Opinion
106718/08.
February 17, 2010.
DECISION/ORDER
MEMORANDUM DECISION
In this personal injury action brought by plaintiffs Pasquale Roca ("Mr. Roca") and Rosa Roca (collectively, "plaintiffs"), defendants Hunter Roberts Construction Group, L.L.C., i/s/h/a Hunter Roberts Construction Group ("Hunter Roberts"), and The Rector Church Warden Vestrymen of the Parish of Trinity Church ("Trinity Church") (collectively "defendants") move for summary judgment, pursuant to CPLR § 3212, dismissing plaintiffs' common law negligence and Labor Law §§ 200, 240(1), and 241(6) claims.
In response, plaintiffs cross move for partial summary judgment on their Labor Law § 240(1) claim.
The Complaint comprises two causes of action: The first for common law negligence and violations of Labor Law §§ 200, 240 and 241, and the second for loss of consortium on behalf of Mrs. Roca.
On February 28, 2008, Mr. Roca was working as a painter for Cosmopolitan Decorating ("Cosmopolitan") inside a building at 345 Hudson Street, New York, New York (the "premises"). Trinity Church owns the premises, and Hunter Roberts, the general contractor, hired Cosmopolitan to perform the work at the premises. While spray-painting the top of a duct on the ceiling, Mr. Roca fell from the scaffold on which he was working, and suffered injuries.
Relying on the depositions of Mr. Roca, and Carlos Romero ("Mr. Romero"), a supervisor for Cosmopolitan, as well as an affidavit from Hunter Roberts's project manager Mazen Batarse ("Mr. Batarse"), defendants first argue that plaintiffs' Labor Law § 240(1) claim must be dismissed because Mr. Roca was the sole proximate cause of his accident ( see the "Roca EBT," the "Romero EBT," and the "Batarse Affd."). Defendants also contend that Labor Law § 240(1) is inapplicable when a proper safety device is present, and a "recalcitrant worker" disregards the protection such a device offers and chooses not to use it. Here, Cosmopolitan provided Mr. Roca with a scaffold and guardrails to help him paint the sprinkler pipes. Defendants contend that Mr. Roca knew that the guardrails were available because he carried them to the third floor, where he was working on the day of the accident. Yet, Mr. Roca chose not to use the guardrails because it would have "taken too long," and assembled the scaffold without the guardrails. Therefore, Mr. Roca's own conduct was the intervening sole proximate cause of the accident.
The Court notes that defendants refer to the device as a "Perry scaffold," while Mr. Roca and Mr. Romero refer to the device as a "Baker scaffold."
Second, defendants argue that plaintiffs' Labor Law § 241(6) claim must be dismissed because the Industrial Code sections plaintiffs cite are inapplicable and/or insufficiently specific to support this claim. Defendants contend that 12 NYCRR §§ 23-5.1(b) and 23-5.1(f) are insufficiently specific to support a cause of action under Labor Law § 241(6). Defendants also contend that Rule 23-5.1(b) relates to scaffolds being able to support the maximum load intended, and Rule 23-5.1(c)(1) relates to the ability of a scaffold to bear four times the maximum weight required when in use, and "Mr. Roca conceded that the scaffold was not overloaded or incapable of bearing weight." Rule 23-5.1(c)(2), regarding the horizontal and diagonal bracing on a scaffold, is not applicable because guardrails were provided with the scaffold. Rule 23-5.1(f), which covers scaffold maintenance and repair, is inapplicable because plaintiff testified that the scaffold was not damaged or defective.
The Court notes that Mr. Roca actually testified that the scaffold did not collapse.
Third, defendants argue that they cannot be held liable for common law negligence or a violation of Labor Law § 200. Defendants did not supervise, direct or control Mr. Roca's work. Defendants did not create the condition or have notice of the alleged defect at the premises. Finally, defendants' had no duty to protect Mr. Roca from an open and obvious condition, such as "the condition of falling off the scaffold due to [Mr. Roca 's] decision not to use the guardrails."
In opposition, plaintiffs first argue that defendants fail to provide any evidence that the installation of the guardrails by Mr. Roca would have prevented his accident, and thus, their motion must be denied.
Further, defendants violated Labor Law § 240(1) because the scaffold provided to Mr. Roca was insufficient for his task. Mr. Roca testified that he did not install the guardrails on the scaffold because doing so would have prevented him from performing the work to which he was assigned. The cross bar of the guardrails would have interfered with the low-hanging ducts and cable lines, preventing Mr. Roca from painting the sides and top of the air-conditioning ducts. Thus, since the scaffold was the only device provided to plaintiff to perform his job, and he could not do his job with the guardrails installed, he had no choice but to proceed without them.
