Opinion
EF009924-2019
11-18-2020
David Geoff STEWART and Laura Ann Kierstead, Plaintiffs, v. CITY OF PORT JERVIS, Defendant.
For Plaintiff: Lawrence D. Lissauer, Esq., Finkelstein & Partners, Newburgh, NY For Defendant: Joseph J. Rava, Esq., Gallo Vitucci Klar, LLP, Irvington, NY
For Plaintiff: Lawrence D. Lissauer, Esq., Finkelstein & Partners, Newburgh, NY
For Defendant: Joseph J. Rava, Esq., Gallo Vitucci Klar, LLP, Irvington, NY
Catherine M. Bartlett, J.
The following papers numbered 1 to 13 were read on Plaintiffs' motion for partial summary judgment on their claim under Labor Law § 240(1), and Defendant's cross motion to withdraw purported CPLR § 3123 admissions and for summary judgment dismissing Plaintiffs' complaint:
Notice of Motion - Affirmation / Exhibits - Affidavit 1-3
Notice of Cross Motion - Affirmation / Exhibits - Affidavit 4-6
Affirmation in Opposition to Cross Motion - Affirmation - Affidavit 7-9
Reply Affirmation (Plaintiffs) - Affirmation - Affidavit 10-12
Reply Affirmation (Defendant) / Exhibit 13
Upon the foregoing papers it is ORDERED that the motions are disposed of as follows:
Plaintiff David Geoff Stewart was injured on August 3, 2019 in the course of his employment on a construction / demolition project. Mr. Stewart and his co-workers were cutting "micropile" columns when one of them unexpectedly fell and struck him. Plaintiffs commenced this personal injury action against defendant City of Port Jervis, as owner, asserting causes of action pursuant to Labor Law §§ 240(1), 241(6) and 200, and for common law negligence. Prior to depositions, Plaintiffs moved for partial summary judgment on Defendant's liability under Section 240(1) of the Labor Law. Defendant cross moved for summary judgment dismissing the complaint.
Defendant also cross moved to withdraw its admissions (by non-response) to item Nos. 2 and 3 of Plaintiff's May 5, 2020 Notice to Admit. Plaintiffs did not oppose this aspect of Defendant's motion, observing only that the purported admissions were immaterial to the motions before the Court. Accordingly, that portion of Defendant's cross motion is granted.
I. Pertinent Facts
A. The Affidavit of Thomas Center
As Mr. Stewart is without knowledge of the circumstances leading to his injury, Plaintiffs submitted the affidavit of witness Thomas Center, who avers inter alia as follows:
1. ...I was employed by D.A. Collins Construction, Inc. for 20 years, but I am no longer employed by that company. I was present in the scope of my employment with D.A. Collins and was an eyewitness to the accident occurring on August 3, 2019, at approximately 3:07 pm when plaintiff David Geoff Stewart was struck by a micropile column and sustained severe personal injuries.
2. My employer D.A. Collins had been hired by the City of Port Jervis as a general contractor for a large project which included the replacement of the Tri-State Bridge in the City of Port Jervis; the complete removal and replacement of two existing box culverts; the removal and replacement of a portion of the highway known as Route 6 / East Main Street in the City of Port Jervis; the installation of a new drainage system; and curb reconstruction and signing. At the time of the accident, the workers from D.A. Collins, including plaintiff and me, were involved in the demolition of one of the box culverts in the area where CloveBrook runs under Route 6 / East Main Street in the City of Port Jervis.
Plaintiff was the general superintendent of the project, and I was the "lead field boss". On the day of this occurrence, the workers from D.A. Collins were excava-ting one side of the gully and were cutting and removing micropile columns from the other side. Plaintiff and I, along with other employees of D.A. Collins, were cutting and removing micropile columns as part of the demolition of the existing culvert so that a new culvert could be constructed.
