Opinion
23847/12
07-11-2019
Edwin RODRIGUEZ, Plaintiff, v. SEA CREST CONSTRUCTION CORP., Turner Construction Company and Peter Scalamandre & Sons, Inc., Defendants. Turner Construction Company, Third-Party Plaintiff, 5 Star Electric Corporation, Third-Party Defendant.
The following papers numbered 1- 27 read on these separate motions by the defendant Turner Construction Company (Turner), and codefendant Sea Crest Construction Corp., (Sea Crest), seeking summary judgment pursuant to CPLR 3212 dismissing plaintiffs' complaint, and all cross claims against them, as to liability under Labor Law §§ 200, 240 (1), 241 (6) and common law negligence
Papers
Numbered
Notices of Motion - Affidavits - Exhibits 1-8
Notice of Cross Motion - Affidavits- Exhibits 9-12
Answering Affidavits - Memo in Opposition- Exhibits 13-20
Reply Affidavits 21-27
Upon the foregoing papers it is ordered that the motions and cross motion are determined as follows:
This action arises from the personal injuries sustained by the plaintiff, Edwin Rodriguez, (Rodriguez), an employee of the third-party defendant general contractor 5 Star Electric Corp., (5 Star), hired by non party owner Dormitory Authority-State of New York (DASNY.) The codefendant Turner, was contracted by the former defendant general contractor Skidmore, Owings and Merrill LLP, (Skidmore), as the construction manager of the project at John Jay College. The plaintiff alleges that he was injured when, attempting to cover an open condulit, containing open and exposed wiring which he considered a hazardous condition, he climbed a ten foot A-frame ladder in a closed position, leaning up against the wall due to lack of space, and was thrust off the ladder by a sudden jolt of electricity.
On a motion for summary judgment, the court must view the evidence in the light most favorable to the non moving party. (See Vega v. Restani Const. Corp., 18 NY3d 499 [2012].) In doing so, the evidence submitted by the movants must eliminate all material issues of fact. (Id. )
Labor Law § 240 (1) was designed to prevent those types of accidents in which the scaffold, hoist, stay, ladder, ropes or other protective device proved inadequate to protect a worker from harm directly flowing from the application of the force of gravity to an object or person. (See Ross v. Curtis-Palmer Hydro-Electric Co., 81 NY2d 494 [1993].) This statute imposes a nondelegable duty upon owners, contractors, or their agents to provide appropriate safety devices for the protection of workers against risks inherent in elevated work sites. (See McCarthy v. Turner Constr., Inc., 17 NY3d 369 [2011] ; Caiazzo v. Mark Joseph Contr., Inc., 119 AD3d 718 [2d Dept 2014].)
An owner, general contractor, or agent will be held liable under Labor Law § 240(1) if it was responsible for coordinating and supervising the entire construction project and was invested with a concomitant power to enforce safety standards and to hire responsible contractors (See Temperino v. DRA, Inc., 75 AD3d 543 [2d Dept 2010].) Although a construction manager of a work site is generally not responsible for injuries under Labor Law § 240 (1), it may be vicariously liable as an agent of the property owner for injuries sustained where the manager had the ability to control the activity which brought about the injury. (See Walls v. Turner Const. Co., 4 NY3d 861 [2005].) A construction manager may be considered to be an agent of the owner, when it functions as the eyes, ears and voice of the owner. (Id. )
For a defendant to make a prima facie showing, it can demonstrate that it was not an owner, general contractor or agent of the owner with regard to plaintiff's work. (Id. ) Since an owner, general contractor or agent have nondelegable duties to maintain a safe workplace in conformity with Labor Law § 240 (1), they may demonstrate that there is no height differential, or that the accident did not occur as a result of gravity operating to cause the fall of the plaintiff, or that it provided adequate safety devices to avoid such an occurrence. (See Runner v. New York Stock Exchange, Inc., 13 NY3d 599 [2009].) Similarly, as to Labor Law § 241 (6), owners general contractors, and their agents have nondelegable duties to comply with safety regulations pursuant to the Industrial Code, and must show that either they did not violate a specific safety rule, or that such violation was not a proximate cause of plaintiff's injuries. (See Rizzuto v. L.A. Wenger Contracting Co., Inc., 91 NY2d 343 [1998].)