Further, Werner Laag ("Mr. Laag"), a construction expert and safety engineer, attests that, given the dimensions of the ceiling with the protruding air-conditioning ducts and cable lines, plaintiff would not have been able to perform his task of spray-painting the ducts, had the guardrails been installed on the scaffold ( see the "Laag Affd."). Guardrails affixed to the top of the 6-foot scaffold would have increased the scaffold's height to 9 feet, which would have put the guardrails in the way of the ducts and cable lines, and prevented the scaffold from being moved around the room freely. "Consequently, the only way Mr. Roca could have completed his work while using the [scaffold] with guardrails would have been to paint a portion of a duct, then disassemble the guardrails, move the scaffold, reassemble the guardrails, paint another portion of the duct and so on. It would have been extremely impracticable and overly time-consuming for Mr. Roca to have painted the ceiling with the guardrails on the [scaffold]" (Laag Affd., ¶ 9). Mr. Laag further contends that a "scissor lift" was the appropriate safety device for plaintiff, and he concludes that the failure to provide Mr. Roca with an adequate safety device was a proximate cause of his accident.
Plaintiffs note that Mr. Roca testified that a scissor lift was located in the same room where he was working on the day of the accident; however, the scissor lift was not provided by Cosmopolitan, and he had no access to it.
Plaintiffs argue that defendants' argument that plaintiffs' own negligence was the sole proximate cause of the accident lacks merit, in that the uncontradicted testimony of the plaintiff establishes that he would have been unable to perform the work assigned had the guardrails been installed. Further, defendants' recalcitrant worker defense fails, as Mr. Roca did not deliberately refuse to use the guardrails. Instead, he was unable to use them because they would have prevented him from accomplishing his task.
Finally, plaintiffs argue that their cross-motion should be granted because the scaffold with the guardrails was insufficient to permit Mr. Roca to safely paint the ceiling of the premises. While on the scaffold, plaintiff was not wearing a harness, nor was he tied off in any way. He also was not provided with a scissor lift ( id. at 150-151). The absence of such appropriate safety device, i.e., the scissor lift, that would have enabled Mr. Roca to safely perform the elevated task, was a proximate cause of Mr. Roca's accident.
In reply, defendants note that plaintiffs do not contest defendants' arguments regarding plaintiffs' common law negligence and Labor Law §§ 200 and 241(6) claims. Therefore, such claims must be dismissed in their entirety.
Defendants further argue that plaintiffs fail to raise an issue of material fact regarding plaintiffs' Labor Law § 240(1) claim. Defendants maintain that Mr. Roca was given the proper equipment to perform his job. Mr. Roca "conceded" that the scaffold provided to him was the proper equipment to do the job, as did his supervisor Mr. Romero. Further, Mr. Roca never asked his supervisor for any other equipment, nor complained that the scaffold provided was inadequate or improper to complete the painting work. Mr. Laag also conceded that Mr. Roca would have been able to complete the painting work with the scaffold had Mr. Roca painted a portion of the duct, disassembled the scaffold, moved it, reassembled the scaffold, and continued to paint. Defendants also argue that the Laag Affd. is insufficient to raise an issue of material fact because Mr. Laag did not visit the site of the accident. Instead, his opinion is based only on photos of the premises and Mr. Roca's testimony.
Further, plaintiffs do not, and cannot, dispute that the guardrails were available, and Mr. Roca decided not to use them because it would have taken him too long to complete the task. Mr. Romero testified that Mr. Roca was given all of the safety equipment that the Occupational Safety and Health Administration ("OSHA") required to perform the job, and that Mr. Roca was required by OSHA to use every type of security, including the railings. Mr. Romero further testified that the ceiling was 12 to 14 feet high; therefore, the scaffold with the guardrails attached would not have interfered with duct and cable wire.
Additionally, defendants' engineering expert Shawn Z. Rothstein ("Mr. Rothstein") attests that had Mr. Roca utilized the appropriate guardrails provided, they would have prevented the accident (see the "Rothstein Affd.," ¶ 9).
Defendants also contend that Mr. Laag does not suggest that Mr. Roca could have used a tie-off or harness at this height. And, Mr. Roca testified that a tie-off or harness was not possible for the work, because he was not high enough from the ground for a tie-off or harness to be effective. Citing the Rothstein Affd. and a reply affidavit by Mr. Batarse, defendants argue that tie-offs were required only for scaffolds more than 10 feet in height. Mr. Rothstein inspected the premises and determined that the lowest object that spanned any significant portion of the work area was 9 feet, 2 inches high. Furthermore, Mr. Rothstein inspected the area where the incident occurred and determined that the lowest object that spanned any significant portion of the work area was 9 feet 2 inches high. Therefore, even assuming that the guardrail could have been 9 feet high, as Mr. Laag states, the guardrails still would not have interfered with the lowest object that spanned any significant portion of the work area.
