Opinion
111728/07
11-28-2011
John McAllister, Plaintiff, v. Phoenix Constructors, JV, NEW YORK CITY TRANSIT AUTHORITY d/b/a/ MTA NEW YORK CITY TRANSIT, METROPOLITAN TRANSPORTATION AUTHORITY and PORT AUTHORITY OF NEW YORK and NEW JERSEY, Defendants.
For Plaintiff: Steven Aripotch, Esq. O'Dwyer & Bernstein For defendants Metropolitan Transportation Authority and New York City Transit Authority d/b/a MTA New York City Transit: John Coffey, Esq.Coffey & Coffey For defendants Port Authority of New York & New Jersey andPhoenix Constructors, JV:Gregory Harris, Esq.Grace E. Jang, Esq.Segal McCambridge Singer & Mahoney, Ltd
Appearances:
For Plaintiff: Steven Aripotch, Esq. O'Dwyer & Bernstein
For defendants Metropolitan Transportation Authority and New York City Transit Authority d/b/a MTA New York City Transit:John Coffey, Esq.Coffey & Coffey
For defendants Port Authority of New York & New Jersey andPhoenix Constructors, JV:Gregory Harris, Esq.Grace E. Jang, Esq.Segal McCambridge Singer & Mahoney, Ltd
Michael D. Stallman, J.
In this personal injury action alleging violations of Labor Law §§ 200, 240 (1) and 241 (6), defendants Phoenix Constructors, JV., (Phoenix) and The Port Authority of New York and New Jersey (Port Authority) move, pursuant to CPLR 3212, for summary judgment dismissing the complaint in its entirety (Motion Sequence No. 005). Pursuant to CPLR 3211 and 3212, defendants New York City Transit Authority d/b/a MTA New York City Transit and Metropolitan Transportation Authority (collectively, the MTA) move for summary judgment dismissing the complaint (Motion Sequence No. 006).
Plaintiff John McAllister cross-moves for summary judgment in his favor holding all of the defendants liable for violations of Labor Law § 240 (1) and § 241(6).
This decision addresses both motions and plaintiff's cross motion.
The complaint alleges that, on March 24, 2007, McAllister, an employee of Skanska Mechanical & Structural (Skanska), was injured while working to reinforce the Westside IRT subway tunnel (current number 1 line) around the Cortlandt Street subway station. The work was being done as part of the World Trade Center Transportation Hub Project.
McAllister testified that the accident occurred while he was working with a crew of 5 or 6 ironworkers to build a scaffold inside the subway tunnel. (Harris Aff, Ex. D at 19, 23-24.) One component of the scaffold was a metal beam with wheels on it, weighing approximately 250 to 300 pounds, which was hoisted by hand from a cart on the subway tracks onto a catwalk platform that was about four feet off the ground. The ironworkers had to lift the beam to chest height to be able to place it on the catwalk platform. (Harris Aff, Ex. D at 49-50, 53.) Walter Mueller, the ironworkers' superintendent, confirmed that the crew was directed to hoist the beams by hand. (Harris Affirm., Ex. E at 61.).
McAllister testified that, as he was lifting one end of the beam, he slipped sideways on grease or creosote that was on the concrete subway floor and fell, which caused the beam to fall onto McAllister's wrist. (Harris Affirm., Ex. D at 49-53, 59.) McAllister was transported to Beekman Downtown Hospital, where he was diagnosed with a fractured right wrist, and a cast was applied.
McAllister commenced this action against Phoenix, the general contractor on the subway underpinning project; against the Port Authority; and against and the MTA, alleging violations of Labor Law §§ 240 (1), 241 (6), 200 and claims of common law negligence against all of the defendants. DISCUSSION
Summary judgment will be granted if it is clear that no triable issue of fact exists. (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986].) The burden is on the moving party to make a prima facie showing of entitlement to summary judgment as a matter of law. (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067 [1979].) If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of a triable issue of fact. (Alvarez v Prospect Hosp., 68 NY2d at 324; Zuckerman v City of New York, 49 NY2d at 562.) Mere conclusions, unsubstantiated allegations or expressions of hope are insufficient to defeat a summary judgment motion. (Zuckerman v City of New York, 49 NY2d at 562.)
