Opinion
114296/05
07-20-2020
Carlos MELENDEZ, Plaintiff, v. BROWN-UNITED, INC., Pro Sports & Entertainment, Inc., The Rouse Company of New York, LLC, South Street Seaport Limited Partnership, Turner Construction Company, Apple Industrial Development Corporation, New York City Economic Development Corporation, and the City of New York, Defendants.
Hach & Rose, LLP, New York, NY (Anthony Hirschberger of counsel), for plaintiff. Eustace, Marquez, Epstein, Prezioso & Yapchanyk, New York City (Robert M. Mazzei of counsel), for defendants Pro Sports & Entertainment, Inc., The Rouse Company of New York, LLC, South Street Seaport Limited Partnership, Apple Industrial Development Corporation, New York City Economic Development Corporation, and City of New York.
Hach & Rose, LLP, New York, NY (Anthony Hirschberger of counsel), for plaintiff.
Eustace, Marquez, Epstein, Prezioso & Yapchanyk, New York City (Robert M. Mazzei of counsel), for defendants Pro Sports & Entertainment, Inc., The Rouse Company of New York, LLC, South Street Seaport Limited Partnership, Apple Industrial Development Corporation, New York City Economic Development Corporation, and City of New York.
Gerald Lebovits, J.
Recitation, as required by CPLR 2219 (a), of the papers considered in the review of defendants' motion for summary judgment:
Defendants' Notice of Motion, Affirmation in Support, Exhibits 1-12
Affirmation in Opposition 13
In this Labor Law action, defendants Pro Sports & Entertainment, Inc. (Pro Sports), The Rouse Company of New York, LLC, South Street Seaport Limited Partnership, Apple Industrial Development Corp., New York City Economic Development Corporation and City of New York move, pursuant to CPLR 3212, for summary judgment dismissing the complaint and the cross claims asserted against them.
BACKGROUND
Plaintiff alleges that the Rouse Company of New York, LLC, South Street Seaport Limited Partnership, Apple Industrial Development Corp., New York City Economic Development Corporation, and the City of New York are the owners, operators, and managers of the South Street Seaport.
On July 7, 2004, nonparty Seaport Merchants Association, Inc. hired Pro Sports, pursuant to which Pro Sports agreed to provide all necessary services for the production of an "extreme sports and music festival" known as the "Core Tour" on Pier 17 of South Street Seaport on July 17 and 18, 2004 (Mazzei affirmation in support, exhibit D). Pro Sports, in turn, retained defendant Brown-United, Inc. (Brown-United) to install a set of BMX ramps in connection with the festival (id. , exhibit E). Nonparty Labor Ready Northeast, Inc. (Labor Ready) supplied temporary employees to Brown-United for the festival (id. , exhibit H).
Plaintiff testified at his deposition that, on July 16, 2004, he was employed by Labor Ready (id. , exhibit B at 42). Plaintiff stated that he had an accident on July 16, 2004, while working at South Street Seaport Pier 17 (id. at 47). There were about 10 Labor Ready employees on the job that day (id. at 49). It was his first day working at South Street Seaport (id. at 47). Plaintiff was going to set up a scaffold and a stage for a band (id. ). Fred Foster (Foster) from Labor Ready told plaintiff what he was going to be doing (id. at 48). He was wearing boots and his regular clothes (id. at 64). Plaintiff testified that he was wearing a hardhat at some point before the accident (id. at 66). After his lunch break, plaintiff was the only one without a hard hat, and he told his supervisor from Brown-United (id. at 68-69, 74). Plaintiff's supervisor told plaintiff to keep working (id. at 74-75). Foster instructed plaintiff to wear his hard hat at all times while working (id. at 71).