The Court notes that defendants point to the following testimony from Mr. Roca to support its argument:
Q. Mr. Roca, you testified that the height was 4 and a half to 5 feet. Have you ever used a rope tie-off or harness for something of that height?
A. No.
(Roca EBT, pp. 154-155)
Further, while Mr. Roca testified that he did not use the guardrails because they would have caused him to take too long to complete his task, Mr. Romero testified that there were no time constraints to complete the job. In addition, plaintiffs and Mr. Laag do not dispute Mr. Batarse's and Mr. Romero's conclusions that if Mr. Roca had used the guardrails, he would not have fallen off the scaffold. Therefore, Mr. Roca's sole decision to use a rope instead of the guardrails to secure the scaffold was the sole proximate cause of his injury, and the cases cited by plaintiffs in support of their cross-motion are inapplicable.
In reply, plaintiffs argue that defendants misrepresent that Mr. Roca "conceded" that the scaffold provided to him was the proper equipment to complete the job. Plaintiffs contend that Mr. Roca went to "great pains" to describe how he would not have been able to paint the ducts and electrical trays coming down from the ceiling if the guardrails were attached to the scaffold. Specifically, Mr. Roca testified that portions of the air-conditioning ducts and television cables coming down from the ceiling were too low and would get in the way of the guardrails. Mr. Roca's contention was confirmed by Mr. Laag, who opined that Mr. Roca would not have been able to paint the ducts and cables had the guardrails been installed on the scaffold. He further stated that a scissor lift was the appropriate safety device for this particular job, because it is able to be moved up and down and side to side, and the platform is surrounded by a rail. Moreover, contrary to defendants' assertion, Mr. Roca never testified that the scaffold provided was the only safety device that could be used to accomplish the task, but rather it was the only device available to him. That fact was confirmed by Mr. Romero, who testified that only the scaffold, and not the scissor lift, was available to Cosmopolitan workers.
Plaintiffs further point out that defendants' entire opposition, including the Rothstein Affd., is premised upon the unproven fact that Mr. Roca was using a standard "Perry" scaffold at the time of his accident. The record is devoid of any reference to a Perry scaffold, plaintiffs contend. Mr. Roca testified that he was using a Baker scaffold, and that fact is not contradicted. Accordingly, as a Perry scaffold was not used by plaintiff at the time of his accident, Mr. Rothstein's opinions concerning the height of the Perry scaffold, and how it is able to be moved and reassembled quickly is of no consequence.
Plaintiffs also add that while Mr. Rothstein stated that the distance between the floor and the lowest object that spanned any significant portion of the work area was approximately 9 feet 2 inches" (Rothstein Affd., ¶ 6), he failed to state when he inspected the room where Mr. Roca's accident occurred. Accordingly, there is no way of knowing whether the measurements were the same as when the accident took place. Second, Mr. Rothstein's measurements are of no probative value because it is limited to between the lowest object from the ceiling and "any significant portion of the work area." Plaintiff was assigned to paint the entire ceiling of the room. Thus, the Rothstein Affd. fails to establish that the scaffold with the guardrails would not have come into contact with items attached to the ceiling "in certain portions of the room." Third, again assuming Mr. Rothstein's measurements are accurate, Mr. Laag testified that the scaffold used by Mr. Roca with the guardrails attached would reach approximately 9 feet high. Moving a scaffold around with guardrails extending about 9 feet high would have posed a danger when items spanning from the ceiling were as low as 9 feet and 2 inches from the floor. Finally, plaintiffs contend that Mr. Rothstein's opinion "is worthless" insofar as it is relies on an inspection of the room that may not have been configured as it was at the time of the accident, instead of photographs that the parties agree accurately depict the room when the accident occurred.
Discussion Summary Judgment
It is well settled that where a defendant is the proponent of a motion for summary judgment, the defendant must establish that the "cause of action . . . has no merit" (CPLR § 3212[b]) sufficient to warrant the court as a matter of law to direct judgment in his or her favor ( Bush v St. Claire's Hosp., 82 NY2d 738, 739; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853; Wright v National Amusements, Inc., 2003 N.Y. Slip Op. 51390 [U] [Sup Ct New York County, 2003]). The proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, by advancing sufficient "evidentiary proof in admissible form" to demonstrate the absence of any material issues of fact ( Winegrad v New York Univ. Med. Ctr.; Zuckerman v City of New York, 49 NY2d 557, 562; Silverman v Perlbinder, 307 AD2d 230 [1st Dept 2003]; Thomas v Holzberg, 300 AD2d 10, 11 [1st Dept 2002]).
