Opinion
Index Number: 488/08 Motion Cal. Number: 66 Motion Seq. No.: 6
01-28-2013
Abeer Jweinat and Melad Jweinat, Plaintiffs, v. City of New York, New York City Department of Transportation, New York City Department of Corrections, Gateway Industries, Inc., Gateway Industries, LLC, Gateway Contractors and Carabie Corporation, Defendants.
Short Form Order Present: HONORABLE
Justice
The following papers numbered 1 to 10 read on this motion by defendants for summary judgment; and cross-motion by plaintiff Abeer Jweinat for leave to serve an amended and/or supplemental bill of particulars.
+------------------------------------------------------+ ¦ ¦Papers ¦ ¦ ¦ ¦ ¦ ¦Numbered ¦ +-------------------------------------------+----------¦ ¦Notice of Motion-Affirmation-Exhibits ¦1-4 ¦ +-------------------------------------------+----------¦ ¦Notice of Cross-Motion-Affirmation-Exhibits¦5-8 ¦ +-------------------------------------------+----------¦ ¦Affirmation in Opposition ¦9-10 ¦ +------------------------------------------------------+
Upon the foregoing papers it is ordered that the motion and cross-motion are decided as follows:
Motion by defendants for summary judgment dismissing the complaint in its entirety is granted solely to the following extent. All causes of action alleged in the complaint by Abeer Jweinat (hereinafter referred to as plaintiff) are dismissed as against defendants City of New York, New York City Department of Transportation (DOT), New York City Department of Corrections, Gateway Industries, Inc, Gateway Industries LLC and Gateway Contractors. That branch of the motion for summary judgment dismissing the complaint as against Carabie Corporation is granted solely to the extent that plaintiff's causes of action premised upon a violation of Labor Law §§240(1), 241(6) and 200 are dismissed as against Carabie. That branch of the motion seeking summary judgment dismissing plaintiff's common law negligence cause of action against Carabie is denied. The sole cause of action alleged in the complaint by plaintiff Melad Jweinat as against all defendants is dismissed, there appearing no opposition by Melad Jweinat and no opposition by Abeer Jweinat. Cross-motion by plaintiff for leave to amend/supplement her bill of particulars is denied.
Plaintiff allegedly sustained injuries as a result of being struck by a cable and falling from a ladder on the Rikers Island Bridge (hereinafter the bridge) in Queens County on November 1, 2006 while engaged in performing environmental inspections in connection with the resurfacing and painting of the bridge.
The essential facts of this matter are not in dispute. The bridge is owned by the City which, through the DOT, entered into a contract with Gateway Industries to renovate the bridge. Gateway Industries, as the general contractor, subcontracted with Carabie to remove the old lead paint and repaint the bridge. Since the work involved lead abatement, the City also contracted with an entity identified by the parties as Urbitran to conduct environmental inspections to insure that the lead abatement work was being properly conducted so as to safeguard the environment and the workers involved in the project. Plaintiff was employed by Urbitran as an environmental inspector and was at the jobsite since July 2006. She was authorized to issue stop work orders to Carabie if she found that it was not in compliance with environmental safety requirements to protect workers and the environment at large.
On the date of the accident, a work platform was set up underneath the bridge which was accessed from the roadway of the bridge via a ladder, which was also erected by Carabie. The ladder rested on the surface of the platform and was secured with rope to the bridge railing at the top. The distance from the bridge railing at the top of the ladder to the surface of the platform where the feet of the bottom of the ladder rested was 12 feet. Plaintiff was climbing down the ladder to inspect the work performed by Carabie's foreman Suraj Ramnanan, whose nickname was Neil, and whom she was following down the ladder, when she was struck by a cable and fell off the ladder. Nelson Lopez, another Carabie employee, was pulling slack from a cable and as he did so, the cable fell downward and struck plaintiff on the head and then the chest and wrist, knocking her off the ladder onto the surface of the platform.
Defendants contend that plaintiff's cause of action under Labor Law §240(1) must be dismissed since plaintiff was not engaged in a protected activity, that plaintiff's claims under §200 of the Labor Law must be dismissed because defendants did not supervise or control plaintiff's work and neither the City nor the Gateway entities had any actual or constructive notice of a dangerous condition that caused plaintiff's injuries, that plaintiff's claims under §241(6) of the Labor Law must be dismissed for failure of plaintiff to allege violation of any applicable section of the Industrial Code, that plaintiff's §240(1) and 241(6) claims against Carabie must also be dismissed because Carabie did not direct or control the manner in which plaintiff performed her work, that the action must be dismissed against the City, its Department of Corrections, Gateway Industries LLC and Gateway Contractors because they had no involvement in the project and were not parties to any contract in the project, and finally, that the action must be dismissed as agaainst co-plaintiff Melad Jweinat for failure of that plaintiff to appear for a deposition as ordered by the Court.