According to plaintiff, on the day of his accident, he was required to pick up 15-foot long pipes and form a base for a scaffold (id. at 53-54). Plaintiff testified that he picked up the pipes from a "huge box," took it to the base, and a Brown-United employee held onto the pipe so it could be connected horizontally with another pipe (id. at 54). The pipes weighed about 40 pounds and were screwed into an eight-by-eight inch square base (id. at 56-57). The base had a metal rod that "came up" 10 to 12 inches (id. at 62-63, 82-83). Immediately prior to his accident, plaintiff brought the pipe over to the base, and lifted it into the base (id. at 59, 63, 202). He believed that the Brown-United worker tightened the pipe (id. at 86). When plaintiff started to walk away, his coworker warned him to "be careful," and the pipe hit plaintiff in the head, neck, and shoulder (id. at 87). Plaintiff lost consciousness (id. ).
Jose Gallardo (Gallardo) testified that he was employed by Brown-United in July 2004 (id. , exhibit I at 13). Brown-United was erecting bleachers, banner towers, a stage, and a BMX jump for Core Tour (id. at 14). He supervised the crew and assembled structures (id. ). Gallardo testified that there was an incident in which a gentleman was hurt (id. at 15). Adam Cole (Cole) instructed Brown-United's workers as to what to build (id. at 18). When asked who instructed Labor Ready's workers, Gallardo testified "[e]very one of us was. Each and every one of us would instruct a Labor Ready guy" (id. at 20-21). Labor Ready did not have supervisors on site (id. at 20). Gallardo testified that plaintiff was "erecting the scaffold"; "When he let go of the scaffold, he turned around and it struck him on the head" (id. at 22). Brown-United also conducted an instructional meeting, when the workers were instructed how to do their job and about safety precautions (id. at 45-48). According to Gallardo, he instructed Labor Ready's employees "to lay out material, and that's it" (id. at 68).
Cole, Brown-United's vice president of sports, testified that Brown-United creates structures for sporting events (id. , exhibit F-1 at 7). Brown-United was not a general contractor (id. at 81). In July 2004, Cole was a project manager (id. at 9). Core Tour hired Brown-United (id. at 13). Core Tour "do[es] skating, BMX and skateboarding" (id. ). Brown-United hired Labor Ready to supply manpower (id. at 26).
The project started on July 16, 2004 and ended on July 18, 2004 (id. at 27-28). Brown-United was installing an elevated VIP stage and bleachers (id. at 31-32). Brown-United supplied the scaffolding and bleachers (id. at 36). Gallardo was the "main guy" on the project (id. at 39). Labor Ready provided gloves and hard hats to their workers (id. at 48). Labor Ready's workers moved the scaffold from the container to where the scaffold was going to be built (id. at 49-50). Brown-United's crew erected the scaffold (id. at 50). Cole and other Brown-United crew members directed Labor Ready's workers what to do (id. at 52). Cole held an instructional meeting during which he gave them his expectations about their "working style," and instructed them not to hurt Brown-United's or Labor Ready's workers while "carrying stuff" (id. at 57-58). The scaffold pipes were 10 feet long (id. at 59). Gallardo also instructed Labor Ready workers "what they need to be told. Not only what their job is, but what not to do" (id. , exhibit F-2 at 104-105).
According to Cole's testimony, Gallardo called Cole five minutes after plaintiff's accident (id. , exhibit F-1 at 79). Gallardo told Cole that "Mr. Melendez had plugged a leg on a screwjack, turned and walked away and the leg fell and hit him the head" (id. at 82). The particular leg that struck plaintiff was three meters long (id. ). Cole testified that "[h]e plugged the leg, turned around and it hit him in the head" (id. at 85). Gallardo was directing plaintiff at the time of the accident (id. at 86). Pro Sports had the authority to stop the work (id. , exhibit F-2 at 138-140).
The complaint seeks recovery for violations of Labor Law §§ 240, 241, 200 and under principles of common-law negligence. By decision and order dated July 28, 2008, the court (Stallman, J.) severed and dismissed the complaint as against defendant Turner Construction Company. There is no dispute that plaintiff discontinued the action as against Brown-United.
The moving defendants are the remaining parties to this action.
