Mulvihill v Brooklyn Law School

[*1] Mulvihill v Brooklyn Law School 2009 NY Slip Op 50120(U) [22 Misc 3d 1114(A)] Decided on January 27, 2009 Supreme Court, Kings County Knipel, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 27, 2009
Supreme Court, Kings County

Thomas D. Mulvihill and Magdalena M. Mulvihill, Plaintiffs,

against

Brooklyn Law School and Kreisler Borg Florman General Construction Company, Inc., Defendants.



29231/06



Attorneys for Plaintiff

Daniel Flanzig, Esq.

Flanzig & Flanzig

323 Willis Avenue

Mineola, NY 11501

(516) 741-8222

Attorneys for Defendants

David Persky, Esq.

The Law Offices of Edward Garfinkel

110 William Street

New York, NY 10038

(212) 809-8000

Lawrence Knipel, J.

Upon the foregoing papers, defendants Brooklyn Law School (BLS) and Kreisler Borg Florman General Construction Company, Inc. (KBF) (collectively, defendants) move for an order, pursuant to CPLR 3212, granting summary judgment dismissing the complaint of plaintiff [*2]Thomas D. Mulvihill (plaintiff).[FN1] Plaintiff cross-moves for an order, pursuant to CPLR 3212, granting partial summary judgment on the issue of liability under his Labor Law § § 240(1) and 241(6) causes of action against defendants.

Facts and Procedural Background

This personal injury action arises out of a workplace accident wherein plaintiff, a construction worker employed by Winco Construction Corp. (Winco), was injured on October 9, 2003 when he was struck by temporary shoring used to support the concrete superstructure of the BLS dormitory at 205 State Street (the site or the subject premises) in Brooklyn.

At the time of the accident, KBF acted as construction manager of the construction project at the subject premises and Winco was the subcontractor hired to complete the concrete superstructure of BLS' dormitory building. Plaintiff was employed by Winco as a concrete laborer. His primary duty was to collect pieces of wooden concrete forms which had been stripped from the floor, wall and ceilings after the concrete poured into the forms started to set. Plaintiff indicated that the foreman and the general foreman at the site were both employed by Winco. Other than the sign on the construction fence, plaintiff testified that he had no other indication that KBF or its employees were at the site. According to plaintiff, Winco's foreman and general foreman were the only individuals who directed or supervised his work.

Russell Anderson (Anderson), KBF's project manager at the subject premises, testified that he was on site five days a week and was responsible for scheduling, purchasing trades, and processing paperwork and payments. Anderson indicated that there was a construction management agreement between BLS and KBF, and that KBF was hired to schedule and ultimately complete the construction of the project. According to Anderson, KBF had no role in supervising the work performed by subcontractor Winco. Winco's workers erected the forms, poured the concrete, and stripped the forms once the concrete was sufficiently set. Anderson did not witness plaintiff's accident.

Plaintiff also testified that before the stripping process began, the concrete forms in place consisted of vertical pieces of wood, called "legs," which ran from the concrete floor to a 4" x 4" "stringer" which ran horizontally. Several 3" x 4" pieces of wood called "ribs" were attached across the stringers. After the cement was poured and set, the stripping team removed some of the legs, while other legs were left intact to allow the concrete to continue to set. After all of the legs were removed, the stringers were removed, which usually resulted in the ribs falling as well. Finally, after the stringers and ribs were removed, the plywood forms were stripped off. As the strippers were removing the wood pieces, concrete laborers, such as plaintiff, were in another area on the same floor stacking the wood that had been collected. Plaintiff testified that workers were not supposed to be in the area where the wood pieces fell and that the common practice was for the strippers to work for an allotted time before any workers came in to collect the wood.

When plaintiff arrived at the subject premises on the date of the accident, the stripping work was in different stages of completion. Plaintiff's accident occurred on the stripping floor while he was carrying two "legs" which had allegedly been knocked down by a stripper. According to plaintiff in his examination before trial:

"Basically, I heard a snap, and I was struck in the head by the stringer, and then three by [*3]fours fell as well and hit the four by four legs that I was carrying on my shoulder and it kind of spun me to the right, and then I lunged forward."

"Q: When you say you heard a snap did you ever learn what caused the snap to occur?

A: The stripper who was there at the time pulled out a leg and a stringer snapped and fell and that released the three by fours which also fell."

* * *

"Q: What caused the wood[en] pieces to fall when the accident happened?

