Opinion
27817/2008.
Decided March 2, 2010.
Upon the foregoing papers it is ordered that this motion is determined as follows:
This is a motion by Ivanowski for summary judgment on the issue of liability arising from his accident on March 14, 2008 at 123 Washington Street, New York, New York where he was working for Bass Plumbing at a construction site for a hotel which was being erected by the 123 Washington LLC (hereafter "Washington") the owner of the premises and Tishman Construction Corporation of Manhattan (hereafter "Tishman") the general contractor. There is also a cross-motion by defendants for summary judgment arising from the identical incident.
The plaintiff relies on the testimony of Paul Iwanowski. The plaintiff testified at a pre-trial deposition held August 25, 2009. Plaintiff stated that he was cutting a hole in plywood in order to install a roof drain. After the pipe was placed into the plywood it would be "leveled' by tying rebar to it with wire." Other workers would tie the rebar to the pipe. In order to properly level the pipe it should be tied into the rebar at the top before the plaintiff would tie the bottom. However, the crew cutting the rebar would "place piles of rebar on the floor faster than plaintiff and his co-worker could cut the form and put the pipe into it and also faster than the workers on the top level could tie the pipe". According to plaintiff "Q. The way the work progressed on this job site is it the way that it progressed on other similar-type concrete jobs that you worked on or was it different ? A. Just for the fact that the rebar was going upon the floor a lot faster and a lot more steel was up on the deck because there was no space down on the street to store the rebar. So in other words, they were just throwing all the rebar up on top of the plywood to get it off the street, because in that particular section of Manhattan, there is not much room to store material." [54-55]. "Q. When you stepped up onto that top steel, did you make it on the steel; did your accident happen before you stepped up, while you were stepping up, afterwards ? A. When I stepped up to the top steel, it wasn't secured that's when I slipped and fell. Q. What do you mean by it was not secured ? A. It was not tie wired down. Q. Did it slide, bend, roll or something else" A. Slide. Q. Did it slide toward you, away from you, up, down, something else? A. Away from me. Q. What foot did you place on the steel that slipped, was it your left or your right? A. It was my left. Q. When that steel slid, what occurred ? A. My foot went to the wood and the bottom steel. Q. So your foot slip off the rebar ? A. Yes. Q. Did it slip on the side toward you or id it slip over the far side of the rebar ? A. I believe — I don't recall. Q. When your foot slid off the top steel, what did it go to ? A. It got caught up in the bottom steel. Q. When your foot got caught, what part of your foot got caught, was it the heel, the toe ? A. My toe. A. At that time what occurred next? A. I fell and twisted my knee in. Q. Did you fall forward, backward, left, right, something else ? A. To the left as well. Q. Was your left foot caught in the steel ? A. Yes. Q. Your body twisted and your foot did not pop free; is that what happened ? A. Yes, sort of. Q. When you fell, did any part of your body come onto the steel or rebar ? A. My whole body landed on the steel. Q. At the time you landed and fell, did your left foot remain caught in the steel or did it come loose ? A. It got hung up in the steel for a moment and then let loose. After my body and weight and everything. Thank God otherwise I would have broke my nose." [50-52].
