Opinion
508144/17
12-02-2019
Nigel ISAAC, Plaintiff, v. ATLANTIC YARDS B2 OWNER, LLC and Turner Construction Company, Defendants.
The attorneys: Nigel Isaac, Sherman B Kerner, Firm Name: Grey & Grey, LLP, Address: 360 Main Street, Farmingdale, NY 11735, Phone: 516-249-1342, Service E-mail: Skerner@greyandgrey.com, Defendants/Respondents, Name Represented By (Attorney File #) Thomas Andrew Noss, Firm Name: Dopf P.C., Address: 440 9th Ave, New York, NY 10001, Phone: (212) 330-0252, Service E-mail: tnoss@dopfnyc.com
The attorneys: Nigel Isaac, Sherman B Kerner, Firm Name: Grey & Grey, LLP, Address: 360 Main Street, Farmingdale, NY 11735, Phone: 516-249-1342, Service E-mail: Skerner@greyandgrey.com, Defendants/Respondents, Name Represented By (Attorney File #)
Thomas Andrew Noss, Firm Name: Dopf P.C., Address: 440 9th Ave, New York, NY 10001, Phone: (212) 330-0252, Service E-mail: tnoss@dopfnyc.com
Debra Silber, J.
The following papers number 1 to 9 read herein: Papers Numbered
Notice of Motion/Order to Show Cause/
Petition/Cross Motion and
Affidavits (Affirmations) Annexed 1-2, 3-6
Opposing Affidavits (Affirmations) 7-8
Reply Affidavits (Affirmations) 7-8, 9
Upon the foregoing papers, defendants Atlantic Yards B2 Owner, LLC (Atlantic) and Turner Construction Company (Turner) move, in motion (mot.) sequence three, for an order, pursuant to CPLR 3212, granting them summary judgment dismissing the complaint of plaintiff, Nigel Isaac. Plaintiff cross-moves, in mot. seq. four, for an order: (1) pursuant to CPLR 3212, granting him partial summary judgment on the issue of liability pursuant to Labor Law § 240 (1) ; and (2) pursuant to CPLR 3025, granting him leave to amend his bill of particulars to allege violations of federal (OSHA) work safety regulations.
Background
Plaintiff commenced the instant action on April 26, 2017 by electronically filing a summons and verified complaint against defendants. Plaintiff claims therein that each defendant had an ownership interest in and/or were responsible for maintenance of the premises and/or were the general contractor or construction manager or owner's agent for the construction project known as the Atlantic Yards/Pacific Park Project, located at 461 Dean Street in Brooklyn. The complaint asserts that this construction project involved erecting a residential building that was composed of modules, fabricated away from the Atlantic Yards/Pacific Park Project, that would later be transported to the project site and joined together (like Lego blocks) to form an apartment building. Fabrication of these modules occurred at the Brooklyn Navy Yard, located at 67 Flushing Avenue in Brooklyn in a space known as Building 293.
Plaintiff claims that on October 12, 2015, he was employed by a company known as FC Modular that was using Building 293 to assemble the subject modules. Specifically, the accident occurred while plaintiff and two coworkers were affixing a sheetrock (wall board) panel to the top of one of the modular residential units. In order to place the panel on top of the module, plaintiff stood upon a scaffold, and would receive the sheetrock panel as it was raised by the two coworkers on ladders below. As the two coworkers lifted the panel and ascended the ladders, one of them lost his grip on the panel. Plaintiff attempted to secure the panel by grasping the end previously held by his coworker, but he was unable to do so and the weight of the panel (approximately 125 pounds) caused plaintiff to suffer the resulting injuries.
The verified complaint asserts causes of action alleging that defendants are vicariously responsible for violations of Labor Law §§ 240 (1), 241 (6) and 200 and also alleges common-law negligence. The pleadings further state that defendants are owners of the subject premises, contractors hired by the owners, and/or agents of owners or contractors, as those terms are defined in the Labor Law and interpreted by New York courts. Plaintiff also claims that, at relevant times, he was engaged in work within the scope of the Labor Law. Plaintiff claims that, therefore, defendants are subject to vicarious liability, without regard to fault, pursuant to the Labor Law. Plaintiff also contends that defendants breached their common-law duty to maintain a safe workplace and that these Labor Law violations and breaches of the common-law duty of care proximately caused his injuries.
Work within the scope of the vicarious liability provisions of Labor Law § 240 (1) is commonly referred to as "protected" activities, tasks or work. Workers covered by the statute are commonly referred to as "protected" workers.
Defendants each subsequently interposed an answer, generally denying plaintiff's allegations, and discovery and motion practice ensued. On September 13, 2018, plaintiff filed a note of issue with a trial by jury demand, certifying that discovery is complete and that this matter is ready for trial. The instant summary judgment motions followed. Both defendants have been represented by the same law firm since the answers were served.