A: The leg was removed, and the stringer snapped.

Q: Who removed the leg?

A: I would say that person who was stripping in that area.

Q. What do you base that on?

A: He was the only one over there.

Several minutes after the accident, according to plaintiff, he saw the person who pulled down the forms holding a crowbar and standing approximately 10 feet away from where the wood pieces fell. Plaintiff testified that he spoke briefly to the man and that the man indicated to him that he had never hurt anyone before on the job. Plaintiff also testified that he thought the man moved to the right of where the wood fell in order to avoid being struck himself because "the stringer broke and released more wood down." According to plaintiff, he had no doubt that the wood that fell was the result of the stripper prying it off, rather than the wood falling on its own. However, in plaintiff's affidavit submitted in support of his cross motion, plaintiff states that "[i]t is [his] belief that the stringer that had snapped was the reason why the collapse occurred" and that there "was a stripper working in or about the area."

This action was commenced by the filing and service of a summons and complaint on or about September 23, 2006. Issue was joined by service of an answer on behalf of defendants on November 30, 2006.

Plaintiff served a verified bill of particulars on February 12, 2007 which alleged, among other things, that defendants were negligent in "failing to assure that on-site' workers were not in a position and/or location where they could be struck by falling temporary shoring, which at the time of the incident was being dis-installed from the ceiling area of the building in question by a co-worker." The bill of particulars further alleged that defendants violated Labor Law § § 200, 240(1) and 241(6) together with the following sections of the New York State Industrial Code: 12 NYCRR § 23-1.5, 1.7, 1.11, 1.24, 1.32, 2.2, 2.4, and 4.4.

However, plaintiff also served a supplemental and amended verified bill of particulars on or about March 25, 2008 which alleged, among other things, that defendants' purported negligence "caused forms and shores and bracing to collapse and fall upon the Plaintiff, thereby causing injuries" and that defendants violated the following sections of the New York State Industrial Code: 12 NYCRR § 23-1.7(a)(1)(2), 2.2(a)(b)(c)(1)(2)(3) and 3.3(e)(g). The supplemental amended bill of particulars is devoid of any language related to the "removing and/or dis-installing" of temporary shoring which permeated the previous verified bill of particulars. Defendants base their motion for summary judgment on the original verified bill of particulars and ignore the supplemental bill of particulars. In his cross motion, plaintiff contends [*4]that defendants' counsel had no objection to the service of the supplemental bill of particulars and that plaintiff's counsel sent defendants' counsel a letter to that effect dated April 14, 2008.

As a threshold issue, the court notes that, pursuant to CPLR 3043(a), plaintiff was entitled to amend the bill of particulars once as of right. In addition, defendants moved for summary judgment on or about April 23, 2008, approximately one month after the supplemental bill of particulars was filed. In light of the foregoing, it cannot be said that the supplemental bill of particulars was irrelevant or that its submission was prejudicial to defendants. Plaintiff is correct in his reliance on the allegations set forth in the amended bill of particulars, specifically the additional allegation that defendants violated 12 NYCRR 23-3.3.

Discussion

Summary Judgment Standard

It is well established that the proponent of a summary judgment motion must make a prima facie showing of entitlement to summary judgment as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact (see Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 [1985]). Once a prima facie showing has been made, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form to establish material issues of fact which require a trial (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Labor Law § 240(1)

In moving to dismiss plaintiff's Labor Law § 240(1) claim,[FN2] defendants contend that Labor Law § 240(1) is inapplicable to the facts because "[h]ere, it is undisputed that the wooden pieces which fell were not being hoisted or secured and did not fall because of the absence of a safety device."

In opposition, plaintiff argues that when objects which are an integral part of the work being performed (such as the concrete forms here) fall and cause injury, the accident is covered under Labor Law § 240(1) since the use of safety devices is required to prevent such injury. In this regard, plaintiff contends that it is the fact that the object is at a higher elevation than the worker while it is being moved, rather than whether it is being moved up or down, which brings it under the protection of Labor Law § 240(1).