DISCUSSION
"It is well settled that ‘the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact’ " ( Pullman v. Silverman , 28 NY3d 1060, 1062 [2016], quoting Alvarez v. Prospect Hosp. , 68 NY2d 320, 324 [1986] ). "Once this showing has been made, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" ( Madeline D'Anthony Enters., Inc. v. Sokolowsky , 101 AD3d 606, 607 [1st Dept 2012] [internal quotation marks and citation omitted] ).
A. Labor Law § 240 (1)
Defendants argue that plaintiff's Labor Law § 240 (1) claim must be dismissed because plaintiff's injury was not the result of an elevation-related risk. According to defendants, the pole and its base were on the same level as plaintiff. In addition, defendants contend that the pipe did not fall due to the absence or inadequacy of a safety device of the kind enumerated in the statute.
Plaintiff argues, in opposition, that defendants are absolutely liable under section 240 (1) because the inadequately secured scaffold pipe struck him. Plaintiff maintains that there is a triable issue of fact as to whether the accident resulted from a gravity-related risk. Further, plaintiff asserts that it has been conclusively demonstrated that the scaffold pipe was inadequately secured for the purposes of plaintiff's work.
Labor Law § 240 (1), known as the Scaffold Law, provides, in relevant part, as follows:
"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, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed."
Labor Law § 240 (1) imposes absolute liability on owners, contractors, and their agents for failing to provide proper protection to workers on a construction site which proximately causes an injury ( Fabrizi v. 1095 Ave. of the Ams., L.L.C. , 22 NY3d 658, 662 [2014] ; Bland v. Manocherian, 66 NY2d 452, 459 [1985] ). To establish liability under Labor Law § 240 (1), the plaintiff must prove a violation of the statute (i.e., that the owner or general contractor failed to provide adequate safety devices), and that the violation was a proximate cause of his or her injuries ( Blake v. Neighborhood Hous. Servs. of NY City , 1 NY3d 280, 287 [2003] ). "[T]he single decisive question is 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" ( Runner v. New York Stock Exch., Inc. , 13 NY3d 599, 603 [2009] ).
To prevail on a cause of action pursuant to Labor Law § 240 (1) in a falling object case, "the injured worker must demonstrate the existence of a hazard contemplated under that statute ‘and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein’ " ( Fabrizi , 22 NY3d at 662, quoting Narducci v. Manhasset Bay Assoc. , 96 NY2d 259, 267 [2001] ). In a falling object case, the plaintiff must show that, at the time the object fell, it was "being hoisted or secured" ( Narducci , 96 NY2d at 268 ), or "required securing for the purposes of the undertaking" ( Outar v. City of New York , 5 NY3d 731, 732 [2005] ). Labor Law § 240 (1) "does not automatically apply simply because an object fell and injured a worker; a plaintiff must show that the object fell ... because of the absence or inadequacy of a safety device of the kind enumerated in the statute" ( Fabrizi, 22 NY3d at 663 [internal quotation marks, citation and emphasis omitted] ).
"There is no bright-line minimum height differential that determines whether an elevation hazard exists" ( Brown v. 44 St. Dev., LLC , 137 AD3d 703, 704 [1st Dept 2016] [internal quotation marks and citation omitted] ). In determining whether an elevation differential is de minimis, the Court of Appeals has held that "the weight of the object and the amount of force it is capable of generating, even over the course of a relatively short descent," should be considered (see Runner , 13 NY3d at 605 ).
In Wilinski v. 334 E. 92nd Hous. Dev. Fund Corp. (18 NY3d 1, 10 [2011] ), the Court of Appeals held that liability under section 240 (1) is not precluded where the injured worker and the base of the falling object stand at the same level.