Plaintiff does not oppose the granting of summary judgment dismissing the complaint as against Gateway Industries, LLC and Gateway Contractors, since there is no evidence that these entities had any involvement in the bridge project at issue. Moreover, plaintiff does not oppose dismissal of the complaint against the Department of Corrections. Although plaintiff's counsel does not oppose dismissal of the action against the Department of Corrections because it "appears to have no involvement as an owner or contractor", the Court notes that the New York City Department of Corrections is not a separate entity that may be sued, but is merely an agency, or department, of the City. Therefore, the Department of Corrections is not a proper party that may be sued. For the same reason, the complaint must be dismissed as against the New York City Department of Transportation (DOT), since it is merely a department of the City and not a separate and distinct entity that may be sued.
As to plaintiff's claim under §240(1) of the Labor Law, the remaining defendants argue that §240(1) does not apply to them because the work engaged in by plaintiff was not within the scope of that section of the Labor Law.
Labor Law §240(1) is a strict liability provision that imposes upon owners and contractors absolute liability for any breach of the statutory duty that proximately causes injury (see Panek v. County of Albany, 99 NY 2d 452 [2003]). That section, however, applies only to elevation-related injuries sustained by workers engaged in the erection, demolition, repairing or alteration of a structure (see Beard v. State of New York, 25 AD 3d 989 [3rd Dept 2006]). Plaintiff was not engaged in any of these activities, but was merely performing environmental inspections.
Defendants cite Martinez v City of New York (93 NY 2d 322 [1999]) in support of their contention that plaintiff, as merely an environmental inspector employed by an environmental inspection company not engaged in the actual bridge renovation work, was not employed in the actual erection, demolition, repairing or alteration of a structure and, hence, was not a covered worker under §240(1).
The plaintiff in Martinez was employed as an environmental inspector by an asbestos inspection company that had been retained by the New York City School Construction Authority to provide asbestos inspection services during the first phase of a project to remove asbestos from public schools. The asbestos inspection company's job was to locate asbestos in the school buildings and mark it for removal. The actual removal of the asbestos would be performed at some future time by another entity. The plaintiff fell off of a desk that he had climbed upon while attempting to reach an insulation-covered pipe on the ceiling of the subject building to inspect it. The Court of Appeals held that the plaintiff's job did not entitle him to the protection of §240(1) since he was "not a person employed to carry out the repairs as that term is used in section 240(1)" (93 NY 2d at 326, quoting Gibson v Worthington Div. of McGraw-Edison Co., 78 NY 2d 1108[1991]). In Gibson, the plaintiff who was employed by the contractor that was solicited to give an estimate for repair work to a fire-damaged building was injured when the roof collapsed on him as he was being shown the damaged area. The Court of Appeals held that since "plaintiff's firm had not been hired to perform any construction work on the premises at the time the accident occurred, plaintiff was not a person 'employed' to carry out the repairs as that term is used in...section 240(1)" (78 NY 2d at 1109). The Court noted in Martinez that the plaintiff's work as an environmental inspector was merely investigatory and was to be concluded before the start of any work, which was not going to be performed by his company but by some other entity. The Court specifically rejected the test employed by the court below which determined the applicability of §240(1) to the plaintiff based upon whether his work was "an integral and necessary part" of the overall project.
Plaintiff's counsel distinguishes Martinez from the facts of our case by contending that plaintiff herein was performing her environmental inspections during the course of the work being performed by Carabie and in conjunction with said work and thus were necessary and integral to Carabie's work and, consequently, should be considered as covered work within the purview of the Labor Law.
Counsel, instead, offers the case of Prats v Port Authority of New York and New Jersey (100 NY 2d 878 [2003]) as being more analogous to our fact pattern. The plaintiff there was an assistant mechanic employed by an air conditioning contractor that was hired by the Port Authority to clean, repair and rehabilitate the air conditioning in the World Trade Center. The contractor was required to determine the extent of all necessary construction related to the project and satisfy the Port Authority's inspection standards. The plaintiff worked on overhauling A/C systems and his tasks varied from day to day. On the day of his accident, he was readying air handling units for inspection, using tools to perform the work. His partner set up a ladder to inspect an A/C fan and the plaintiff held the ladder while his partner climbed it and asked plaintiff to hand him a wrench. The ladder slipped from under the co-worker and struck plaintiff.
