Zuluaga v P.P.C. Constr. LLC

[*1] Zuluaga v P.P.C. Constr. LLC 2006 NY Slip Op 52681(U) [22 Misc 3d 1106(A)] Decided on July 6, 2006 Supreme Court, Bronx County Manzanet, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 6, 2006
Supreme Court, Bronx County

Cesar Zuluaga, Plaintiff,

against

P.P.C. Construction LLC and Parkchester Preservation Company, L.P., Defendants.



15211/2003.



Attorney/Firm for Plaintiff:

MONACO & MONACO - LAW OFFICE

7610-7612 13TH AVENUE - 2ND FL

BROOKLYN, NY 11228

Attorney/Firm for Defendant:

ALAN I. LAMER - LAW OFFICE

555 TAXTER ROAD

ELMSFORD, NY 10523

PPC CONSTRUCTION LLC - Pro se

Sallie Manzanet, J.

Upon the foregoing papers, plaintiff's motion and defendants' cross-motion for summary judgment are consolidated for purposes of this decision. For the reasons set forth herein, plaintiff's motion is granted and defendants' cross-motions are denied.

The within action involves personal injuries sustained by plaintiff during the course of his employment Plaintiff claims that on October 26, 2001, he was struck by a falling metal pipe while performing . asbestos abatement work at an apartment and condominium complex known as Parkchester South Condominiums located at 22 Metropolitan Oval, Bronx, New York ("Premises"). On the data of the occurrence, plaintiff was employed by National Abatement, Corp., a sub-contractor engaged to perform asbestos removal at the aforementioned premises. The project at the Premises was for re-piping, rewiring, window replacement and asbestos removal. Defendant P.P.C. Construction, LLC was the general contractor on the project and defendant Parkchester Preservation Company LP allegedly owned the Premises.

Plaintiff brings the instant motion seeking summary judgment on his claims pursuant to §§240(1) [*2]and 241(6) of the Labor Law, Plaintiff states that at the time of the accident, he was in apartment M-H on the main floor and was using a chipping gun to make a hole at the pipe chase in the concrete floor. Plaintiff also claims that directly above where he was working, on the fourth floor, approximately 35 to 40 feet above him, workers were performing demolition work which included cutting and removing pipes from the pipe chase. Plaintiff contends that the workers did that work without securing the pipes or placing a covering over the hole. Plaintiff further claims that there was no type of overhead protection provided to him and a pipe fell and struck him. Plaintiff argues that defendants in their capacities as the general contractor and owner had a non-delegable duty to protect his safety while he was performing asbestos removal work, Including protecting him from the demolition work being performed on the fourth floor. In addition, plaintiff argues that he was engaged in a "special hazard" while performing the asbestos removal work. Plaintiff contends that working below a location where there was other demolition type work places him within the purview of Labor Law §240(1). Moreover. plaintiff contends that pursuant to §241(6) of the Labor Law, defendants violated Industrial Code §§23- 1.7(a) and 23-3.3(g) which requires defendants to provide overhead protection to areas where persons are required to work or pass that is normally exposed to falling materials or objects.

Plaintiff testified at his deposition that he was in the subject apartment pursuant to the directives of his foreman, Terrance Blackmail. Mr. Blackman drew the cut-out and instructed him to remove the asbestos and pipes from apartment M-H, Plaintiff also testified that he made numerous complaints to Mr. Blackman and to inspectors of defendant P.P.C. Construction, LLC prior to his accident. He complained that pipes were Falling from floors above and requested (hat either a platform or covering be placed over the holes in the floor to prevent this from occurring or someone would get hurt. Plaintiff claims that there were two other similar accidents prior to his accident, on May 25, 2001, Richard Mejia, an asbestos handler, was hit on the head by a falling pipe; and, on July 11, 2001, Jose Figueroa was injured by apiece of metal that fell through the boles in the pipe chase.

Defendant Parkchester Preservation Company, LP, cross-moves for summary judgment arguing that it did not own the Premises. Parkchester Preservation Company, LP, argues that 22 Metropolitan Avenue was owned by Parkchester South Condominiums. Charles Tucci, the Chief Executive Officer of defendant Parkchester Preservation Company, LP, testified that Parkchester Preservation Company, LP, is a managing company. Mr. Tucci testified that there are 12,220 residential units within the Parkchester Community and that defendant Parkchester Preservation Company, LP owns and manages 6,300 of the units. Mr. Tucci did not know whether defendant Parkchester Preservation Company, LP owned any units at 22 Metropolitan Oval. He also testified that defendant Parkchester Preservation Company, LP owned 100% of defendant P.P.C. Construction, LLC, the general contractor at the site. He further testified that defendant P.P.C. Construction, LLC had a contract with Parkchester South Condominium to act as the general contractor for the renovation work. In addition, Mr. Tucci testified that he also worked for P.P.C. Construction, LLC and during October, 2001, he would attend construction meetings in that capacity, and Parkchester Preservation Company, LP would appear on behalf of Parkchester South Condominiums. He also testified that defendant Parkchester Preservation Company, LP [*3]had two employees, Rebecca Riv and Luis Berruco who would perform on-site inspection on its behalf.