Labor Law § 240 (1), provides in pertinent part:
"All contractors and owners and their agents, . . . 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, hangars, 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.""Labor Law § 240 (1) was designed to prevent those types of accidents in which the scaffold, hoist, stay, ladder or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or a person." (Ross v Curtis-Palmer Hydro-Elec., Co., 81 NY2d 494, 501 [1993].) The legislative purpose underlying this section of the labor law is to protect workers by making the owners and general contractors of building construction jobs ultimately responsible for safety practices on those jobs. (Rocovich v Consolidated Edison Co., 78 NY2d 509, 513 [1991] citing 1969 NY Legis Ann, at 407.)
In its moving papers, the Port Authority argues that McAllister's Labor Law claims must be dismissed as against it, on the ground that it was neither an owner nor general contractor on the project and that it did not supervise any of the work performed. McAllister contends that the Port Authority "was the owner and lessor of the construction that was being installed," (Aripotch Affirm. ¶ 10), in that "[t]he Port Authority owned the actual materials that were being installed." (Id.)
Plaintiff conclusorily asserts that the MTA owned the land where the construction was underway. (Aripotch Affirm. ¶ 73.) In its reply papers, the MTA and New York City Transit Authority contend that "the City of New York owns the subways system and it is leased to the AUTHORITY." (Coffey Affirm. ¶ 8.)
Liability under Labor Law § 240(1) may lie against the fee owner of the property where the Labor Law violation occurred, "even though the property might be leased to another." (Coleman v City of New York, 91 NY2d 821, 823 [1997].) "Liability under section 240 (1) rests on the fact of ownership, and whether the owner has contracted for the work or benefitted from it is legally irrelevant." (Spagnuolo v Port Auth. of NY & N.J., 8 AD3d 64 [1st Dept 2004].) Here, in supplemental papers, the Port Authority admits that it
"did own the property where Plaintiff's injury allegedly occurred, subject to an easement over the property held by the MTA, which easement confers upon the MTA the exclusive rights to the use and enjoyment of the property." Pursuant to a "Memorandum of Understanding" between the Port Authority and the MTA (annexed as Exhibit A), the MTA granted the Port Authority the right to enter upon the easement for the purpose of the underpinning project."(Harris Suppl. Affirm. ¶ 3.). Because the Port Authority admits that it is the fee owner of the property where McAllister's accident allegedly occurred, the Port Authority is considered an "owner" within the meaning of Labor Law § 240 (1), notwithstanding the representation that it assumed ownership subject to an easement granted to the MTA. (Celestine v City of New York, 86 AD2d 592 [2d Dept 1982], affd 59 NY2d 938 [1983][affirmed for the reasons stated by the Appellate Division]; Murray v Lancaster Motorsports, 27 AD3d 1193, 1195 [4th Dept 2006]["the fact that their property was subject to an easement . . . does not relieve them of their nondelegable duty to decedent under the Labor Law"].) Moreover, the Memorandum of Understanding granted the Port Authority a right to enter upon the easement for the purpose of the underpinning project, which provides a further "nexus between the owner and the worker." (Abbatiello v Lancaster Studio Assocs., 3 NY3d 46, 51 [2004].)