Alternatively, to defeat a motion for summary judgment, the opposing party must show facts sufficient to require a trial of any material issue of fact (CPLR § 3212[b]). Thus, where the proponent of the motion makes a prima facie showing of entitlement to summary judgment, the burden shifts to the party opposing the motion to demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action, or to tender an acceptable excuse for his or her failure to do so ( Vermette v Kenworth Truck Co., 68 NY2d 714, 717; Zuckerman at 560, 562; Forrest v Jewish Guild for the Blind, 309 AD2d 546 [1st Dept 2003]). Like the proponent of the motion, the party opposing the motion must set forth evidentiary proof in admissible form in support of his or her claim that material triable issues of fact exist ( Zuckerman at 562).
Labor Law § 240(1)Labor Law § 240(1), also known as the "Scaffold Law," imposes absolute liability on an owner or contractor for failing to provide or erect safety devices necessary to give proper protection to a worker who sustains injuries proximately caused by that failure ( Ernish v City of New York, 2 AD3d 256 [1st Dept 2003], citing Bland v Manocherian, 66 NY2d 452). To establish a cause of action under Labor Law § 240, a plaintiff must show that the statute was violated, and the violation was a proximate cause of the worker's injury ( Blake v Neighborhood Housing Servs. of New York City, Inc., 1 NY3d 280). Labor Law § 240(1) provides, in relevant 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 is violated when the plaintiff is exposed to an elevation-related risk while engaged in an activity covered by the statute and the defendant fails to provide a safety device adequate to protect the plaintiff against the elevation-related risk entailed in the activity or provides an inadequate one" ( Jones v 414 Equities LLC, 57 AD3d 65, 69 [1st Dept 2008] [citations omitted]).
Here, it is undisputed that Mr. Roca was exposed to an elevation-related risk contemplated by the statute. As he was spray-painting the ceiling, he was walking backward and "bumped" his foot on the edge of the scaffold platform, and fell off the side of the scaffold. It is also undisputed that plaintiff failed to attach the guardrails to the scaffold.
It is well settled that there are two defenses to a Labor Law § 240(1) claim: (1) the sole proximate cause defense and (2) the recalcitrant worker defense ( Berberi v Fifth Ave. Dev. Co., LLC, 2008 WL 2501978, 11 [Sup Ct, Bronx County 2008]; Cordeiro v Shalco Investments, 297 AD2d 486, 488 [1st Dept 2002]). Here, however, contrary to defendants' arguments, the record fails to demonstrate either defense as a matter of law.
Under the sole proximate cause defense, a "defendant can avoid liability under the statute if it can demonstrate that it did not violate the labor law and that the proximate cause of the plaintiff's accident was plaintiff's own negligence" ( Berberi at 11; Blake at 290). The Court in Berberi explained that "before a defendant can claim that a plaintiff's accident was proximately caused by his own actions, it must be demonstrated that defendants did not violate the statute; that defendants complied with the same by providing adequate safety devices" (emphasis added) ( Berberi at 11 citing Blake; see also Cherry v Time Warner, Inc., 66 AD3d 233, 236 [1st Dept 2009] ["Hence, in determining whether there is a violation of Labor Law § 240(1), or whether a worker is the sole proximate cause of his injuries, the issue to be addressed first is whether adequate safety devices were provided, 'furnished' or 'placed' for the worker's use on the work site"]). Further, the First Department makes clear that such safety devices must be readily available to the worker ( Cherry at 236).
Here, defendants fail to demonstrate that they provided Mr. Roca with a proper or adequate safety device for his task of painting the ceiling. Contrary to defendants' contention, Mr. Roca did not "concede" that the scaffold was the proper safety device for the task. Instead, he testified as follows:
Q: When you started on the second floor, did you need a scaffold to perform the work?
A: Yes.
Q: Where did you get the scaffold to use?
***
A: Cosmopolitan
Q: How does Cosmopolitan know that you need the scaffold for that job? Did you call them or something else?
A: That job had already been started, and [Mr. Romero] would just go to the job, see what was needed and send it.
***
Q: Mr. Roca, a scaffold was the only thing that you could use to paint the top of the duct? [Objection from plaintiffs' counsel]
A: Well, as far as what I had, yes.