The court's function on this motion for summary judgment is issue finding rather than issue determination. Sillman v. Twentieth Century Fox Film Corn., 3 NY2d 395 (1957) Since summary judgment is a drastic remedy, it should not be granted where there is any doubt as to the existence of a triable issue. Rotuba Extruders v. Ceppos. 46 NY2d 223 (1978). The movant must come forward with evidentiary proof m admissible form sufficient to direct judgment in its favor as a matter of law. Zuckerman v. City of New York., 49 NY2d 557,562 (1980). Thus, when the existence of an issue of fact is even arguable or debatable, summary judgment should he denied. Stone v. Goodson, 8 NY2d 8, (1960): Sillman v. Twentieth Century Fox Film Corp., supra .

The proponent of a motion for summary judgment carries the initial burden of production of evidence as well as the burden of persuasion. Alvarez v. Prospect Hospital. 68 NY2d 320 (1986). Thus, the moving party must tender sufficient evidence to demonstrate as a matter of law the absence of a material issue of fact. Once that initial burden has been satisfied, the "burden of production" (not the burden of persuasion) shifts to the opponent, who must now go forward and produce sufficient evidence in admissible form to establish the existence of a triable issue of fact. The burden of persuasion, however, always remains where it began, i.e., with the proponent of the issue. Thus, if evidence is equally balanced, the movant has failed to meet its burden. 300 Bast 34th Street Co. v. Habeeb. 683 NYS2d 175 {248 AD2d 50} (1st Dept. 1997).

Defendant Parkchester argues that it cannot be held liable since it was not the owner of the premises and was not a signatory to the contract between Parkchesler South Condominium and P.P.C. Construction, LLC. Moreover, it argues that it was not involved in the renovation work. Plaintiff, however, has provided sufficient proof showing that defendant Parkchester Preservation Company, L.P. wag the record owner of the Premises on the date of the accident. The certified copy of the deed procured by Home Abstract Corp. lists defendant Parkchester Preservation Company, L.P. as owner. Defendant Parkchester Preservation Company. LP. has failed to produce admissible evidence to the contrary. Defendant merely relies upon the testimony of Mr. Tucci with no documentary evidence to support its position which is clearly insufficient in light of the certified copy of the deed. Thus, defendant Parkchester Preservation Company, L.P. was the owner of the Premises. As owner of the Premises, Parkchester Preservation Company, UP. had a nondelegable duty under the Labor Law to provide a safe work environment. However, an implicit precondition to this duty to provide a safe place to work is that the party charged with that responsibility have the authority to control the activity bringing about the injury to enable it to avoid or correct an unsafe condition. Russia v. Loins N Picciano & Son. 54 NY2d 311 (1981) citing Reynolds v Brady & Co., 329 NYS2d 624(2d Dept. 1972). Moreover, the work giving rise to these duties may be delegated to a third person or party. Russin 54 at 317. (Although §§240 and 241 make these duties nondelegable, the duties themselves may in fact be delegated. When the work giving rise to these duties has been delegated to a third party, that third party then obtains the concomitant authority to supervise and control that work and becomes a statutory "agent" of the owner or general contractor.) Thus, the authority to supervise and control the work operates [*4]to transform the subcontractor into a statutory agent of the owner or construction manager. Kelly v. Diesel Construction Division of Karl A. Morse. Inc., 35 NY2d 1 (1974) Here, plaintiff has presented proof that Parkchester Preservation Company, L.P. had two employees who would perform on-site inspection on its behalf.

Labor Law §240(1} provides in pertinent part as follows: "[a]ll contractors end owners and their agents... in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect... for the performance of such labor, scaffolding, hoists, slays, 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."

In support of its cross-motion to dismiss plaintiff's §240(1) claim, defendant P.P.C. Construction, LLC argues that plaintiff was the sole cause of his injury and, therefore, it cannot beheld liable. See. Montgomery v. Federal Express Com. 4 NY3d 805 (2005). Defendant P.P.C. Construction, LLC argues that plaintiff was specifically instructed by Mr. Blackman to leave the area where debris was falling and to go with the rest of the crew to another section of the work site. Defendant further argues that plaintiff took it upon himself to remain in the area where debris was falling. Defendant bases this argument on an accident report that it annexes to its moving papers purportedly prepared by Mr. Blackman. However, the accident report is not in admissible form and, thus, is not considered by the Court. Defendant's argument that it was prepared to the ordinary course of business is without merit as there is no foundation evidence that the report was in fact prepared ordinary course of business. See, C.P.L.R. §4518(a); Matter of Leon RR. 44 NY2d 117 (1979).