Defendants have failed to establish prima facie that plaintiff's work did not subject him to a risk involving a "physically significant elevation differential" ( Runner , 13 NY3d at 605 ). Plaintiff testified that the pipes were 15 feet long and weighed about 40 pounds (Mazzei affirmation in support, exhibit B at 53-54, 56). The pipe hit him in the head and shoulder (id. at 87). Cole testified that the scaffold pipes were 10 feet long, and weighed about 45 pounds (id. , exhibit F-1 at 59, 64). Given the height and weight of the object, it cannot be said that the elevation differential was de minimis.
Moreover, defendants have failed to demonstrate that plaintiff's injury was not "the direct consequence of [defendants'] failure to provide adequate protection against [that] risk" ( Wilinski , 18 NY3d at 10 [internal quotation marks and citation omitted] ). Even if the scaffold attachment was not a safety device (see Fabrizi , 22 NY3d at 663 [compression coupling was not a safety device] ), defendants have not shown that other protective devices were not required. There are triable issues of fact as to whether defendants were obligated to provide appropriate safety devices of the kind enumerated in Labor Law § 240 (1) to secure the scaffold pipe and whether the pipe fell due to the absence or inadequacy of an enumerated safety device.
Accordingly, the branch of defendants' motion seeking dismissal of plaintiff's Labor Law § 240 (1) claim is denied.
B. Labor Law § 241 (6)
Labor Law § 241 (6) provides as follows:
"All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, when constructing or demolishing buildings or doing any excavating in connection therewith, shall comply with the following requirements:
* * *
All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places. The commissioner may make rules to carry into effect the provisions of this subdivision, and the owners and contractors and their agents for such work, except owners of one and two-family dwellings who contract for but do not direct or control the work, shall comply therewith."
" Labor Law § 241 (6), by its very terms, imposes a nondelegable duty of reasonable care upon owners and contractors ‘to provide reasonable and adequate protection and safety’ to persons employed in, or lawfully frequenting, all areas in which construction, excavation or demolition work is being performed" ( Rizzuto v. L.A. Wenger Constr. Co. , 91 NY2d 343, 348 [1998] ). To recover under Labor Law § 241 (6), a plaintiff "must specifically plead and prove the violation of an applicable Industrial Code regulation" ( Buckley v. Columbia Grammar & Preparatory , 44 AD3d 263, 271 [1st Dept 2007], lv denied 10 NY3d 710 [2008] ). "The Code regulation must constitute a specific, positive command, not one that merely reiterates the common-law standard of negligence" (id. ). "The regulation must also be applicable to the facts and be the proximate cause of the plaintiff's injury" (id. ).
According to defendants, plaintiff asserts violations of Industrial Code §§ 23-1.8 (c), 23-5.1 (b), 23-5.1 (h), 23-5.2, and 23-5.3 (g). In opposition to defendants' motion, plaintiff only relies on Industrial Code § 23-1.8 (c). Accordingly, plaintiff has abandoned reliance on the remaining Industrial Code sections (see Cardenas v. One State St., LLC , 68 AD3d 436, 438 [1st Dept 2009] ). Therefore, the court shall only consider whether plaintiff has a valid Labor Law § 241 (6) claim based on a violation of section 23-1.8 (c).
Section 23-1.8 governs personal protective equipment. Section 23-1.8 (c) (1) provides, with respect to head protection, 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 hat. Such safety hats shall be provided with liners during work in areas or at such times where the temperature is below 55 degrees Fahrenheit"
( 12 NYCRR 23-1.8 [c] [1] ).
Defendants argue that section 23-1.8 (c) is inapplicable because plaintiff was not working at an elevation. Therefore, according to defendants, this was not a "hard-hat job."
Plaintiff counters that there are issues of fact as to whether: (1) the regulation is applicable; (2) defendants violated the provision; and (3) the violation proximately caused the accident. Plaintiff argues that the scaffold necessarily exposed plaintiff and other workers to the risk of being struck by scaffold materials and components.
