Opinion
09-25-2015
Raul FLORES, Plaintiff, v. INFRASTRUCTURE REPAIR SERVICE, LLC, Defendant.
Timothy Norton Esq. and Richard Winograd Esq., Ginarte, O'Dwyer, Gonzalez, Gallardo & Winograd, LLP, New York, for Plaintiff. Andrew Preston Esq. and Michael Siravo Esq., Bee Ready Fishbein Hatter & Donovan, LLP, Mineola, for Defendant.
Timothy Norton Esq. and Richard Winograd Esq., Ginarte, O'Dwyer, Gonzalez, Gallardo & Winograd, LLP, New York, for Plaintiff.
Andrew Preston Esq. and Michael Siravo Esq., Bee Ready Fishbein Hatter & Donovan, LLP, Mineola, for Defendant.
LUCY BILLINGS, J. The remaining defendant, Infrastructure Repair Service, LLC, a general contractor (GC), moves to preclude plaintiff's expert engineer, Harlan Fair, from testifying regarding defendant's or its subcontractors' violations of state regulations under New York Labor Law § 241(6) or of federal regulations under the federal Occupational Safety and Health Act of 1970 (OSHA), 29 U.S.C. §§ 651 –78.
I. TESTIMONY REGARDING THE APPLICABLE LAW
No expert, over objection, may testify what any law requires or whether it applies to the evidence adduced, which is a legal conclusion for the court to draw. Morris v. Pavarini Constr., 9 N.Y.3d 47, 51, 842 N.Y.S.2d 759, 874 N.E.2d 723 (2007) ; Buchholz v. Trump 767 Fifth Ave., 5 N.Y.3d 1, 7, 798 N.Y.S.2d 715, 831 N.E.2d 960 (2005) ; Lopez v. Chan, 102 A.D.3d 625, 626, 959 N.Y.S.2d 67 (1st Dep't 2013) ; McCoy v. Metropolitan Transp. Auth., 53 A.D.3d 457, 459, 863 N.Y.S.2d 8 (1st Dep't 2008). While an expert may testify regarding acts, omissions, or conditions that would constitute a violation of a state or federal regulation, other law, or duty of care or regarding other facts bearing on the issue, an expert may not, over objection, draw the ultimate conclusion that the evidence adduced does or does not amount to a violation. E.g., Lichtman v. Heit, 300 A.D.2d 242, 243, 752 N.Y.S.2d 649 (1st Dep't 2002) ; Colon v. Rent–A–Center, 276 A.D.2d 58, 61–62, 716 N.Y.S.2d 7 (1st Dep't 2000) ; Measom v. Greenwich & Perry St. Hous. Corp., 268 A.D.2d 156, 159, 712 N.Y.S.2d 1 (1st Dep't 2000) ; Litts v. Wayne Paving Co., 261 A.D.2d 906, 907, 689 N.Y.S.2d 840 (4th Dep't 1999). See People v. Inoa, 25 N.Y.3d 466, 473, 475, 13 N.Y.S.3d 329, 34 N.E.3d 839 (2015) ; Burtman v. Brown, 97 A.D.3d 156, 161, 164, 945 N.Y.S.2d 673 (1st Dep't 2012) ; People v. Vaello, 91 A.D.3d 548, 548, 937 N.Y.S.2d 51 (1st Dep't 2012) ; Dimond v. Salvan, 78 A.D.3d 407, 408, 909 N.Y.S.2d 725 (1st Dep't 2010). If an expert witness offers an ultimate conclusion whether a violation has occurred, that opinion necessarily depends on the witness' opinion of the law's requirements and applicability, which are legal conclusions that the court must delineate. Thus, whether a violation has occurred is a legal conclusion either for the court to draw based on the undisputed relevant evidence or for the fact finder at trial to draw after determining the facts from conflicting relevant evidence and applying the law according to the court's instructions. E.g., Singh v. Kolcaj Realty Corp., 283 A.D.2d 350, 351, 725 N.Y.S.2d 37 (1st Dep't 2001) ; Miely–Watkins v. New Latham Hotel Corp., 262 A.D.2d 239, 239, 693 N.Y.S.2d 23 (1st Dep't 1999) ; Faber v. New York City Hous. Auth., 258 A.D.2d 394, 394, 685 N.Y.S.2d 691 (1st Dep't 1999) ; Berliner Handels-und Frankfurter Bank, N.Y. Branch v. Coppola, 172 A.D.2d 369, 373, 568 N.Y.S.2d 751 (1st Dep't 1991). See, e.g., Ivezic v. Tully Constr. Corp., 47 A.D.3d 480, 481, 850 N.Y.S.2d 65 (1st Dep't 2008) ; Singh v. Young Manor, Inc., 23 A.D.3d 249, 249–50, 804 N.Y.S.2d 65 (1st Dep't 2005) ; Ross v. Manhattan Chelsea Assocs., 194 A.D.2d 332, 333–34, 598 N.Y.S.2d 502 (1st Dep't 1993). The parties' attorneys of course may advocate what various laws require, whether they apply to the evidence, and that it does or does not establish a violation of those laws, but the court grants defendant's motion to the extent of precluding Harlan Fair from giving opinions on those questions.
