Opinion
Index No. 159978/2019 MOTION SEQ. No. 001
01-12-2024
JUAN A. NARBONA RIOSECO, Plaintiff, v. 216 WATERMARK HOLDINGS LLC, BERNSTEIN REAL ESTATE Defendant.
Unpublished Opinion
MOTION DATE 09/19/2023
PRESENT: HON. LESLIE A. STROTH Justice
DECISION + ORDER ON MOTION
Leslie A. Stroth Judge:
The following e-filed documents, listed by NYSCEF document number (Motion 001) 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 63, 64, 65, 67 were read on this motion to/for JUDGMENT - SUMMARY.
This is an action to recover damages for personal injuries sustained by plaintiff Juan A. Narbona Rioseco (plaintiff), when he fell from a scaffold while working on a construction project at 216 E. 45th Street, New York, NY 10017 (the premises) on June 13, 2019.
In his summons and complaint, plaintiff pleads causes of action for negligence and violations of Labor Law §§ 200, 240 (1), and 241 (6) against defendant 216 Watermark Holdings LLC, owner of the premises, and defendant Bernstein Real Estate, manager of the premises (collectively, defendants). Plaintiff now moves for summary judgement on all three causes of action.
I. Alleged Facts
In June 2019, non-party DBJ Contracting Corp. (DBJ) was hired by defendants to perform construction work at the premises, which included partition work, sheetrock, and painting. On June 13, 2019, the date of the incident, plaintiff was employed by DBJ. His duties involved removing carpet and ceilings, cleaning, and painting. On that day, plaintiff arrived at the premises at approximately 7:40 a.m. and was instructed to dismantle and remove a false ceiling and to scrape the popcorn ceiling on the 10th floor of the premises.
Before plaintiff started working, a scaffold, measuring approximately seven feet wide and six-and-a-half feet off the ground (the scaffold), was erected at the premises. Plaintiff claims that the scaffold was not equipped with safety/guard rails at the top of the platform and that he was not provided with a life-line, safety harness, hard hat, or any safety device or fall arrest protection to perform his work. While standing on the scaffold to complete his task, plaintiff used a long stick with a scraping device, completely extending both arms above his head to reach the ceiling. When scraping the ceiling in this manner, he fell off the edge of the top platform, landing on his head and right knee.
Plaintiff alleges that he sustained severe and permanent personal injuries from his fall. Plaintiff contends that defendants failed to provide him with proper protection to perform his work, proper protection against gravity related falls, and a safe place to work, which resulted in the subject accident.
II. Analysis
It is well-established that the "function of summary judgment is issue finding, not issue determination." Assaf v Ropog Cab Corp., 153 A.D.2d 520 (1st Dept 1989), quoting Sillman v Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404 (1957). As such, the proponent of a motion for summary judgment must tender sufficient evidence to show the absence of any material issue of fact and the right to entitlement to judgment as a matter of law. See Alvarez v Prospect Hospital, 68 N.Y.2d 320 (1986); Winegrad v New York University Medical Center, 64 N.Y.2d 851 (1985). Summary judgment is a drastic remedy that should not be granted where there is any doubt as to the existence of issues of fact. See Sillman v Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404 (1957). Therefore, the party opposing a motion for summary judgment is entitled to all favorable inferences drawn from the evidence submitted. See Dauman Displays, Inc. v Masturzo, 168 A.D.2d 204 (1st Dept 1990), citing Assaf v Ropog Cab Corp., 153 A.D.2d 520, 521 (1st Dept 1989).
An owner or general contractor will not be found liable under Labor Law § 200 where it has no notice of any dangerous condition which may have caused the plaintiffs injuries nor the ability to control the activity which caused the dangerous condition. See Filarakos v St. John the Baptist Greek Orthodox Church, 169 A.D.3d 489, 490 (1st Dept 2019); Chowdhury v Rodriguez, 57 A.D.3d 121, 128 (2d Dept 2008).