***
Q. Were you able to paint the top of the ducts by standing on the scaffold?
A. Yes.
***
Q. Mr. Roca, from your experience, was a scaffold the proper piece of equipment to use to paint the top of the duct?
A. Look, that could have been the right equipment and something else could have been the right equipment.
(Roca EBT, pp. 47-48, 61-63)
Mr. Roca's testimony establishes only that Cosmopolitan provided him with a scaffold. As to whether Mr. Roca considered the scaffold as the proper equipment for his task, Mr. Roca's response was equivocal; plaintiff did not "concede" that the scaffold provided was proper or adequate for the task at hand.
Further, the parties dispute whether Mr. Roca could have painted the ceiling with the guardrails attached to the scaffold. Mr. Roca testified that he did not attach the guardrails to the scaffold because the guardrails would have prevented him from moving the scaffold from one side of a ceiling duct to the other side to paint it.
Q. Mr. Roca, why did you not put a guardrail on the scaffold?
A. Because if you put a guardrail on, you couldn't go from one side to the other of the duct because the duct would hit the top of [the guardrail].
Q. . . . If you had the guardrails on the scaffold, why would you be prevented from going from one side to the other?
A. The ducts — there was a line of aluminum where the television cables were that was too low [ sic] and you couldn't get around it. So there was no other way to do it. (P. Roca EBT, pp. 72:12-73:4) (emphasis added)
When questioned further, Mr. Roca stated that he could have used the scaffold with the guardrails attached by painting a portion of the duct, disassembling the scaffold, moving it and reassembling it to paint another portion of the duct ( id. at 78). He stated: "Yeah, you can do that, but how much time is that going to take?"(id.). However, once again, Mr. Roca's response is equivocal, raising an issue as to whether the scaffold with the guardrails was inadequate for the task assigned.
In response, defendants maintain that Mr. Roca was under no time restraints to finish his task; however, Mr. Romero's testimony is inconclusive on this issue as well:
Q. Were you — was Cosmopolitan under any kind of time restraint as to when they were to be finished with their job?
A. Not when the accident occurred.
Q. At some point did there — was there a restricted time frame within which you had to complete the work?
A. Yes, they put a time [sic], but it's a mutual agreement.
(Romero EBT, p. 86) (emphasis added)
Further, Mr. Romero does not elaborate as to when or what the time frame was, pursuant to the "mutual agreement"; nor does he explain how Mr. Roca's work on the ceiling fit into such a mutually agreed time frame. Therefore, such testimony is inconclusive.
The Court notes that defendants provide persuasive evidence that Mr. Roca was at fault. According to Romero, OSHA required the use of guardrails when the scaffold is above 4 feet high, and the contract between Hunter Roberts and Cosmopolitan required that the scaffolds be equipped with guardrails. Mr. Batarse, Hunter Roberts's project manager, testified that using the scaffold without guardrails would constitute a safety violation. Finally, in his affidavit, Mr. Batarse attested that the scaffold provided to Mr. Roca on the day of the accident was the proper equipment to use to complete the job, and that had Mr. Roca "used the guardrails that were available . . . he would not have been able to fall off the side of the scaffold" (Batarse Affd., ¶ 11). However, while such testimony demonstrates that Mr. Roca's conduct may have been a proximate cause of the accident, defendants' evidence does not establish that Mr. Roca's conduct was the sole proximate cause ( see Aponte v City of New York, 868 NYS2d 169, 169-170 [1st Dept 2008] [holding that "[p]laintiff's conduct, at most, constituted comparative negligence, which is not a defense under Labor Law § 240(1)"]; Jawara v BHA, Inc., 2009 WL 1676004, 8 [Sup Ct, Bronx County 2009] [explaining that "when the circumstances demonstrate that a statutory violation of Section 240(1) was a (not necessarily the only) contributing factor to a worker's injury at a construction site, strict liability is imposed and the worker's comparative negligence, however egregious, is factually and legally irrelevant. In other words, where sufficient proof has been presented that the plaintiff may not have been provided with, or given a reasonable opportunity to use an adequate safety device . . . the "sole proximate cause" defense should not be used to defeat summary judgment"]). Further, Mr. Roca denies ever being instructed to use the scaffold with guardrails ( see infra, p. 16)
See Romero EBT, pp. 52, 70-71, 78-79. Mr. Roca testified that the scaffold was at "4 to 5 feet" high at the time of the accident (Roca EBT, p. 59).
See Batarse EBT, p. 24. The Court notes that defendants do not include a copy of the contract with their submissions.