Defendants' Arguments Supporting Their Summary Judgment Motion
In support of their motion for summary judgment dismissing all claims asserted against them, defendants first assert that plaintiff has no viable common-law negligence or Labor Law § 200 claims against them. First, defendants suggest that the alleged accident occurred as a consequence of the means and methods of subcontractor FC Modular, plaintiff's employer. Defendants claim that in such instances, an owner or general contractor is not vicariously liable unless it exercises supervisory control over the work that produced the injury. Here, they continue, the record demonstrates that only FC Modular's agents ever supervised or controlled plaintiff's work. Also, defendants add, deposition witnesses have confirmed that neither defendant supervised or controlled FC Modular's work at its factory. Moreover, defendants state that plaintiff's own testimony indicates that he was supervising the two coworkers when they were engaged in the activity that brought about the plaintiff's injury. Defendants thus conclude that plaintiff's Labor Law § 200 and common-law negligence claims must be dismissed since they did not supervise or control plaintiff's work.
Next, defendants assert that plaintiff's Labor Law § 240 (1) claim must also be dismissed. First, defendants contend that such claims are viable only when a worker is injured while engaged in one of the activities enumerated in the statute. Defendants argue that here, in contrast, plaintiff was injured while manufacturing and assembling component modules, not a building or a structure. Defendants further contend that the accident occurred in a factory, and not at a construction site. Defendants maintain that injuries that occur while manufacturing items in a factory are outside the ambit of Labor Law § 240 (1) and conclude that plaintiff's § 240 (1) claims should be dismissed for that reason.
Alternatively, defendants argue that the Labor Law § 240 (1) claims are unsustainable because neither defendant is subject to the absolute vicarious liability provisions of the statute. Specifically, Atlantic alleges that it had no property interest in the subject premises (the Navy Yard) and that it had no responsibility to choose or hire subcontractors. Additionally, Atlantic points out that it had no ability to control the activity that precipitated the plaintiff's injury. Accordingly, Atlantic reasons, it is not an owner, contractor or agent thereof as those terms are used in Labor Law § 240 (1). Moreover, Turner states that it is likewise not an owner, contractor or agent thereof. Turner points out that FC Modular, plaintiff's employer, retained it as an "administrative consultant" that assisted FC Modular with record keeping, logistics, procurement and staffing. Turner had an office at the Brooklyn Navy Yard for these purposes. Turner adds that its employees never staffed the factory space in which the accident occurred. Turner further claims that the record indicates that Turner never had the authority to control plaintiff's work. Defendants thus conclude that plaintiff has no viable Labor Law § 240 (1) claim against them since they are not owners, contractors or agents thereof, as those terms have been interpreted by New York courts.
In its Response to Plaintiff's Notice to Admit (E-file Doc # 53) Atlantic admits that it owns the property at 461 Dean Street and that it hired plumbers, electricians and HVAC contractors to hook up the systems which were installed in the modules.
Additionally, defendants alternatively argue that the statute does not apply to the subject accident because plaintiff was not exposed to a significant elevation-related risk. Specifically, defendants point out that plaintiff's own deposition testimony acknowledges that the alleged injury occurred when he attempted to keep a sheetrock panel secure after a coworker holding it lost his grip on it. Defendants further note that the testimony establishes that plaintiff neither fell from the subject scaffold nor did an object fall and strike plaintiff. Defendants argue that, although plaintiff's claimed injury occurred while he was lifting a heavy object, such an accident does not implicate Labor Law § 240 (1). For this additional reason, defendants advocate awarding them summary judgment dismissing plaintiff's Labor Law § 240 (1) claim.
Similarly, defendants assert that plaintiff's Labor Law § 241 (6) claim should be dismissed. First, defendants argue that such a claim is viable only when the alleged accident occurred in a construction, demolition or excavation context. Here, defendants continue, the accident occurred in a building that was not undergoing any of those activities. Instead, defendants claim, the facility in which plaintiff worked fabricated modules that were later shipped to a construction site two miles away. Defendants contend that applicable appellate authority specifically states that there is a distinction between fabrication of construction materials and construction activities. Since the accident occurred in a factory, and not at a construction site, defendants conclude that plaintiff's Labor Law § 241 (6) claims should be dismissed.
Alternatively, defendants reiterate that they are not the types of entities that are properly held vicariously liable for Labor Law § 241 (6) violations. Defendants base their argument against plaintiff's Labor Law § 241 (6) claim on their position that neither defendant is subject to vicarious liability because neither is an owner, contractor or agent thereof. Defendants state that the same reasoning with regard to Labor Law § 240 (1) suggests that they are not subject to vicarious liability pursuant to Labor Law § 241 (6).
Finally, and again alternatively, defendants claim that a successful Labor Law § 241 (6) cause of action requires an injured worker to demonstrate the existence of a violation of an applicable provision of the Industrial Code (12 NYCRR ch. 1, subch. A). Defendants assert that the instant Labor Law § 241 (6) claims lack merit because the Industrial Code provisions plaintiff alleges were violated are inapplicable to the facts herein. Alternatively, to the extent that any such Industrial Code provisions are in fact applicable, defendants contend that the record shows those provisions were not violated. Also, defendants continue, a sustainable Labor Law § 241 (6) claim requires that plaintiff pleads (and eventually proves) violations of one or more applicable Industrial Code provisions that contain a positive, specific command. Defendants claim that the appellate courts have determined that some Industrial Code provisions plaintiff cites lack the required specificity to support a Labor Law § 241 (6) claim. Defendants urge dismissing plaintiff's Labor Law § 241 (6) claims on one of the above alternate grounds, granting their motion in its entirety and awarding them summary judgment dismissing the complaint.