3. During the 20 years that I was employed by D.A. Collins, I worked on numerous projects where micropile columns were removed and installed, and I am familiar with this type of structural item. Micropile columns provide structural support for the walls of a culvert and underpin foundations and transfer weight loads. The inside of a micropile column contains reinforcing steel (rebar) which extends about 9 inches above the cutoff elevation. The rebar is surrounded by grout and the exterior is composed of high strength cement. All micropile columns are supposed to have rebar extending about 9 inches above the cutoff elevation to provide stability and support for this type of structural item.
The micropile columns which workers from D.A. Collins, including plaintiff and me, were cutting and removing on the day of the accident were approximately 10 inches in diameter, were about 13 feet tall, and weighed approximately 1,600 pounds....
4. A large pit 15 feet or more in depth was excavated around the old culvert so that the workers could have access to the micropile columns to be cut and removed. There were two rows of these micropile columns, each with 13 vertical micropile columns spaced about 5 feet apart within the excavation.
At the time of the accident, workers from D.A. Collins were to follow a certain specified procedure in cutting and then removing micropile columns. First, the worker was to make a partial "window cut" into the column and then hand chip the grout to expose the rebar inside the column. At that point, before the entire column had been cut, the worker was supposed to attach a nylon sling to the column which was connected to a rigging machine by a long hitch. That nylon sling connected to the rigging machine is intended to secure and prevent the micropile column from falling while the worker cuts the remainder of this structural item. After the nylon sling is attached to the column, the worker will cut the remainder of the column and will then use a torch to cut the rebar.
5. At the time of the occurrence, plaintiff was within the excavation and was cutting micropile column No.10 (as designated by the OSHA investigation) with a "demo saw". Another worker employed by D.A. Collins was about 5 feet from plaintiff while cutting micropile column #9 (as designated by the OSHA investigation) adjacent to plaintiff. I was also cutting a micropile column in the same row on the other side of that worker.
Contrary to the above described procedure, that worker in the middle completely cut micropile #9 and was chipping grout without attaching the nylon sling (which was connected to the rigging machine) to the column. As I was cutting a micro-pile column, I heard yelling from other workers. I looked up in time to see micropile #9 strike plaintiff who was working on the next micropile column.
Other workers and I lifted the micropile column which had come to rest on plaintiff's leg. After the emergency responders had removed plaintiff from the scene, I observed that the micropile column that had fallen on plaintiff did not have rebar in the center of the interior....
6. The column which fell and struck plaintiff was unstable without the rebar in the center. Furthermore, the worker who was cutting micropile column #9 violated worksite procedure because he cut the column completely without first attaching the nylon sling to secure the column.2 That worker complained after the occur-rence that the pace of the job was "too fast". In the absence of rebar on the interior extending about 9 inches above the cutoff elevation of the column and without the nylon sling hooked to the column and connected to the rigging machine, there was no device or mechanism to stabilize and secure the completely cut micropile column #9 against falling over and striking another worker.
7. Even without the rebar, micropile column #9 would not have fallen if the worker had attached the nylon sling to the column before cutting the column completely.2 After this accident, D.A. Collins changed the procedure for cutting and removing micropile columns to require that the nylon sling be attached to the column before any saw cuts were made. The purpose of this change in procedure was to secure the column and prevent it from falling if that column was without rebar in the interior extending about 9 inches above the cutoff elevation.
As Defendant correctly observes, there is no foundation for Mr. Center's statement that "that worker in the middle completely cut micropile #9 and was chipping grout without attaching the nylon sling (which was connected to the rigging machine) to the column." Mr. Center acknowledges that he did not look up from his own work until micropile #9 was already falling, hence he did not observe what the other worker was doing. In a reply affidavit, Mr. Center clarified that after the accident he saw the micropile and observed that (1) it had no rebar, and (2) the sling was not attached. However, if and to the extent that Mr. Center means to say that the other worker violated the prescribed procedure by completely cutting micropile #9 without first attaching the sling, it does not appear from the record that he has, or could have, first hand knowledge of that purported fact, wherefore his averment on that score is incompetent.