Batarse EBT, p. 25.
As issues of material fact exist as to whether Mr. Roca was provided with a proper or adequate safety device to paint the ceiling, defendants' sole proximate cause defense fails, as a matter of law to warrant granting summary judgment.
Turning to the "recalcitrant worker" defense, such a defense "allows a defendant to escape liability if [it] can show that the plaintiff refused to use the safety devices provided" ( Berberi at 11). "Implicit in this defense is the notion that proper equipment was provided and that said equipment, was safe to begin with. Hence, an instruction to employees that they not use available but defective equipment is not akin to providing the requisite and safe equipment mandated by the statute" ( Berberi at 11). Further, the First Department makes clear that defendants must show that the worker disobeyed a supervisor's instructions ( Vacca v Landau Indus. Ltd, 5 AD3d 119, 773 NYS2d 21 [1st Dept 2004] ["It is well settled in this [First] Department that an immediate instruction is a requirement of the "recalcitrant worker" defense; the recalcitrant worker defense is not applicable since . . . the general contractor, failed to demonstrate that plaintiff had "disobeyed an immediate instruction to use a harness or other actually available safety device"]; Cahill v Triborough Bridge and Tunnel Auth., 4 NY3d 35, 790 NYS2d 74 ["where an employer has made available adequate safety devices and an employee has been instructed to use them, the employee may not recover under Labor Law § 240(1) for injuries caused solely by his violation of those instructions, even though the instructions were given several weeks before the accident occurred"]). In Vacca, the First Department held that the attestation by the nonparty roofing subcontractor's site superintendent, Dominic Rubio, that "[a]t some time prior to 10/31/98, the exact date of which [he] did not recall," he instructed plaintiff to wear a safety harness is far too equivocal to support the recalcitrant worker defense. In Gaffney v BFP 300 Madison II LLC, ( 2005 WL 2242442, 3 [Sup Ct, New York County 2005]), the Court rejected the defendant's recalcitrant worker defense on the ground that while the defendant asserted that the plaintiff was provided with a safety harness and did not use it, the plaintiff demonstrated that there was no place for him to tie-off such a harness and that the plaintiff's supervisor "did not instruct him to 'tie-off.'"
As issues of material fact exist as to whether Mr. Roca was provided with a proper or adequate safety device to paint the ceiling, as stated above, defendants' recalcitrant worker defense fails, as a matter of law to warrant granting summary judgment.
Moreover, defendants failed to demonstrate that Mr. Roca refused a specific instruction by his supervisor, Mr. Romero, to use the scaffold with guardrails to paint the ceiling. When asked if Mr. Romero had any conversations with Mr. Roca before the accident happened about using the railings when he was on a scaffold, Mr. Romero testified that "That is something that has to be done in the training. For OSHA you have to for every painter to use the railings for security purposes. So the training you take it and also the construction company. And they ["the general contractor" Hunter Roberts] have a safety meeting every week. And the requirement is they have to use every type of security including the railing."
At Mr. Roca's deposition, he was asked whether Mr. Romero ever instructed him "not to use a Baker scaffold without crossbracing and an extension on it in this instance," to which he replied, "No." In fact, Mr. Roca testified that he used the Baker scaffold without such guardrails at the worksite before his accident. Mr. Roca had OSHA training "two years before the accident" but they never discussed assembling a scaffold; nor was he instructed not to use a scaffold without guardrails. Therefore, as defendants failed to demonstrate that Mr. Roca was instructed to use the guardrails or disobeyed a specific instruction to use the guardrails with the scaffold while painting.
And, while defendants argue that Mr. Roca could have used the scaffold by disassembling, moving and reassembling the scaffold to avoid the ducts and cables, they provide no evidence that Mr. Roca was instructed to use the scaffold in such a manner. Thus, it cannot be said that the recalcitrant worker defense applies as a matter of law.
Accordingly, defendants' motion for summary judgment dismissing plaintiffs' Labor Law § 240(1) claim is denied.
Plaintiffs' Cross-Motion
As issues of material fact exist as to whether the scaffold was a proper safety device for Mr. Roca's task of painting the ceiling of the premises, and neither Mr. Roca's testimony nor the Laag Affd. establishes same, plaintiffs' cross-motion is denied.
Labor Law § 241(6)Labor Law § 241(6) imposes a nondelegable duty upon owners and contractors to provide reasonable and adequate protection and safety to workers engaged in the inherently dangerous work of construction ( Ross at 501-502). However, the worker must allege that the owner or contractor violated a rule or regulation of the Commissioner of the Department of Labor that sets forth a specific standard of conduct, as opposed to a general reiteration of the common law ( Ross at 502-504).