Plaintiff's Arguments Supporting His Partial Summary Judgment Cross Motion and for Leave to Amend His Bill of Particulars
Plaintiff supports the portion of his motion seeking partial summary judgment on the issue of liability pursuant to Labor Law § 240 (1) by first asserting that the subject modules are "structures" as defined in the Labor Law. Plaintiff notes that appellate authority has considered several items—including utility poles and power sifter screens—as structures for this purpose. Plaintiff highlights the fact that the subject module was a section of a residential unit. Moreover, plaintiff continues, the finished modules are later shipped to a residential building under construction and joined together to create apartments. Moreover, adds plaintiff, these modules were custom-made for the specific building; neither his employer nor the subject factory stored or fabricated any other modules at relevant times. Plaintiff suggests that, for these reasons, any distinction between an accident occurring on a construction site and one occurring while fabricating a residential-unit module off-site is illusory. Indeed, argues plaintiff, the subject factory should be considered an extension of the building under construction. Thus, plaintiff concludes, he is a protected worker under Labor Law § 240 (1) because he was injured while working on a building under construction.
Next, plaintiff asserts that defendants violated Labor Law § 240 (1). Plaintiff notes that it is undisputed that he was injured while a heavy object, the sheet of wall board, was being raised. Plaintiff characterizes the subject board as an object that required securing for the purpose of protecting workers from elevation-related risks. Accordingly, continues plaintiff, defendants were required to furnish him with a safety device that would have secured the sheet of wallboard ("sheet rock") and prevented the accident. Instead, plaintiff contends, he was required to attempt to stabilize the falling sheetrock by hand, and doing so caused his resulting injuries. Plaintiff reasons that, therefore, defendants' failure to provide a safety device for hoisting, lowering and securing violated Labor Law § 240 (1), and that violation proximately caused his injuries. Hence, plaintiff concludes that he validly seeks partial summary judgment against defendants on the issue of their liability pursuant to Labor Law § 240 (1).
Lastly, plaintiff seeks leave to amend his bill of particulars and notes that such leave should be freely granted when the proposed amendment does not lack merit and does not prejudice the opposing party. Plaintiff cites two violations of regulations promulgated by the Occupational Safety and Health Administration (OSHA). Plaintiff claims these regulations are applicable to the subject accident, and he has submitted a proposed amendment along with the notice of motion. Plaintiff further contends that since his original bill of particulars made the allegation that all of OSHA Part 26 was relevant, there is thus no surprise or prejudice now to specify two individual regulations. Plaintiff claims these regulations do not change the theory of the case, but only specify construction site safety standards that bolster his Labor Law § 240 (1) claim. Consequently, plaintiff advocates granting him leave to amend his bill of particulars to include violations of OSHA regulations.
Plaintiff submits the affidavit of a purported expert who opines substantially in accordance with these arguments and contentions.
Summary Judgment Standards
Summary judgment is a drastic remedy that deprives a litigant of his or her day in court and should thus only be employed when there is no doubt as to the absence of triable factual issues ( Kolivas v. Kirchoff , 14 AD3d 493 [2d Dept 2005] ; see also Andre v. Pomeroy , 35 NY2d 361, 364 [1974] ). "[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" ( Manicone v. City of New York , 75 AD3d 535, 537 [2d Dept 2010], quoting Alvarez v. Prospect Hosp. , 68 NY2d 320, 324 [1986] ; see also Winegrad v. New York Univ. Med. Ctr. , 64 NY2d 851, 853 [1985] ; Zuckerman v. City of New York , 49 NY2d 557, 562 [1980] ; Sillman v. Twentieth Century-Fox Film Corp. , 3 NY2d 395, 404 [1957], rearg denied 3 NY2d 941 [1957] ). The motion should be granted only when it is clear that no material and triable issue of fact is presented ( Di Menna & Sons v. City of New York , 301 NY 118 [1950] ). Moreover, a party seeking summary judgment has the burden of establishing prima facie entitlement to judgment as a matter of law by affirmatively demonstrating the merit of a claim or defense and not by simply pointing to gaps in the proof of an opponent ( Nationwide Prop. Cas. v. Nestor , 6 AD3d 409, 410 [2d Dept 2004] ; Katz v. PRO Form Fitness , 3 AD3d 474, 475 [2d Dept 2004] ; Kucera v. Waldbaums Supermarkets , 304 AD2d 531, 532 [2d Dept 2003] ). If a movant fails to do so, summary judgment should be denied without reviewing the sufficiency of the opposition papers ( Derise v. Jaak 773, Inc. , 127 AD3d 1011, 1012 [2d Dept 2015], citing Winegrad , 64 NY2d 851 ).