B. The OSHA Investigation
In further support of their motion Plaintiffs proffered the OSHA investigation report of D.A. Collins' Director of Corporate Safety, Brad Simon. Section "D", entitled "What caused or allowed this accident to happen?", states:
...Per the design specification drawings, all piles were to have rebar inbedded with the centralizer at a set height, at least nine inches (9?) above cutoff elevation.
The injured employee was working on saw cutting pile #10 while another employee was working on pile #9. Pile #9 did not have rebar inbedded and it fell on employee.
Every other pile cut (#1-8, #10-13, and #14-26) went according to plan and procedure, and all other piles had steel rebar with a centralizer device with the rebar placed at nine inches (9?) above cut off elevation, per the design specs.
Plan and procedure was for the micropile to be saw cut to 75%, make window cut and hand chip grout to expose rebar, attach nylon sling using log hitch then finish cut 25% and torch cut the rebar to remove the micropile.
Section "E", entitled "Corrective actions taken to prevent future incidents", states:
Crew followed appropriate plan and procedure. A stand down was called and all safety protocols and programs were reviewed. Inasmuch as the incident was unforeseen, prior to the incident, employees followed the plan and procedure described in D above. Following incident, the log hitch nylon sling was attached prior to any saw cuts being made in the event rebar was missing from other micropiles, and all non-essential personnel were removed from the excavation / out of danger zone - fall area, in the event other piles had missing rebar. No other piles were missing rebar.
II. Legal Analysis
A. Labor Law § 240(1)
Subdivision 1 of Section 240 of the Labor Law of the State of New York provides in pertinent part that:
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.
Labor Law § 240(1) imposes an absolute, nondelegable duty upon owners and general contractors and their agents to provide safety devices necessary to protect workers from elevation related risks arising at construction / demolition worksites. "To prevail on a cause of action alleging a violation of Labor Law § 240(1), a plaintiff must prove that the defendant violated the statute and that such violation was a proximate cause of his injuries (see Blake v. Neighborhood Hous. Servs. of NY City, 1 NY3d 280...)." Von Hegel v. Brixmor Sunshine Square, LLC, 180 AD3d 727, 728 (2d Dept. 2020). See, Yao Zong Wu v. Zhen Jia Yang, 161 AD3d 813, 814 (2d Dept. 2018).
B. Summary Judgment in Section 240 "Falling Object" Cases
In Fabrizi v. 1095 Ave. of Americas, LLC, 22 NY3d 658 (2014), the Court of Appeals articulated the standard applicable to summary judgment motions in Section 240 "falling object" cases:
In order to prevail on summary judgment in a Section 240(1) "falling object" case, the injured worker must demonstrate the existence of a hazard contemplated under that statute "and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein" ( Narducci v. Manhasset Bay Assoc., 96 NY2d 259, 267... [2001], citing Ross v. Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501...[1993] ). Essentially, the plaintiff must demonstrate that at the time the object fell, it either was being "hoisted or secured" ( Narducci, 96 NY2d at 268...), or "required securing for the purposes of the undertaking " ( Outar v. City of New York, 5 NY3d 731, 732...[2005] ; see Quattrocchi v. F.J. Sciame Constr. Corp., 11 NY3d 757, 759...[2008] ). Contrary to the dissent's contention, Section 240(1) does not automatically apply simply because an object fell and injured a worker; "[a] plaintiff must show that the object fell...because of the absence or inadequacy of a safety device of the kind enumerated in the statute" ( Narducci, 96 NY2d at 268...).
Fabrizi, supra, 22 NY3d at 662-663 [boldface emphasis added; italics in original]. Inasmuch as the micropile column was not being "hoisted or secured" when it fell, Plaintiffs, to recover under Labor Law § 240, must demonstrate inter alia that there existed a Section 240 hazard such that the micropile "required securing for the purposes of the undertaking." See, id.; Quattrocchi v. F.J. Sciame Constr. Corp., supra ; Outar v. City of New York, supra .
