (id.; see also Richardson v Rotterdam Sq. Mall, 289 AD2d 679, 681 [3d Dept 2001]). Here, claimant's expert's opinion that the use of duct tape to connect the vacuum hoses violated "good and accepted engineering practice within the abrasive blast cleaning industry" (claimant's Exhibit 4, ¶ 8) was not supported by a sufficient factual basis (see Diaz v New York Downtown Hosp., 99 NY2d 542 [2002]). Nevertheless, it is clear that even if there was a sufficient factual basis for claimant's expert's opinion, such proof establishes no more than the fact that defendant should have known that the manner in which the hoses were connected was defective or dangerous. Such a contention, even if established, constitutes no more than constructive notice of the allegedly defective condition (see e.g. Beck v Stewart's Shops Corp., 156 AD3d 1040, 1042 [3d Dept 2017]) and fails to satisfy the requirements of § 23-9.2 (a), which imposes a duty on employers to repair or replace a structural defect or unsafe condition affecting equipment " '[u]pon discovery' or actual notice of the structural defect or unsafe condition" (Misicki at 521).
The Misicki Court found that actual notice existed in that case by virtue of the plaintiff himself having reported the unsafe condition of the equipment prior to his accident. No such facts are present here. While the Misicki Court also acknowledged that "[a]n allegation that the plaintiff told his or her supervisor about the defective condition before the injury is simply one way of demonstrating the actual notice required by the language of the regulation" (Misicki at 526, n 2), it did not go so far as to say that the notice requirement may be fulfilled when an employer creates a defect or unsafe condition without regard to its awareness of the defect or danger. To the contrary, the Court summarized its decision by stating that "[i]n sum, an employee who claims to have suffered injuries proximately caused by a previously identified and unremedied structural defect or unsafe condition affecting an item of power-operated heavy equipment or machinery has stated a cause of action under Labor Law § 241 (6) based on an alleged violation of 12 NYCRR 23-9.2 (a)" (id. at 521 [emphasis added]). Although the defendant here failed to meet its burden of proof on the notice issue, it is worth noting that claimant's proof in opposition to defendant's motion did not include evidence of a previously identified and unremedied condition.
Defendant contends that claimant should be precluded from contending that the use of duct tape to secure the vacuum hoses constitutes a violation of § 23-9.2 (a) because claimant's initial expert witness disclosure pertaining to Dr. Burdick's anticipated testimony mentioned only the failure to use duct tape of appropriate grade, size and strength. While this was the primary focus of the expert witness disclosure relating to Dr. Burdick's anticipated testimony (defendant's Exhibit E), disclosure also set forth that it was anticipated that Dr. Burdick would testify "that defendant failed to provide proper devices so as to prevent hose connections from loosening and coming apart" (id. at ¶ 2), and that defendant was responsible for providing " 'whip checks' or other devices so as to prevent or diminish hose connection failure" (id. at ¶ 3). In the Court's view, this disclosure sufficiently alerted the defendant to the possibility that claimant would seek to prove that other devices in addition to or instead of duct tape or a whip check should have been used to secure the vacuum hose connections. Moreover, defendant failed to demonstrate that it was prejudiced by claimant's failure to disclose the anticipated testimony of Mr. Paul sooner (see Romano, 117 AD3d 814; Mead v Dr. Rajadhyax' Dental Group, 34 AD3d 1139, 1140 [3d Dept 2006]; see also CPLR 3212 [b]) .
Turning to claimant's Labor Law § 200 and common law negligence causes of action, Labor Law § 200 is a codification of the common law duty of an owner or contractor to provide workers with a reasonably safe place to work (Rizzuto, 91 NY2d 343; Allen v Cloutier Constr. Corp., 44 NY2d 290 [1978], rearg denied 45 NY2d 776 [1978]). Where the alleged defect or dangerous condition arises from a contractor's methods and a defendant exercises no supervisory control over the operation, no liability under the common law or Labor Law § 200 attaches (Comes v New York State Elec. & Gas Corp., 82 NY2d 876 [1993]; Lombardi v Stout, 80 NY2d 290 [1992]; Williams, 145 AD3d 589; Guallpa v Canarsie Plaza, LLC, 144 AD3d 1088, 1092 [2d Dept 2016]; Matter of Mitchell, 125 AD3d at 1544; Ramos v Patchoque-Medford School Dist., 73 AD3d 1010 [2d Dept 2010]). " 'The retention of general supervisory control, presence at a work site, or authority to enforce safety standards is insufficient to establish the control necessary to impose liability' " (Wright v Ellsworth Partners, LLC, 143 AD3d 1116, 1120 [3d Dept 2016]). Here, claimant testified that no one other than his foreman, Brian Parker, instructed him how to perform his work (defendant's Exhibit D, p. 29). In addition, both Mr. Durgen and Mr. Pontikos testified that it was the responsibility of the vacuum operators to connect the hoses and inspect the connections (defendant's Exhibit G, pp. 18, 23; Exhibit H, p. 22). Lastly, Mr. Mastro, the Engineer in Charge of the project on behalf of the Thruway Authority, testified that although he had the authority to stop the work if unsafe practices were observed, he did not direct the performance of the work (defendant's Exhibit F, p. 40) and he did not inspect the integrity of the hose connections (id. at 27, 43). There being no basis for the imposition of liability under Labor Law § 200 or common law negligence, these causes of action must be dismissed.
Based on the foregoing, the claim is dismissed except to the extent it alleges a Labor Law
§ 241 (6) cause of action premised upon a violation of 12 NYCRR § 23-9.2 (a).
February 13, 2018
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims Papers Considered:
1. Notice of Motion, dated November 28, 2017; 2. Affidavit in Support, sworn to November 28, 2017 with Exhibits A - H; 3. Memorandum of Law, dated November 28, 2017; 4. Affidavit of Brian Parker, sworn to November 28, 2017; 5. Affirmation in Opposition, dated January 10, 2018, with Exhibits 1 - 4; 6. Affidavit in Reply, sworn to January 16, 2018; 7. Sur-reply Affirmation, dated January 22, 2018, with Exhibits 1 and 2; 8. Letter from James F. Faucher II, dated January 24, 2018.