In his cross motion, plaintiff also seeks partial summary judgment under Labor Law § 240(1). In his recital of the relevant undisputed facts, plaintiff alleges that there is "no triable issue of fact that at the time of the accident, Plaintiff was struck by overhead forms (ribs and stringers,) when a stringer snapped (broke) causing the wood to fall from a height onto the Plaintiff." Plaintiff also notes the Court of Appeals has ruled that falling object liability is not limited to cases in which a falling object is being actively hoisted or secured at the time it falls. According to plaintiff, the forms which struck him had been completed and "secured" in place by [*5]the placement of legs and braces together with stringers and ribs. Therefore, plaintiff avers that it was incumbent upon defendants to ensure that plaintiff would not be injured by the falling form and that the stringer would not snap, causing the forms to fall upon the plaintiff. In this regard, plaintiff maintains that the risk that a worker might have been struck by falling debris was foreseeable to defendants and was not a risk inherent in the nature of the work being performed. Plaintiff also argues that the area where plaintiff was hit should have been secured or roped off while the stripping was going on and that he should only have been allowed in the area once the removal was complete. Plaintiff further contends that it was the obligation of defendants to "make sure at the time that the forms were being removed or dropped' to the ground that the Plaintiff should not have been struck."

In opposition to plaintiff's cross motion, defendants argue that plaintiff omits critical facts by arguing that it was the "snapping" of the stringer that caused the form to fall on plaintiff. Defendants contend that, as set forth in the verified bill of particulars and by plaintiff in his examination before trial, the "snap" plaintiff heard immediately before the accident was caused by a stripper pulling out a leg which released the stringer. As a result, defendants assert that "any argument by [plaintiff] that the pieces of wood which fell . . . w[ere] the result of inadequately constructed or inadequately secured form work, or by any other cause other than the actions of plaintiff's coworker in dis-installing' the form work, . . . should be rejected by the court." Defendant notes that the pieces of wood which struck plaintiff "were secured for the purposes of the undertaking (construction of the form and pouring of concrete) and, except for the actions of a coworker, the pieces of wood were adequately secured and would not have snapped and fallen."

The Court of Appeals has explained that Labor Law § 240 (1) "imposes absolute liability on owners and contractors for any breach of the statutory duty that proximately causes injury" (Abbatiello v Lancaster Studio Associates, 3 NY3d 46, 50 [2004]). The Appellate Division, Second Department has also recently recounted that "[t]o prevail on a claim pursuant to Labor Law § 240 (1), a plaintiff must establish a violation of the statute and that such violation was a proximate cause of his or her injuries" (Plass v Solotoff, 5 AD3d 365, 366 [2004], lv denied 2 NY3d 705 [2004]).

The purpose of the statute is to protect workers by placing the ultimate responsibility for safety practices on owners and contractors instead of on workers themselves (see Martinez v City of New York, 93 NY2d 322, 325-326 [1999]; Zimmer v Chemung County Performing Arts, 65 NY2d 513, 520 [1985], Panek v County of Albany, 99 NY2d 452, 457 [2003]). "Labor Law § 240 (1) imposes a nondelegable duty upon owners and contractors to provide or cause to be furnished certain safety devices for workers at an elevated work site, and the absence of appropriate safety devices constitutes a violation of the statute as a matter of law" (Andino v BFC Partners, L.P., 303 AD2d 338 [2003]).

Injuries attributable to falling objects also fall within the statutory ambit of Labor Law § 240 (1). "A plaintiff must show that the object fell, while being hoisted or secured, because of the absence or inadequacy of a safety device of the kind enumerated in the statute" (Narducci v Manhasset Bay Assoc., 96 NY2d 259, 268 [2001] [emphasis in original]). Initially, the relevant evidence needs to show that the fallen object, here, the wooden stringer and ribs, constituted "a material being hoisted or a load that required securing for the purposes of the undertaking at the time that it fell" (Narducci, 9 NY2d at 268.). Hence, first determining whether plaintiff's injuries [*6]resulted from a hoisted or secured object and then determining whether an inadequate or missing safety device allowed those injuries to occur represent the pertinent proximate cause issues.

Here, the key issue concerns whether the stringer qualified as "a load that required securing for the purposes of the undertaking at the time that it fell." Defendants regard the "construction of the form and pouring of concrete" as "the undertaking" and argue that the stringer was a load that required securing for such undertaking and, specifically, that the stringer was secure for this purpose at the time of the accident. Defendants assert that, as a result of a stripper purposely removing the forms, the wood pieces necessarily dropped to the ground as part of the removal process. Plaintiff avers, on the other hand, that proper procedure required securing the stringer from the overhead concrete forms. Plaintiff also suggests that the area should have been roped off to prevent workers from walking under the falling forms.