In Zirkel v. Frontier Communications of America, Inc., 29 AD3d 1188 (3d Dept. 2006), the plaintiff was injured when "in the course of his employment removing old utility poles, one of the poles toppled over from its vertical position striking him in the head and shoulder." Id. The Third Department dismissed his Labor Law § 240(1) claim, writing:
While plaintiff's job assignment that day indeed envisioned that the subject pole would ultimately be removed from the ground by a hydraulic powered winch attached to a derrick truck, it fell before the winch had even been attached to the pole. In this regard, it is axiomatic that Labor Law § 240 "is not intended to cover all dangers tangentially related to gravity" [cit.om.]. Therefore, in order for a worker struck by a falling object to recover under Labor Law § 240, he must be able to show that it "fell [ ] while being hoisted or secured" (Narducci v. Manhasset Bay Assoc., 96 NY2d 259, 268...). Here, the utility pole which struck plaintiff was not being hoisted or secured at the time it fell; therefore, Supreme Court appropriately granted defendants summary judgment on this claim.
Id., at 1189. Zirkel, if good law, would potentially be dispositive of Plaintiffs' Labor Law 240(1) claim. However, despite the fact that Zirkel postdates the Court of Appeals' decision in Outar v. City of New York, the Third Department's opinion in Zirkel reflects no consciousness of Section 240(1) liability predicated on falling objects which "required securing for the purposes of the undertaking."
C. The Micropile Required Securing If, in Light of the Nature and Purpose of the Work Being Performed, There Was a Significant Risk of Its Falling
A hazard contemplated under Labor Law § 240(1) existed and the micropile required securing if, in light of the nature and purpose of the work being performed at the time of the accident, there was a significant risk that the micropile would fall and cause injury. See, Broggy v. Rockefeller Group, Inc., 8 NY3d 675, 681 (2007) ("liability turns on whether a particular...task creates an elevation-related risk of the kind that the safety devices listed Section 240[1] protect against"); Carlton v. City of New York, 161 AD3d 930, 931-932 (2d Dept. 2018) (quoting Broggy ); Sarata v. MTA, 134 AD3d 1089, 1091-92 (2d Dept. 2015) ("given the nature and purpose of the work that was being performed at the time of his injury, the falling debris presented a significant risk of injury such that the MTA defendants were obligated under Labor Law § 240[1] to use appropriate safety devices to safeguard the injured plaintiff from the harm it posed"); McLean v. 405 Webster Avenue Associates, 98 AD3d 1090, 1095 (2d Dept. 2012) ("An object needs to be secured if the nature of the work performed at the time of the accident posed significant risk that the object would fall"); Sung Kyu-To v. Triangle Equities, LLC, 84 AD3d 1058, 1060 (2d Dept. 2011) ; Lucas v. Fulton Realty Partners, LLC, 60 AD3d 1004, 1006 (2d Dept. 2009) ; Portillo v. Roby Anne Development, LLC, 32 AD3d 421, 422 (2d Dept. 2006) ; Bornschein v. Shuman, 7 AD3d 476, 478 (2d Dept. 2004). See generally, Roberts v. General Electric Co., 97 NY2d 737, 738 (2002).
D. The Risk of the Micropile Falling Must Have Been Foreseeable in Light of the Work Being Undertaken
In Buckley v. Columbia Grammar and Preparatory, 44 AD3d 263 (1st Dept. 2007), the First Department addressed the meaning and scope of the Court of Appeals' holding in Outar v. City of New York, supra, that Section 240 "falling objects" liability may exist in the case of "an object that required securing for the purposes of the undertaking" ( Outar, 5 NY3d at 732 ). The Buckley Court held that:
What is essential to a conclusion that an object requires securing is that it present a foreseeable elevation risk in light of the work being undertaken .
