Opinion
2017-815953
04-28-2020
Michael STACHOSKI, Plaintiff, v. PAMS PROPERTIES, LLC, Defendant.
DOLCE PANEPINTO, PC, Rene Juarez, Esq., Of Counsel, Sean Cooney, Esq., Of Counsel, Attorneys for Plaintiff GOLDBERG SEGALLA LLP, Albert J. D'Aquino, Esq., Of Counsel, Samantha V. Cattone, Esq., Of Counsel, Attorneys for Defendant
DOLCE PANEPINTO, PC, Rene Juarez, Esq., Of Counsel, Sean Cooney, Esq., Of Counsel, Attorneys for Plaintiff
GOLDBERG SEGALLA LLP, Albert J. D'Aquino, Esq., Of Counsel, Samantha V. Cattone, Esq., Of Counsel, Attorneys for Defendant
Timothy J. Walker, J.
Plaintiff has applied, pursuant to CPLR 3212, for partial summary judgment, and Defendant has cross-moved for summary judgment. The Court heard oral argument on March 12, 2020, and the Court has reviewed the parties' respective submissions on the motion and cross-motion.
BACKGROUND
This action for personal injuries arises out of a work-site accident that occurred on April 30, 2017 (the "Incident"), at the Lofts at Abbott Project (the "Project"), located on Tamarack Street, near Abbott Road, in the City of Buffalo (the "Premises"). The Project involves the conversion of the former St. Thomas Aquinas School into several residential apartments.
Plaintiff is a laborer. He described the Incident as follows: He slipped and fell on wet, mud-covered plywood, while carrying scrap plywood to a dumpster to be discarded. Plywood had been placed on the ground (by unknown persons) to provide a walkway to the dumpster, because the ground in that area of the Premises was dug up, and muddy. The plywood was intended to provide a more stable pathway than wet and muddy ground.
Plaintiff contends that the Incident occurred on a Sunday, and that he was the only person at the Premises when it occurred.
At the time of the Incident, Defendant, a four (4) member limited liability company, owned the Premises and the Project, and Plaintiff was employed by non-party, ECO-Construction Management, LLC ("ECO"), as a laborer. Plaintiff's duties included picking up construction debris at the Premises and surrounding work-site.
Defendant retained ECO as its general contractor on the Project, and ECO subcontracted out every aspect of the Project, including hiring, inter alia , the Frizlen Group Architects (the "Frizlen Group"), as the architectural consultant for the Project.
Karl Frizlen is both a member of the Defendant, and a principal of Frizlen Group.
STANDARD
To obtain summary judgment, the moving party must make a prima facie showing of entitlement to judgment as a matter of law ( Ferluck AJ v. Goldman Sachs & Co., 12 NY3d 316, 320 [2009] ). This requires sufficient evidence to shift the burden to the opposing party to produce proof, in evidentiary form, sufficient to establish the existence of genuine issues of material fact ( Id at 320 ). "Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" to defeat summary judgment ( Gilbert Frank Corp. v. Fed. Ins. Co. , 70 NY2d 966, 967 [1988] [citation omitted] ).
Moreover, factual issues raised by the opposing party must be genuine, as opposed to speculative ( Trahwen LLC v. Ming 99 Cent City No.7, Inc. , 106 AD3d 1467, 1468 [4th Dept 2013] ).
DISCUSSION
Plaintiff's Motion for Partial Summary Judgment
Plaintiff seeks partial summary judgment on the issue of liability, pursuant to Labor Law § 241(6), with specific findings that, at the time of the Incident: (a.) Defendant was the statutory owner of the Premises; (b.) Plaintiff was engaged in "covered work"; (c.) Industrial Code § 23-1.7(d) applied to the Project and Defendant violated it, as a matter of law; (d.) such violation constituted a failure to use reasonable care; and (e.) such violation was a proximate cause of the Incident and Plaintiff's resultant injuries, such that Defendant violated Labor Law § 241(6), as a matter of law. Plaintiff further requests an affirmative finding that he was not comparatively negligent in causing the Incident.
New York Labor Law § 241(6) provides:
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 statue imposes a nondelegable duty upon owners and general contractors to provide a safe place to work:
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. Indeed, the history underlying section 241, as amended, clearly manifests the legislative intent to place the ultimate responsibility for safety practices at building construction jobs where such responsibility actually belongs, on the owner and general contractor.
( Rizzuto v. L.A. Wenger Contracting Co. Inc., 91 NY2d 343, 348 [1998] [internal quotations and citations omitted] ).