Perhaps anticipating plaintiff's cross-motion, defendant also suggests that any evidence of facts showing a violation of the regulations under Labor Law § 241(6) is irrelevant, because the court already dismissed his claim under § 241(6) after determining that those regulations on which plaintiff relied, 12 N.Y.C.R.R. §§ 23–1.7(h) and 23–1.8(c), are inapplicable to the relevant evidence, which was undisputed. Flores v. Infrastructure Repair Serv., LLC, 115 A.D.3d 543, 543–44, 982 N.Y.S.2d 103 (1st Dep't 2014). Defendant further suggests that any evidence of facts showing a violation of OSHA regulations is irrelevant, because these regulations did not govern defendant GC's conduct insofar as it affected plaintiff, who was not defendant's employee.
II. STATE REGULATIONS UNDER NEW YORK LAW § 241(6)
Plaintiff, on the other hand, cross-moves to amend his bill of particulars to claim a violation of a regulation under Labor Law § 241(6), 12 N.Y.C.R.R. § 23–1.24(d), that he did not claim previously and that the court therefore did not address when concluding that other regulations under that statute were inapplicable and dismissing his claims under § 241(6). Although plaintiff's reliance on this newly claimed regulation raises no new facts, the new regulation would resuscitate a theory of liability and claim under Labor Law § 241(6) that the court already dismissed. A question then would arise whether that resuscitation of a previously dismissed theory of liability is prejudicial, see Fellner v. Morimoto, 52 A.D.3d 352, 353, 862 N.Y.S.2d 349 (1st Dep't 2008) ; Cherebin v. Empress Ambulance Serv., Inc., 43 A.D.3d 364, 365, 841 N.Y.S.2d 277 (1st Dep't 2007), or contrary to the law of the case, Flores v. Infrastructure Repair Serv., LLC, 115 A.D.3d at 543–44, 982 N.Y.S.2d 103, except that plaintiff relies on defendant's violation of 12 N.Y.C.R.R. § 23–1.24(d) only as evidence of its negligence to support his claims under Labor Law § 200 as well as for negligence. In any event, plaintiff fails to meet his burden to demonstrate the merit of this proposed amendment to his bill of particulars through admissible evidence. JPMorgan Chase Bank, N.A. v. Low Cost Bearings N.Y. Inc., 107 A.D.3d 643, 644, 969 N.Y.S.2d 19 (1st Dep't 2013) ; Greentech Research LLC v. Wissman, 104 A.D.3d 540, 541, 961 N.Y.S.2d 406 (1st Dep't 2013) ; Yuko Ito v. Suzuki, 57 A.D.3d 205, 208, 869 N.Y.S.2d 28 (1st Dep't 2008) ; Zaid Theatre Corp. v. Sona Realty Co., 18 A.D.3d 352, 355, 797 N.Y.S.2d 434 (1st Dep't 2005). See Sepulveda v. Dayal, 70 A.D.3d 420, 421, 893 N.Y.S.2d 549 (1st Dep't 2010). 12 N.Y.C.R.R. § 23–1.24(d) applies to “hot luggers,” used to transport hot roofing material, Stasierowski v. Conbow Corp., 258 A.D.2d 914, 915, 685 N.Y.S.2d 545 (4th Dep't 1999) ; Irwin v. St.
Joseph's Intercommunity Hosp., 236 A.D.2d 123, 125, 665 N.Y.S.2d 773 (4th Dep't 1997) ; Tallchief v. Jemco Roofing, 217 A.D.2d 915, 915–16, 629 N.Y.S.2d 603 (4th Dep't 1995), which plaintiff was carrying, and which spilled on him and caused serious burns to his body. 12 N.Y.C.R.R. § 23–1.24(d) requires that: “ Closed containers or devices used for transporting molten roofing materials” be equipped with specified safety features “to minimize hazards to persons caused by blowbacks of the molten roofing materials.” Irwin v. St. Joseph's Intercommunity Hosp., 236 A.D.2d at 125, 665 N.Y.S.2d 773.