The First Department has held that section 23-1.8 (c) (1) is sufficiently specific to support a section 241 (6) claim ( Rutkowski v. New York Convention Ctr. Dev. Corp. , 146 AD3d 686, 687 [1st Dept 2017] ; Singh v. 106-108 Bayard St. Corp. , 300 AD2d 31, 31 [1st Dept 2002] ; but see Sajta v. Latham Four Partnership , 282 AD2d 969, 971 [3d Dept 2001] ).
" 12 NYCRR 23-1.8 (c) (1) requires hard hats where there is a risk of being struck by falling objects or materials or where the hazard of head bumping exists" ( Quishpi v. 80 WEA Owner, LLC , 145 AD3d 521, 522 [1st Dept 2016], lv denied 29 NY3d 914 [2017] [internal quotation marks and citation omitted] ). "In order to prevail on a Labor Law § 241(6) cause of action premised upon a violation of 12 NYCRR 23—1.8 (c) (1), the plaintiff must establish ‘that the job was a ‘hard hat’ job and that the plaintiff's failure to wear a hard hat was a proximate cause of his injury" ( Seales v. Trident Structural Corp. , 142 AD3d 1153, 1156 [2d Dept 2016], quoting McLean v. 405 Webster Ave. Assoc. , 98 AD3d 1090, 1095 [2d Dept 2012] ).
Contrary to defendants' contention, section 23-1.8 (c) (1) is applicable; plaintiff was subject to a risk of being struck by falling objects while moving scaffold components (see Emery v. Steinway, Inc. , 178 AD3d 613, 615 [1st Dept 2019] [regulation was application where worker allegedly hit his head on a steel beam due to defendant's failure to provide him with a hard hat]; cf. Spiegler v. Gerken Bldg. Corp. , 57 AD3d 514, 517 [2d Dept 2008] [ section 23-1.8 [c] [1] was inapplicable where the worker was working in an electrical room in the basement of the building installing a new electrical box] ).
Moreover, there are triable issues of fact as to whether section 23-1.8 (c) (1) was violated, and was a proximate cause of the accident (see Cantineri v. Carrere , 60 AD3d 1331, 1333 [4th Dept 2009] [triable issues of fact as to whether section 23-1.8(c)(1) was violated and was a proximate cause of the injuries where worker was injured while using a makeshift scaffold] ). Plaintiff testified that Foster directed him to wear a hard hat at all times while working (Mazzei affirmation in support, exhibit B at 71). He was the only one without a hard hat after his break (id. at 66-75). Plaintiff testified that the pipe hit him in the head and shoulder (id. at 87).
The branch of defendants' motion seeking dismissal of plaintiff's Labor Law § 241 (6) claim is granted only to the extent of dismissing the alleged violations of 12 NYCRR 23-5.1 (b), 12 NYCRR 23-5.1 (h), 12 NYCRR 23-5.2, and 12 NYCRR 23-5.3 (g).
C. Labor Law § 200 and Common-Law Negligence
Defendants argue that plaintiff's section 200 and common-law negligence claims should be dismissed because plaintiff received all of his supervision and instructions from Brown- United or Labor Ready. In addition, defendants maintain that they did not create the condition that caused plaintiff's accident, and did not have actual or constructive notice of the condition.
For his part, plaintiff contends that there are triable issues of fact as to whether Pro Sports had the authority to supervise Labor Ready's work and, in fact, exercised supervision over the construction of the start ramp.
Labor Law § 200 (1) provides as follows:
"All places to which this chapter applies shall be so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein or lawfully frequenting such places. All machinery, equipment, and devices in such places shall be so placed, operated, guarded, and lighted as to provide reasonable and adequate protection to all such persons. The board may make rules to carry into effect the provisions of this section."
Liability under Labor Law § 200 "generally falls into two broad categories: instances involving the manner in which the work is performed, and instances in which workers are injured as a result of dangerous or defective premises conditions at a work site" ( Korostynskyy v. 416 Kings Hwy., LLC, 136 AD3d 758, 759 [2d Dept 2016] ). "These two categories should be viewed in the disjunctive" ( Ortega v. Puccia , 57 AD3d 54, 61 [2d Dept 2008] ).