Labor Law § 241(6) requires that owners and general contractors comply with specific safety rules and regulations promulgated by the Commissioner of the Department of Labor ( Ross v. Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501-502 [1993] ). Once a regulatory violation is established, an owner or general contractor may be held vicariously liable under Labor Law § 241(6) even if no supervision, direction, or control was exercised over the work and the injury producing activity ( Id. , 81 NY2d at 505 ; Rizzuto , 91 NY2d at 348-49 ).
A. Whether Defendant Was Properly Named as a Defendant
It is undisputed that, at all relevant times, Defendant owned the Premises and surrounding construction area, within which the Incident occurred. Accordingly, Defendant was properly named as a defendant-owner for purposes of Plaintiff's Labor Law § 241(6) claims.
B. Whether Plaintiff was Engaged in Covered Work
Labor Law § 241(6) expressly extends to all workers engaged in "construction, demolition and excavation" work.
The Project was comprehensive, involving the conversion of a former school into apartments. Plaintiff was a laborer, tasked with cleaning up construction debris and, at the time of the Incident, he was carrying a ¾ sheet of scrap plywood to a dumpster.
Defendant contends that Plaintiff's job duties, in terms of removing construction debris, do not fall into any of the covered categories of work defined as "construction, excavation, or demolition work" ( Labor Law § 241[6] ). However, Defendant places too fine a point on these terms. Certainly, the removal of construction debris is incidental to a construction project and falls within the activities covered by Labor Law § 241(6) (see Hyatt v. Young , 117 AD2d 1420, 1420 [4th Dept 2014] [ section 241(6) applies to laborer where "injuries ... sustained while delivering materials for a roofing project").
Likewise, Defendant's reliance on Toro v. Plaza Const. Co. (82 AD3d 505 [1st Dept 2011] ) is misplaced. There, the injured plaintiff, a sanitation worker, was injured during the course of performing his trash collection work along his regular route, and neither he, nor his employer, had any connection to the construction site or project at issue, other than the fact that site/project were located along the plaintiff's route.
C. The Applicability of Industrial Code § 23-1.7(d)
New York Industrial Code § 23-1.7(d)[Slipping Hazards] provides, as follows:
Employers shall not suffer or permit any employee to use a floor, passageway, walkway, scaffold, platform or other elevated working surface which is in a slippery condition. Ice, snow, water, grease and any other foreign substance which may cause slippery footing shall be removed, sanded or covered to provide safe footing.
A violation of § 23-1.7(d), while not determinative of the question of negligence, constitutes "some evidence" of negligence and a violation of Labor Law § 241(6) ( Rizutto , 91 NY2d at 351 ; Hammond v. International Paper Co. , 178 AD2d 798, 799 [3d Dept 1991] ). Despite the reference to "other elevated working surface," § 23-1.7(d) does not require "that the work surface be elevated before ... [a] duty is triggered" ( Cottone v. Dormitory Authority of NY , 225 AD2d 1032, 1033 [4th Dept 1996] ).
It is undisputed that, on the date of the Incident, Plaintiff utilized a makeshift plywood walkway, created to cover mud and uneven ground, in order to walk along the area and discard construction debris in a dumpster. Wet and muddy plywood is inherently slippery, and mud constitutes a "foreign" substance that was not an integral part of the plywood walkway ( Cottone , 225 AD2d at 1033 ; see also, Velasquez v. 795 Columbus LLC , 103 AD3d 541, 542 [1st Dep't 2013] [mud that had accumulated because of a water main break and rain was neither part of the floor, nor an integral part of plaintiff's work, thus constituting a "foreign substance" for purposes of § 23-1.7(d) ]; Reynoso v. Bovis Lend Lease LMB, Inc. , 125 AD3d 740 [2d Dept 2015] [ section 23-1.7(d) violated where plaintiff slipped and fell while carrying plywood in an area covered by snow and ice] ).
Based on the foregoing, 12 NYCRR § 23-1.7(d) applies to this matter.
D. Whether Defendant Was Negligent in Failing to Remove Mud from the Walkway
Notice is not required to establish a violation of Labor Law § 241(6) :
[Because] an owner or general contractor's vicarious liability under section 241(6) is not dependent on its personal capability to prevent or cure a dangerous condition, the absence of actual or constructive notice sufficient to prove or cure must also be irrelevant to the imposition of Labor Law § 241(6) liability.
Rizutto , 91 NY2d at 352.