The stringer and ribs are properly regarded as part of a load that required securing, even during the stripping process where legs were gradually removed. According to plaintiff, there was no warning given by the strippers as to the commencement and cessation of their work, and this left the concrete laborers to rely on an allotted time period when the strippers were supposed to be working to ensure that they would not be under the pieces when they fell. Plaintiff testified that the stripper working in the area where plaintiff was struck was not using proper procedure since he should have been in another area of the floor where other strippers were working. Plaintiff further testified that he did not hear the stripper working above him until he heard a "snap" immediately before the wood pieces fell. Plaintiff and Anderson both testified that, as the concrete continued to set, more legs were removed from the forms and that, eventually, all of the legs were knocked out in order to release the stringer, ribs and plywood forms. Leaving the legs and stringers in place as the stripping process was carried out required their securing to safeguard plaintiff who was working underneath the forms removing wood pieces which had already been stripped by his co-workers. Plaintiff had no warning that stripping was actively being performed above him as he collected the wood pieces from the floor below and there were undisputedly no safety devices in place to prevent falling pieces of the forms from hitting plaintiff.

Indeed, the Appellate Division, Second Department has repeatedly highlighted "the nature and purpose of the work being performed at the time of the accident" as the basis for finding that unsecured objects, such as a steel beam, roofing material or a dolly would fall, injuring a worker such as plaintiff (see Costa v Piermont Plaza Realty, Inc., 10 AD3d 442, 444 [2004] [cement boom of truck pumping cement struck unsecured steel beam causing it to fall injuring plaintiff, a cement mason, laying cement on the uppermost floor of a building under construction; Bornschein v Shuman, 7 AD3d 476, 478 [2004] [unsecured steel beam loosened by demolition workers struck plaintiff, a truck driver waiting to pick up and transport debris]; Orner v Port Auth. Of NY & N.J., 293 AD2d 517, 517 [2002] [unsecured roofing material fell from the roof and injured plaintiff, an electrician working on the ground floor of a construction project]; Outar v City of New York, 286 AD2d 671, 672 [2001] [unsecured dolly used by plaintiff, a track worker, and stored on a "bench wall" five and a half feet high, adjacent to the worksite, fell and struck plaintiff as he was replacing pieces of track]). Hence, the significant risk in this case posed by the wood pieces falling and injuring a worker obligated defendants to use an appropriate safety device (Costa, 10 AD3d at 444; Bornschein, 7 AD3d at 478; Salinas v Barney Skanska Constr. Co., 2 AD3d 619 [2003]). [*7]

In addition, "it is undisputed that no protective device designed to catch the falling [stringer] was utilized in connection with the work" (Tylutki v Tishman Technologies, 7 AD3d 696, 696 [2004]. Consequently, plaintiff "met [his] prima facie burden of entitlement to judgment as a matter of law by demonstrating that the absence of a safety device of the kind enumerated in the statute proximately caused [his] injury (see Salinas v Barney Skanska Constr. Co., supra [2 AD3d 619, 620-621 (2003)]; Orner v Port Auth. of NY & N.J., 293 AD2d 517 [2002])" (id.).

Defendants, by contrast, have not demonstrated their own prima facie entitlement to summary judgment dismissing plaintiff's Labor Law § 240(1) claim, nor have they presented viable evidence in response to plaintiff's prima facie showing that raises a triable factual issue thus precluding partial summary judgment for plaintiff under Labor Law § 240 (1).

Accordingly, the branch of defendants' motion which seeks summary judgment dismissing plaintiff's Labor Law § 240(1) cause of action is denied and plaintiff's cross motion for partial summary judgment on the issue of defendants liability under his Labor Law § 240(1) cause of action is granted.

Labor Law § 241(6)

In moving for summary judgment to dismiss plaintiff's Labor Law § 241(6)[FN3] cause of action, defendants argue that the New York State Industrial Code regulations cited in plaintiff's verified bill of particulars are either too general to support a Labor Law § 241(6) claim, or are inapplicable under the facts of this case.

In his verified bill of particulars, plaintiff alleges that defendants violated various Industrial Code sections. However, in his supplemental bill of particulars, opposition papers and in his own cross motion for summary judgment, plaintiff relies solely upon 12 NYCRR 23-1.7(a)(1) and (a)(2), 23-2.2(a) and (b), and 23-3.3(g), and thus has abandoned his claims with respect to the remaining violations.