Buckley, 44 AD3d at 269 (emphasis added).
The Second Department in McLean v. 405 Webster Avenue Associates, 98 AD3d 1090 (2d Dept. 2012), explicitly adopted the First Department's holding in Buckley . In McLean, the plaintiff was working in a dumbwaiter shaft when he was struck by the counterweight, which fell due to the fragile condition of the ropes used in the pulley system. Id., at 1094. The Court wrote:
With respect to a worker's injury from a falling object, liability is not limited to objects falling while in the process of being hoisted or secured...[cit.om.]. An object needs to be secured if the nature of the work performed at the time of the accident posed a significant risk that the object would fall [cit.om.]. However, here, it was not the nature of the work that caused an object to fall on the plaintiff. Rather, it was allegedly the defective condition of the ropes in the shaft. Where a falling object is not a foreseeable risk inherent in the work, no protective device pursuant to LaborLaw § 240(1) is required (see Buckley v. Columbia Grammar & Preparatory, 44 AD3d 263, 267 ).
McLean, supra , 98 AD3d at 1095-96 (emphasis added). In the wake of McLean, the Second Department has twice reaffirmed that for Section 240 liability per Quattrocchi and Outar to attach, "the risk requiring a safety device must be a foreseeable risk inherent in the work." See, Carlton v. City of New York, supra, 161 AD3d 930, 932 (2d Dept. 2018) ; Niewojt v. Nikko Construction Corp., 139 AD3d 1024, 1027 (2d Dept. 2016).
E. Plaintiffs' Motion
1. Plaintiffs Have Not Demonstrated That the Missing Rebar Constituted a Labor Law § 240(1) Securing Device
Plaintiffs attempt an end run around the foreseeability analysis discussed above by asserting that the absence of rebar from the micropile which struck Plaintiff in and of itself constituted a violation of Labor Law § 240(1).
As noted above, to recover under Section 240(1) " ‘[a] plaintiff must show that the object fell...because of the absence or inadequacy of a safety device of the kind enumerated in the statute ’ ( Narducci, 96 NY2d at 268...)." Fabrizi v. 1095 Ave. of Americas, LLC, supra, 22 NY3d at 663 (emphasis added). In Fabrizi, the Court of Appeals held that the defendants should have been awarded summary judgment dismissing the Labor Law § 240(1) claim because "they established as a matter of law that the conduit did not fall on plaintiff due to the absence or inadequacy of an enumerated safety device." Id. The Court reasoned:
The compression coupling, which plaintiff claims was inadequate, is not a safety device "constructed, placed and operated as to give proper protection" from the falling conduit. Its only function was to keep the conduit together as part of the conduit / pencil box assembly. The coupling had been installed a week before the incident and had been serving its intended purpose until a change order was issued and plaintiff dismantledthe conduit / pencil box assembly.
Plaintiffs's argument that the coupling itself is a safety device, albeit an inadequate one, extends the reach of Section 240(1) beyond its intended purpose to any compo- nent that may lend support to a structure. It cannot be said that the coupling was meant to function as a safety device in the same manner as those devices enumerated in Section 240(1).
It follows that defendants' failure to use a set screw coupling is not a violation of Section 240(1)'s proper protection directive. A set screw coupling, utilized in the manner proposed by plaintiff, is not a safety device within the meaning of the statute. Plaintiff concedes that compression and set screw couplings are "basic couplings" that serve identical purposes, namely, to function as support for the conduit / pencil box assembly, not to provide worker protection....
Fabrizi, supra, 22 NY3d at 663 (emphasis added). See also, Misseritti v. Mark IV Constr. Co., 86 NY2d 487, 491 (1995) ("braces" referenced in Section 240[1] are "those used to support elevated work sites not braces designed to shore up or lend support to a completed structure").