ECO was negligent in permitting wet and muddy plywood to be used as a walkway. ECO was in charge of overall safety on the Project. Despite being well aware that it was a "common occurrence" that workers would use plywood in muddy and rutted areas as a walkway, ECO failed to implement any safety protocols or changes to deal with this recurring issue (Ross Nostro EBT Trans., p. 63; NYSCEF Doc. No. 14 ).
Ross Nostro was employed by ECO and served as the Project's manager and field supervisor (Id. , at p. 15). ECO was responsible for ensuring compliance with safety standards on the Project, and Mr. Nostro was ECO's designated safety representative (Id , at pp. 18 and 49).
Moreover, ECO provided all of the Project's subcontractors with a document pertaining to Project orientation and safety (the "Project Safety Document"). The Project Safety Document required that any mud on walkways be cleaned up daily (see section entitled "Housekeeping, Waste Disposal, and Dust Control," which states, in relevant part, that "Daily and continual clean-up is required in all work areas! Each individual is responsible for keeping the site neat and clean. Each employee is responsible for placing their personal trash in the gondolas and dumpster provided") (NYSCEF Doc. No. 13, p. 2). That mud and water covered scrap plywood was present upon which Plaintiff could slip, demonstrates that ECO and its subcontractors did not adhere to the Project Safety Document.
Accordingly, Defendant is vicariously responsible for ECO's failure to remove the foreign substance (mud) from the walkway and otherwise provide Plaintiff with a safe means of accessing the dumpster ( Rizutto , 91 NY2d at 352 ).
E. Whether Defendant's Violation of 12 NYCRR § 23-1.7(d) was the Proximate Cause of the Incident and Plaintiff's Resultant Injuries
Plaintiff contends that Defendant's violation of 12 NYCRR § 23-1.7(d) was unequivocally the proximate cause of the Incident and his resultant injuries, because Defendant's medical examiner, Peter L. Gambacorta, D.O., causally related Plaintiff's left knee injuries to the Incident (NYSCEF Doc. No. 18, p. 5) (see Burnett v. City of New York , 104 AD3d 437 [1st Dept 2013] [defendant found liable under § 23-1.7(d) where construction worker was injured when he slipped in a wet trough while removing temporary wood shoring] ).
However, Defendant contends that the violation of § 23-1.7(d) was not the proximate cause of Plaintiff's left knee injuries. Rather, Defendant contends that Plaintiff was caused to fall, because he was startled by a rat, and that the slipping hazard presented by the wet and muddy plywood walkway did not contribute in any way to his fall.
At the time of the Incident, Brigette Collins was employed by the Frizlen Group as its business manager, and her duties included acting as the human resources contact person for the company's employees (NYSCEF Doc. 16, p. 5). She performed similar duties for ECO's employees in connection with the Project (Id. , at pp. 13-15). In such role, she met with Plaintiff on the morning of May 16, 2017 (sixteen days post Incident) to gather information about the Incident, in order to file a possible workers' compensation claim (Id. , at pp. 21-25). Ms. Collins contends that when she asked Plaintiff what happened in connection with the Incident, he stated that,
he was at the work site taking out some plywood, and a rat came out from behind the dumpster and startled him and he twisted his knee (Id. , at p. 22).
Ms. Collins prepared a handwritten contemporaneous note of her conversation with Plaintiff (the "Note"), which provides, as follows, in relevant part:
April 30th 7 30 AM (sic)
carrying plywood to dumpster
startled by rat, twisted knee (NYSCEF Doc. No. 35).
The Note makes no reference to "mud", "water", or having slipped on plywood, or the like, and Ms. Collins confirmed at her deposition that Plaintiff did not use any such words when he described the Incident (NYSCEF Doc. No. 16, at pp. 23-24). Rather, she contends that Plaintiff limited his testimony to stating that he was caused to twist his knee upon being startled by a rat.
When asked at his deposition about the cause of the Incident, Plaintiff testified that,
I don't know why I fell. I mean, due to the mud, the mud and the wood, just went down (NYSCEF Doc. No. 15, at p. 85).
When asked why he mentioned the presence of a rat to Ms. Collins, he stated that he did not know why he mentioned a rat, and he was just making conversation (Id. , at pp. 87-88).
Based on Ms. Collins' deposition testimony, the contemporaneous Note, and Plaintiff's testimony regarding the circumstances of the Incident, which may be described as vague, genuine issues of material fact exist sufficient to preclude summary judgment as to what caused the Incident, such as whether Plaintiff was caused to slip and fall due to wet and muddy plywood, or whether, upon being startled by a rat, he twisted his knee without the condition of the plywood having been a factor ( Constantino v. Webel , 57 AD3d 472, 473 [2d Dept 2008] [summary judgment in favor of the injured plaintiff denied where "[a] determination that the alleged building code violations proximately caused the plaintiff's fall, rather than a misstep or loss of balance, would be mere speculation"] ).
