Kaminski v. 53rd Street Madison Tower Dev.

Full title: KAMINSKI, LUKASZ v. 53RD.STREET MADISON TOWER DEV

Court: Supreme Court of the State of New York, New York County

Date published: Feb 17, 2009

2009 N.Y. Slip Op. 30390 (N.Y. Sup. Ct. 2009)

Opinion

108625/06.

February 17, 2009.

Supreme Court Greene County All Purpose Term, February 20, 2009 Assigned to Justice Joseph C. Teresi.

McNamee, Lochner, Titus Williams, PC, Kenneth L. Gellhaus, Esq., Attorneys for Plaintiff, Albany, New York.

Joshua A. Sabo, Esq., Attorney for Defendant, Troy, New York.

DECISION and ORDER

MILTON A. TINGLING, Judge.

Cross-Motion: [x] Yes [] No

Upon the foregoing papers, it is ordered that this motion

This action, under index number 108625/06, has been consolidated for all purposes under index number 106284/07, while this motion was pending. The motion, however, will be decided under the index number it was made and the parties are directed to serve a copy to all parties in the action under index number 106284/07.

This personal injury action arises out of a construction accident that occurred on April 14, 2006 at 53^rd Street and Madison Avenue, known as 16 through 20 East 53^rd Street, New York, New York, where a group of buildings was being demolished, and plaintiff Lukasz Kaminski was employed by non-party Gramercy Wrecking Environmental Contractors, Inc. (Gramercy Wrecking), performing demolition work.

Plaintiff moves for partial summary judgment of liability with respect to his claims under Labor Law §§ 240 (1) and 241 (6). Defendant 53^rd Street and Madison Tower Development, LLC (53^rd Street) cross-moves for summary judgment dismissing the complaint.

For the reasons set forth below, plaintiff's motion for partial summary judgment is denied. Defendant's cross motion for summary judgment is granted only to the extent of dismissing the claim under Labor Law § 240 (1), and the portion of the claim under Labor Law § 241 (6) with regard to New York City Industrial Code § 23-3.3 (b) (2) and 3.3 (h).

Plaintiff was employed by Gramercy Wrecking to demolish the group of buildings at the 53^rd Street site (Exhibit 2 to Plaintiff's Notice of Motion, at 12). Defendant 53^rd Street owned the premises located at the 53^rd Street site (Exhibit 4 to Plaintiff's Notice of Motion), and had hired Gramercy Wrecking to do the demolition work at the site (Exhibit 7, Deposition of Felicia DiPaola, dated December 20, 2007, at 23, 30).

Plaintiff testified at his deposition that, on the morning of the accident, he was on the platform of the stairway on the seventh floor cleaning up debris, pieces of the building that were demolished the day before, and carrying them over to send them down a chute (Exhibit 2 to Notice of Motion, Deposition of Lukasz Kaminski, dated January 19, 2007, at 39-42). At the time of the accident, the eighth floor had already been demolished, except for the exterior wall, and part of the floor beams ( id. at 101-02). A co-worker, working near plaintiff on the seventh floor, was using a long torch to cut a few floor beams and some concrete from the eighth floor, the floor above ( id. at 42-44). Plaintiff stated that this co-worker was working about ten meters away from him ( id. at 45). He attested that, when the co-worker cut the floor beam, an exterior red brick wall collapsed on plaintiff ( id. at 42-46). He attested that he was on the stair platform and fell down several steps ( id. at 163). Plaintiff asserted that nothing had been done to the wall to prevent it from collapsing ( id. at 104). He stated that, after the wall collapsed on him, he was carried out by his co-workers, and was taken by ambulance to the hospital ( id. at 87-95).

Plaintiff moves for partial summary judgment of liability on his claim for Labor Law §§ 240 (1) and 241 (6). He argues that section 240 (1) is applicable, because the part of the building that collapsed was located at a different work elevation than where he was working, and the collapse was due to a failure to brace the wall. With respect to his Labor Law § 241 (6) claim, plaintiff urges that defendant violated the following New York City Industrial Code provisions: 12 NYCRR §§ 23-3.3 (b) (1), (b) (2), (b) (3), (b) (6), (c) and (h). Defendant cross-moves for summary judgment dismissing the Labor Law § 240 (1) claim on the ground that the collapse of a wall that was not being worked on is not the type of elevation-related accident to which that provision applies. It challenges the application of the Industrial Code sections 3.3 (b) (1), (b) (6), (c), and (h), asserting that none of them apply to the facts here. It also seeks dismissal of plaintiff's claims under Labor Law §§ 200, and 241-a.