Tishman relies on the testimony of Michael Pezzuto. Michael Pezzuto testified at a pre-trial deposition on October 7, 2009. He testified he was employed by Tishman Construction as a project superintendent at the site from October 1, 2007 to October 1, 2009 [7-12]. 123 Washington Street was being constructed as a condo/hotel and "Century Construction Company" was pouring reinforced concrete to establish the columns and floors [11-13]. "Q. Would one of the things that be part of their job on the site is to install rebar? A. Yes. Q. And then pour concrete to fill up the columns and the floors ? A, Yes. Q. Was there a separate company as far as you know to actually place the rebar to facilitate the filling of the concrete or was it century that was doing that ? A. They had a sub." [15] That company was called "Rebar" [16]. Pezzuto worked at the site from 7 a.m. to 4 p.m. [17]. Pezzuto's job was to make inspections and write reports [17] which were kept in a binder [19]. No other reports were made daily [20]. It was to be a fifty-seven story building [21]. In March 2008 the "lower pedestal" or the first five floors had been done [22]. This was the base of the building [23]. The floors were constructed by first constructing a column out of plywood with supports underneath from which there is "layout" which would include "Plumbing, electrical, heating. From there you lay your first layer of rebar." [24,25] "It would be resting on the plywood, but it would also be what we call chairs because you need to have the rebar off lights so the concrete surrounds it and that's where your strength is. So from there that's your first layer." [25] For this job there were two layers of rebar [25]. Once the concrete is poured the plywood would be removed [26]. "Sleeves" are then installed.[27]. "A. Yes it is a system. The only way I can describe it, after the plywood is down and the layout is, everybody is on the deck working whether it is installing sleeves or laying out how their pipe will go in between. Because you need to do — once your rebar is down, you still need an idea of where you are going you just don't arbitrarily just do what you need to do. The layout shows you which way the pipe is going to go in between the rebar. It is kind of like part of the layout. Q. When you're doing this layout and the sleeve is being put down, it is just the mechanical trades are not actually installing pipes or drains at that point, am I understanding that correctly ? A. No, the are not installing pipes, no. You are right. Q. That would be done after the floor is actually formed ? A. That would be done after the first layer of rebar is down then the pipes will go in. Q. Each of the floors would have two layers of rebar ? A. Correct." [28-29] The two layers of rebar are attached by thin tie wire.[29]. In March 2008 he dealt with Joe Vic, a foreman from Bass Plumbing with whom he spoke about three times a week [31]. The safety personnel was Mike Orfino from CRSJ [32]. Their meetings were held in the field office and he would keep notes[34]. Pezzuto first became aware of the incident with Iwanowski through a conversation with his safety manager, Vic [35, 42]. When he was told that someone was hurt he filled out the forms [37]. He was told that he was "hurt on the deck" [38] There was rebar in place on the deck at that time, but no concrete had been laid [38]. He had looked at reports made by the safety manager [40]. There was a report to the insurance "OCIP" who covered the incident [41]. He then went up to the fifth floor [43]. Prior to the accident he observed rebar was down on the deck, at least one layer [43]. Some of the sleeves had been put in [44]. He could not say whether the second layer of rebar was being put down but recalled Century employees present [44]. The sleeves would be secured to the plywood with nails [46]. "Q. After the first layer of rebar is installed then the second layer would be placed in? A. With the mechanical trades mostly the electrician would come and put their conduit runs because our wires ran inside the slab then the second layer would be put on."[47] "Q. I am trying to find out if it is accurate.?" A. It is accurate to a point all mechanical trades are up there doing the layout. It is not just one. Once the layout is done rebar is free to come and do what they need to do. Once that is done, you have the mechanical trades doing whatever work needs to be done in between the rebar. Everyone has an allotted amount of time that they have to finish their job. Q. Were there occasions at this site that mechanical trades wold be working while the rebar guys are working the particular deck ? A. Yes. Q. Was part of your job coordinating with the foreman of the other trades as to who is going to be doing what and when? A. Yes." [48]. During the time Pezzuto was working on site there had been disputes about "coordinating with the trades". [48]. It was his job to resolve those disputes [49]. Pezzuto testified that he really does not know what actually happened and stated any answer would be as "assumption." [50]. He could not state when progress photos were taken [51]. Pezzuto had no actual knowledge as to what Iwanowki was doing at the time of the accident [54]. He had not seen any of the daily reports [56]. Also present at the time of the incident were Five Star Electric and KSW a heating contractor [58]. There was a crane at the location at that time [59]. Work on the fifth floor had commenced one week earlier then March 14, 2008 [60]. On this kind of project there are "regular arguments of who goes first, coordination" [62]. All the trades had a place to "store any equipment or tools" generally on the fourth floor [62]. He recalled the site safety manager having meetings with the workers before they came onto the site [64]. Rebar was hoisted onto the site by the crane [64]. The rebar was secured by a "horse" [65].