As an owner may be held liable for a dangerous condition on its premises, irrespective of whether it supervised or controlled the work being performed, if it had actual or constructive notice of the condition. The critical inquiry here is whether defendants had notice of the dangerous scaffold condition from which plaintiff fell. See Espinosa v Azure Holdings II, LP, 58 A.D.3d 287, 294 (1st Dept 2008); Griffin v New York City Tr. Auth., 16 A.D.3d 202 (1st Dept 2005).
Here, plaintiff claims that Labor Law § 200 was violated when defendants created a. dangerous condition by failing to provide adequate scaffolding and safety devices to enable plaintiff to perform work safely. Plaintiff alleges that the presence of adequate scaffolds and safety devices would have prevented him from falling. The scaffold plaintiff used while working, he claims, was missing safety railings on two of its sides, therefore failing to adequately protect him in the performance of his work. Moreover, plaintiff maintains that he was not provided with any other protective devices, and that a reasonable owner and its agent would have ensured that all workers completing their duties on scaffolds were provided with adequate protection.
In opposition, defendants argue that plaintiff s Labor Law § 200 claim must fail as a matter of law, because they did not exercise the requisite supervision over plaintiffs work. Notably, general supervisory authority at a work site for overseeing work progress and inspecting work product is insufficient to impose liability. Garlo v Chappaqua Central School District, 38 A.D.3d 712 (2d Dept. 2007). Further, the authority to review safety at the site is insufficient if no evidence exists that defendant controlled the way the work was performed. Id.
In support of its position, defendants point to the deposition testimony of plaintiff, in which plaintiff indicates that he received no instructions regarding the means and methods of his work from defendants. In addition, defendants contend that they did not supply work equipment and materials to plaintiff, that plaintiff was unaware of the existence of defendants at the time of plaintiffs employment and instant injury, and that defendants were not made aware of any issues plaintiff had with his equipment. While defendants deny that there was any defect in the scaffold, they do not tender evidence in support of their position that they had no notice of the alleged dangerous condition. Instead, they offer the mere observation that plaintiff had been working on a separate project earlier on the date of the instant accident, on the scaffolding, without issue.
There is insufficient evidence to establish defendants' lack of liability. As such, triable issues of material fact exist as to defendants' liability regarding plaintiffs Labor Law § 200 claim, as to whether defendants had supervisory control over plaintiffs work, and moreover, if they had notice of the alleged dangerous condition as discovery is still ongoing and responses may clarify.
Labor Law § 240 (1) states 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, 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.
The statute imposes absolute liability upon owners, contractors, and their agents where a breach of this statutory duty proximately causes an injury. See Gordon v Eastern Railway Supply, Inc., 82 N.Y.2d 555, 559 (1993); Ross v Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 500 (1993); Rocovich v Consolidated Edison Co., 78 N.Y.2d 509, 513 (1991). "The purpose of this statute is to protect workers and to impose the responsibility for safety practices on those best situated to bear that responsibility." See Ross, 81 N.Y.2d at 500.
Plaintiff argues that he is entitled to summary judgment pursuant to Labor Law § 240 (1) because he was engaged in protected work and defendants' alleged violation of § 240 (1) was a proximate cause of his accident. Specifically, he claims he was instructed by his supervisor to remove the false ceiling and scrape the popcorn ceiling on the 10th floor at the premises while standing on the platform of a scaffold which was approximately six-and-a-half feet above the ground when he fell. Plaintiff claims the scaffold was defective, that he was not provided with any type of fall protection, personal fall arrest system, or safety harness on the scaffold, which directly resulted in his falling from the elevated work surface to the ground. Plaintiffs expert, Professional Engineer Robert Flynn, opined that Labor Law § 240 (1) was violated because the scaffold "did not possess guard rails or any means of protection against falling from its two (2) open sides," and as a direct result, plaintiff fell from the scaffold and was injured. NYSCEF Doc. No. 50.