With regard to claims under Labor Law § 200 and common law negligence, generally, construction worksite cases fall into two categories, those where the injuries sustained are as a result of dangerous or defective conditions at the worksite, and those involving the manner in which the work is performed. (See Ortega v. Puccia, 57 AD3d 54 [2d Dept 2008].) When a claim arises from the dangers in the methods or materials of the work, recovery against the owner, general contractor, or agent can not be had unless it is shown that the party to be charged had the authority to supervise or control the performance of the work. (Id. ) Regarding worksite dangers, an owner, general contractor, or subcontractor must show it did not have sufficient supervision and control over the workplace, or, either did not create the hazardous condition or have actual or constructive notice of such condition within a sufficient time to rectify it. (See Mari v. Liro Engineers, Inc., 159 AD3d 688 [2d Dept 2018].) Here, since it can be argued that both workplace and manner of work are the basis for plaintiff's claims, each party to be charged must demonstrate that it did not create the dangerous condition, have actual or constructive notice of the dangerous condition nor have sufficient supervision or control over the premises to remedy it, (See Russin v. Louis N. Piciano & Son, 54 NY2d 311 [1981] ; Marquez v. L & M Development Partners, Inc., 141 AD3d 694 [2d Dept 2016] ), and did not have sufficient authority to supervise and control the manner of work. (Id. )
In support of its motion for summary judgment, the codefendant Turner submitted, inter alia, its attorney's affirmation, the pleadings, a copy of the deposition of the plaintiff Edwin Rodriguez (Rodriguez), a copy of the deposition of Francis William Pascual, project superintendent for Turner, a copy of the deposition of Clarence Crasto, project manager for Turner, a copy of the deposition of Armando Rivera, project superintendent for electrical inspections for Turner, a copy of the deposition of Christopher J. Rice, general foreman for third party defendant 5 Star, a copy of the deposition of James Dergin, superintendent for codefendant Sea Crest Construction, Corp., (Sea Crest), and a copy of the contract between codefendant Turner and Skidmore, Owings and Merrill, LLP, architects of the project.
Turner contends that it was merely a construction manager, and not a party subject to vicarious liability under Labor Law §§ 240 (1), or 241 (6), nor a party having sufficient authority to supervise or control the worksite, or the manner of work performed. In the matter of Valdez v. Turner Construction Company, 171 AD3d 836 [2d Dept 2019], an injury involving a different plaintiff occurring on the very same project as here, John Jay College, the Appellate Division, Second Department affirmed the lower court finding that Turner, as the construction manager had the eyes and ears of the owner of the project, and therefore as its agent, was vicariously liable. (See Walls v. Turner Construction Company, 4 NY3d 861 [2005] ; Valdez , 171 AD3d 836.) In an independent review of the depositions and documents submitted herein, there is no reason to arrive at a different conclusion. Furthermore, the contract, and the depositions of Pascual, Crasto and Rivera demonstrate in their own words, the failure by Turner to conform to its contractual responsibilities to inspect for safety issues, especially with regard to the electrical installations at issue herein. In his deposition Rivera demonstrates that inspections were lax, or non-existent. He was unaware of any protocol or specific criteria to conduct inspections dealing with the smaller condulets. Turner acknowledges that it was responsible for safety and safety planning, and conducted weekly safety meetings for all contractors to attend. The contract further provides in Article 22 that Turner had the authority to stop work if unsafe working conditions were found, and it required Turner to develop a plan for, and conduct safety inspections, and to coordinate communications between and among the various contractors and DASNY.