Plaintiff's motion for partial summary judgment of liability is denied. Defendant's cross motion is granted only to the extent that plaintiff's Labor Law § 240 (1) is dismissed, the portion of plaintiff's Labor Law § 241 (6) claim relying upon New York City Industrial Code §§ 23-3.3 (b) (2) and 3.3 (h) is dismissed, and the cross motion is otherwise denied.

Labor Law § 240 (1) imposes a non-delegable duty upon owners and general contractors to provide or erect ladders, scaffolds, braces, and other safety devices in order to protect workers engaged in tasks associated with elevation-related risks ( Misseritti v Mark IV Constr. Co., 86 NY2d 487; Rocovich v Consolidated Edison Co., 78 NY2d 509). It affords special protection to workers who sustain personal injuries as a result of elevation-related hazards, and '"injuries resulting from other types of hazards are not compensable under that statute even if proximately caused by the absence of . . . [a] required safety device'" ( Misseritti v Mark IV Constr. Co., 86 NY2d at 490, quoting Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 500). It protects workers with injuries resulting from elevation-related risks such as falling from a height, or being struck by a falling object that was improperly hoisted ( see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, supra). To prevail on such a claim, a plaintiff must prove a violation of the statute, that is, that an enumerated device was required and not provided, and that the violation was a proximate cause of the accident ( see Bland v Manocherian, 66 NY2d 452 [1985]).

This section of the Labor Law, however, extends "only to a narrow class of special hazards and [does] 'not encompass any and all perils that may be connected in some tangential way with the effects of gravity"' ( Nieves v Five Boro A.C. Refrig. Corp., 93 NY2d 914, 915-916 [citation omitted]). Simply because "a worker is injured while working above ground does not ipso facto mean that the injury resulted from an elevation-related risk contemplated by section 240 (1) of the Labor Law" ( Striegel v Hillcrest Heights Dev. Corp., 100 NY2d 974, 977). The statute does not impose liability for minimal elevation differentials, even if the injury is caused by an inadequate or malfunctioning enumerated safety device ( Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, supra; Misseritti v Mark IV Constr. Co., 86 NY2d at 491 [statute addresses only "exceptionally dangerous conditions posed by elevation differentials"]). The plaintiff bears the burden of demonstrating an elevation-related risk exists, and that the owner or contractor did not provide adequate safety devices ( Broggy v Rockefeller Group, Inc., 8 NY3d 675, 681). In this case, plaintiff fails to meet his burden, requiring dismissal of his Labor Law § 240 (1) claim, because this accident did not present an elevation-related risk of the type intended to be covered by the statute.

Misseritti v Mark IV Constr. Co. ( 86 NY2d 487, supra) is on point. In that case, the plaintiff's decedent was a mason performing masonry work at a construction site. He was severely injured when a completed, concrete-block fire wall collapsed on him. He had dismantled the scaffolding used to erect the fire wall, and was sweeping the floor in the area ( id. at 489-491). The wall had not yet been vertically braced. The Court found that there was no evidence showing that he was working at an elevated level at the time of the tragic accident ( id.). It held that the collapse of the fire wall was "the type of 'ordinary and usual' peril a worker is commonly exposed to at a construction site and not an elevation-related risk subject to the safeguards prescribed by Labor Law § 240 (1)" ( id. at 489). It construed the term "braces" in the statute to mean "those used to support elevated work sites not braces designed to shore up or lend support to a completed structure" ( id. at 491; see Amato v State of New York, 241 AD2d 400, 400-401 [1st Dept 1997], lv denied 91 NY2d 805 [no Labor Law § 240 (1) claim where worker injured while working at ground level demolishing building when brace, which was integral part of building and not an improperly operated safety device, fell and struck him]; see also Melo v Consolidated Edison Co. of N. Y., 246 AD2d 459 [1^st Dept], affd 92 NY2d 909 [no Labor Law § 240 (1) claim where worker injured by steel plate hoisted to vertical position at street level before being lowered over trench which struck him, because no risk from elevation differential]; Merkle v Weibrecht, 234 AD2d 696 [3d Dept 1996], l v denied 89 NY2d 813 [no § 240 (1) claim where worker injured by being pinned at ground level by sewer access door that was faultily supported]; Adamczyk v Hillview Estates Dev. Corp., 226 AD2d 1049 [4^th Dept], appeal denied 1996 WL 391503 [4^th Dept 1996] [no claim where worker injured while standing in 13-foot-deep trench when co-worker dropped sewer pipe onto worker when installing pipe in the trench]).