Here, similarly, rebar is not specifically enumerated as a safety device in Labor Law § 240(1). It appears (per Fabrizi ) to be a component lending support to a structure (the micropile column), and Plaintiffs have not shown that it was meant to function in the manner of a Section 240(1) safety device. Accordingly, Plaintiffs have not established as a matter of law that the absence of the rebar in and of itself constituted a violation of Labor Law § 240(1).
2. There Are Unresolved Issues of Fact Whether at the Time of Plaintiff's Accident the Micropile Required Securing by the Sling For Purposes of the Undertaking
Plaintiffs argue in the alternative that the sling which per D.A. Collins' procedure was attached to the micropile at the point when the rebar was to be cut should instead have been attached from the beginning of the work, i.e., at the point when cutting the micropile to expose the rebar commenced. That D.A. Collins adopted this procedure after it was discovered that the micropile which struck Plaintiff lacked rebar evidences the fact that the sling could have been used from the outset — i.e., it would not have been "contrary to the objectives of the work plan" — to secure the micropile against falling. See, Wilinski v. 334 East 92nd Street Hous. Dev. Fund Corp., 18 NY3d 1, 11 (2011). See also, Salazar v. Novalex Contracting Corp., 18 NY3d 134, 140 (2011). Nevertheless, on the spare, pre-deposition record presented by Plaintiffs, the Court is constrained to hold that they have failed to demonstrate prima facie their entitlement to judgment as a matter of law under Labor Law § 240(1). In this regard, the Court makes the following observations.
Such evidence of "subsequent remedial measures" is not admissible to prove Defendant's negligence, but it is circumstantially relevant and admissible to establish the feasibility of the protective measure for which Plaintiffs advocate. See, e.g., Cover v. Cohen, 61 NY2d 261, 270 (1984) ; Bolm v. Triumph Corporation, 71 AD2d 429, 436-437 (3d Dept. 1979).
First, Plaintiffs' witness, Thomas Center, does not find fault with D.A. Collins' work procedure. A long time D.A. Collins employee with extensive experience cutting micropiles, and the "lead field boss" on site at the time of the accident, Mr. Center was himself, without objection, engaged in that very process when Mr. Stewart's accident occurred.
Second, Mr. Center bases his affidavit on a claim that the worker cutting the micropile that fell violated D.A. Collins' procedure by completely cutting the micropile without attaching the nylon sling. However, as noted above, Mr. Center provides no foundation for that averment. His affidavit in that regard is incompetent.
Third, Mr. Center unsurprisingly observes that cutting a micropile which lacks rebar renders it unstable and liable to fall. However, the record before the Court demonstrates that the absence of rebar in the micropile that fell was wholly unforeseeable : by design, it should have been there; 25 of the 26 micropiles in fact had rebar; and, as the rebar was buried inside the micropile, its absence could not be detected without first cutting into the micropile.
On such evidence, the constellation of questions arising from Fabrizi, Broggy , Carlton , McLean and Buckley, supra cannot at this juncture be determined as a matter of law.
As noted above, the Second Department has repeatedly held that for Section 240 "falling objects" liability to attach in the case of "an object that required securing for the purposes of the undertaking", "the risk requiring a safety device must be a foreseeable risk inherent in the work." See, Carlton v. City of New York, supra; Niewojt v. Nikko Construction Corp., supra; McLean v. 405 Webster Avenue Associates , supra . Query, in the case at bar, whether there was a foreseeable risk of the micropile's falling inherent in the procedure employed by D. A. Collins, or, conversely, whether its fall was the unforeseeable result of a uniquely defective condition, to wit, the unexpected absence of structurally reinforcing rebar that by design should have been present, and was in fact present in each of the other 25 micropile columns ?