"To prevail under Labor Law § 241 (6), a plaintiff must establish the violation of an Industrial Code provision which sets forth a specific standard of conduct (see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501-505 [1993]; Misirlakis v East Coast Entertainment Props., 297 AD2d 312 [2002]" (Saleh v Saratoga Condominium, 10 AD3d 645, 645-646 [2004]). As previously stated, here, plaintiff opposes defendants' motion by alleging a violation of 12 NYCRR 23-1.7(a)(1) and (a)(2),[FN4] 23-2.2(a) and (b)[FN5] and 23-3.3(g),[FN6] Industrial [*8]Code provisions containing the requisite specificity. 12 NYCRR 23-1.7(a)(1) and (a)(2)

Defendants argue that 12 NYCRR 23-1.7(a)(1) and (a)(2), by their terms, only apply to places normally exposed to falling material or objects. Thus, where an object unexpectedly falls on a worker in an area not normally exposed to such hazards, defendants maintain that 23-1.7 is inapplicable.

Plaintiff offers no opposition to defendants' contentions regarding 23-1.7 since he argues that defendants only effectively oppose that portion of plaintiff's motion pursuant to 23-2.2. However, plaintiffs do offer arguments in favor of summary judgment on the issue of liability pursuant to Labor Law § 241(6) for defendants' alleged violations of 23-1.7. Specifically, plaintiff notes that the area where plaintiff was struck was subject to the hazards of falling debris and material. In this regard, plaintiff also alleges that "[n]o barricades, cones or ropes were present to keep the Plaintiff from entering the area." [*9]

Defendants fail to offer any specific opposition to that branch of plaintiff's motion which seeks summary judgment on plaintiff's Labor Law § 241(6) claim as predicated on 23-1.7(a)(1) and (a)(2).

The Appellate Division, Second Department, has ruled that 23-1.7(a)(1) is sufficiently specific to support a Labor Law § 241(6) claim (see Zervos v City of New York, 8 AD3d 477, 480 [2004]). In order to be applicable, the provision requires a showing that the accident site is "normally exposed to falling material or objects" to warrant "suitable overhead protection." Defendants stress in this regard that, because concrete laborers such as plaintiff were not supposed to be in the area where the wood pieces fell, plaintiff was not normally exposed to the hazards of falling material. Plaintiff, on the other hand, contends that he was normally exposed to such hazards as a result of his employment as a contract laborer, and that he was not provided proper protection from the stripper working above him. Consequently, a triable issue of fact exists as to whether the accident site qualified as "normally exposed to falling materials or objects" pursuant to 23-1.7(a)(1). However, section 23-1.7(a)(2) is inapplicable since plaintiff was "required to work or pass" in or through the area where the wooden pieces of the concrete forms would fall in order to remove the pieces from the work area (see Perillo v. Lehigh Const. Group, Inc., 17 AD3d 1136 [2005]). Thus, no barricades or fences were required. 12 NYCRR 23-2.2

Moreover, in their motion, defendants aver that the requirements of 12 NYCRR 23-2.2-"that forms be structurally safe' and properly braced or tied together so as to maintain position and shape'-have no application to the instant case because the forms had already served their purpose in holding the wet concrete in place until it dried sufficiently so that the forms could be removed." Consequently, as the accident allegedly occurred during the "removal of the already-used forms when the accident happened and not when the forms were being constructed or even when the forms were used for the placement of wet concrete," defendants maintain that 23-2.2 is inapplicable. Defendants further note that there is no evidence of any defect in the forms or that the forms were improperly built. In this regard, defendants also assert that they were not required to retain an expert on the issue of the completeness of the forms or whether the regulation applies to completed forms since the accident did not result from the failure of the form to be structurally safe or the failure to be

properly braced or tied together so as to maintain position and shape.[FN7] Rather, defendants argue [*10]that "the accident was the result of the manner in which the form work was being removed."

In opposition, plaintiff asserts that the Court of Appeals requires an expert opinion as to whether 23-2.2 applies, and that, as the proponents of a motion for summary judgment dismissing plaintiff's complaint, defendants were required to put forth such an expert opinion that 23-2.2 does not apply. As defendants have failed to submit an expert opinion, plaintiff argues that defendants' motion must fail.

In plaintiff's cross motion, he contends that 23-2.2 applies only to completed forms and that, defendants, through the testimony of Anderson, conceded that the forms were complete. Plaintiff also submits the affidavit of his purported expert, Fred De Fillipis (De Fillipis), who opines that 23-2.2 could only apply to completed forms and that the statute is applicable to the facts. De Fillipis further opines that, when the stringer snapped, 23-2.2 was violated as it was not structurally safe and not properly braced and tied together "when the form lost shape and position and collapsed upon the Plaintiff."

