Opinion
2019-00306 Index No. 7148/16
02-09-2022
Jose W. SANCHEZ, plaintiff-respondent, v. BBL CONSTRUCTION SERVICES, LLC, et al., defendants third-party plaintiffs-appellants-respondents, Joe Lombardo Plumbing & Heating of Rockland, Inc., defendant third-party defendant-appellant-respondent; D&J Concrete Corp., third-party defendant-respondent-appellant.
Molod Spitz & DeSantis, P.C., New York, NY (Alice Spitz and Marcy Sonneborn of counsel), for defendants third-party plaintiffs-appellants-respondents and defendant third-party defendant-appellant-respondent. Black Marjieh & Sanford LLP, Elmsford, NY (Evan B. Rudnicki of counsel), for third-party defendant-respondent-appellant. Latos Latos & Associates, P.C., Astoria, NY (Andrew Latos and Rubin Law, PLLC [Denise A. Rubin ], of counsel), for plaintiff-respondent.
Molod Spitz & DeSantis, P.C., New York, NY (Alice Spitz and Marcy Sonneborn of counsel), for defendants third-party plaintiffs-appellants-respondents and defendant third-party defendant-appellant-respondent.
Black Marjieh & Sanford LLP, Elmsford, NY (Evan B. Rudnicki of counsel), for third-party defendant-respondent-appellant.
Latos Latos & Associates, P.C., Astoria, NY (Andrew Latos and Rubin Law, PLLC [Denise A. Rubin ], of counsel), for plaintiff-respondent.
MARK C. DILLON, J.P., BETSY BARROS, LINDA CHRISTOPHER, JOSEPH A. ZAYAS, JJ.
DECISION & ORDER In an action to recover damages for personal injuries, the defendants third-party plaintiffs and the defendant third-party defendant appeal, and the third-party defendant cross-appeals, from an order of the Supreme Court, Nassau County (Anna Anzalone, J.), entered November 13, 2018. The order, insofar as appealed from, denied those branches of the motion of the defendants third-party plaintiffs and defendant third-party defendant which were for summary judgment dismissing the causes of action alleging common-law negligence and violations of Labor Law §§ 200 and 241(6). The order, insofar as cross-appealed from, denied those branches of the motion of the third-party defendant which were for summary judgment dismissing the causes of action alleging common-law negligence and violations of Labor Law §§ 200 and 241(6) insofar as asserted against the defendants third-party plaintiffs and for summary judgment dismissing the third-party complaint and all third-party cross claims insofar as asserted against it.
ORDERED that the order is reversed insofar as appealed and cross-appealed from, on the law, with one bill of costs to the defendants third-party plaintiffs and defendant third-party defendant, payable by the plaintiff, and one bill of costs to the third-party defendant payable by the plaintiff, the defendants third-party plaintiffs, and defendant third-party defendant, appearing separately and filing separate briefs, those branches of the motion of the defendants third-party plaintiffs and the defendant third-party defendant which were for summary judgment dismissing the causes of action alleging common-law negligence and violations of Labor Law §§ 200 and 241(6) are granted, and those branches of the motion of the third-party defendant which were for summary judgment dismissing the causes of action alleging common-law negligence and violations of Labor Law §§ 200 and 241(6) insofar as asserted against the defendants third-party plaintiffs and for summary judgment dismissing the third-party complaint and all third-party cross claims insofar as asserted against it are granted.