Plaintiff, however, was carrying hot tar roofing material in an open bucket without a cover. 12 N.Y.C.R.R. § 23–1.24(d) is inapplicable to a tar container with “no lid or cover of any kind,” Castillo v. Starrett City, 4 A.D.3d 320, 322, 772 N.Y.S.2d 74 (2d Dep't 2004), and thus does not prohibit use of an open bucket to carry hot tar. Id. ; Stasierowski v. Conbow Corp., 258 A.D.2d at 915, 685 N.Y.S.2d 545. None of the facts alleged indicate a violation of this particular regulation and hence any causal connection between a violation and plaintiff's injury.
12 N.Y.C.R.R. § 23–1.24(d) thus is inapplicable to the undisputed admissible evidence. Therefore the court denies plaintiff's cross-motion to amend his bill of particulars to claim defendant's violation 12 N.Y.C.R.R. § 23–1.24(d) based on the claim's lack of merit. The court also grants defendant's motion to the extent of precluding Harlan Fair from giving testimony to establish a violation of 12 N.Y.C.R.R. § 23–1.24(d) or a causal connection between such a violation and plaintiff's injury.
The absence of a prohibition against use of an open bucket to carry hot tar, however, does not indicate that carrying hot tar in an open bucket is safe, is not “inherently dangerous,” and does not require safety precautions to minimize spillage that may cause serious burns. Stasierowski v. Conbow Corp., 258 A.D.2d at 915, 685 N.Y.S.2d 545. See Flores v. Infrastructure Repair Serv., LLC, 115 A.D.3d at 543, 982 N.Y.S.2d 103. Plaintiff maintains viable claims that defendant's violation of Labor Law § 200 and its negligence in failing to provide him adequate safety equipment caused his burns. Harlan Fair may testify regarding the facts bearing on this issue. Morris v. Pavarini Constr., 9 N.Y.3d at 51, 842 N.Y.S.2d 759, 874 N.E.2d 723.
III. FEDERAL REGULATIONS UNDER OSHA
Plaintiff also cross-moves to amend his bill of particulars to claim defendant's violations of OSHA regulations, as evidence of its negligence. Ganci v. Port Auth. Trans–Hudson Corp., 258 A.D.2d 386, 386, 686 N.Y.S.2d 9 (1st Dep't 1999) ; Gammons v. City of New York, 109 A.D.3d 189, 201–202, 972 N.Y.S.2d 559 (2d Dep't 2013) ; Murdoch v. Niagara Falls Bridge Commn., 81 A.D.3d 1456, 1457, 917 N.Y.S.2d 501 (4th Dep't 2011) ; Khan v. Bangla Motor & Body Shop, Inc., 27 A.D.3d 526, 528–29, 813 N.Y.S.2d 126 (2d Dep't 2006). Defendant insists that Fair may not testify even regarding facts that bear on defendant's violations of these regulations, because they did not govern defendant's conduct, even if it affected plaintiff, when he was not defendant's employee. For plaintiff to hold defendant GC liable for negligently failing to provide him adequate safety equipment in the first instance, based on a violation of OSHA regulations or otherwise, he must establish that defendant exercised supervision or control over the conditions that caused his injury. O'Sullivan v. IDI Constr. Co., Inc., 7 N.Y.3d 805, 806, 822 N.Y.S.2d 745, 855 N.E.2d 1159 (2006) ; Comes v. New York State Elec. & Gas Corp., 82 N.Y.2d 876, 877–78, 609 N.Y.S.2d 168, 631 N.E.2d 110 (1993) ; Hughes v. Tishman Constr. Corp., 40 A.D.3d 305, 306, 836 N.Y.S.2d 86 (1st Dep't 2007) ; Maes v. 408 W. 39 LLC, 24 A.D.3d 298, 301, 808 N.Y.S.2d 613 (1st Dep't 2005). The undisputed evidence that defendant provided the safety equipment plaintiff used sustains his claim that defendant was directly responsible for any inadequacy in that equipment. Flores v. Infrastructure Repair Serv., LLC, 115 A.D.3d at 543, 982 N.Y.S.2d 103. See Rizzuto v. L.A. Wegner Contr. Co., 91 N.Y.2d 343, 352–53, 670 N.Y.S.2d 816, 693 N.E.2d 1068 (1998) ; Havlin v. City of New York, 17 A.D.3d 172, 172–73, 792 N.Y.S.2d 464 (1st Dep't 2005).