In opposition, defendants argue that Labor Law § 240 (1) does not apply to the facts of plaintiffs fall because there is no indication that the scaffold in question, an enumerated safety device, failed to provide him with adequate protection from a gravity related hazard. Further, defendants allege that plaintiff, for no reason, simply walked off the platform, and until that time, the scaffold had allowed plaintiff to perform his work without any negative impact. Defendants contend that plaintiff s accident, as described by him, falls squarely into those scenarios where plaintiffs fall was prompted not by inadequate protection from a gravity related hazard, but from loss of balance or misstep, which does not create liability under Labor Law § 240 (1). Additionally, defendants argue that Labor Law § 240 only requires safety railings if the scaffolding in higher than 20 feet above ground, which would render it unapplicable here. See NYSCEF Doc. No. 56.
Regardless, if insufficient safety devices were provided to plaintiff, his conduct cannot be deemed the sole proximate cause of the accident. See Melchor v Singh, 90 A.D.3d 866, 867 (2d Dept 2011); see also McEachern v Extell Dev. Co., 199 A.D.3d 464, 465 (1st Dept 2021) (reversing the trial court's denial of plaintiffs summary judgment motion and holding that, "[b]ecause no safety devices were available to plaintiff for gaining access to the room, his attempt to use the oil barrel [to descend a four-foot distance] cannot be the sole proximate cause of his accident").
Though Labor Law § 240 (2) mandates guardrails on any scaffolding over 20 feet in height, in this case a violation of Labor Law § 240 (1) may still be found, and strict liability may still be imposed, if it is determined that not having guardrails on scaffolding less than 20 feet high poses risks to workers such that, without guardrails, workers do not have proper protection. See Bland v. Manocherian, 66 N.Y.2d 452, 461 (1985). To find that a lack of guardrails on a scaffold less than 20 feet high constitutes a lack of proper protection for a worker, there must be findings of fact, supported by the evidence, from which a jury could find that without guardrails, defendant violated their Labor Law § 240 (1) responsibilities. Here, there is a lack of uncontested evidence that the scaffolding, at a height of six-and-a-half feet, needed guardrails to have "proper protection." See . Blake v Neighborhood Hous: Services of New York City, Inc., 1 N.Y.3d 280, 292 (2003).
Construing Labor Law § 240 (1) as liberally as possible, as required, plaintiff is not entitled to judgment as a matter of law because triable issues of material fact exist as to the type of hazard involved and whether a lack of guardrails, given the height of the scaffolding in question, was improperly unable to protect workers. Id.
C. Labor Law § 241 (6): Violation of Industrial Code
For plaintiff to establish liability pursuant to Labor Law § 241 (6), a violation of the Industrial Code must be shown. See Ross v Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494 (1993) (holding that Labor Law § 241 (6) imposes a non-delegable duty upon owners and general contractors and their agents for violation of the statute). To prevail on a claim under this section, plaintiff must demonstrate that his or her injuries were proximately caused by a violation of the Industrial Code provision. See Ares v State, 80 N.Y.2d 959, 960 (1992).
Here, plaintiffs claim under Labor Law § 241 (6) is based on violations of Industrial Code Section 23. Labor Law § 241 (6) provides, in relevant part, "...all areas in which construction work is being performed shall be so equipped, operated and conducted as to provide reasonable and adequate protection to the persons employed therein or lawfully frequenting such places..." and provides that the commissioner may make rules to effectuate this law, which it did so in enacting . Section 23 of the Industrial Code.
To attach liability under § 241 (6), a plaintiff must establish a violation of a specific or concrete rule or regulation promulgated pursuant to this statute. In this case, plaintiff claims that defendants violated the following Industrial Code Subsections: 12 NYCRR 23-1.5, 23-1.7(b)(1), 23-1.8(c), 23-1.15, 23-1.16, 23-5.1, 23- 5.3(e), and 23-5.18(b). However, because plaintiff does not specify which provision of 23-1.5, 23-1.15, 23-1.16, 23-5.1 defendants have allegedly violated, he fails to provide any evidence that there are no questions of material fact, and therefore has failed to meet his burden for summary judgment for those provisions.