The Port Authority has consistently referred to the Metropolitan Transportation Authority and the New York City Transit Authority in its papers collectively as the MTA, and the Memorandum of Understanding also refers to the two authorities collectively as the MTA. (See Harris Suppl. Affirm., Ex. A). This presented the question of whether the MTA, the New York City Transit Authority, or both authorities were granted an easement, and whether the Port Authority had granted the easement. Accordingly, by order dated July 22, 2011, the Court asked the parties to submit additional supplemental papers, to address specifically:
1) Whether the Port Authority granted an easement to the Metropolitan Transportation Authority, or to the New York City Transit Authority, or to both; 2) Assuming that the Port Authority granted an easement only as to one of those authorities, whether there is any lease or license agreement between the Metropolitan Transportation Authority and the New York City Transit Authority pertaining to the easement; 3) Whether, in light of the additional submissions directed, either the Metropolitan Transportation Authority or New York City Transit Authority may be considered an "owner" under Labor Law § 240 (1).
In their second supplemental affirmation, Phoenix and the Port Authority stated that the Port Authority
"conducted additional investigation which determined that pursuant to various agreements between the City of New York, the Port Authority and the MTA, the property where plaintiff's purported injury allegedly occurred was subject to an easement held solely by the MTA.The property where plaintiff's purported injury allegedly occurred was previously owned by the City of New York and the property was subject to an easement held by the MTA. The Port Authority obtained the property from the City of New York subject to any and all existing easements, including the existing easement held by the MTA." (Jang Affirm. ¶¶ 3-4.) Phoenix and the Port Authority do not submit copies of those agreements.
As to the New York City Transit Authority, Phoenix and the Port Authority do not contend that there is some lease agreement between the MTA and the New York City Transit Authority for use of the easement. However, Phoenix and the Port Authority argue that the New York City Transit Authority should nevertheless be considered an "owner" under Labor Law § 240 (1) because it is "the operator of the New York City subway system and the area where plaintiff was allegedly injured." (Jang Affirm. ¶ 12.)
The MTA and the New York City Transit Authority did not answer the first question posed in the Court's July 22, 2011 order. However, they submitted an affirmation which states that
"a search for additional documents was made by MTA Capital Construction Company relating to this accident location for leases and/or license agreements pertaining to any easements between the New York City Transit Authority and the Metropolitan Transportation Authority and Port Authority of New York and New Jersey.I have been advised that the search revealed that there are no leases and/or licenses agreements pertaining to any easements between the New York City Transit Authority and the Metropolitan Transportation Authority and Port Authority of New York and New Jersey for the location that is the subject of this litigation (Mulvenna Affirm . ¶¶ 2-3.) As to the third question posed in the July 22, 2011 order, the MTA and the New York City Transit Authority contend that the record does not establish, as a matter of law, that either was an "owner" under Labor Law § 240 (1).
As mentioned previously, the MTA and New York City Transit Authority submitted a copy of the 1953 lease agreement between the City of New York and the New York City Transit Authority, "in which the City relinquished possession and control of all of its transit facilities to the Transit Authority." (McGuire v City of New York, 211 AD2d 428, 429 [1st Dept 1995].) Indeed, the Memorandum of Understanding contains recitals acknowledging the City's lease agreement with the New York City Transit Authority. (Jang Second Suppl. Affirm., Ex A at 2.) Given McAllister's testimony that his accident allegedly occurred within an existing subway tunnel, McAllister's accident therefore occurred on premises leased to the New York City Transit Authority.
"Appellate Division cases have said that lessees who hire a contractor, and thus have the right to control the work being done, are owners' within the meaning of the statute [Labor Law § 240 (1)]." (Ferluckaj v Goldman Sachs & Co., 12 NY3d 316, 320 [2009][collecting cases].) Here, it is undisputed that the Port Authority, not the New York City Transit Authority, hired Phoenix as the general contractor. Because the New York City Transit Authority did not hire Phoenix, it cannot be considered be an "owner" within the meaning of the Labor Law. Therefore, the New York City Transit Authority is entitled to summary judgment dismissing plaintiff's claims under Labor Law §§ 200, 240, and 241 as against it.