Defendant's Cross-Motion for Summary Judgment
Preliminarily, Plaintiff contends that the cross-motion should be denied, as untimely.
The Scheduling Order On Consent, dated June 27, 2019 (NYSCEF Doc. No. 41) ordered, inter alia , that Plaintiff file the Trial Note of Issue on or before October 1, 2019. Accordingly, had Plaintiff done so, dispositive motions could have been timely filed through January 29, 2020, in accordance with the one hundred twenty (120) day filing period specified in CPLR 3212(a). Plaintiff filed his motion on January 28, 2020.
However, Plaintiff did not file the Trial Note of Issue until March 20, 2020, such that the one hundred twenty (120) day filing period did not commence on October 1, 2019 - the deadline for Plaintiff to file the Trial Note of Issue, to which Plaintiff failed to adhere.
The cross-motion is timely.
In its cross-motion, Defendant seeks dismissal of Plaintiff's Labor Law section 241(6), 200, and 240(1) claims.
A. Labor Law § 241(6)
This section relates to Industrial Code provision § 23-1.7(d), and is denied for the reasons stated above in connection with Plaintiff's motion for partial summary judgment.
However, Plaintiff relies on several other Industrial Code provisions (that were not the subject of his motion), including 12 NYCRR § 23-2.1(a) ; 12 NYCRR § 23-2.1(b) ; 12 NYCRR § 23-1.7(e)(1) and 12 NYCRR § 23-1.7(e)(2).
To prevail on its cross-motion, Defendant must "establish in the first instance that [it] did not violate the regulations, that the regulations are not applicable to the facts of this case, or that such violation was not a proximate cause of the [Incident]" ( Piazza v. Frank L. Ciminelli Constr. Co., Inc. , 2 AD3d 1345, 1348 [4th Dept 2003] ).
1. 12 NYCRR § 23-2.1(a)
This provision, entitled "Storage of material or equipment," provides as follows:
(1) All building materials shall be stored in a safe and orderly manner. Material piles shall be stable under all conditions and so located that they do not obstruct any passageway, walkway, stairway or other thoroughfare.
(2) Material and equipment shall not be stored upon any floor, platform or scaffold in such quantity or of such weight as to exceed the safe carrying capacity of such floor, platform or scaffold. Material and equipment shall not be placed or stored so close to any edge of a floor, platform or scaffold as to endanger any person beneath such edge.
Section 23-2.1(a) pertains to the storage of materials in an unsafe condition, such that a walkway or passageway could be compromised. While the claims in this matter pertain to an alleged unsafe walkway (due to the presence of mud), they have nothing to do with the storage of materials. Accordingly, § 23-2.1(a) is inapplicable.
2. 12 NYCRR § 23-2.1(b)
This provision, entitled "Disposal of debris," provides as follows:
Debris shall be handled and disposed of by methods that will not endanger any person employed in the area of such disposal or any person lawfully frequenting such area.
Defendant contends that this provision is inapplicable, because Plaintiff was injured by the very debris he was tasked with removing. The Court disagrees. At the time of the Incident, Plaintiff was not necessarily tasked with removing the walkway itself (consisting of scrap plywood), upon which he alleges he slipped and fell.
Section 23-2.1(b) has been found to apply to situations where, as here, an injury was allegedly caused by hazardous debris on the ground (see Arenas v. Bon-Ton Dept. Stores, Inc. , 35 AD3d 1205 [4th Dept 2006] [fallen plaintiff injured after tripping on construction debris]; Perry v. City of Syracuse Indus. Dev. Agency , 283 AD2d 1017 [4th Dept 2001] [fallen plaintiff injured after tripping on construction debris] ).
Accordingly, a jury may find that § 23-2.1(b) applies to this matter.
This provision, entitled "Passageway," provides as follows:
All passageways shall be kept free from accumulations of dirt and debris and from any other obstructions or conditions which could cause tripping. Sharp projections which could cut or puncture any person shall be removed or covered.
While this provision mentions "dirt," it otherwise applies to tripping hazards and, as such, is not applicable to this matter.
4. 12 NYCRR § 23-1.7(e)(2)
This provision, entitled "Working areas," provides as follows:
The 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 (emphasis added).
A jury may find that this provision is applicable to this matter, because Plaintiff contends that he slipped and fell on a dirty walkway that may be construed as a "similar area" to floors and platforms where persons "pass."