The Court of Appeals stated that the determination of whether an inspection qualifies as covered work under §240(1) must be made on a case-by-case basis. In holding that the work engaged in by Prats qualified as covered work under §240(1), the Court of Appeals stated, "In sum...a confluence of factors brings plaintiff's activity within the statute: his position as a mechanic who routinely undertook an enumerated activity, his employment with a company engaged under a contract to carry out an enumerated activity and his participation in an enumerated activity during the specific project and at the same site where the injury occurred" (100 NY 2d at 883).
Plaintiff's counsel highlights the Court of Appeal's observation that in contrast to Martinez, the inspection in which Prats participated was contemporaneous with the A/C work being performed and formed part of a single contract, and contends that since plaintiff in our case was also performing her inspections during the course of the renovation work, and indeed had the authority to issue stop work orders, that her work was a covered activity pursuant to the analysis in Prats.
Although the Court of Appeals in Gonzalez emphasized that the task in which the worker was engaged must have been performed during the "erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure" and that the plaintiff environmental inspector's work was done prior to the commencement of any of the aforementioned covered activities and that such covered work to be performed during a separate phase in the future would not even be performed by the plaintiff's company, it would be error to infer from that observation that the work of an environmental inspector, admittedly not of itself an enumerated type of work under the statute, must nevertheless fall within the ambit of §240(1) if it is performed while the enumerated activity under the statute is underway. Section 240(1) of the Labor Law provides that owners and contractors who contract for "the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure" shall provide proper safety devices "to a person so employed". The core holding of Gonzalez was that the plaintiff environmental inspector "was not a person 'employed' to carry out the repairs as that term is used in section 240(1)". Merely because an inspection is performed while repair and painting work is going on does not necessarily make the inspection work a covered activity by association.
As the Court of Appeals noted in Prats, the determination of whether or not an inspection is within §240(1) must be made on a case-by-case basis depending on the context of the work. The context of the work performed by Martinez was that it was purely an investigatory inspection completely divorced from the actual covered activity itself. Thus, contrary to the contention of the defendant's counsel in Prats, the fact pattern in Martinez was not analogous, the Court of Appeals noting, "The inspections were ongoing and contemporaneous with the other work that formed part of a single contract. The employees who conducted inspections also performed other, more labor-intensive aspects of the project. Moreover, plaintiff worked for a company that was carrying out a contract requiring construction and alteration - activities covered by section 240(1). This contrasts with the asbestos inspector in Martinez, who did not work for the company that would actually remove the asbestos" (100 NY 2d at 881). The Court further noted, "[P]laintiff - while working as a mechanic - undertook the kind of work the Legislature intended to protect under section 240(1). Although at the instant of the injury he was inspecting and putting the finishing touches on what he had altered, he had done heavier alteration work on other days at the same job site on the same project. He was a member of a team that undertook an enumerated activity under a construction contract...The intent of the statute was to protect workers employed in the enumerated acts, even while performing duties ancillary to those acts" (id.).
Thus,"the context of the work", as stated by the Court of Appeals, refers to work of the type covered under the statute, and the inspections or whatever the worker was doing at the time of the accident must be within the scope of covered work which he or she was employed to perform.
As heretofore noted, the Prats Court found that the combination of the following factors brought the plaintiff's activity within the coverage of §240(1): 1) Plaintiff was a mechanic employed in performing the type of work covered by the statute. 2) He was employed by a company that was engaged in performing a covered activity. 3) He participated in a covered activity during the specific project and at the site where the injury occurred. The common element in all these factors was that the worker was actually engaged in performing, or was employed by a company engaged in performing, covered work during the project under which he or she was injured. Whether the worker was only performing inspections at the moment of his or her accident is of no moment. The key inquiry is whether the worker's job entailed performing a covered activity and whether the task that he or she was performing at the time, whether an inspection or something else, was within the context of such covered activity.
Under this analysis, plaintiff was not engaged in a covered activity within the meaning of §240(1). She was not employed in performing any type of work specified in the statute, she was not employed by a company that performed any such work and she did not engage in such work. Merely because she made environmental inspections while covered road surfacing and painting work was in progress did not make her work part of that covered work, and that she had the authority to issue stop-work orders if she found violations of environmental safety measures did not make her a participant in the resurfacing and painting labor. Quite simply, plaintiff was not resurfacing, sandblasting, painting or performing any other repair or renovation work to the bridge to entitle her to the extraordinary protections afforded by the Labor Law. Rather, she merely observed the activities of the workers engaged in such covered work to make certain that they were not contaminating the environment or themselves with lead paint in the performance of their work.