As to the MTA, the MTA did not deny the Port Authority's contention that the Port Authority is the owner of the area where McAllister's accident allegedly occurred, which was subject to an easement given to the MTA. McAllister correctly points out that a holder of an easement where a plaintiff was injured is also deemed an "owner" within the meaning of Labor Law § 240 (1). (Copertino v Ward, 100 AD2d 565, 566 [2d Dept 1984][easement holder in the excavation site where plaintiff was injured is deemed an owner under Labor Law § 241 (6)].)
It cannot be determined from the record as to the nature, extent and boundaries of the MTA's easement. The Port Authority does not submit the various agreements from which it determined that the MTA had an easement for the area when the City transferred ownership to the Port Authority. It cannot be assumed that the City granted the MTA an express easement, especially given the 1953 lease agreement between the City and the New York City Transit Authority. Neither can it be determined whether the easement was an implied easement or an easement by necessity.
Because of these unanswered questions about the MTA's easement, plaintiff has not demonstrated, as a matter of law, that the MTA is an "owner" under Labor Law § 240 (1). To the extent that the MTA argues that it should be granted summary judgment because it was not an "owner" within the meaning of Labor Law § 240 (1), it is also not entitled to summary judgment.
Turning to the Port Authority's and Phoenix's liability as owner and general contractor under Labor Law § 240 (1),
"[t]he failure to provide safety devices constitutes a per se violation of the statute and subjects owners and contractors to absolute liability, as a matter of law, for any injuries that result from such failure since workers are scarcely in a position to protect themselves from accident.' Therefore, the statute should be construed as liberally as may be for the accomplishment of the purpose for which it was thus framed.'In order for a plaintiff to demonstrate entitlement to summary judgment on an alleged violation of Labor Law § 240(1), he must establish that there was a violation of the statute, which was the proximate cause of the worker's injuries." (Cherry v Time Warner, Inc., 66 AD3d 233, 235-236 [1st Dept 2009][internal citations and quotation marks omitted].)
McAllister has met his prima facie burden of demonstrating a violation of Labor Law § 240 (1), because he was not provided with any devices to hoist a beam weighing between 250 to 300 pounds, from the ground to a platform that was four feet high. Instead, McAllister and other workers were directed to hoist the beam manually. The record indicates that the accident was investigated by the site safety engineer, who drafted an incident report that recommended that the contractor "use mechanical means" such as mechanical hoists, chainfalls and proper cribbing to lift the beams to prevent recurrence. (Aripotch Affirm., Ex.5.) Moreover, Kathleen Hopkins, an expert safety consultant hired by McAllister, opines, without contradiction, that:
"Had the structure been hoisted by powered or manually operated hoisting equipment using stays, slings, hangers, blocks, pulleys, braces, irons, ropes, or other devices, the structure would have been moved and elevated under a controlled manner and Plaintiff's accident would not have occurred.(Aripotch Affirm., Ex. 4 [Hopkins Aff. ¶ 10].) Because the record indicates that the beam fell onto McAllister's wrist, there is no triable issue that the violation of Labor Law § 240 (1) was a proximate cause of McAllister's injuries.
* * *
The beam is inherently heavy and bulky and it is unsafe to require workers to manually hoist the beam while standing on an uneven and obstructed subway track. This is particularly true because the plaintiff had to step over the rail to move the beam from the cart atop the subway tracks to the catwalk at the side of the tunnel."
The Court rejects the argument that Labor Law § 240 (1) did not apply because the elevation differential was de minimis, given the weight of the beam and the amount of force it was capable of generating, even over a relatively short descent. (See Runner v New York Stock Exch., Inc., 13 NY3d 599, 602 [2009]; see also Brown v VJB Constr. Corp., 50 AD3d 373 [1st Dept 2008].) In Runner v New York Stock Exchange, Inc. (13 NY3d at 603), a worker was injured while serving as a counterweight on a makeshift pulley, when he was dragged into the pulley mechanism, after a heavy object on the pulley mechanism rapidly descended a set of stairs that were less than three feet high. The Court of Appeals framed the decisive question as, "whether plaintiff's injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential." (Id. at 603.) The Court of Appeals ruled that the harm to plaintiff was the direct consequence of the application of the force of gravity to the reel, and that the less than three foot elevation differential could not be viewed as de minimus,"particularly given the weight of the object and the amount of force it was capable of generating, even over the course of a relatively short descent." (Id. at 605.)