If a movant meets the initial burden, parties opposing the summary judgment motion must demonstrate evidentiary proof sufficient to establish the existence of material issues of fact ( Alvarez , 68 NY2d at 324, citing Zuckerman , 49 NY2d at 562 ). Parties opposing a motion for summary judgment are entitled to "every favorable inference from the parties' submissions" ( Sayed v. Aviles , 72 AD3d 1061, 1062 [2d Dept 2010] ; see also Nicklas v. Tedlen Realty Corp. , 305 AD2d 385 [2d Dept 2003] ; Akseizer v. Kramer , 265 AD2d 356 [2d Dept 1999] ; McLaughlin v. Thaima Realty Corp. , 161 AD2d 383, 384 [1st Dept 1990] ; Gibson v. American Export Isbrandtsen Lines , 125 AD2d 65, 74 [1st Dept 1987] ; Strychalski v. Mekus , 54 AD2d 1068, 1069 [4th Dept 1976] ). Indeed, in deciding a summary judgment, motion, the court is required to accept the opponents' contentions as true and resolve all inferences in the manner most favorable to opponents ( Pierre-Louis v. DeLonghi America, Inc. , 66 AD3d 859, 862 [2d Dept 2009], citing Nicklas , 305 AD2d at 385 ; Henderson v. City of New York , 178 AD2d 129, 130 [1st Dept 1991] ; see also Fundamental Portfolio Advisors, Inc. v. Tocqueville Asset Mgt., L.P. , 7 NY3d 96, 105-106 [2006] ). Furthermore, "[i]n all but the most extraordinary instances, whether a defendant has conformed to the standard of conduct required by law is a question of fact necessitating a trial" ( St. Andrew v. O'Brien , 45 AD3d 1024, 1028 [3d Dept 2007] [internal quotations omitted]; see also Ferrer v. Harris , 55 NY2d 285, 291-292 [1982] ; Andre , 35 NY2d at 364 ; Nandy v. Albany Med. Ctr. Hosp. , 155 AD2d 833, 833 [3d Dept 1989] ; Kiernan v. Hendrick , 116 AD2d 779, 781 [3d Dept 1986] ). Lastly, "[a] motion for summary judgment ‘should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility’ " ( Ruiz v. Griffin , 71 AD3d 1112, 1112 [2d Dept 2010], quoting Scott v. Long Is. Power Auth. , 294 AD2d 348 [2d Dept 2002] ; see also Benetatos v. Comerford , 78 AD3d 750, 751-752 [2d Dept 2010] ; Lopez v. Beltre , 59 AD3d 683, 685 [2d Dept 2009] ; Baker v. D.J. Stapleton, Inc. , 43 AD3d 839 [2d Dept 2007] ).
Labor Law § 200 and Common-Law Negligence
Labor Law § 200 states, in applicable part, as follows:
"All places to which this chapter applies shall be so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein or lawfully frequenting such places. All machinery, equipment and devices in such places shall be so placed, operated, guarded and lighted as to provide reasonable and adequate protections to such persons."
Labor Law § 200 is a codification of the common-law duty of an owner or general contractor to provide workers with a safe place to work ( Rizzuto v. L.A. Wenger Contr. Co. , 91 NY2d 343, 352 [1998] ; Comes v. New York State Elec. & Gas Corp. , 82 NY2d 876, 877 [1993] ; Lombardi v. Stout , 80 NY2d 290, 294 [1992] ; Ferrero v. Best Modular Homes, Inc. , 33 AD3d 847, 850 [2d Dept 2006] ; Brown v. Brause Plaza, LLC , 19 AD3d 626, 628 [2d Dept 2005] ; Everitt v. Nozkowski , 285 AD2d 442, 443 [2d Dept 2001] ; Giambalvo v. Chemical Bank , 260 AD2d 432, 433 [2d Dept 1999] ). "It applies to owners, contractors, or their agents who exercise control or supervision over the work, or either created the allegedly dangerous condition or had actual or constructive notice of it" ( Yong Ju Kim v. Herbert Constr. Co. , 275 AD2d 709, 712 [2d Dept 2000], citing Russin v. Picciano & Son , 54 NY2d 311 [1981] ; Lombardi , 80 NY2d at 294-295 ; Jehle v. Adams Hotel Assocs. , 264 AD2d 354 [1st Dept 1999] ; Raposo v. WAM Great Neck Assn. II , 251 AD2d 392 [2d Dept 1998] ; Haghighi v. Bailer , 240 AD2d 368 [2d Dept 1997] ). Labor Law § 200 and common-law negligence liability "will attach when the injury sustained was a result of an actual dangerous condition, and then only if the defendant exercised supervisory control over the work performed on the premises or had notice of the dangerous condition which produced the injury" ( Sprague v. Peckham Materials Corp. , 240 AD2d 392, 394 [2d Dept 1997], citing Seaman v. Chance Co. , 197 AD2d 612 [2d Dept 1993] ).