A. The Merits of Plaintiff's Claim Based on OSHA Regulations
Although OSHA does govern an employer's conduct toward its own employees, defendant GC is also liable under OSHA for defendant's conduct that affects its subcontractor's employees or defendant's other invitees “engaged in a common undertaking” on the construction site. Barzaghi v. Maislin Transp., 115 A.D.2d 679, 684, 497 N.Y.S.2d 131 (2d Dep't 1985) ; Brennan v. Occupational Safety and Health Review Com'n, 513 F.2d 1032, 1038 (2d Cir.1975). See Universal Const. Co., Inc. v. Occupational Safety and Health Review Com'n, 182 F.3d 726, 728 (10th Cir.1999) ; United States v. Pitt–Des Moines, Inc., 168 F.3d 976, 982–83 (7th Cir.1999). 29 U.S.C. § 654(a)(2) requires every employer to comply with the regulations promulgated under OSHA for the benefit of all employees on the work site, “even employees of another employer,” Universal Const. Co., Inc. v. Occupational Safety and Health Review Com'n, 182 F.3d at 728 ; “regardless of whom in a given workplace is threatened by non-compliance,” United States v. Pitt–Des Moines, Inc., 168 F.3d at 982 ; and without limitation to instances where a violation of a regulation exposes the employer's own employees to a hazard. Brennan v. Occupational Safety and Health Review Com'n, 513 F.2d at 1037–38. Thus defendant, which nowhere claims it was not an employer under OSHA, has violated OSHA regulations if, through prohibited acts or omissions, defendant created a hazard accessible to defendants' own employees or the employees “of other employers engaged in a common undertaking.” Id. at 1038.
This “multi-employer doctrine,” Universal Const. Co., Inc. v. Occupational Safety and Health Review Com'n, 182 F.3d at 728 ; United States v. Pitt–Des Moines, Inc., 168 F.3d at 982, comports with OSHA's broad remedial purpose “to assure as far as possible every working man and woman in the Nation safe and healthful working conditions.” 29 U.S.C. § 651 ; Brennan v. Occupational Safety and Health Review Com'n, 513 F.2d at 1038 ; United States v. Pitt–Des Moines, Inc., 168 F.3d at 983 ; Beatty Equipment Leasing, Inc. v. Secretary of Labor, 577 F.2d 534, 537 (9th Cir.1978). OSHA's primary focus is on making workplaces, rather than specific employees, safe from hazardous working conditions, Brennan v. Occupational Safety and Health Review Com'n, 513 F.2d at 1038 ; United States v. Pitt–Des Moines, Inc., 168 F.3d at 983, by requiring employers to eliminate all foreseeable and preventable hazards, whether to their own or to other employers' employees. Beatty Equipment Leasing, Inc. v. Secretary of Labor, 577 F.2d at 537. Once an employer is responsible for complying with OSHA regulations, the employer “is obligated to protect every employee who works in its workplace.” United States v. Pitt–Des Moines, Inc., 168 F.3d at 983 ; Teal v. E.I. DuPont de Memours & Co., 728 F.2d 799, 805 (6th Cir.1984).
Without the doctrine, employers could avoid OSHA liability for the hazardous conditions they create merely because the threatened or harmed workers—although their presence was entirely foreseeable and they are covered by the Act—happen to be on the payroll of another. Indeed this would be true even when, as here, the violating employer was the only one on the site who could reasonably have prevented the harm. We do not believe that this was the result Congress intended by enacting Section 654(a).
United States v. Pitt–Des Moines, Inc., 168 F.3d at 983–84 (emphasis added).
The above rationale applies with equal force here. United States v. Pitt–Des Moines, Inc., 168 F.3d at 984. Defendant was an employer on a construction site, where multiple employers' employees were working. Defendant maintained control over the safety equipment used there, provided the safety equipment plaintiff used, was directly responsible for any inadequacy in that equipment, Flores v. Infrastructure Repair Serv., LLC, 115 A.D.3d at 543, 982 N.Y.S.2d 103 ; Brennan v. Occupational Safety and Health Review Com'n, 513 F.2d at 1039, and thus was the employer on the site who reasonably could have prevented his body's exposure to the spillage of hot tar. Brennan v. Occupational Safety and Health Review Com'n, 513 F.2d at 1039 ; United States v. Pitt–Des Moines, Inc., 168 F.3d at 984.