On December 22, 2015, the plaintiff, an employee of the third-party defendant, D & J Concrete Corp. (hereinafter D & J), allegedly was injured while working at a construction site in Rockland County owned by the defendants CRH Realty IX, LLC, and Crystal Run Healthcare, LLP (hereinafter together the CRH defendants). The plaintiff alleges that, while pouring a concrete floor, he tripped and fell over a protruding permanent drain pipe that was covered with a bucket to prevent concrete from entering it. At that time, the surface upon which the plaintiff was standing was covered with gravel, plastic, and wire mesh, from which earlier-installed plumbing and drainage pipes protruded. The defendant BBL Construction Services, LLC (hereinafter BBL), was the general contractor on the project, while the defendant Joe Lombardo Plumbing & Heating of Rockland, Inc. (hereinafter Lombardo Plumbing), was the plumbing subcontractor hired by BBL. D & J was the subcontractor hired by BBL to pour the concrete floor. In October 2016, the plaintiff commenced this action against the CRH defendants, BBL, and Lombardo Plumbing (hereinafter collectively the defendants), asserting causes of action sounding in, inter alia, common-law negligence and violations of Labor Law §§ 200 and 241(6). In March 2017, BBL and the CRH defendants commenced a third-party action against Lombardo Plumbing and D & J, alleging causes of action for common-law indemnification and contribution, contractual indemnification, and breach of contract for failure to procure insurance. Lombardo Plumbing asserted third-party cross claims for similar relief against D & J. By order entered November 13, 2018, the Supreme Court denied those branches of the defendants' motion which were for summary judgment dismissing the causes of action alleging common-law negligence and violations of Labor Law §§ 200 and 241(6). The court also denied those branches of D & J's motion which were for summary judgment dismissing those causes of action insofar as asserted against BBL and the CRH defendants, as well as those branches which were for summary judgment dismissing the third-party complaint and all third-party cross claims insofar as asserted against it. The defendants appeal, and D & J cross-appeals. We reverse.
Labor Law § 200 is a codification of the common-law duty imposed on property owners, contractors, and their agents to provide construction site workers with a safe place to work (see Rizzuto v. L.A. Wenger Contr. Co., 91 N.Y.2d 343, 352, 670 N.Y.S.2d 816, 693 N.E.2d 1068 ; Davies v. Simon Prop. Group, Inc., 174 A.D.3d 850, 854, 107 N.Y.S.3d 341 ; Moscati v. Consolidated Edison Co. of N.Y., Inc., 168 A.D.3d 717, 719, 91 N.Y.S.3d 209 ). "Cases involving Labor Law § 200 fall into two broad categories: namely, those where workers are injured as a result of dangerous or defective premises conditions at a work site, and those involving the manner in which the work is performed" ( Ortega v. Puccia, 57 A.D.3d 54, 61, 866 N.Y.S.2d 323 ; see Davies v. Simon Prop. Group, Inc., 174 A.D.3d at 854, 107 N.Y.S.3d 341 ; Moscati v. Consolidated Edison Co. of N.Y., Inc., 168 A.D.3d at 719–720, 91 N.Y.S.3d 209 ; Reyes v. Arco Wentworth Mgt. Corp., 83 A.D.3d 47, 50–51, 919 N.Y.S.2d 44 ). Both categories are implicated here. "Where the condition at issue is both ‘open and obvious’ and not ‘inherently dangerous,’ a defendant is not liable under either a theory of common law negligence or Labor Law § 200" ( Graziano v. Source Bldrs. & Consultants, LLC, 175 A.D.3d 1253, 1259, 109 N.Y.S.3d 115, quoting Dinallo v. DAL Elec., 43 A.D.3d 981, 982, 842 N.Y.S.2d 519 ; see Reyes v. Astoria 31st St. Devs., LLC, 190 A.D.3d 872, 139 N.Y.S.3d 352 ). In addition, for liability to be imposed on a defendant where the means and methods of the work are involved, it must be shown that the defendant possessed the authority to supervise or control performance of the work (see Davies v. Simon Prop. Group, Inc., 174 A.D.3d at 854, 107 N.Y.S.3d 341 ; Moscati v. Consolidated Edison Co. of N.Y., Inc., 168 A.D.3d at 719, 91 N.Y.S.3d 209 ; Sullivan v. New York Athletic Club of City of N.Y., 162 A.D.3d 955, 958, 80 N.Y.S.3d 93 ; Reyes v. Arco Wentworth Mgt. Corp., 83 A.D.3d at 51, 919 N.Y.S.2d 44 ; Ortega v. Puccia, 57 A.D.3d at 61, 866 N.Y.S.2d 323 ). General supervisory authority to oversee the progress of the work is insufficient to impose liability (see Kefaloukis v. Mayer, 197 A.D.3d 470, 471, 148 N.Y.S.3d 906 ).