Here, plaintiff's allegation is that there was insufficient hoisting/securing equipment that would have prevented the subject accident. The record indicates that the accident was precipitated by a coworker losing his grip on the heavy sheetrock panel. Therefore, there is no indication that a premises condition was involved. Accordingly, owners, contractors and their agents—such as defendants herein—are subject to liability only if they exercised actual control or supervision over the work ( Aranda v. Park East Constr. , 4 AD3d 315, 316 [2d Dept 2004], citing Lombardi , 80 NY2d at 295 ).
However, the record establishes that no defendant directed plaintiff's work; in fact, plaintiff testified that he only received instructions from personnel of his own employer, FC Modular. Accordingly, plaintiff has no viable Labor Law § 200 or common-law negligence claims against defendants (see e.g. Bright v. Orange Rockland Utils., Inc. , 284 AD2d 359, 360 [2d Dept 2001] ; see also Lamar v. Hill Intl., Inc. , 153 AD3d 685, 686 [2d Dept 2017] ["The parties' deposition testimony also demonstrated that the defendants did not have control or a supervisory role over the plaintiff's day-to-day work and that they did not assume responsibility for the manner in which that work was conducted"] ). Moreover, "[t]he 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" in common-law negligence or under Labor Law § 200 ( Biance v. Columbia Washington Ventures , LLC, 12 AD3d 926, 927 [3d Dept 2004], citing Shields v. General Elec. Co. , 3 AD3d 715, 716-717 [3d Dept 2004] ; Sainato v. City of Albany , 285 AD2d 708, 709 [3d Dept 2001] ; see also Putnam v. Karaco Indus. Corp. , 253 AD2d 457, 459 [2d Dept 1998] ["A defendant's mere presence at the work site is insufficient to give rise to a question of fact as to the defendant's direction and control"] ). Since no defendant was involved in supervising or controlling plaintiff's work, plaintiff's Labor Law § 200 claims are unsustainable ( Kwang Ho Kim v. D & W Shin Realty Corp. , 47 AD3d 616, 620 [2008] [no Labor Law § 200 liability if accident arose from methods of plaintiff's employer and defendants exercise no supervisory control over the work], citing Peay v. New York City School Constr. Auth. , 35 AD3d 566, 567 [2006] ). Lastly, plaintiff's submissions do not include opposition arguments regarding Labor Law § 200 and common-law negligence. Accordingly, defendants' summary judgment motion is granted to the extent of dismissing plaintiff's Labor Law § 200 and common-law negligence claims asserted against them.
Labor Law § 241 (6)Next, Labor Law § 241 states, in applicable part, as follows:
"All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, when constructing or demolishing buildings or doing any excavating in connection therewith, shall comply with the following requirements: ...
"6. All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places. The commissioner may make rules to carry into effect the provisions of this subdivision, and the owners and contractors and their agents for such work, except owners of one and two-family dwellings who contract for but do not direct or control the work, shall comply therewith."
Labor Law § 241 (6) imposes a nondelegable duty on owners and contractors to comply with the specific safety rules and regulations set forth in the Industrial Code in connection with construction, demolition or excavation work ( Ascencio v. Briarcrest at Macy Manor, LLC , 60 AD3d 606, 607 [2d Dept 2009], citing Rizzuto , 91 NY2d at 348 ; Ross , 81 NY2d 5044, 501-502 [1993]; Nagel v. D & R Realty Corp. , 99 NY2d 98, 102 [2002] ; Valdivia v. Consolidated Resistance Co. of Am., Inc. , 54 AD3d 753, 754 [2d Dept 2008] ). The vicarious liability provisions of Labor Law § 241 (6) apply to owners, contractors, and their agents ( Alfonso v. Pacific Classon Realty, LLC , 101 AD3d 768, 770 [2d Dept 2012] ), which are subject to Labor Law § 241 (6) liability irrespective of fault or negligence ( Rizzuto , 91 NY2d at 349-350 [owner or contractor is liable without regard to fault if Labor Law § 241 (6) violation is established] ).
A sustainable Labor Law § 241 (6) claim requires the allegation that defendants violated an Industrial Code provision that contains "concrete specifications" ( Ramcharan v. Beach 20th Realty, LLC , 94 AD3d 964, 966 [2d Dept 2012], citing Misicki v. Caradonna , 12 NY3d 511, 515 [2009] ; see also Ross , 81 NY2d at 505 ) and "mandates a distinct standard of conduct, rather than a general reiteration of common-law principles" ( Rizzuto , 91 NY2d at 349 ). "To support a cause of action under Labor Law § 241 (6), a plaintiff must demonstrate that his injuries were proximately caused by a violation of an Industrial Code provision that is applicable under the circumstances of the accident" ( Rivera v. Santos , 35 AD3d 700, 702 [2d Dept 2006], citing Ross , 81 NY2d at 502 ; Ares v. State of New York , 80 NY2d 959, 960 [1992] ; Adams v. Glass Fab , 212 AD2d 972 [4th Dept 1995] ).