B. Labor Law § 200
Labor Law § 200 is a codification of the common law rule that an owner or contractor has a duty to exercise reasonable care to provide workers with a safe place to work ( Ross , 81 NY2d 494 ).
Liability under Labor Law § 200 may be found in two (2) scenarios: (i) where an injury is caused by the manner in which a subcontractor performs its work and the owner had the authority to control the activity that brought about the injury to enable it to have avoided or corrected the unsafe condition ( Rizzuto , 91 NY2d 343 ), or (ii) where an injury is caused by an unsafe condition at the work-site and the owner created it or had general control over the area and actual or constructive notice of the hazardous condition ( Oximek v. Holiday Valley, Inc. , 83 AD3d 1414 [4th Dept 2011] ).
Liability may not attach to Defendant under the first scenario, because the Incident did not occur as a result of the manner in which work was being performed, and Defendant did not control the manner in which Plaintiff disposed of construction debris.
With respect to the second scenario, it is undisputed that Defendant did not create the plywood walkway, and therefor did not cause the unsafe condition. Similarly, Defendant did not have actual or constructive notice of the muddy plywood walkway.
While Mr. Frizlen visited the Premises a few times per month, he did so in his capacity as the Project's architect to ensure that construction was in compliance with the architectural plans (NYSCEF Doc. No. 11, p. 26). Mr. Frizlen testified that his inspections had nothing to do with checking on compliance with safety standards, and that the responsibility for same was solely the responsibility of ECO, the general contractor (Id. ).
Under these circumstances, liability may not attach to Defendant.
C. Labor Law § 240(1)
Labor Law § 240(1), entitled "Scaffolding and other devices for use of employees," provides, in relevant part, 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, 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.
This section provides protections to workers exposed to a special class of hazards involving elevation-related risks at a construction site ( Misseritti v. Mark IV Constr. Co. , 86 NY2d 487 [1995] ).
The Court of Appeals has described the elevation-related hazards contemplated by § 240(1) as,
those related to the effects of gravity where protective devices are called for either because of a difference between the elevation level of the required work and a lower level or a difference between the elevation level where the worker is positioned and the higher level of the materials or load being hoisted or secured ( Rocovich v. Consolidated Edision Co. , 78 NY2d 509 [1991] ).
In the instant matter, Labor Law § 240(1) is not implicated, because the Incident did not involve the type of elevation-related hazard contemplated by that section .
The requirement of an elevation-related hazard contemplated by Labor Law § 240(1) is distinguished from an alleged violation of 22 NYCRR § 23-1.7(d), in the context of Labor Law § 241(6), which does not require "that the work surface be elevated before ... [a] duty is triggered" (Cottone , 225 AD2d at 1033 ).
In addition, the Court notes for the Record that Plaintiff did not substantively oppose this aspect of Defendant's cross-motion.
In light of the foregoing, it is hereby
ORDERED , that Plaintiff's motion for partial summary judgment is granted, in part, in that Defendant was properly named as a defendant-owner for purposes of Plaintiff's claims grounded in labor Law § 241(6) ; Plaintiff was a "covered worker" for purposes of such claims; 12 NYCRR § 23-1.7(d) applies to this action; and Defendant violated § 23-1.7(d) as a matter of law. These issues are deemed resolved against Defendant for purposes of trial: and it is further
ORDERED , that Plaintiff's motion for partial summary judgment is denied with respect to whether Defendant's violation of § 23-1.7(d) was the proximate cause of the Incident and his resultant personal injuries, and as to whether he was comparatively negligent in causing the Incident; and it is further
ORDERED , that Defendant's cross-motion for summary judgment, relative to Plaintiff's claims grounded in Labor Law § 241(6) is granted with respect to 12 NYCRR § 23-2.1(a) and 12 NYCRR § 23-1.7(e)(1), but is denied with respect to 12 NYCRR § 23-2.1(b) ; 12 NYCRR § 23-1.7(d) ; and 12 NYCRR § 23-1.7(e)(2) ; and it is further
ORDERED , that Defendant's cross-motion for summary judgment, relative to Plaintiff's claims grounded in Labor Law § 200, is granted; and it is further
ORDERED , that Defendant's cross-motion for summary judgment, relative to Plaintiff's claims grounded in Labor Law § 240(1), is granted.
This constitutes the Decision and Order of this Court. Submission of an order by the Parties is not necessary. The delivery of a copy of this Decision and Order by this Court shall not constitute notice of entry.
Pursuant to AO 78-20, this Decision and Order shall be uploaded to the NYSCEF system.