In opposition to plaintiff's cross motion, defendant argues that the affidavit of De Fillipis should be disregarded, as he wrongly offered an opinion as to the applicability of the relevant statutes and, therefore, effectively usurped the function of the court as the sole determiner of the law. In addition, defendant posits that De Fillipis' affidavit is replete with incorrect factual recitations, disingenuous arguments and conclusory opinions.

23-2.2, which the Appellate Division, Fourth Department has approved as setting forth a specific standard of conduct (see Corsaro v Mt. Calvary Cemetery, 227 AD2d 957, 957 [2004]), mandates continuously inspecting the concrete forms "during the placing of concrete." Initially, the court notes that defendants are correct in their contention that plaintiff's expert affidavit should be disregarded by the court. De Fillipis incorrectly offers his opinion as to the applicability of the relevant statutes and offers only speculative and conclusory opinions regarding the cause of the accident. As such, De Fillipis' speculative and conclusory claims are insufficient to raise an issue of fact regarding defendants' alleged violation of 23-2.2. De Fillipis, who never examined the subject concrete forms, "failed to establish the foundation or the source of the standards underlying [his] conclusion" (David v County of Suffolk, 1 NY3d 525, 526 [2003]). Thus, his affidavit is without probative value.Moreover, while plaintiff relies on Morris and Giordano to suggest that defendant erred in failing to obtain an expert and that summary judgment in their favor should be precluded on these grounds, the court finds that such argument is without merit since the forms in Morris and Giordano were in the construction stage [*11]and were arguably incomplete. Here, on the other hand, the forms which injured plaintiff were clearly already complete and were in the process of being removed by a stripper. The issue before this court is whether a regulation requiring "forms" to be "braced or tied together so as to maintain position and shape" has been violated and whether the "placing of concrete" should be viewed as including the curing of the concrete and the removal of the concrete forms. The record before the court shows that the process of removing the concrete forms at the subject premises occurred gradually as the legs and other wood pieces were removed. Clearly, the concrete forms should have remained structurally sound during the removal process until all of the wood pieces were stripped in order to protect workers that might be below. Under such a broad view of the removal process, the forms should have been inspected not only during the pouring and setting of the concrete but also as sections of the forms were being removed. Hence, 23-2.2 applies herein and defendants indisputably failed to secure or brace the forms as prescribed.

However, as the Appellate Division, Second Department has reasoned, "while the violation of an Industrial Code provision constitutes some evidence of negligence,' it is for a jury to determine whether the equipment, operation or conduct at the worksite was reasonable and adequate under the particular circumstances'" (Belcastro v Hewlett-Woodmere Union Free School District Number 14, 286 AD2d 744, 746 [2001] citing Rizzuto v Wenger Constr. Co., 91 NY2d 343, 351 [1998]). Thus, plaintiff's cross motion for summary judgment under his Labor Law § 241(6) claim must be denied notwithstanding the applicability of 23-2.2.

12 NYCRR 23-3.3(g)

Plaintiffs also cross move for partial summary judgment on Labor Law § 241(6) as predicated on 12 NYCRR 23-3.3(g). While defendants address the alleged violations of 12 NYCRR 23-1.7 and 23-2.2 in their motion for summary judgment and opposition, defendants fail to specifically address or oppose the alleged violation of 12 NYCRR 23-3.3. The court notes, initially, that 23-3.3 is sufficiently specific to support a Labor Law § 241(6) claim (see Murtha v Integral Constr. Corp., 253 AD2d 637, 639 [1998]). Other than moving for partial summary judgment based on 23-3.3, and noting defendants' apparent default in opposing this section, plaintiff offers no specific factual allegations to establish his prima facie entitlement to summary judgment as a result of defendants' purported violation of 23-3.3. The court notes that 23-3.3 applies to "demolition by hand" and mandates appropriate means of removal for debris and materials. Plaintiff has offered no argument that the stripping process constituted demolition by hand or that the wood debris should have been appropriately removed by specified means set forth in the statute. While it is undisputed that there was no barricade, safety railing or overhead protection in place at the work site, plaintiff notes only that 23-3.3(g) is applicable, but he offers no factual allegations to establish defendants' purported violation of this section. As such, plaintiff fails to demonstrate his prima facie entitlement to partial summary judgment on the issue of liability under Labor Law § 241(6) as predicated on defendants' alleged violation of 23-3.3. This is true even in light of the fact that defendants have offered no opposition to this branch of plaintiff's cross motion; plaintiff failed to remove all triable issues of fact with respect to the application of 23-3.3.