Here, plaintiff fails to establish that he was working on an elevated work site. He cannot establish either that there was a difference between the elevation level of the work he was performing-that is, cleaning debris off the floor-and a lower level, or a difference between the elevation level where he was positioned and the higher level of some materials or load being hoisted ( see Rocovich v Consolidated Edison Co., 78 NY2d at 514). Rather, plaintiff was injured when a permanently affixed and erect wall, which neither plaintiff nor his co-workers were working on, collapsed on him. These facts fall squarely within the Misseritti v Mark IV Constr. Co. case. As in that case, plaintiff's claim that the collapsed wall should have been shored up or braced does not bring the facts within section 240 (1). As the Court of Appeals found, the term "braces" in Labor Law § 240 (1) refers to devices to support elevated work sites, not something used to shore up a completed structure, such as the eighth floor's exterior wall ( Misseritti v Mark IV Constr. Co., 86 NY2d at 491). The fact that plaintiff was cleaning debris on the seventh floor, and a portion of the eighth floor wall fell on him, does not satisfy his burden to show an elevation differential. The cases relied upon by plaintiff involve accidents in which the worker was either struck by a beam or pipe that was being installed, or was partially installed and being completed, and that beam or pipe fell and hit worker ( see Boyle v 42^nd St. Dev. Project, Inc., 38 AD3d 404 [1^st Dept 2007] [rod that was integral part of construction work in progress was dropped from two floors above hitting and injuring plaintiff]; Sherman v Babylon Recycling Ctr., 218 AD2d 631 [1^st Dept], l v dismissed 87 NY2d 895 [horizontal steel beam placed on top of two eight-foot-tall vertical beams was part of hoisting apparatus, and was previously secured to vertical beams by iron sling, which sling was missing when plaintiff was injured]; see also Ortlieb v Town of Malone, 307 AD2d 679 [3d Dept 2003] [pipe that fell on plaintiff was material that was being hoisted or a load that required securing for the purposes of the undertaking at the time it fell]). These are factually distinguishable from the collapse of a permanently affixed wall where plaintiff was not working on an elevated work site, and the wall was not being worked on ( see Buckley v Columbia Grammar and Preparatory, 44 AD3d 263, 269-270 [1^st Dept 2007], l v denied 10 NY3d 710. As the Court is Misseritti found, the collapse of the wall, here, is the type of ordinary and usual peril a worker, such as plaintiff, is commonly exposed to at a construction site, and was not an elevation-related risk subject to the protections afforded by Labor Law § 240 (1). Therefore, summary judgment is denied to plaintiff, and granted to defendant, dismissing this claim.

Labor Law § 241 (6) mandates that owners and contractors provide reasonable and adequate protection and safety for workers by requiring them to comply with specific safety rules and regulations promulgated by the Commissioner of the Department of Labor, known as the Industrial Code ( 12 NYCRR 23 et seq.; see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, supra). In order to prevail under Labor Law § 241 (6), a plaintiff must plead and prove that the defendant violated a specific provision or provisions of the Industrial Code, and that such violation was a proximate cause of the accident ( Ares v State of New York, 80 NY2d 959).