To successfully move for summary judgment dismissing Labor Law § 241 (6) claims, defendants must demonstrate "that the Industrial Code provisions cited were inapplicable to the facts, or that the alleged violation of the same was not a proximate cause of the damages alleged" ( Abreo v. URS Greiner Woodward Clyde , 60 AD3d 878, 881 [2009], citing Ross , 81 NY2d 494 ; Payne v. 100 Motor Parkway Assoc., LLC , 45 AD3d 550 [2007] ; Rivera v. Santos , 35 AD3d 700 [2006] ). In order to successfully oppose a motion for summary judgment dismissing Labor Law § 241 (6) claims, a plaintiff is required to note an applicable provision of the Industrial Code that contains concrete specifications with which owners and contractors must comply ( Donovan v. S & L Concrete Constr. Corp., Inc. , 234 AD2d 336, 337 [1996] ; see also Ross , 81 NY2d at 505 ).
Defendants have shown that the Industrial Code provisions cited by plaintiff were not implicated by the subject accident, and, as such, have demonstrated prima facie entitlement to judgment as a matter of law dismissing plaintiff's Labor Law § 241 (6) claim ( Abreo , 60 AD3d at 881 ). In opposition, plaintiff does not address defendants' Labor Law § 241 (6) arguments. Since uncontested allegations are deemed admitted in the context of motion practice (see e.g. Tortorello v. Carlin , 260 AD2d 201, 206 [1st Dept 1999], citing Costello Assocs. v. Standard Metals Corp. , 99 AD2d 227, 229 [1st Dept 1984] appeal dismissed 62 NY2d 942 [1984] ), dismissal of plaintiff's Labor Law § 241 (6) claim has been, in effect, conceded by plaintiff. Hence, defendants' motion insofar as it seeks dismissal of plaintiff's Labor Law § 241 (6) claim is granted.
Labor Law § 240 (1)Next, the court considers Labor Law § 240 (1), which states, in relevant part, that:
"All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, 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 so employed ..."
The purpose of Labor Law § 240 (1) is to protect workers "from the pronounced risks arising from construction work site elevation differentials" ( Runner v. New York Stock Exch., Inc. , 13 NY3d 599, 603 [2009] ; see also Rocovich v. Consolidated Edison Co. , 78 NY2d 509, 514 [1991] ; Ross , 81 NY2d at 501 ). Consequently, Labor Law § 240 (1) applies to accidents and injuries that directly flow from the application of the force of gravity to an object or to the injured worker performing a protected task ( Gasques v. State of New York , 15 NY3d 869 [2010] ; Vislocky v. City of New York , 62 AD3d 785, 786 [2d Dept 2009], lv dismissed 13 NY3d 857 [2009] ; see also Ienco v. RFD Second Ave., LLC , 41 AD3d 537 [2d Dept 2007] ; Ortiz v. Turner Constr. Co. , 28 AD3d 627 [2d Dept 2006] ; Lacey v. Turner Constr. Co. , 275 AD2d 734, 735 [2d Dept 2000] ; Smith v. Artco Indus. Laundries , 222 AD2d 1028 [4th Dept 1995] ). The duty to provide the required "proper protection" against elevation-related risks is nondelegable; therefore, owners, contractors and their agents are liable for a violation even if they have not exercised supervision and control over either the subject work or the injured worker ( Zimmer v. Chemung County Performing Arts, Inc. , 65 NY2d 513, 521 [1985] [owner or contractor is liable for Labor Law § 240 (1) violation "without regard to ... care or lack of it"] ).
A successful cause of action pursuant to Labor Law § 240 (1) requires that the plaintiff establishes both "a violation of the statute and that the violation was a proximate cause of his injuries" ( Skalko v. Marshall's Inc. , 229 AD2d 569, 570 [2d Dept 1996], citing Bland v. Manocherian , 66 NY2d 452 [1985] ; Keane v. Sin Hang Lee , 188 AD2d 636 [2d Dept 1992] ; see also Rakowicz v. Fashion Inst. of Tech. , 56 AD3d 747 [2d Dept 2008] ; Zimmer , 65 NY2d at 524 ). One of the hazards contemplated by the statute is the risk that a worker will be injured by an object falling from a height (see e.g. Thompson v. Ludovico , 246 AD2d 642, 642-643 [1998] ; see also White v. Dorose Holding , 216 AD2d 290 [1995] ; Lanzilotta v. Lizby Assocs. , 216 AD2d 229 [1995] ; Rocovich , 78 NY2d at 514 ). To recover in a "falling object" case, a plaintiff must show that the object either was being "hoisted or secured" or "required securing for the purposes of the undertaking" ( Fabrizi v. 1095 Ave. of the Ams., L.L.C. , 22 NY3d 658, 662-663 [2014], quoting Narducci v. Manhasset Bay Assoc. , 96 NY2d 259, 268 [2001] and Outar v. City of New York , 5 NY3d 731, 732 [2005] ). The plaintiff must also demonstrate that the object fell "because of the absence or inadequacy of a safety device of the kind enumerated in the statute" ( Narducci , 96 NY2d at 268 ). Lastly, this statute "is to be construed as liberally as may be" to protect workers for injury ( Zimmer , 65 NY2d at 520-521 [1985], quoting Quigley v. Thatcher , 207 NY 66, 68 [1912] ; see also Wilinski v. 334 E. 92nd Hous. Dev. Fund Corp. 18 NY3d 1, 7 [2011] ["a defendant's failure to provide workers with adequate protection from reasonably preventable, gravity-related accidents will result in liability"] ).