"Where a defect is not inherent but is created by the manner in which the work is performed, the claim under Labor Law § 200 is one for means and methods and not one for a dangerous condition existing on the premises" ( Villanueva v. 114 Fifth Ave. Assoc. LLC , 162 AD3d 404, 406 [1st Dept 2018] ). "Where the injury was caused by the manner and means of the work, including the equipment used, ‘the owner or general contractor is liable if it actually exercised supervisory control over the injury producing work’ " (id. , quoting Cappabianca v. Skanska USA Bldg., Inc. , 99 AD3d 139, 144 [1st Dept 2012] ; see also Foley v. Consolidated Edison Co. of NY, Inc. , 84 AD3d 476, 477 [1st Dept 2011] ).
By contrast, where the worker's injury stems from a dangerous or defective premises condition, "a property owner is liable under Labor Law § 200 when the owner created the dangerous condition causing an injury or when the owner failed to remedy a dangerous or defective condition of which he or she had actual or constructive notice" ( Mendoza v. Highpoint Assoc., IX, LLC , 83 AD3d 1, 9 [1st Dept 2011] [internal quotation marks and citation omitted] ). Similarly, a general contractor may be liable under section 200 and the common law if it had "control over the work site and knew or should have known of the unsafe condition that allegedly brought about plaintiff's injury" ( Gallagher v. Levien & Co. , 72 AD3d 407, 409 [1st Dept 2010] ).
Here, plaintiff's accident arose out of the means and methods of the work, not a dangerous premises condition. "General supervisory authority is insufficient to constitute supervisory control; it must be demonstrated that the contractor controlled the manner in which the plaintiff performed his or her work, i.e., how the injury-producing work was performed " ( Hughes v. Tishman Constr. Corp. , 40 AD3d 305, 306 [1st Dept 2007] [emphasis in original] ).
In this case, defendants have established that they did not exercise supervision over the work that caused plaintiff's accident. Plaintiff testified that Pro Sports did not tell him how to put the pipe into the base, and did not provide him with any tools, including hard hats (Mazzei affirmation in support, exhibit B at 211-212). Brown-United told the Labor Ready workers what to do, and conducted instructional meetings about how to do their job and about safety precautions (id. , exhibit I at 20-21, 45-48; exhibit F-1 at 56-59).
Although plaintiff contends that Pro Sports employees told him to move pedestrian barriers (id. , exhibit B at 211-212), there is no evidence that Pro Sports "gave anything more than general instructions on what needed to be done, not how to do it" ( Foley , 84 AD3d at 477 [internal quotation marks and citation omitted] ). Moreover, Cole's testimony that Pro Sports had the authority to give directions to Labor Ready personnel and to stop the work is insufficient to raise an issue of fact as to whether it actually exercised supervisory control (id. , exhibit F-2 at 140). "[M]onitoring and oversight of the timing and quality of the work [are] not enough to impose liability under section 200" ( Paz v. City of New York , 85 AD3d 519, 519 [1st Dept 2011] ). "Nor is a general duty to ensure compliance with safety regulations or the authority to stop work for safety reasons enough to impose such liability" ( id. at 519-520 ). Plaintiff's Labor Law § 200 and common-law negligence claims are dismissed.
Accordingly, it is
ORDERED that the motion (sequence number 012) of defendants Pro Sports & Entertainment, Inc., The Rouse Company of New York, LLC, South Street Seaport Limited Partnership, Apple Industrial Development Corp., New York City Economic Development Corporation, and City of New York for summary judgment is granted to the extent of dismissing (i) plaintiff's Labor Law § 241 (6) claim with respect to the alleged violations of 12 NYCRR 23-5.1 (b), 12 NYCRR 23-5.1 (h), 12 NYCRR 23-5.2, and 12 NYCRR 23-5.3 (g); and (ii) plaintiff's Labor Law § 200 and common-law negligence claims; and the motion is otherwise denied.