The plaintiff moves for summary judgment under general negligence, Labor Law 200(1) and Labor Law 241(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.
The burden imposed under this section is non-delegable ( Comes v New York State Electric Gas Corp, 82 NY2d 876; Reinoso v Ornstein Layton Management, Inc , 19 AD3d 678 ) . All that is necessary to establish liability is that the defendant had the right to exercise control, and not whether they actually exercised that control ( see, Mulcaire v Buffalo Structural Steel Construction Corp , 45 AD3d 1426). An entity like the defendant who had the authority to hire subcontractors concomitantly has the requisite authority to exercise control ( Williams v Dover Home Improvement, Inc, 276 AD2d 626).
A claim under Labor Law 241(6) is established by the plaintiff upon his demonstrating that the defendant violated a specification as set out in the Industrial Code ( Zimmer v Chemung County Performing Arts, Inc, 65 NYY2d 513; Donovan v S L Concrete Construction Corporation, Inc, 234 AD2d 336). Plaintiff claims that the testimony demonstrates, as a matter of law, that the rebar was "strewn about" and his injury was as a result of the large amount of rebar across the floor. However the Industrial Code provision upon which the plaintiff relies must constitute a specific positive command and not a general regulatory requirement ( Ross v Curtis-Palmer Hydo-Electric Co, 81 NY2d 494).
Industrial Code enumerated in 12 NYCRR § 23-1.7(e)(1) states:
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.
The plaintiff claims that he has demonstrated that he fell because of loose rebar in a passageway which constituted the reason why he fell ( Howell v Karl Koch Erecting Corp, 192 Misc 2d 491). Howell is inapposite because it relates to an injury which occurred in a passageway which was constructed for a crane being used on the job. The accident in this case did not occur in a passageway ( Canning v Barney's NY, 289 AD2d 32).
Industrial Code enumerated in 12 NYCRR § 23-1.7(e)(2) states:
The parts of floors, platforms and similar areas where persons work or pass shall be kept free from accumulation of dirt and debris and from scattered tools and materials and from sharp projections insofar as may be consistent with the work being performed.
The plaintiff claims that he has demonstrated that while the rebar was to be tethered, there was loose rebar which was "scattered" thus constituting a dangerous condition for which the defendants are liable ( Owen v Schulman Construction Corp, 26 AD3d 362). The injury in Owens arose when the plaintiff was injured by materials used which "were not an integral part of the work being performed" ( Owen v Schulman Construction Corp, supra). Here the rebar was part of the materials used in the work being performed ( Tucker v Tishman Construction Corporation of New York, 36 AD3d 417).
However, the plaintiff's claim under Labor Law 241(6) that 12 NYCRR § 23-1.7(e)(2) and (2) are actionable because the rebar as it was delivered constituted "debris". This Court finds that under the facts the "piles" of rebar "which collected because they were just throwing all the rebar up on top of the plywood to get it off the street, because in that particular section of Manhattan, there is not much room to store material" constituted debris ( see, Quinn v Whitehall Properties, II, LLC, ___ AD3d ___ [2010 NY Slip Op 126]; Riles v J.A. Jones Consturction, Inc. 54 AD2d 744) This differs from a situation in which the plaintiff trips over something which is "an integral part of the work being performed" and, therefore, constitutes a normal risk ( Dubin v S. DiFazio and Sons Construction, Inc , 34 AD3d 626 )
Industrial Code enumerated in 12 NYCRR § 23-2.1(a)(1) states:
All building materials shall be stored in a safe and orderly manner. Material piles shall be stable under all conditions and so located that they do not obstruct any passageway, walkway, stairway or other thoroughfare.
The plaintiff claims that a person tripping over building material which was strewn about could hold the owner and general contractor liable ( Scannell v MtSinai Medical Center, 256 AD2d 214). In Scannell the plaintiff tripped over material "strewn over the work site" ( Scannell v MtSinai Medical Center, supra). This is not the situation in the instant case.