Here, plaintiff has demonstrated prima facie entitlement to judgment as a matter of law with respect to defendants' Labor Law § 240 (1) liability. Although " Labor Law § 240 (1) ‘does not automatically apply simply because an object fell and injured a worker’ " ( Gurewitz v. City of New York , 175 AD3d 658, 662 [2d Dept 2019], quoting Fabrizi v. 1095 Ave. of the Ams., L.L.C. , 22 NY3d at 663 ), plaintiff herein has shown that the subject sheetrock panel - which weighed approximately 125 pounds - was (as required by Fabrizi ) a load that required securing for the work performed. Moreover, plaintiff has shown that the absence of a safety device - a pulley or hoist - would have (as required by Narducci ) prevented the accident. Indeed, the accident occurred while plaintiff and a coworker lifted the panel - without the use of any devices - to other workers present on a scaffold above. The coworker lost his grip, leaving it to plaintiff to stabilize the board with his hands alone. A hoist or pulley would have, at least, prevented the board from falling, thereby not requiring plaintiff to attempt to stabilize it. Since this is what caused plaintiff to injure his arm, the absence of a hoist or pulley constitutes a violation of Labor Law § 240 (1), which proximately caused his injuries. Accordingly, plaintiff prevails on his partial summary judgment cross motion against defendants on the issue of their liability pursuant to Labor Law § 240 (1) ( Auriemma v. Biltmore Theatre , LLC., 82 AD3d 1 [1st Dept. 2011] ; see also Pritchard v. Tully Constr. Co., Inc. , 82 AD3d 730, 731 [1st Dept 2011] [reversing denial of plaintiff's motion for summary judgment on Labor Law § 240 (1) because work performed presented significant risk that heavy object would fall while workers were lifting it which "obligated" defendant "to provide appropriate safety devices to hoist and secure this heavy object"] ).
Defendants' arguments to the contrary lack merit. First, the court notes that plaintiff was involved in assembling modules, components of apartments and hallways, that would become part of a 32-story residential building. Since, for Labor Law § 240 (1) purposes, a building or structure is "any production or piece of work artificially built up or composed of parts joined together in some definite manner" ( Lewis-Moors v. Contel of NY , 78 NY2d 942, 943, quoting Caddy v. Interborough R. T. Co. , 195 NY 415, 420 ), plaintiff's activities constituted the construction or significant alteration of a building or structure. Thus, plaintiff was a protected worker engaged in a protected activity for Labor Law § 240 (1) purposes.
In its decision in McCoy v. Kirsch , 99 AD3d 13, 15-17 [2d Dept 2012] [wedding canopy is a structure] ), the Second Department provides this analysis:
Over a century ago, the Court of Appeals made clear that the meaning of the word "structure," as used in the Labor Law, is not limited to houses or buildings (see Caddy v. Interborough R.T. Co. , 195 NY 415, 420, 88 NE 747, 20 NY Ann Cas 198 [1909] ) ... a structure, by implication, may include constructs that are less substantial and perhaps more transitory than buildings. Indeed, courts have applied the term "structure" to several diverse items such as a utility pole with attached hardware and cables (see Lewis-Moors v. Contel of NY, 78 NY2d 942, 943, 578 NE2d 434, 573 NYS2d 636 [1991] ; Girty v. Niagara Mohawk Power Corp. , 262 AD2d 1012, 1013, 691 NYS2d 822 [1999] ), a ticket booth at a convention center (see Panico v. Advanstar Communications, Inc. , 92 AD3d 656, 938 NYS2d 168 [2012] ), a substantial free-standing Shell gasoline sign (see Smith v. Shell Oil Co. , 85 NY2d 1000, 1001, 654 NE2d 1210, 630 NYS2d 962 [1995] ), a shanty located within an industrial basement used for storing tools (see Henry v. Eleventh Ave., L.P. , 87 AD3d at 523-524 ), a crane used for construction (see Cun-En Lin v. Holy Family Monuments , 18 AD3d 800, 801, 796 NYS2d 684 [2005] ; Cornacchione v. Clark Concrete Co. , 278 AD2d 800, 801, 723 NYS2d 572 [2000] ), a power screen being assembled at a gravel pit (see Hodges v. Boland's Excavating & Topsoil, Inc. , 24 AD3d 1089, 1091, 807 NYS2d 421 [2005] ), a pumping station (see Cabri v. ICOS Corp. of Am. , 240 AD2d 456, 457, 658 NYS2d 646 [1997] ), a utility van (see Moore v. Shulman , 259 AD2d 975, 688 NYS2d 854 [1999] ), and a window exhibit at a home improvement show (see Sinzieri v. Expositions, Inc. , 270 AD2d 332, 333, 704 NYS2d 293 [2000] ). All of the foregoing items and devices meet the standard set forth by the Court of Appeals in Caddy that constituent parts be artificially built up or joined together in a definite, deliberate manner (see Caddy v. Interborough R.T. Co. , 195 NY at 420 ).