In Brown, a granite slab weighing 1,000 pounds fell three feet off a forklift, struck the ground, and then tilted over and pinned the plaintiff's right wrist between the slab and a wall. It was undisputed that the slab fell because a clamp securing the slab to the forklift had failed. The Appellate Division, First Department rejected the argument that Labor Law § 240 (1) did not apply because there was no "substantial" elevation differential, stating,
"While it is true that section 240 (1) liability requires an elevation differential between the worker and the object being hoisted, the extent of the elevation differential is not necessarily determinative of whether an accident falls within the ambit of Labor Law § 240 (1). . . . it is of no consequence that the ultimate destination of the slab was the same level where the forklift was positioned, or where plaintiff was standing. The relevant facts are that a slab of granite measuring four by three feet and weighing 1,000 pounds had to be hoisted three feet above grade in order to transport it, and that the accident occurred while it was hoisted in the air due to the effects of gravity and the defective clamp."(Brown, 50 AD3d at 376 [citation omitted].)
The Port Authority argues that Rodriguez v Margaret Tietz Center For Nurisng Care (84 NY2d 841 [1994]) applies in this case, but the Port Authority has not demonstrated that Rodriguez applies here. In Rodriguez, the plaintiff was injured while dismantling a hoist on the roof of a building owned by the defendant. Specifically, the plaintiff was struck in the knee by a falling steel beam which was part of the hoist. At trial, the trial court directed a verdict in favor of the plaintiff against the defendant. The Appellate Division, Second Department upheld the trial court's directed verdict, stating, "the plaintiff established an unrebutted prima facie case by demonstrating that there was a total lack of safety equipment and devices for the dismantling of the hoist, and that the beam which struck him was the sole cause of his injuries. (Rodriguez v Margaret Tietz Ctr. for Nursing Care, 197 AD2d 565, 566 [2d Dept 1993].)
On appeal, the Court of Appeals reversed and dismissed plaintiff's cause of action based on Labor Law § 240. The Court of Appeals stated, "In placing a 120-pound beam onto the ground from seven inches above his head with the assistance of three other co-workers, Rodriguez was not faced with the special elevation risks contemplated by the statute." (Rodriguez, 84 NY2d at 841 [1994].)
In this Court's view, Rodriguez does not stand for the proposition, which the Port Authority contends, that an inherent risk of any object carried by hand is the risk that it may be dropped and cause injury, and that such a risk is not within the risks contemplated by Labor Law § 240 (1). In Rodriguez, the Court of Appeals specifically relied upon both the weight of the beam and the number of workers who were lowering the beam to ground level to determine that the risks posed to the plaintiff in Rodriguez were the usual and ordinary dangers of a construction site. That is, the Court of Appeals appears to suggest that the risk that four workers in Rodriguez might have dropped the 120-pound beam which they were lowering, from a distance of seven inches above a person's head to the ground, was no greater than from the risk that they might drop anything else at a construction site that would usually and ordinarily be carried by hand.
Here, the beam weighed between 250 to 300 pounds and was being lifted a distance of four feet by 5 or 6 workers. Both the site safety engineer and McAllister's safety consultant opine that the use of proper mechanical hoisting devices would have prevented the accident. The Port Authority submits no opinion from an expert either disputing the conclusion of McAllister's expert, or stating that the effort in lifting this beam would have required no more effort than that required for four workers to lower a 120-pound beam in Rodriguez.