Carlton v. City of New York, supra , further illuminates the nature of the foreseeability analysis required in Section 240(1) "falling object" cases wherein it is alleged that the object "required securing for purposes of the undertaking." In Carlton , the plaintiff was installing a "weld neck flange" and began the process of securing the flange to a pipe by making the first two of four "tack welds." These tack welds subsequently broke, causing the flange to fall and strike the plaintiff. The Second Department denied both parties' motions for summary judgment on the Labor Law § 240(1) claim, writing:
The parties' submissions raised triable issues of fact as to whether the defendants were obligated to provide appropriate safety devices of the kind enumerated in Labor Law§ 240(1) to secure the flange and whether the flange fell due to the absence or inadequacy of an enumerated safety device (See Wilinski v. 334 E. 92nd Hous. Dev. Fund Corp., 18 NY3d 1, 11...[cit.om.] ). Daniel Kressler, a safety manager for Turner / STV, testified at his deposition that "[d]epending on...what the operation is," "[s]lings, chokers [can be] used to...hold [a flange] in place" until it is permanently welded to the pipe. While it is true that no safety device such as a sling was provided, the injured plaintiff testified at his deposition that two tack welds should have been sufficient to secure the flange . Significantly, the plaintiff's expert...also opined that "the two tack welds should have been sufficient to hold the flange until the job was completed, unless the tack welds were defective ." Under these circumstances, a triable issue of fact exists as to whether "[t]his was...a situation where a hoisting or securing device of the kind enumerated in [ Labor Law § 240(1) ] would have been necessary or even expected" ( Roberts v. General Elec. Co., 97 NY2d 737, 738...).
Carlton v. City of New York, supra , 161 AD3d at 932-933 (emphasis added).
Similarly, the record in the case at bar shows that it was anticipated that structurally reinforcing rebar — which by design should have been in the center of the micropile — would hold the micropile upright until the sling was attached and the rebar cut. Query whether per Carlton and Roberts this was a situation where a securing device of the kind enumerated in Labor Law § 240(1) would be deemed necessary or expected?
3. Conclusion
In view of the foregoing, and on the undeveloped pre-discovery record presented here, Plaintiffs' motion for partial summary judgment on Defendant's liability under Labor Law § 240(1) must be denied.
F. Defendant's Cross Motion
1. Labor Law § 240(1)
The material unresolved issues of fact discussed in Point "E" above likewise require denial of Defendant's motion for summary judgment dismissing the Plaintiffs' Labor Law § 240(1) claim.
2. Labor Law § 241(6)
Plaintiffs' Bill of Particulars alleges that their Labor Law § 241(6) claim is predicated on violations of Industrial Code provisions 12 NYCRR §§ 23-1.7(a) and 23-3.3.
12 NYCRR 23-1.7(a) is entitled "Overhead hazards." Subdivision "1" provides:
(1) Every place where persons are required to work or pass that is normally exposed to falling material or objects shall be provided with suitable overhead protection. Such overhead protection shall consist of tightly laid sound planks at least two inches thick full size, tightly laid three-quarter inch exterior grade plywood or other material of equivalent strength. Such overhead protection shall be provided with a supporting structure capable of supporting a loading of 100 pounds per square foot.
There is no evidence that workers were "normally exposed to falling objects" at the situs of Mr. Stewart's accident. See, Marin v. AP-Amsterdam 1661 Park LLC, 60 AD3d 824 (2d Dept. 2009) ; Timmons v. Barrett Paving Materials, Inc., 83 AD3d 1473 (4th Dept. 2011). In any event, were a micropile to fall it would not fall from above; it would tip over, as it did here, from near ground level, where the workers were cutting to expose the rebar. Cf., Knudsen v. Pentzien Inc., 209 AD2d 909 (3d Dept. 1994). In such circumstances, Section 23-1.7(a)(1)'s provision for overhead planking is inapplicable.
Subdivision "2" provides:
(2) Where persons are lawfully frequenting areas exposed to falling material or objects but wherein employees are not required to work or pass, such exposed areas shall be provided with barricades, fencing or the equivalent in compliance with this Part (rule) to prevent inadvertent entry into such areas.