* * *
Whether an item is or is not a "structure" is fact-specific and must be determined on a case-by-case basis. In determining each case, courts may consider a number of relevant factors. These factors should include, but are not necessarily limited to, the item's size, purpose, design, composition, and degree of complexity; the ease or difficulty of its assembly and disassembly; the tools required to create it and dismantle it; the manner and degree of its interconnecting parts; and the amount of time the item is to exist. However, no one factor should be deemed controlling.
Second, the contention that plaintiff was not subject to a significant or extraordinary elevation-related risk is rejected. The record indicates that plaintiff reflexively and instinctively attempted to steady an unsecured 125-pound sheet of wallboard, which caused him to injure his arm and hand. There was no safety device provided (such as a hoist or pulley) that would have protected him "from harm directly flowing from the application of the force of gravity to an object or person" ( Ross , 81 NY2d at 501 ). This accident was, as the Court of Appeals stated in Runner , "the direct consequence of a failure to provide statutorily required protection against a risk plainly arising from a workplace elevation differential" ( Runner , 13 NY3d 599, 605 ). Accordingly, the court rejects the contention that plaintiff was not subjected to a significant or extraordinary elevation-related risk.
Lastly, the court notes that defendants emphasize that plaintiff was not injured on the subject construction site, but was instead injured in a factory. However, "the reach of section 240 (1) is not limited to work performed on actual construction sites" ( Martinez v. City of New York , 93 NY2d 322, 326 [1999], citing Joblon v. Solow , 91 NY2d, 457, 464 [1998] ). The Court of Appeals in Joblon expressly rejected the notion that Labor Law § 240 (1) applies only to work on construction sites ( id. at 463-464 ). Indeed, there is persuasive appellate authority suggesting that the vicarious liability provisions of the Labor Law apply to offsite construction where there is a "close nexus" between the entities and facilities involved ( Gerrish v. 56 Leonard , 147 AD3d 511, 513 [1st Dept 2017] [finding a sufficient nexus between facility where re-bar bent and cut and ultimate new building site for Labor Law § 241 [6] purposes). To accept defendants' argument would allow owners and general contractors, who, according to the terms of Labor Law § 240 (1) are vicariously liable without regard to fault for certain workplace accidents, to opt out of their obligations under this statute by having construction performed off-site. The court rejects such a contention.
In sum, if plaintiff had been injured in the exact same manner as he was in this case, but while assembling modular housing at the Atlantic Yards site owned by Atlantic, there is no question that defendants would be covered Labor Law defendants and plaintiff would be considered to be doing covered work. Thus, defendants can not circumvent Labor Law § 240 (1) by having modules, which will eventually be assembled together into a 32-story building, built away from the construction site. The duties of the owner and the general contractor under Labor Law § 240 (1) are nondelegable (see e.g. Koch v. E.C.H. Holding Corp. , 248 AD2d 510, 511 [2d Dept 1998], lv denied 92 NY2d 811 [1998] citing Rocovich , 78 NY2d [at 513] and Ross , 81 NY2d [at 500] ).
The court notes that on this issue, the affidavits of purported experts, in essence, have merely stating legal conclusions, and, as such, the court has disregarded them (see e.g. Kingston v. Hunter Highlands , 222 AD2d 952, 953 [3d Dept 1995] ).
Leave to Amend Pleadings
Plaintiff's motion insofar as it seeks leave to amend his bill of particulars to include allegations that defendants violated OSHA regulations is denied. Such leave, pursuant to CPLR 3025, is generally freely given absent prejudice or surprise, but should be denied when "the proposed amendment is palpably insufficient or patently devoid of merit" ( Calamari v. Panos , 131 AD3d 1088, 1089 [2d Dept 2015] [internal quotation marks omitted] ). A cause of action predicated on the alleged violation of OSHA regulations can only be maintained against a plaintiff's employer ( Ramos v. Baker , 91 AD3d 930, 933 [2012] ). OSHA governs employee/employer relationships, and thus OSHA regulations do not impose a specific statutory duty on parties other than a plaintiff's employer ( Khan v. Bangla Motor & Body Shop, Inc. , 27 AD3d 526, 528-529 [2006] ). Thus, plaintiff's attempt to include OSHA violations in an action against entities other than his employer cannot be permitted.
Moreover, the court notes that OSHA violations cannot support a Labor Law § 241 (6) cause of action (Marl v. Liro Engrs., Inc. , 159 AD3d 688, 689 [2d Dept 2018] ).
Accordingly, it is
ORDERED that defendants' summary judgment motion, mot. seq. three, is granted solely to the extent that plaintiff's claims based on Labor Law §§ 241 (6) and 200 and common-law negligence are dismissed, and is otherwise denied; and it is further
ORDERED that plaintiff's partial summary judgment cross motion, mot. seq. four, is granted solely to the extent that he is awarded partial summary judgment on the issue of defendants' liability pursuant to Labor Law § 240 (1), and is otherwise denied.
The foregoing constitutes the decision, order and judgment of the court.