The Port Authority's reliance on Cruz v Neil Hopsitality LLC (50 AD3d 619 [2d Dept 2008]) is misplaced. In Cruz, an iron worker, along with five other workers, was attempting to move a steel beam, 20 feet long and weighing approximately 800 pounds, by pushing it over a dirt mound about 15 feet high. They were moving the beam by pushing it on top of another beam, and had moved the beam half way up the mound when the workers stopped for a moment. The beam began to slide back down and everyone else moved out of the way. A large ditch behind the plaintiff prevented him from moving back. The plaintiff attempted to jump over the beam, but his left leg was caught and crushed between the beams.
The Appellate Division, Second Department affirmed dismissal of the plaintiff's cause of action under Labor Law § 240 (1), ruling that the statute was inapplicable because the plaintiff was not subject to an elevation-related hazard to which the protective devices enumerated in the statute apply. However, Cruz does not apply here because, unlike the instant case, the workers in Cruz were not lifting or hoisting the beam.
To the extent that the Port Authority and Phoenix argue that McAllister's alleged slip and fall caused his injuries, the Court is not persuaded that this argument is a defense to liability under Labor Law § 240 (1). McAllister was exposed to an elevation risk because the 250 to 300 pound beam was being lifted four feet off the ground and could have fallen upon him. The beam was carried manually, and that method failed. The Port Authority and Phoenix's argument focuses on what caused the method of hoisting to fail, whereas the violation of Labor Law § 240 (1) occurred because a different method of lifting the beam should have been used.
Therefore, McAllister is granted summary judgment in his favor as to liability under Labor Law § 240 (1) against the Port Authority and Phoenix.
Labor Law § 241(6) states:
"All contractors and owners and their agents, . . . when constructing or demolishing buildings or doing any excavating in connection therewith, shall comply with the following requirements:This statute creates a non-delegable duty for owners, general contractors and their agents to comply with the provisions of the New York State Industrial Code. (Ross v Curtis-Palmer Hydro Electric, Inc., 81 NY2d 494, 501-503 [1993].) Here, paragraph 27 of the bill of particulars alleges that defendants violated 12 NYCRR 23-1.7 (d), (e) (1) & (2), and 12 NYCRR 23-1.8 (c) (2). (Harris Affirm., Ex. D.)
(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 . . . the commissioner may make rules to carry into effect the provisions of this subdivision . . . ."
The Port Authority argues that 12 NYCRR 23-1.7 (e) (1) & (2) and 12 NYCRR 23-1.8 (c) (2) do not apply here. McAllister does not dispute that argument; instead, he seeks summary judgment in his favor based solely on a violation of 12 NYCRR 23-1.7 (d). Therefore, so much of the complaint that alleges that defendants violated Labor Law § 241 (6), based on violations of 12 NYCRR 23-1.7 (e) (1) & (2), and 12 NYCRR 23-1.8 (c) (2) is dismissed.
12 NYCRR 23-1.7 (d) states:
"(d) Slipping Hazards. Employers shall not suffer or permit any employee to use a floor, passageway, walkway, scaffold, platform or other elevated working surface which is in a slippery condition; ice, snow, water, grease and any other foreign substance which may cause slippery footing shall be removed, sanded or covered to provide safe footing."At his deposition, McAllister was asked if he saw what he slipped on, and he answered, "Yes, it looked like creosote or some type of brownish grease." (Harris Affirm. Ex. D at 50 - 53.) During his deposition, McAllister referred to the slippery substance both as creosote and as grease. When asked how far he had carried the beam, McAllister answered, "We went to pick it [the beam] up to put on the platform, I went to take a step and I slipped on grease, creosote and crushed my wrist." (Id. at 49.) When asked if he had ever seen creosote in that tunnel before the day of the accident, McAllister answered, "Yeah, it is a tunnel of the train, I seen plenty of grease down there." (Id. at 126.)