Plaintiff, here, relies upon several sections of the Industrial Code for this claim, and this court finds that, while several of the provisions are inapplicable, there are issues of fact concerning whether the remaining provisions were violated. First, plaintiff relies upon Section 23-3.3 (b) (1) which provides:

(b) Demolition of walls and partitions

(1) The demolition of walls and partitions shall proceed in a systematic manner and all demolition work above each tier of floor beams shall be completed before any demolition work is performed on the supports of such floor beams

( 12 NYCRR § 23-3.3 [b] [1]). Plaintiff asserts that this regulation applies because the eighth floor wall which fell on him had not been demolished before the supports of the floor beams for that floor were cut by plaintiff's co-worker. He submits the affidavit of his engineering expert, Walter Konon, who opines that this regulation was violated by the failure to demolish all walls and partitions on the eighth floor before demolishing the floor beams ((Exhibit 11 to Plaintiff's Notice of Motion, Affidavit of Walter Konon, dated June 4, 2008, ¶ 3). Defendant counters that the eighth floor exterior wall was not actually being worked on so that this provision does not apply. Initially, it should be noted that this court finds that this Industrial Code provision is sufficiently specific to support a section 241 (6) claim ( see Perillo v Lehigh Constr. Group, Inc., 17 AD3d 1136 [4^th Dept 2005] [sections 23-3.3, 3.3 [b] [3] and [c] are sufficiently specific to support section 241 [6] claim]. Defendant's reading of subsection b is too restrictive ( see Docteur v Belleville-Henderson Cent. School Dist., 307 AD2d 751, 752 [4^th Dept 2003] [court rejects the defendant's narrow reading of code provisions, including 12 NYCRR 23-3.3 [[b] [3]). This subsection is applicable to the eighth floor exterior wall even though it was not specifically being demolished, because all the walls and partitions within the building, particularly the eighth and seventh floor, were in the process of being demolished. The court also notes that defendant fails to present definitive proof that the eighth floor exterior wall was not actually going to be demolished in this demolition project. Based on the plaintiff's testimony, and the affidavit from his expert, there is a material issue of fact as to whether this regulation was violated. It is not clear from the proof submitted by either party whether "all demolition work above each tier of floor beams" was completed before the floor beam was cut, as required by that provision. If the eighth floor exterior wall was intended to be demolished, they needed to do it before they demolished the floor beams, and an issue of fact has been raised ( see Sponholz v Benderson Prop. Dev., 273 AD2d 791, 792 [4^th Dept 2000] [factual issue as to applicability of regulations to accident]).

Sections 23-3.3 (b) (3) and (6), also relied upon by plaintiff, similarly raise triable issues on the Labor Law § 241 (6) claim. Subsection 3 provides:

(3) Walls, chimneys and other parts of any building or other structure shall not be left unguarded in such condition that such parts may fall, collapse or be weakened by wind pressure or vibration

( 12 NYCRR 23-3.3 [b] [3]). Subsection (c) provides in relevant part:

(c) Inspection. During hand demolition operations, continuing inspections shall be made by designated persons as the work progresses to detect any hazards to any person resulting from weakened or deteriorated floors or walls

( 12 NYCRR 23-3.3 [c]). Both of these provisions are sufficiently specific to support a section 241 (6) claim ( see Perillo v Lehigh Constr. Group, Inc., 17 AD3d 1136, supra [sections 3.3, 3.3 [b] [3] and [c] are sufficiently specific to support section 241 [6] claim]; Sierzputowski v City of New York, 14 AD3d 606, 607 [2d Dept 2005] [same]; Bald v Westfield Academy Cent. School and Concept Constr. Corp., 298 AD2d 881, 882 [4^th Dept 2002]; Gawel v Consolidated Edison Co. of N.Y., 237 AD2d 138 [1^st Dept 1997]). With respect to subsection (b) (3), plaintiff submits a copy of a Workers' Compensation Board, C2 Form, Employer's Report of Work Related Accident/Occupational Disease, in which it is stated in response to a question about how the accident happened, that "while floor beams where [sic] being cut it caused a vibration/wall fell on emp[loyee]" and "[c]aused a vibration which in turn caused a section of another masonry wall to partially collapse inward" (Exhibit 10 to Plaintiff's Notice of Motion, at 1, 2). Plaintiff also submitted a Notice of Violation from the New York City Department of Buildings, which indicates that a steel beam was cut, caused vibration and disturbed the exterior wall, resulting in a collapse (Exhibit 3 to Plaintiff's Notice of Motion). Plaintiff's expert again opined that regulation 23-3.3 (b) (3) was violated, but in very general terms, simply repeating the regulation's language (Exhibit 11, Konon Aff., ¶ 4). Based on this proof, triable issues of material fact have been raised about whether this provision has been violated.