The requirements for liability under Labor Law § 200 and for negligence, to exercise supervision or control over the conditions that caused injury, and for liability under OSHA regulations, to engage in a common undertaking with a subcontractor's employees, explain why OSHA regulations frequently may not support liability. The owner or property manager of a construction site, for example, Dalaba v. City of Schenectady, 61 A.D.3d 1151, 1153, 876 N.Y.S.2d 744 (3d Dep't 2009) ; Khan v. Bangla Motor & Body Shop, Inc., 27 A.D.3d at 527, 529, 813 N.Y.S.2d 126 ; Riley v. ISS Intl. Serv. Sys., 5 A.D.3d 754, 755–56, 774 N.Y.S.2d 182 (2d Dep't 2004) ; Vencius v. Morania Oil Tanker Corp., 210 A.D.2d 219, 219, 619 N.Y.S.2d 336 (2d Dep't 1994), or the manufacturer of a product another party's employee was using, Gray v. Navistar Intl. Corp., 218 A.D.2d 904, 905–906, 630 N.Y.S.2d 596 (3d Dep't 1995) ; Jemmott v. Rockwell Mfg. Co., Power Tools Div., 216 A.D.2d 444, 445, 628 N.Y.S.2d 184 (2d Dep't 1995), likely did not exercise supervision or control over the conditions that caused injury and was too removed from the construction to have engaged in a common undertaking with a subcontractor's employee. OSHA regulations do apply, however, to employers' safety practices. E.g., Kocurek v. Home Depot, U.S.A.P., 286 A.D.2d 577, 580, 730 N.Y.S.2d 74 (1st Dep't 2001).
Liability under OSHA regulations also may depend on the applicable regulations' terms. 29 C.F.R. Part 1926, under which plaintiff claims violations, governs an employer's conduct toward employees beyond its own employees. Ganci v. Port Auth. Trans–Hudson Corp., 258 A.D.2d at 386, 686 N.Y.S.2d 9 ; Landry v. General Motors Corp., Cent. Foundry Div., 210 A.D.2d 898, 898, 621 N.Y.S.2d 255 (4th Dep't 1994) ; Pellescki v. City of Rochester, 198 A.D.2d 762, 763, 605 N.Y.S.2d 692 (4th Dep't 1993) ; Solis v. Summit Contrs., Inc., 558 F.3d 815, 826 (8th Cir.2009). See Brennan v. Occupational Safety and Health Review Com'n, 513 F.2d at 1039 ; Universal Const. Co., Inc. v. Occupational Safety and Health Review Com'n, 182 F.3d at 728 ; United States v. Pitt–Des Moines, Inc., 168 F.3d at 987, 989–90.
Specifically, plaintiff claims defendant's violation of 29 C.F.R. §§ 1926.16(a) –(d), 1926.28, and 1926.102(a)(1)–(5). Section 1926.28 imposed responsibility on employers for “requiring the wearing of appropriate personal protective equipment in all operations where there is exposure to hazardous conditions.” See Spancrete Northeast, Inc. v. Occupational Safety and Health Review Com'n, 905 F.2d 589, 593 (2d Cir.1990). Section 1926.102(a)(1)–(5) required the provision of equipment to protect an employee's face and eyes during similar operations. Each of these regulations “was promulgated as a standard under 29 U.S.C. § 654(a)(2),” Spancrete Northeast, Inc. v. Occupational Safety and Health Review Com'n, 905 F.2d at 593, which required defendant to comply with these regulations for the benefit of all employees on the construction site, including employees of defendant's subcontractor, plaintiff's employer. Brennan v. Occupational Safety and Health Review Com'n, 513 F.2d at 1037–38 ; Universal Const. Co., Inc. v. Occupational Safety and Health Review Com'n, 182 F.3d at 728 ; United States v. Pitt–Des Moines, Inc., 168 F.3d at 982.
Both these regulations also are prefaced by 29 C.F.R. § 1926.16(a) –(d), which imputes employers' responsibility under 29 C.F.R. Part 1926's standards, including for employees' protective equipment, to a prime contractor at the construction project.
By contracting for full performance of a contract subject to section 107 of the Act, the prime contractor assumes all obligations prescribed as employer obligations under the standards contained in this part, whether or not he subcontracts any part of the work.