Since D.A. Collins employees were required to work in the area where Mr. Stewart's accident occurred, Section 23-1.7(a)(2)'s provision for barricades or fencing to prevent inadvertent entry is inapplicable. See, Allan v. DHL Exp. (USA), Inc., 99 AD3d 828 (2d Dept. 2012).
Therefore, insofar as Plaintiffs' Labor Law § 241(6) claim is predicated on the purported violation of 12 NYCRR 23-1.7(a), the claim must be dismissed.
12 NYCRR 23-3.3 is entitled "Demolition by hand." Section 23-3.3(c) provides:
Inspection. During hand demolition operations, continuing inspections shall be made by designated persons as the work progresses to detect any hazards to any person resulting from weakened or deteriorated floors or walls or from loosened material. Persons shall not be suffered or permitted to work where such hazards exist until protection has been provided by shoring, bracing or other effective means.
Section 23-3.3 is inapplicable where the hazard arose from the actual performance of the demolition work itself; however, it is applicable where the hazard arose from structural instability caused by the progress of demolition. See, Garcia v. Market Associates, 123 AD3d 661 (2d Dept. 2014) ; Maldonado v. AMMM Properties Co., 107 AD3d 954 (2d Dept. 2013) ; Vega v. Renaissance 632 Broadway, LLC, 103 AD3d 883 (2d Dept. 2013) ; Campoverde v. Bruckner Plaza Associates, LP, 50 AD3d 836 (2d Dept. 2008).
Defendant has failed to demonstrate prima facie either that D.A. Collins' work cutting the micropiles did not constitute "demolition," or that the hazard to Mr. Stewart did not arise from structural instability of the micropile caused by the progress of this work. Consequently, Defendant's motion for summary judgment dismissing Plaintiffs' Labor Law § 241(6) claim must be denied.
3. Labor Law § 200 / Common Law Negligence
" Section 200 of the Labor Law is a codification of the common-law duty imposed upon an owner or general contractor to provide construction site workers with a safe place to work. An implicit precondition to this duty ‘is that the party charged with that responsibility have the authority to control the activity bringing about the injury’ ( Russin v. Picciano & Son, 54 NY2d 311, 317...). Where the alleged defect or dangerous condition arises from the contractor's methods and the owner exercises no supervisory control over the operation, no liability attaches to the owner under the common law or under Labor Law § 200 ( Lombardi v. Stout, 80 NY2d 290, 295...)." Comes v. New York State Electric and Gas Corporation, 82 NY2d 876, 877 (1993). See, Rizzuto v. L.A. Wenger Contr. Co., Inc., 91 NY2d 343, 352 (1998). However, "[w]here a premises condition is at issue, property owners may be held liable for a violation of Labor Law § 200 if the owner either created the dangerous condition that caused the accident or had actual or constructive notice of the dangerous condition that caused the accident." Ortega v. Puccia, 57 AD3d 54, 61 (2d Dept. 2008).
The evidence of record appears to show that Mr. Stewart's accident resulted from a defective condition of the premises, to wit, the absence of rebar from the micropile which fell. In such circumstances, liability is not contingent on Defendant's authority to control the work. See, Ortega v. Puccia, supra . Defendant has failed to demonstrate prima facie either that it did not create this condition, or that it lacked notice thereof. Consequently, its motion for summary judgment dismissing Plaintiffs' Labor Law § 200 and common law negligence claims must be denied.
It is therefore
ORDERED, that Plaintiffs' motion for partial summary judgment on Defendant's liability under Labor Law § 240(1) is denied, and it is further
ORDERED, that Defendant's motion to withdraw its admissions (by non-response) to item Nos. 2 and 3 of Plaintiff's May 5, 2020 Notice to Admit is granted, and it is further
ORDERED, that Defendant's motion for summary judgment is granted to the limited extent that Plaintiffs' Labor Law § 241(6) claim, insofar as it is predicated on a purported violation of 12 NYCRR § 23-1.7(a), is dismissed, and the motion is otherwise denied.
The foregoing constitutes the decision and order of the Court.