The Port Authority argues that 12 NYCRR 23-1.7 (d) does not apply to the track bed of a subway train, in that the track bed is not a "floor," "passageway," or "walkway." Moreover, the Port Authority also argues that the regulation is concerned with "foreign substances," and therefore should not apply to grease that would be commonly found on the track bed of a subway train. Walter Muller, III, an ironworker superintendent employed by Skanksa, testified at his deposition that he believed that creosote was "something they inject into the wood to preserve it from rotting . . . But I don't think they had it in those ties there. I think that's a different type of wood. I believe that's a pretty dry wood." (Harris Affirm., Ex. E at 64.)
The issue of whether the track bed is a "floor," "passageway," and "walkway" presents a question of regulatory interpretation, and thus a question of pure law. Therefore, the opinion of McAllister's expert that the subway tunnel floor was both a "floor" and a "passageway" within the meaning of 12 NYCRR 23-1.7 (d) may not be considered. (Colon v Rent-A-Center, 276 AD2d 58, 61 [1st Dept 2000]["Expert opinion as to a legal conclusion is impermissible"].)
Administrative regulations are generally subject to same canons of construction as statutes. (ATM One, LLC v Landaverde, 2 NY3d 472, 477 [2004], citing 2 NY Jur2d, Administrative Law § 184.) Words should be given their ordinary meaning, in the absence of any indication that a different meaning was intended. (People v Cruz, 48 NY2d 419 [1979].) As both sides indicate, "floor," "passageway," and "walkway" are not specially defined in the Industrial Code. Therefore, they should be given their ordinary meaning. Webster's Third New International Dictionary, Unabridged, has several definitions of "floor," including: "the lower inside surface of a hollow structure (as a cave or bodily part)." ("floor." Webster's Third New International Dictionary, Unabridged. Merriam-Webster, 2002. http://unabridged.merriam-webster.com . ) Given this definition of "floor," the track bed floor where McAllister claims to have slipped and fallen is a "floor" within the meaning of 12 NYCRR 23-1.7 (d).
Webster's Third New International Dictionary, Unabridged (including its online version) is an accepted authority for the plain and ordinary meaning of words for statutory construction. (See Balzarini v Suffolk County Dept. of Social Servs., 16 NY3d 135, 143 [2011][citing online dictionary to define "exceptional"].)
Under case law, if a substance is "an integral part" of the construction project, then it is does not constitute a "foreign substance" under 12 NYCRR 23-1.7 (d). (See Galazka v WFP One Liberty Plaza Co., LLC, 55 AD3d 789, 790 [2d Dept 2008][collecting cases][wet asbestos fibers were not a "foreign substance" under 12 NYCRR 23-1.7 (d) because the plaintiff was engaged in asbestos removal, and safety regulations required fibers to be constantly wet so as to prevent them from filling the air].) A substance that is " an integral part' of the construction project means a substance that is a product of the construction project itself, such as a substance used during the construction. (See Stafford v Viacom, Inc., 32 AD3d 388 [2d Dept 2006] [12 NYCRR 23-1.7 (d) did not apply to electrician who slipped and fell on glue on the floor, which was an integral part of the installation of the carpeting or floor tiles].)
Sweet v Packaging Corp. of America (297 AD2d 421 [3d Dept 2002]) is instructive. There, the plaintiff and a co-worker were performing removal of asbestos roofing material, lifting a section of roofing together. The co-worker slipped and fell on wet roofing debris, causing the full weight of the section to shift onto the plaintiff's shovel, which in turn caused the plaintiff to fall and injure his back. At his pretrial deposition, the plaintiff testified that the roof that he was working on was wet and slippery because it had rained the night before the accident. The plaintiff further testified that this slippery condition was caused by the asbestos fibers on the roof becoming wet from the previous evening's rain.
The Appellate Division, Third Department rejected the defendants' argument that 12 NYCRR 23-1.7 (d) did not apply to the roof fibers upon which the plaintiff's co-worker slipped. It reasoned, "While there can be no doubt that the fibers constituted an integral part of the worksite, the precipitation causing them to become slippery did not, and defendants' alleged failure to remedy the slippery condition is actionable." (Sweet, 297 AD2d at 241).