Thus, plaintiff's counsel's argument that plaintiff's environmental inspections were "necessary and integral" to the work performed by Carabie is without merit and ignores the holding of the Court of Appeals in Martinez wherein the "integral and necessary" approach to determining §240(1) coverage was explicitly rejected as improperly enlarging the reach of the statute beyond its clear terms. As the Court of Appeals noted, "[T]he statutory language must not be strained in order to encompass what the Legislature did not intend to include" (Martinez, 92 NY 2d at 326). The cases cited by plaintiff's counsel, Gowans v Otis Marshall Farms, Inc (85 AD 3d 1704 [Fourth Dept 2011]), Bagshaw v Network Serv. Mgmt. (4 AD 3d 831 [Fourth Dept 2004]) and Caraciolo v 800 Second Ave. Condominium (294 AD 2d 200 [First Dept 2002]), wherein the inspection and measuring work done by the plaintiffs was deemed necessary and integral to repair work and, therefore, was covered under §240(1), are inapposite to the facts of this case, since those plaintiffs were actually workers employed to perform the very covered repair work they were incidentally inspecting. Indeed, these cases are examples of the foregoing analysis set forth by the Court of Appeals and underscore the inapplicability of §240(1) to the environmental inspection work that plaintiff was performing at the time of her accident.
Plaintiff's claims pursuant to §241(6) of the Labor Law must also be dismissed.
In order to establish a cause of action pursuant to §241(6), it must be demonstrated that there was a violation of a specific rule or regulation of the Industrial Code of the State of New York and that such violation was a proximate cause of plaintiff's injuries (see Parisi v. Loewen Dev. of Wappinger Falls, 5 AD 3d 648 [2nd Dept 2004]). Moreover, the section of the Industrial Code relied upon must articulate a specific standard of conduct rather than general common law duties in order to form the basis of a claim under Labor Law §241(6) (see Farina v. Plaza Const. Corp., 238 AD 2d 158 [1st Dept 1997]). In her complaint and bill of particulars, plaintiff alleges violations of §23-1.5, 23-1.7(a)(1) and 23-1.7(b)(2)of the Industrial Code.
Section 23-1.5 merely sets forth generic directives and is insufficient to form the basis of a claim under §241(6) (see Maldonado v Townsend Ave Enterprises, 294 AD 2d 207 [1st Dept 2002]). The remaining sections enumerated by plaintiff, §23-1.7(a)(1) and 23-1.7(b)(2), are clearly inapplicable to the facts of the present matter.
Section 23-1.7(a)(1) requires overhead protection in areas normally exposed to falling material or objects. The record on this motion does not establish that the location where plaintiff was injured was such an area. Although plaintiff was injured by a falling cable, such was not a normal occurrence, and plaintiff herself testified in her deposition that she had never before observed anyone use a cable in the manner in which it was handled.
Section 23-1.7(b)(2) concerns the requirement to provide safety belts or, as an alternative, scaffolds, platforms or approved life nets, to workers employed in bridge or highway overpass construction at elevations greater than 30 feet. There is no evidence, on this record, that plaintiff was working at an elevation of greater than 30 feet. In any event, a platform was erected under the bridge for workers that, in fact, prevented plaintiff from falling from the bridge into the water.
Plaintiff's counsel points out that, with respect to platforms, §23-1.7(b)(2)(ii) provides, inter alia, "When used, such alternatives shall be installed not more than five feet below the lower edge of the structural members on or above which the persons to be protected are working." Counsel argues that defendants have failed to show that the platform was set up no more than five feet below the top of the ladder and, therefore, that §23-1.7(b)(2) is inapplicable. Counsel's argument is without merit. The platform was set up at the level where the workers were working. Such was the unrebutted deposition testimony of Carabie's employee, Rocco Miano,. Although plaintiff testified that she fell when she was standing on the upper section of the ladder and Miano testified that the distance from the railing where the top of the ladder was secured to the surface of the platform was 12 feet, the railing was not a structural member upon which plaintiff or any other worker was working. It was merely where the top of the ladder rested, and the ladder merely provided access to the area where work was being performed. Plaintiff was merely climbing down the ladder to the platform level where Carabie's workers were working. Therefore, §23-1.7(b)(2) of the Industrial Code is inapplicable to the facts of this case.