29 C.F.R. § 1926.16(b). Defendant nowhere claims that, as the GC, it did not enter a contract with the construction site owner or its agent “subject to section 107 of the Act,” id., for full performance of construction, alteration, or repair at the site as required by the contract, in exchange for over $100,000. 40 U.S.C. § 3704(a)(1).
Plaintiff thus has met his burden to demonstrate the merits of his reliance on defendant's violations of 29 C.F.R. §§ 1926.28 and 1926.102(a)(1)–(5) and on 29 C.F.R. § 1926.16(a) –(d) to impute responsibility for these violations to defendant, as evidence of defendant's negligence. Therefore he is entitled to amend his bill of particulars to claim these violations unless defendant shows undue prejudice from the amendment. A.L. Eastmond & Sons, Inc. v. Keevily, Spero–Whitelaw, Inc., 107 A.D.3d 503, 968 N.Y.S.2d 436 (1st Dep't 2013) ; Kocourek v. Booz Allen Hamilton Inc., 85 A.D.3d 502, 504, 925 N.Y.S.2d 51 (1st Dep't 2011) ; Sabo v. Alan B. Brill, P.C., 25 A.D.3d 420, 421, 808 N.Y.S.2d 194 (1st Dep't 2006).
B. Prejudice
The prejudice defendant expresses is that it lost the opportunity to question witnesses at their deposition concerning the requirements of 29 C.F.R. § 1926.16(a) –(d), 1926.28, and 1926.102(a)(1)–(5). As set forth above, these regulations' requirements are legal conclusions that the parties' attorneys may advocate and that the court must determine. Morris v. Pavarini Constr., 9 N.Y.3d at 51, 842 N.Y.S.2d 759, 874 N.E.2d 723 ; Buchholz v. Trump 767 Fifth Ave., 5 N.Y.3d at 7, 798 N.Y.S.2d 715, 831 N.E.2d 960 ; Lopez v. Chan, 102 A.D.3d at 626, 959 N.Y.S.2d 67 ; McCoy v. Metropolitan Transp. Auth., 53 A.D.3d at 459, 863 N.Y.S.2d 8.
As for gathering evidence that might establish the absence of a violation, Morris v. Pavarini Constr., 9 N.Y.3d at 51, 842 N.Y.S.2d 759, 874 N.E.2d 723, or absence of a causal connection between such a violation and plaintiff's injury, defendant fails to articulate what additional disclosure defendant would have conducted had plaintiff relied on these regulations previously. Had defendant indicated additional necessary disclosure, ample time remained between the submission of plaintiff's cross-motion and the trial for the court to permit such disclosure under 22 N.Y.C.R.R. § 202.21(d), based on “unusual or unanticipated circumstances” that developed after the note of issue and that warranted additional disclosure. Arons v. Jutkowitz, 9 N.Y.3d 393, 411, 850 N.Y.S.2d 345, 880 N.E.2d 831 (2007) ; Desario v. SL Green Mgt. LLC, 118 A.D.3d 520, 987 N.Y.S.2d 151 (1st Dep't 2014) ; Madison v. Sama, 92 A.D.3d 607, 938 N.Y.S.2d 802 (1st Dep't 2012) ; Colon v. Yen Ru Jin, 45 A.D.3d 359, 360, 845 N.Y.S.2d 281 (1st Dep't 2007). See Cuevas v. 1738 Assoc., L.L.C., 111 A.D.3d 416, 417, 974 N.Y.S.2d 380 (1st Dep't 2013). In fact defendant claims no impediment in conducting disclosure regarding whether plaintiff was “wearing ... appropriate personal protective equipment,” was engaged in “operations where there is exposure to hazardous conditions,” 29 C.F.R. § 1926.28, or was provided equipment to protect his face and eyes. 29 C.F.R. § 1926.102(a)(1)–(5).
IV. CONCLUSION
Consequently, the court grants plaintiff's cross-motion to amend his bill of particulars to claim violations of 29 C.F.R. § 1926.16(a) –(d), 1926.28, and 1926.102(a)(1)–(5) based on the amendments' merits and the absence of their prejudice to defendants, but otherwise denies his cross-motion. C.P.L.R. § 3025(b). As set forth above, the court grants plaintiff's motion to preclude Harlan Fair's testimony of what any laws require or whether they apply to the evidence, his ultimate conclusion that the evidence adduced establishes a violation of any law, and his testimony to establish a violation of 12 N.Y.C.R.R. § 23–1.24(d) or a causal connection between such a violation and plaintiff's injury.