Similarly, as to subsection c, this provision regarding continuing inspections applies. "The thrust of this subdivision is to fashion a safeguard, in the form of 'continuing inspections,' against hazards which are created by the progress of the demolition work itself" ( Monroe v City of New York, 67 AD2d 89, 100 [2d Dept 1979]; see Balladares v Southgate Owners Corp., 40 AD3d 667 [2d Dept 2007]; Salinas v Barney Skanska Constr. Co., 2 AD3d 619, 622 [2d Dept 2003]). The hazard plaintiff was exposed to, here, was created by the demolition work itself, therefore, this subsection applies. However, plaintiff has failed to present any definitive proof about inspections at the site, and defendant fails to make any showing either. Thus, summary judgment is denied to both parties ( see Balladares v Southgate Owners Corp., 40 AD3d 667, supra [summary judgment denied where no proof as to whether the required inspections under 12 NYCRR 23-3.3 [c] were performed]; Sponholz v Benderson Prop. Dev., 273 AD2d 791 [4^th Dept 2000] [factual issues as to applicability of regulations so summary judgment denied to both parties]).

There are also triable issues about whether section 23-3.3 (b) (6) applies. That subsection provides:

(6) Walls or partitions which are being demolished by hand shall not be left standing more than one story or 15 feet, whichever is less, above the uppermost floor on which persons are working. Such walls or partitions shall be removed before the aggregate area of the openings in such floor exceeds 25 percent of the total floor area

( 12 NYCRR 23-3.3 [b] [6]). Again, as indicated above, it is not clear, as a matter of law, that the eighth floor exterior wall which collapsed was being demolished by hand, that it was left standing "above the uppermost floor on which persons" were working, and that the aggregate area of the openings in the uppermost floor exceeded 25 percent of the total floor area. Defendant, however, is not entitled to dismissal of this claim. Plaintiff's submission of Mr. Konon's affidavit, in which he opines that this was "violated, as the wall that collapsed rose more than one story above the 7^th floor where the Plaintiff was working, and was not removed down to the level of being only one story above the Plaintiff prior to the accident," while not sufficient to prove this claim as a matter of law, is sufficient to raise a triable issue (Exhibit 11, Konon Aff., ¶ 5).

Finally, Industrial Code §§ 23-3.3 (b) (2) and 23-3.3 (h), do not apply in this case. There is no proof that masonry was loosened that endangered the structural stability of any floor or structural support ( 12 NYCRR 23-3.3 [b] [2]). As with the other sections of Industrial Code § 23-3.3, subsection 3.3 (h) is sufficiently specific for a Labor Law § 241 (6) claim ( see Sweeney v Yonkers Contr. Co., 269 AD2d 590 [2d Dept 2000]). That provision refers to the demolition of structural steel by hand. It provides, in part, that structural members which are being dismembered "shall not be under any stress other than its own weight and such member shall be chained or lashed in place to prevent its uncontrolled swinging or dropping" ( 12 NYCRR 23-3.3 [h]). Plaintiff fails to present prima facie evidence that the beam that was being cut was under stress other than its own weight, or that there was uncontrolled swinging or dropping. His expert's affidavit, again, simply repeats the regulation language, and is not sufficient to demonstrate that this section applies. Therefore, any claim based upon the alleged violation of these rules must be dismissed.