In support of plaintiff's cross motion for summary judgment, the plaintiff submits, among other things, an affidavit from his expert witness Robert T. Fuchs, a professional engineer and a safety memorandum authored by Turner. In plaintiff's deposition, he describes working on the ladder in the electric closet. He further describes being on the fifth ladder step, of a ten foot ladder and claims that his fall was from "6-8 feet maybe less". In the performance of his work he says he relied upon a "lock out tag out" system to know whether the line was active. According to the plaintiff, and uncontradicted by other witnesses, this procedure indicated to him that the lines were inactive, when in actuality they were active. Falling off a ladder as a result of an electric shock falls within the purview of Labor Law § 240 [1]. (See Karapati v. Rocchio, Inc., 12 AD3d 413 [2d Dept 2004] ; Gange v. Tilles Inv. Co., 220 AD2d 556 [2d Dept 1995].) In his affidavit, the plaintiff's expert refers to the safety memorandum issued by Turner, ten days prior to the accident's occurrence whereby it was mandated that for safety purposes, any jobs requiring workers to be above six feet were to be provided additional safety equipment in the form of harnesses or laniards. Turner does not dispute the existence of this safety memo. Despite plaintiff's off hand statement that his fall was "six to eight feet, maybe less" his other testimony is more detailed and sure. He was sure he was on the 5th rung of the ten foot ladder, which was near the top, and the condulit was about 12 feet above the ground. It is clear that he was well over six feet above the ground. He further testified that the ladder could not be opened in such a small enclosure as the electric closet, so it was leaned up, in a closed position, against the wall. Under these circumstances, it is likewise clear that plaintiff was not provided the proper safeguards necessary to work at such heights in a small, restrictive closet, such that the ladder he was provided could not be used correctly and in compliance with code provisions. Since the ladder was the only safety device provided to the plaintiff, and that ladder could not be used properly, but only in violation of a code provision, it is clear that no appropriate safety device was made available to the plaintiff that would prevent his fall. Therefore, as to plaintiff's Labor Law § 240 (1) claim, the evidence demonstrates that the defendant failed to provide any appropriate safety device, as a matter of law. (See Zimmer v. Chemung County Performing Arts, Inc., 65 NY2d 5131985].) Having met his prima facie burden the codefendant Turner has not raised a triable issue of fact in rebuttal. (See Alvarez v. Prospect Hosp., 68 NY2d 320 [1986].) It is noted that unlike Labor Law § 241 (6), 200 and common law negligence, unless it can be shown that the plaintiff was the sole proximate cause of his injuries, negligence, if any, on the part of the injured party is of no consequence with respect to Labor Law § 240 [1]. (See Rocovich v. Consolidated Edison Co., 78 NY2d 509 [1991].) Such a showing has not been made here.
With regard to plaintiff's claims pursuant to Labor Law § 241 (6), applying the provisions of the code to the facts as described by plaintiff, he was provided a ten foot A-frame ladder to use in a very small electric closet. As such, he was unable to open the ladder but instead leaned the ladder in its closed position against the wall. Providing the plaintiff with a ladder that could only be used in an unopened, unlocked position in the small electric closet, was in violation of Industrial Code § 23-1.21 (e) (2), showing that the plaintiff was provided no appropriate safety device. Although this buttresses the claim under Labor Law § 240 (1), it is difficult to see, as a matter of law, how any ladder would have prevented the plaintiff's expulsion from such ladder. In this light, the failure to provide a proper ladder was not a proximate cause of the accident. Furthermore, also failing to provide a helper to hold the inadequate ladder provided was not a proximate cause of plaintiff's injuries. Here, it was the interceding electrical jolt, together with failure to provide an adequate safety device of a type listed in the statute that constituted the proximate cause of plaintiff's injuries. So, claims under Industrial Code § 1.21 (b)(4) (iv) and § 23-1.21 (e) (2) are superfluous. However, Industrial Code § 23-1.13 (b)(4), which in summary requires electric power to be turned off, or properly insulated before a worker is exposed to this danger, was violated and was a proximate cause of plaintiff's injuries. In this regard, the jury may assess whether plaintiff's reliance on the protocol without further inquiry may have constituted partial culpability, but only as to damages. (See Rodriguez v. City of New York, 31 NY3d 312 [2018] ; see also, O'Rourke v. City of New York, 35 Misc 3d 1232 (A) [Sup Ct, Kings County, 2012, J. Ash].) The code provision § 23 -1.5 (a) is not specific enough to be enforceable, and is dismissed. (See Carty v. Port Authority of New York and New Jersey, 32 AD3d 732 [2d Dept 2006].)