Here, the defendants met their prima facie burden of demonstrating both that the allegedly dangerous condition was open and obvious and not inherently dangerous, and that they lacked the authority to supervise or control the plaintiff's work. In support of their motion, the defendants submitted, among other things, transcripts of the deposition testimony of the plaintiff, as well as his D & J supervisor who was working alongside him at the time of the accident. Their testimony demonstrated that at the time of the accident and in the days prior thereto, the means and methods of plaintiff's work were directed by and were the sole responsibility of his D & J supervisor, and that the allegedly dangerous condition was open and obvious and not inherently dangerous (see id. at 471, 148 N.Y.S.3d 906 ; Reyes v. Astoria 31st St. Devs., LLC, 190 A.D.3d at 872, 139 N.Y.S.3d 352 ; O'Sullivan v. IDI Constr. Co., Inc., 28 A.D.3d 225, 813 N.Y.S.2d 373, affd 7 N.Y.3d 805, 822 N.Y.S.2d 745, 855 N.E.2d 1159 ).
Labor Law § 241(6) imposes a nondelegable duty upon owners and contractors to provide reasonable and adequate protection and safety to construction workers (see Toefer v. Long Is. R.R., 4 N.Y.3d 399, 409, 795 N.Y.S.2d 511, 828 N.E.2d 614 ; Lopez v. New York City Dept. of Envtl. Protection, 123 A.D.3d 982, 983, 999 N.Y.S.2d 848 ). To establish liability under Labor Law § 241(6), a plaintiff must demonstrate that the injuries allegedly sustained were proximately caused by a violation of an Industrial Code provision that is applicable under the circumstances of the case (see Misicki v. Caradonna, 12 N.Y.3d 511, 515, 882 N.Y.S.2d 375, 909 N.E.2d 1213 ; Jones v. City of New York, 166 A.D.3d 739, 741, 87 N.Y.S.3d 631 ; Aragona v. State of New York, 147 A.D.3d 808, 809, 47 N.Y.S.3d 115 ; Guallpa v. Canarsie Plaza, LLC, 144 A.D.3d 1088, 1091, 42 N.Y.S.3d 293 ; Mercado v. TPT Brooklyn Assoc., LLC, 38 A.D.3d 732, 733, 832 N.Y.S.2d 93 ; Rivera v. Santos, 35 A.D.3d 700, 702, 827 N.Y.S.2d 222 ). Here, while the plaintiff, in his pleadings, cited several different provisions of the Industrial Code to support his Labor Law § 241(6) cause of action, he has since abandoned all of them except for Industrial Code ( 12 NYCRR) § 23–1.7(e)(2). This provision states, "[t]he parts of floors, platforms and similar areas where persons work or pass shall be kept free from accumulations of dirt and debris and from scattered tools and materials and from sharp projections insofar as may be consistent with the work being performed" (id. ). In support of their motion, the defendants demonstrated that 12 NYCRR 23–1.7(e)(2) is inapplicable because the protruding drainage pipe over which the plaintiff allegedly fell was a permanent and an integral part of what was being constructed (see Martinez v. 281 Broadway Holdings, LLC, 183 A.D.3d 712, 124 N.Y.S.3d 52 ; Vita v. New York Law Sch., 163 A.D.3d 605, 608, 80 N.Y.S.3d 387 ; see also O'Sullivan v. IDI Constr. Co., Inc., 28 A.D.3d 225, 813 N.Y.S.2d 373 ). In opposition, the plaintiff failed to raise a triable issue of fact (see DeLeon v. State of New York, 22 A.D.3d 786, 803 N.Y.S.2d 692 ). Accordingly, the Supreme Court should have granted those branches of the defendants' motion and D & J's motion which were for summary judgment dismissing the causes of action alleging common-law negligence and violations of Labor Law §§ 200 and 241(6).
In light of our determination, those branches of D & J's motion which were for summary judgment dismissing the third-party complaint and all third-party cross claims asserted against it should be granted (see Nicola v. United Veterans Mut. Hous. No. 2, Corp., 178 A.D.3d 937, 940, 116 N.Y.S.3d 296 ).
DILLON, J.P., BARROS, CHRISTOPHER and ZAYAS, JJ., concur.