Accordingly, plaintiff has adduced evidence that he was performing work covered by §240(1) of the Labor Law and that be is a member of the protected class contemplated by the statute. Plaintiff has further submitted evidence that he was injured by a falling pipe while performing his work and that he was not working in a location that Tendered him vulnerable to an elevation-related risk at the time of his injury. Moreover, he has submitted evidence in admissible form that the pipes had previously fallen from the floors above and that he was not provided with the necessary safety equipment or safeguards. Additionally, he has submitted evidence that the falling pipe was a proximate cause of his injury. Defendants have failed to submit sufficient evidence in admissible form to create an issue of fact on whether plaintiff's alleged conduct was the sole proximate cause of the accident and, thus, summary judgment is granted to plaintiff on the §240(1) claim.

Plaintiff also moves and defendant P.P.C. Construction, LLC cross-moves for summary ' judgment on plaintiff's Labor Law §241(6). Labor Law §241(5) concerns reasonable and adequate protection and safety through the worksite. Labor Law §241(6) imposes a nondelegable duty upon an owner or general contractor to comply with the regulations promulgated by the Commissioner of the Department of Labor that mandate compliance with concrete specifications in the Industrial Code. Ross v. Curtis-Palmer Hydro-Electric Co., 81 NY2d 494 (1993). In order to [*5]plead a violation of Labor Law §241(6), plaintiff must allege a specific violation of the New York State Industrial Code. Plaintiff here cites violations of the Industrial Code for the first time in his motion papers. Plaintiff only cites OSHA regulations in his Verified Complaint and Verified Bill of Particulars. OSHA regulations do not impose a non-delegable duty on an owner or general contractor and, therefore, may not be used us a predicated for a Labor Law §241 (6) violation. See, Rizzuto v. Wenger Contracting Co., Inc., 91 NY2d 343 (1998). A plaintiff failure to identify a qualifying. regulation in the complaint may serve as a basis for summary dismissal for the claim. Walker v. Metro-North Commuter R.R., 783 NYS2d 362 {11 AD3d 339} (7st Dept 2004). In Walker, the First Department held that plaintiff's failure to allege a specific Industrial Code violation in the complaint or bill or particulars is not necessarily "??tal to Labor Law § 241(6) claim and. in absence of unfair surprise or prejudice, may be rectified by amendment, even where note of issue has been filed. Id Furthermore, the Court held that plaintiff was entitled to leave to amend Ms bill of partic??iats to assert specific Industrial Code violations where in plaintiff's motion for partial summary judgment against certain contractors, he submitted an affirmation of counsel which identified specific Industrial Code violations. Id. Accordingly, plaintiff's failure here to allege specific violation of the Industrial Code in his pleadings is not fatal and the Court hereby accepts the violations as alleged in his moving papers.

Specifically, plaintiff alleges violations of Industrial Code §§23-1.7(a) and 23-3.3(g) which require general contractors to provide workers with suitable overhead protection in areas where there is a risk of falling debris and to provide adequate safety devices in areas where falling debris may occur. Here, the evidence as stated, supra shows that the statutes are applicable to the case herein and, accordingly, plaintiff's motion for summary judgment on this claim is granted and defendant P.P.C. Construction, LLC's cross-motion seeking dismissal of this claim is denied.

With respect to plaintiff's common law negligence claim, defendant P.P.C. Construction, LLC's cross-motion denied. Labor Law §200 is a codification of the common-law duty imposed upon an owner or general contractor to maintain a safe construction site, to which an implicit precondition is that the patty be charged with that obligation have the authority to control the activity bringing about the injury to enable it to ovoid or correct an unsafe condition. Rizzuto v. L.A. Wenger Contracting Co., Inc., 91 NY2d 343 (1998). Defendant argues that it had no obligation to warn plaintiff against dangers that were readily observable and that it did not exercise direct control over. However, Mr. Tucci testified that defendant P.P.C. Construction, LLC was the general contractor for the job which creates an issue of fact as to whether it exercised supervision or control over the work plaintiff was performing when he was injured as would subject it to a duty to provide a safe work environment. Id.

Accordingly, for the reasons set forth herein, plaintiff's motion is granted and defendants' cross-motions ore denied.

This constitutes the decision and order of this Court.

Dated: July 6, 2006 [*6]



Hon. Sallie Manzanet

NCAS

Zuluaga v. P.P.C. Const. LLC