Tishman also alleges that the plaintiff's Labor Law § 241(6) claim must fail because the plaintiff must plead and prove a specific violation of the New York State Industrial Code. That the section pled by the plaintiff was limited to 12 NYCRR 23-1.5 which is limited to "General Responsibility of Employers". With regard to the specific violations Tishman posits that Iwanowski "became entangled in the reinforcing bar or rebar which was an integral part of the work that he was performing constructing the floors of the building." That Iwanowski said that the rebar "was already in place having been placed there by the latherers or concrete workers but may not have yet been tied-off". Irwanowski testified that the steel slid away from him and that is why he fell. The plaintiff's bill of particulars claims that Tishman also violated Industrial Code sections 23-1.7; 23-1.16 and 23-1.21 as well as Occupational Safety Health Administration (OSHA) rules and regulations "as they pertain to construction (29CFR1926/1910): Section 450(a), et. seq." In the plaintiff's supplemental bill of particulars he also alleges violation of "12 NYCRR 23-1.7e) (1) and (2) and Section 23-2.1(a)(1) and (b)." Tishman alleges that the plaintiff's reliance on the OSHA regulations are over-broad and "should be disregarded."
Tishman alleges that Labor Law § 240 does not apply because it is related to "gravity-related accidents" and must, therefore, be dismissed as a matter of law. Tishman relies on Narducci v Manhasset Bay Associates [ 96 NY2d 259] for this proposition. They posit that "plaintiff did not fall from a height, rather he tripped and fell over onto the top layer of rebar which existed above where he was standing." A reading of Mr. Iwanowski's deposition indicates that he fell because his foot got caught in the top steel which was not secured and he was injured when he fell onto the rebar. Tishman's argument, which relies on Narducci, has been modified by subsequent cases ( see, Runner v New York Stock Exchange, ___ NY3d ___ [2009 NY Slip Op 9310]; Quattrocchi v F. J. Sciame Construction Co, 11 NY3d 757; Qutar v City of New York, 5 NY3d 731).
All places to which the 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 protection to all such persons.
This section codifies the common-law duty imposed on an owner or general contractor to provide construction site workers with a safe place to work and liability may be based on actual or constructive notice of a dangerous condition ( see, Rizzuto v L.A. Wenger Construction Co, 91 NY2d 343; Keating v Nanuet Board of Education, 40 AD3d 706). All that is required is for the plaintiff to demonstrate that the defendant had control or supervision over the work ( Aranda v Park East Construction, 4 AD3d 315).
Tishman argues that the rebar was not loose and that the plaintiff slipped when he "stepped up onto the top steel or top layer of rebar." That the rebar was "an integral part" of the construction and not loose. However, it is the defendant who bears the burden of demonstrating that the factual account averred to by the plaintiff is contradicted through submission of testimony by one who has personal knowledge of the circumstances of the accident ( see, Baly v Chrylser Credit Corp, 94 AD2d 781).
Tishman also urges this Court to dismiss the allegations that they violated the Common Law principle of negligence enumerated under Labor Law § 200 because there is no indication that he ever made any complaints to "Tishman about the placement of the rebar involved in this accident." That Tishman "had no prior notice of the alleged condition at the site of plaintiff's accident, and, said condition was not a defect but rather an integral part of the work being performed." ( Ross v Curtis-Palmer Hydro-Electric, 81 NY2d 494).
This Court finds that the defendants motion to dismiss is granted as to plaintiff claim arising from a violation Labor Law 241(6) as it relates to a violation of 12 NYCRR § 23-2.1(a)(1) for the reasons stated. Further, the plaintiff's action with regard to Labor Law 240 is similarly dismissed. However, the remaining portion of the defendants motion to dismiss is denied. The plaintiff's motion for summary judgment as it related to Labor Law 12 NYCRR § 23-1.7(e)(1) and (2) and Labor Law 200 are denied because summary judgment is available only where there are no questions of fact which remain unresolved ( Winegrad v New York University Medical Center, 64 NY2d 851).
So Ordered.