Contrary to defendants' contention, 12 NYCRR § 23-5.1(b) , entitled "Scaffold footing or anchorage," which requires that the footing of the scaffold be sufficiently sound to support the intended load, has been held sufficiently specific to support a § 241(6) claim ( Ruller v 2 Gold L.L.C., 2007 WL 3234730 [Trial Order] [Sup Ct, New York County 2007], citing O'Connor v Spencer Invest. Ltd., 2 AD3d 513 [2d Dept 2003]). It is uncontested that the subject scaffold did not collapse, and plaintiff does not contest that Rule 23-5.1(b) is inapplicable to this action or oppose defendants' motion in this regard. Thus, the branch of defendants' motion which seeks summary judgment dismissing plaintiffs' Labor Law § 241 (6) claim is granted as to Industrial Code § 23-5.1 (b).
Rule 23-5.1(b) provides, "The footing or anchorage for every scaffold erected on or supported by the ground, grade or equivalent surface shall be sound, rigid, capable of supporting the maximum load intended to be imposed thereon without settling or deformation and shall be secure against movement in any direction. Unstable supports, such as barrels, boxes, loose brick or loose stone, shall not be used."
12 NYCRR § 23-5.1(f), entitled "Scaffold Maintenance and Repair," is not sufficiently specific to state a claim under Labor Law § 241(6) ( Moutray v Baron, 244 AD2d 618, 619, lv denied 91 NY2d 808; Schiulaz v Arnell Const. Corp., 261 AD2d 247, 248 [1st Dept 1999]). In any event, it is uncontested that Mr. Roca testified that the subject scaffold was not damaged, cracked or broken (Romero EBT, p. 71), and plaintiff did not oppose dismissal of this section of the Industrial Code. Thus, the branch of defendants' motion which seeks summary judgment dismissing plaintiffs' Labor Law § 241 (6) claim is granted as to Industrial Code § 23-5.1(f).
Rule 23-5.1(c)(1) provides, "Every scaffold shall be maintained in good repair and every defect, unsafe condition or noncompliance with this Part (rule) shall be immediately corrected before further use of such scaffold."
12 NYCRR § 23-5.1(c)(1) contains specific provisions regarding a scaffold's structure:
Except where otherwise specifically provided in this Subpart, all scaffolding shall be so constructed as to bear four times the maximum weight required to be dependent therefrom or placed thereon when in use. (See Labor Law, § 240, subdivision 3.) Such maximum weight shall be construed to mean the sum of both dead and live loads. Exception: Paragraph (1) above does not apply to scaffold suspension ropes. (See section 23-5.19 of this Subpart.)
It is uncontested that Mr. Roca testified that the scaffold did not collapse and plaintiff did not oppose dismissal of this section of the Industrial Code. Thus, the branch of defendants' motion which seeks summary judgment dismissing plaintiffs' Labor Law § 241 (6) claim is granted as to Industrial Code § 23-5.1(c)(1).
Finally, Rule § 23-5.1(c)(2) provides: "Every scaffold shall be provided with adequate horizontal and diagonal bracing to prevent any lateral movement." Plaintiff does not contest defendants' contention that guardrails were provided or oppose dismissal of this section. Thus, the branch of defendants' motion to dismiss plaintiffs' Labor Law § 241(6) claim is granted.
Common Law Negligence and Labor Law § 200
Labor Law § 200 codifies the common-law duty imposed on an owner or general contractor to provide construction-site workers with a safe work site ( Nevins v Essex Owners Corp., 276 AD2d 315 [1st Dept 2000], citing Blessinger v Estee Lauder Companies, Inc., 271 AD2d 343). Liability under common law negligence or Labor Law § 200 is limited to defendants exercising supervisory direction or control over the operation that allegedly brought about plaintiff's injury, "rather than possessing merely general supervisory authority" ( Mitchell v New York Univ., 12 AD3d 200, 201 [1st Dept 2004]; Urban v No. 5 Times Square Development, LLC, 62 AD3d 553, 556 [1st Dept 2009]). "Furthermore, the proponent of a Labor Law § 200 claim must demonstrate that the defendant had actual or constructive notice of the allegedly unsafe condition that caused the accident. The notice must call attention to the specific defect or hazardous condition and its specific location, sufficient for corrective action to be taken" ( Mitchell at 201; Gordon v American Museum of Natural Hist., 67 NY2d 836, 837-838). However, "[w]here an alleged defect or dangerous condition arises from a subcontractor's methods over which the defendant exercises no supervisory control, liability will not attach under either the common law or § 200" ( Buckley v Columbia Grammar and Preparatory, 44 AD3d 263, 272 [1st Dept 2007]; Arrasti v HRH Const. LLC, 60 AD3d 582, 583 [1st Dept 2009] ("The evidence fails to raise a triable issue of fact that defendants supervised or controlled plaintiff's work at the construction site. . . . Accordingly, the claims based on common-law negligence and violation of Labor Law § 200 should have been dismissed").