Thus, although plaintiff's allegations are sufficient to defeat defendant's cross motion for summary judgment on his Labor Law § 241 (6) cause of action, at least regarding Industrial Code §§ 23-3.3 (b) (1), (3), (6) and 3.3 (c), they are insufficient to demonstrate that plaintiff is entitled to summary judgment against the defendant on this claim. Accordingly, partial summary judgment is denied to plaintiff as there are triable issues raised regarding his Labor Law § 241 (6) claim based on defendant's alleged violations of Industrial Code §§ 23-3.3 (b) (1), (3), (6), and 3.3 (c). Defendant's cross motion for summary judgment on this claim is granted only to the extent of dismissing the portion of the claim relying on Industrial Code §§ 23-3.3 (b) (2) and 3.3 (h), and is otherwise denied.

The remainder of defendant's cross motion, regarding Labor Law §§ 200 and 241-a, is denied as untimely. As plaintiff correctly asserts, according to the Preliminary Conference Order in this matter, the last date for making dispositive motions was 60 days from the filing of the Note of Issue (Exhibit 2 to Plaintiff's Reply Affirmation and Affirmation in Opposition to Defendant's Cross Motion [Plaintiff's Reply], at 2). The Note of Issue was filed on April 10, 2008, and plaintiff's motion with regard to his claims under Labor Law §§ 240 (1) and 241 (6) was made on June 9, 2008 (Exhibit 1 to Plaintiff's Reply). Defendant's cross motion was made on July 1, 2008, over 20 days after the deadline. Once a court-ordered deadline for such motions has passed, the party seeking to make a late motion must seek leave of court with good cause shown ( see Filannino v Triborough Bridge and Tunnel Auth., 34 AD3d 280, 281 [1^st Dept 2006], citing Brill v City of New York, 2 NY3d 648 [2004]). Defendant, here, fails to make such a showing and, instead, contends that the cross motion is timely, because it was made in response to plaintiff's timely motion.

A cross motion for summary judgment made after expiration of either the statutory time period (CPLR 3212 [a]), or a time period set by the court for such a dispositive motion, may be considered by the court, even in the absence of good cause, "where a timely motion for summary judgment was made seeking relief 'nearly identical' to that sought by the cross motion" ( Filannino v Triborough Bridge and Tunnel Auth., 34 AD3d at 281 [citations omitted]; see also Conklin v Triborough Bridge and Tunnel Auth., 49 AD3d 320, 321 [1^st Dept 2008]; Altschuler v Gramatan Mgt., Inc., 27 AD3d 304, 304-05 [1^st Dept 2006]; Osario v BRF Constr. Corp., 23 AD3d 202, 203 [1^st Dept 2005]). This is based on the court's ability, in the course of deciding the timely motion, to search the record and grant summary judgment to any party without the necessity of a cross motion (CPLR 321 [b]; Filannino v Triborough Bridge and Tunnel Auth., 34 AD3d at 281). The search of the record, however, is limited to the claims or issues that are the subject of the timely motion ( Filannino v Triborough Bridge and Tunnel Auth., 34 AD3d at 281). Here, the plaintiff's motion was addressed to his claims under Labor Law §§ 240 (1) and 241 (6), while defendant's cross motion concerned those causes of action, as well as two different the causes of action (i.e., Labor Law §§ 200 and 241-a). As a result, this court exercises its discretion to find the cross motion timely as to the Labor Law §§ 240 (1) and 241 (6) claims, which claims, substantively, are determined above. The cross motion, however, is untimely as to the claims under Labor Law §§ 200 and 241-a. Those causes of action are not the subject of plaintiff's timely motion, and this court declines to consider defendant's untimely cross motion as to the claims ( see Filannino v Triborough Bridge and Tunnel Auth., 34 AD3d at 281-282). Defendant has made no showing of good cause. Therefore, defendant's cross motion with respect to the causes of action under Labor Law §§ 200 and 241-a is denied as untimely.

Accordingly, the plaintiff's motion for partial summary judgment of liability as to the claims under Labor Law §§ 240 (1) and 241 (6) is denied the defendant's cross motion for summary judgment is granted only to the extent of dismissing the portion of the second cause of action under Labor Law § 240 (1), and the portion of that cause of action under Labor Law § 241 (6) with respect to violations under New York City Industrial Code §§ 23-3.3 (b) (2) and 3.3 (h), and is otherwise denied.

The parties are to proceed with the scheduled conference in the action under index number 106284/07.