As Turner has been shown to have contractual responsibility for the safety protocols and overview, oversight and training for safety concerns, and had the authority to stop work until conditions were rendered safe, it had sufficient authority to supervise and control the safety of the worksite. The testimony of its own witnesses Crasto and Rivera describe poor safety protocols and haphazard inspections of electrical condulits as involved herein. Turner had constructive notice of the hazards of faulty wiring and exposed electrical openings, as well as notice that workers would be engaged in working on these areas which if uninspected and unchecked would be dangerous. Therefore, the plaintiff has met his prima facie burden to sufficiently show that Turner is liable pursuant to Labor Law § 200, and common law negligence in failing to adequately perform inspections as it was contractually required to do, rendering the workplace unsafe constituting a proximate cause of plaintiff's injuries. However, as previously stated, it is for a jury to determine, on the issue of damages, whether the plaintiff was careless and thereby partially culpable in his reliance at face value that the electricity to the condulit was safely turned off considering he was trying to cure a dangerous condition. ( Rodriguez , 31 NY3d 312 [2018].)
In support of its motion, Sea Crest submits evidence in support similar to Turner's submissions, however, it has not met its prima facie burden to show that it was not involved in the creation of the hazardous condition of open, exposed, improperly insulated wiring in the condulit, or the failure to properly utilize the protocol to advise that the condulit still had power emanating through it resulting in the explosive charge causing plaintiff's injuries. Its own witness could not recall what Sea Crest's participation was with regard to the electrical work, and other witnesses called into question whether Sea Crest had worked on that condulit and perhaps had left the electricity active while designating that no electrical service was entering those wires. Furthermore, without the pertinent contract to analyze, any contractual issues can not be determined. As the codefendant Sea Crest has submitted insufficient evidence to meet its prima facie burden, the opposition papers need not be addressed. (See Zuckerman v. City of New York, 49 NY2d 557 [1980].)
The defendant Turner's objections to the timing of plaintiff's cross motion for summary judgment are without merit, as the issues are identical. (See Sikorjak v. City of New York, 168 AD3d 778 [2d Dept 2019].) Furthermore, CPLR 3212 clearly requires the court to consider expert affidavits submitted in support of, or in opposition to a motion for summary judgment, even if not disclosed at a prior time through discovery. (See CPLR 3212 [b] ; see also, Rivers v. Birnbaum, 102 AD3d 26 [2d Dept 2012].) As to timing, it appears that prior to the filing of defendant Turner's opposition to plaintiff's cross motion, the Appellate Division, Second Department affirmed a lower court finding that Turner, on this very project at issue herein, and interpreting the very same Turner contract, was an agent of the owner, and therefore liable under Labor Law §§ 240 (1) and 241 (6). Turner's opposition paper to plaintiff's cross motion was dated April 17, 2019, while the decision in Valdez v. Turner Construction Company, 171 AD3d 836 [2d Dept 2019] is dated April 3, 2019.
Accordingly, the plaintiff's cross motion for summary judgment is granted as against the defendant Turner, on its claims pursuant to Labor Law §§ 240 (1), 200, common law negligence, and Labor Law § 241 (6) predicated upon Industrial Code § 23-1.13 (b)(4), but as to all other claims the motion is denied.. The motions for summary judgment by codefendant Turner and Sea Crest are granted only to the extent that, other than Industrial Code § 23-1.13 (b)(4), all other claims under Labor Law § 241 (6) are dismissed, but in all other respects their motions are denied.