Industrial Code 23-1.7(b)(1) provides:
Falling hazards. (1) Hazardous openings, (i) Every hazardous opening into which a person may step or fall shall be guarded by a substantial cover fastened in place or by a safety railing constructed and installed in compliance with this Part (rule), (ii) Where free access into such an opening is required by work in progress, a barrier or safety railing constructed and installed in compliance with this Part (rule) shall guard such opening and the means of free access to the opening shall be a substantial gate. Such gate shall swing in a direction away from the opening and shall be kept latched except for entry and exit, (iii) Where employees are required to work close to the edge of such an opening, such employees shall be protected as follows: (a) Two-inch planking, full size, or material of equivalent strength installed not more than one floor or 15 feet, whichever is less, beneath the opening; or (b) An approved life net installed not more than five feet beneath the opening; or (c) An approved safety belt with attached lifeline which is properly secured to a substantial fixed anchorage.Section 23-1.7(b)(1) is inapplicable here as it addresses protection requirements against falling hazards, hazardous openings which does not apply here as plaintiff did not fall into an opening, the section does not apply to scaffolding, and the accident allegedly did not occur at a height greater than 15 feet above ground.
Industrial Code 23-1.8(c) provides:
Protective apparel. (1) Head protection. 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.
Section 23-1.8(c) is only applicable when plaintiff establishes, prima facie, that the work he was performing was a "hard hat job," and that plaintiffs failure to wear a hard hat was a proximate cause to his injuries. See Seales v. Trident Structural Corp., 142 A.D.3d 1153, 1157 (2d Dept 2016), Here, no such proof has been established or refuted without contest. Therefore, there remains an issue of fact as to whether 23-1.8(c) applies.
Industrial Code 23-5.3(e) provides:
(e) Safety railings. Safety railings constructed and installed in compliance with this Part (rule) shall be provided for every metal scaffold.
Section 23-5.3(e) is inapplicable here as Section 23-5.3(a) specifies that Section 23.5.3 exclusively applies to metal scaffolding that is not a mobile type. Here, there is uncontested evidence that the scaffolding from which plaintiff fell had wheels, and was therefore mobile, rendering Section 23-5.3(e) inapplicable.
Industrial Code 23-5.18(b) provides:
Safety railings required. The platform of every manually-propelled mobile scaffold shall be provided with a safety railing constructed and installed in compliance with this Part (rule). (Emphasis added).
Section 23-5.18(b) is applicable here as it specifically delineates that it applies to any manually propelled scaffold in compliance with this Part. Plaintiff alleges that he was using "manually-propelled scaffold" that should have been equipped with a safety railing. In opposition defendant alleges that Section 23-5.18(b) is overridden by Section 23-5.1(j), which provides that any scaffolding under seven feet in height is an exception to guardrail provisions of that Section. Defendant further argues that the scaffold in question was in compliance with Section 23-5.18(b), as it had safety railings on each end of the platform, and the provision does not require railings on all open sides of a scaffold. As such, there is a question of material fact as to whether defendant violated Section 23-5.18(b), and plaintiff has failed to meet its burden for summary judgment.
Defendants argue that plaintiff s Labor Law § 241 (6) claim must fail as a matter of law as they contend that plaintiff has failed to demonstrate that defendants violated an applicable provision of the Industrial Code. However, triable issues of material fact exist as to whether defendants are liable for violating Industrial Code Sections 23-1.8(c) or 23-5.18(b).
III. Conclusion
Accordingly, it is
ORDERED that the motion of plaintiff Juan A. Rioseco for summary judgement is denied in its entirety; and it is further
ORDERED that, within 20 days from entry of this order, plaintiff shall serve a copy of this order with notice of entry on the Clerk of the General Clerk's Office (60 Centre Street, Room 119).
The foregoing constitutes the Order and Decision of the Court.