Plaintiff, at this late stage, and only in response to the instant motion, now cross-moves to amend her bill of particulars to add a claim based upon a violation of an additional section of the Industrial Code, to wit, §23-1.8(c)(1). That section requires, in relevant portion, that "every person required to work or pass within any area where there is a danger of being struck by falling objects or materials or where the hazard of head bumping exists shall be provided with and shall be required to wear an approved safety helmet." Plaintiff's counsel seeks to amend the bill of particulars to add this section of the Industrial Code based upon the testimony of Miano that plaintiff was not wearing a helmet. However, plaintiff herself testified in her deposition quite emphatically that she was wearing a helmet at the time of her accident. When asked if the cable struck her on the head in the area where she was wearing the helmet, she replied, "My God, if I was not wearing my helmet, I would be dead." She again exclaimed, "Thank God I had the hard hat." Plaintiff is bound by her clear testimony which precludes a cause of action under §241(6) of the Labor Law premised upon a violation of §23-1.8(c)(1) of the Industrial Code.
Therefore, plaintiff's claims under §241(6) of the Labor Law must be dismissed.
With respect to plaintiff's claim under §200 of the Labor Law and common law, §200 is a codification of the common-law duty of an owner or contractor to maintain a safe construction area (see Rizzuto v. L.A. Wenger Contr. Co., 91 NY 2d 343 [1998]). Therefore, the same principles governing common-law negligence apply to claims under §200. Owners and contractors are not vicariously liable for a subcontractor's failure to follow safe procedures (see Palmer v Center for Nursing and Rehabilitation, 18 AD 3d 364 [2nd Dept 2005]). Also, where the unsafe condition of the work site was caused by the methods or manner in which a contractor performed the work and the owner or general contractor did not exercise supervision and control over the work, no liability attaches to the owner or general contractor either under §200 or common law (see Dupkanicova v. Vasiloff, 35 AD 3d 650 [2nd Dept 2006]).
Where the condition was not caused by the contractor's unsafe work practices, liability may only be imposed upon the owner or contractor under either §200 or common law if the owner or contractor created the dangerous condition or, where the condition was a defect of the premises itself as opposed to one created by the contractor, if it is shown that the owner had actual or constructive notice of the condition (see Bradley v. Morgan Stanley & Co, 21 AD 3d 866 [2nd Dept 2005]).
The City and Gateways Industries have met their burden of demonstrating that they did not exercise any supervision or control over the work of Carabie's employees at the site (see Verel v. Ferguson Electric Const. Co., 41 AD 3d 1154 (4th Dept 2007]). There is also no issue as to the creation of an unsafe condition or actual or constructive notice of any defective condition of the bridge itself as opposed to a condition created by the construction work. Therefore, the City and Gateways Industries are entitled to summary judgment dismissing plaintiff's §200 claim and common law cause of action against them.
Plaintiff's §200 cause of action against Carabie must also be dismissed since a subcontractor owes no duty under §200 of the Labor Law to employees of other contractors whose work was not under its supervision and control (see Kelarkos v Massapequa Water Dist., 38 AD 3d 717 [2nd Dept 2007]). Plaintiff was not Carabie's employee and Carabie had no control over plaintiff.
However, that branch of the motion for summary judgment dismissing plaintiff's common-law negligence claims against Carabie is denied. Notwithstanding that a cause of action under §200 of the Labor Law does not lie against Carabie, it nevertheless could be found liable under common law negligence (see id.; Bell v Bengomo Realty, Inc., 36 AD 3d 479 [1st Dept 2007]). The record on this motion raises a question of fact as to whether Carabie's handling of the cable that struck plaintiff was negligent.
Finally, that branch of the motion for dismissal of Melad Jweinat's derivative cause of action for loss of consortium pursuant to CPLR 3126(3) is granted, there appearing no opposition by Melad Jweinat and no opposition by Abeer Jweinat. Melad Jweinat has failed to comply with two previous order of this Court directing him to appear for a deposition and has not appeared to oppose the instant motion.
Therefore, in light of his total disregard of the orders of this Court, evidencing willful and contumacious conduct intended to frustrate the disclosure process, and his failure to appear to oppose the instant motion, evidencing his lack of interest in pursuing his claim, it would not be an improvident exercise of this Court's discretion to dismiss Melad Jweinat's cause of action for loss of consortium.
Accordingly, Abeer Jweinat's complaint is dismissed in its entirety as against the City, DOT, Department of Corrections, Gateway Industries, Inc., Gateway Industries, LLC and Gateway Contractors, her claims against Carabie pursuant to §§240(1), 241(6) and 200 of the Labor Law are dismissed and Melad Jweinat's derivative cause of action is dismissed. That branch of Carabie's motion for summary judgment dismissing Abeer Jweinat's cause of action against it for common law negligence is denied. Plaintiff's cross-motion for leave to amend her bill of particulars is denied.
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KEVIN J. KERRIGAN, J.S.C.