Here, defendants submit no evidence that grease or creosote was used on the track bed during the underpinning project at any time before McAllister's accident. Therefore, they have not demonstrated, as a matter of law, that the alleged grease or creosote upon McAllister slipped and fell was not a "foreign substance" that was required to be sanded, removed, or covered under 12 NYCRR 23-1.7 (d).
Notwithstanding the above, the branch of McAllister's motion for summary judgment as to liability under Labor Law § 241 (6) against defendants is denied. According to an incident report filled in and signed by McAllister, he "[w]as lifting aluminum beam to put on platform when it rolled onto my wrist. The top flange hit my wrist." (Aripotch Affirm., Ex. 5.) As the Port Authority and Phoenix point out, the fact that McAllister did not report that he slipped on a slippery substance, which then caused him to drop the beam, raises a triable issue of fact whether McAllister dropped the beam because of a slip and fall caused by a foreign substance on the floor where he was working.
C. Labor Law § 200 and Common Law Negligence
Labor Law § 200, which codifies the common law duty to provide workers with a safe place to work, states, in pertinent part:
"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 protection to all such persons."The Port Authority and Phoenix, along with the MTA, contend that the common law negligence and Labor Law § 200 claims must be dismissed against them because they had no actual or constructive notice of the allegedly dangerous condition, because they did not supervise or control the work site, and because they did not create the allegedly dangerous condition.
McAllister's Labor Law § 200 and common law negligence claims are not based on the employer's methods or materials on the job, but rather, they are based on an alleged dangerous condition on the work site-grease or creosote on the concrete track bed that allegedly caused McAllister to slip. Accordingly, it is not necessary for McAllister to show that the defendants exercised supervisory control over the work that allegedly produced the injury; rather, the only issue regarding defendants' liability is whether they had actual or constructive notice of the allegedly dangerous condition. (Minorczyk v Dormitory Auth. of the State of NY, 74 AD3d 675 [1st Dept 2010]; Seda v Epstein, 72 AD3d 455 [1st Dept 2010]; Urban v No. 5 Times Square Dev., LLC, 553 AD3d 553, 556 [1st Dept 2009].)
Although defendants deny notice of any slippery condition, they have failed to come forward with any evidence as to when the area in question was last inspected. Therefore, they have failed to satisfy their prima facie burden that they are entitled to judgment dismissing the Labor Law section 200 and common law negligence claims as a matter of law. (Taylor v Rochdale Vil., Inc, 60 AD3d 930, 931-932 [2d Dept 2009][summary judgment denied because defendant did not submit any evidence as to when it last inspected the site prior to the accident].)
CONCLUSION
Accordingly, it is hereby
ORDERED that the motion for summary judgment by defendants Phoenix Constructors, JV and the Port Authority of New & New Jersey (Motion Seq. No. 005), and the motion for summary judgment by New York City Transit Authority d/b/a MTA and the Metropolitan Transportation Authority (Motion Seq. No. 006) are granted only to the extent that so much of the complaint that alleges violations of Labor Law §§ 200, 240 and 241 are dismissed as against defendant New York City Transit Authority d/b/a MTA New York City Transit, and violations of Labor Law § 241 (6), based on 12 NYCRR 23-1.7 (e) (1) & (2), and 12 NYCRR 23-1.8 (c) (2) are dismissed as against all defendants, and the motions are otherwise denied; and it is further
ORDERED that the cross motion for summary judgment by plaintiff John McAllister is granted in his favor as to liability under Labor Law § 240 (1) against defendants Port Authority of New York and New Jersey and Phoenix Constructors, JV, and the cross motion is otherwise denied; and it is further
ORDERED that the remainder of the action shall continue; and it is further
ORDERED that counsel shall appear at a conference in IAS Part 21, on Thursday, December 8, 2011 at 10:30 a.m. to discuss the issues of the MTA's alleged easement and how they should be determined.
Copies to counsel.
ENTER:
New York, New York
J.S.C.