Here, defendants establish a prima facie case that Hunter Roberts is entitled to judgment as a matter of law on plaintiffs' common law negligence and Labor Law § 200 claims. However, the evidence in their motion fails to establish such a case as to Trinity Church.
Defendants demonstrate, and plaintiffs do not contest, that Hunter Roberts, as the general contractor, did not supervise, direct or control Mr. Roca's work. According to Mr. Roca's and Mr. Romero's testimony, Mr. Roca took direction only from Mr. Romero, a supervisor of Cosmopolitan (Roca EBT, pp. 46, 83-84; Romero EBT, pp. 65, 85). Further, Mr. Batarse testified that Hunter Roberts only supervised Cosmopolitan's "quality, safety and coordination," not Cosmopolitan's "means and methods" of performing work at the premises (Batarse EBT, p. 40). However, the First Department makes clear that general supervision and coordination of the work site is insufficient to trigger liability under common law negligence or Labor Law § 200 ( Singh v Black Diamonds LLC, 24 AD3d 138, 140 [1st Dept 2005]; see also, O 'Sullivan v IDI Const. Co., Inc. ( 28 AD3d 225, 227 [1st Dept 2006] (holding that the fact that a general contractor had "'an on-site safety manager with responsibility for the safety of the work done by subcontractors' does not . . . provide any basis for imposing liability on the general contractor based on an injury allegedly caused by a subcontractor's work)).
Further, defendants demonstrate, and plaintiffs do not contest, that Hunter Roberts had neither actual nor constructive notice of any alleged dangerous activity at the job site that cause the accident. "To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it" ( Gordon at 837-838). Here, Mr. Roca testified that the scaffold was neither damaged nor defective (Roca EBT, p. 71) and although Hunter Roberts supervised quality, safety and coordination, there is no indication that any representative of Hunter Roberts observed plaintiff's use of the scaffold without guardrails for any length of time prior to his accident.
Therefore, as defendants have demonstrated that Hunter Roberts had no notice, and exercised only limited supervisory control insufficient to trigger liability for common law negligence or Labor Law § 200, they have demonstrated a prima facie case for summary judgment in Hunter Roberts' favor.
However, as to Trinity Church, there is no evidence in the record as to its role, or lack thereof, concerning the work being performed by Mr. Roca at the time of his accident. Defendants' submissions, i.e., defendants' MOL, the depositions of Mr. Roca, Mr. Romero and Mr. Batarse, and the Batarse Affd., are silent as to Trinity Church. Therefore, defendants failed to establish entitlement to summary judgment as to Trinity Church, and the motion for summary judgment as to said defendant is denied, without prejudice.
Conclusion
Based on the foregoing, it is hereby
In accordance with the accompanying Memorandum Decision, it is hereby
ORDERED that the branch of defendants' motion for an order, pursuant to CPLR § 3212, dismissing plaintiffs' common law negligence and Labor Law § 200 claims against the Rector Church Warden Vestrymen of the Parish of Trinity Church is denied, without prejudice; and it is further
ORDERED that the branch of defendants' motion for an order, pursuant to CPLR § 3212, dismissing plaintiffs' common law negligence and Labor Law § 200 claims is granted as to Hunter Roberts Construction Group, L.L.C. i/s/h/a Hunter Roberts Construction Group, and plaintiffs' common law negligence and Labor Law § 200 claims against Hunter Roberts Construction Group, L.L.C. i/s/h/a Hunter Roberts Construction Group are hereby severed and dismissed; and it is further
ORDERED that the branch of defendants' motion for an order, pursuant to CPLR § 3212, dismissing plaintiffs' Labor Law § 240(1) claim is denied; and it is further
ORDERED that the branch of defendants' motion for an order, pursuant to CPLR § 3212, dismissing plaintiffs' Labor Law § 241(6) claim is granted; and it is further
ORDERED that plaintiffs' cross-motion for partial summary judgment on its Labor Law § 240(1) claim is denied; and it is further
ORDERED that defendants serve a copy of this order with notice on entry upon all parties within 20 days of entry.
This constitutes the decision and order of the Court.