Accordingly, that branch of defendants' motion for summary judgment dismissing plaintiff's Labor Law § 241(6) cause of action is granted inasmuch as it is predicated on the violation of 23-1.7(a)(2) and is otherwise denied. Additionally, that branch of plaintiff's cross [*12]motion for partial summary judgment on his Labor Law § 241(6) cause of action is denied.

The Common-Law Negligence and Labor Law § 200 Claims

In moving to dismiss plaintiff's Labor Law § 200 [FN8] claim, defendants note that "it is undisputed-and admitted by plaintiff [in his verified bill of particulars]-that the accident was the result of the actions of a co-worker in pulling down wooden forms where plaintiff was standing. As evidenced in the deposition testimonies . . . neither defendant was directing the work plaintiff was performing at the time of the accident nor was either defendant aware of the presence of a hazard or dangerous condition, which allegedly caused plaintiff's accident." As defendants allegedly had no involvement with plaintiff's work, they argue that plaintiff's Labor Law § 200 claim should be dismissed.

Plaintiff offers no opposition to defendants' motion to dismiss his Labor Law § 200 claims.

Labor Law § 200 "codified the common-law duty of an owner or employer to provide employees with a safe place to work" (DeBlase v Herbert Const. Co., Inc., 5 AD3d 624 [2004]). "For an owner to be held liable under Labor Law § 200, the plaintiff must show that the owner supervised or controlled the work, or had actual or constructive notice of the unsafe condition causing the accident" (Lioce v Theatre Row Studios, 7 AD3d 493, 493-494 [2004]).

Here, plaintiff failed to raise a triable question of fact in response to defendants' prima facie showing that they neither supervised or controlled the work or had actual or constructive notice of the alleged condition that caused the accident. Plaintiff testified that he took instruction only from the foremen employed by Winco in the performance of his work. Moreover, Anderson testified that KBF had no role in supervising plaintiff's work and that Winco employees were responsible for stripping the forms. Plaintiff testified that the stringer snapped as a result of the work a stripper was performing. Plaintiff fails to raise a triable issue of fact as to whether defendants created or had notice of any dangerous condition.

Accordingly, that branch of defendants' motion which seeks to dismiss plaintiff's Labor Law § 200 and common-law negligence claims is granted.

Summary

In summary, that branch of defendants' motion for summary judgment dismissing plaintiff's Labor Law § 240(1) cause of action is denied and plaintiff's cross motion for summary judgment on his Labor Law § 240(1) cause of action is granted. That branch of defendants' motion for summary judgment dismissing plaintiff's Labor Law § 241(6) cause of action is granted to the extent it is predicated on 23-1.7(a)(2), and is otherwise denied. That branch of plaintiff's cross motion for summary judgment on his Labor Law § 241(6) cause of action is denied. That branch of defendants' motion for summary judgment dismissing plaintiff's Labor [*13]Law § 200/common-law negligence cause of action is granted.

The foregoing constitutes the decision and order of this court.

E N T E R,

J. S. C. Footnotes

Footnote 1:Plaintiff's wife Magdalena M. Mulvihill also seeks derivative damages in this action.

Footnote 2:That provision pertinently provides that "[a]ll contractors and owners and their agents. . . in their 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."

Footnote 3: That provision pertinently provides that "[a]ll areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted so as to provide reasonable and adequate protection and safety."

Footnote 4: These provisions pertinently provide that:

"(a)(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.

(a)(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."

Footnote 5:Subdivision (a) provides that "[f]orms, shores and reshores shall be structurally safe and shall be properly braced or tied together so as to maintain position and shape.

Subdivision (b) provides that "[d]esignated persons shall continuously inspect the stability of all forms, shores and reshores including all braces and other supports during the placing of concrete. Any unsafe condition shall be remedied immediately.

Footnote 6:12 NYCRR 23-3.3 is entitled "Demolition by hand" and subdivision (e) of that section, which plaintiff originally alleged was violated in his supplemental bill of particulars, mandates the "Methods of operation" that should be employed to remove debris and materials as a result of demolition by hand, including, inter alia, chutes, hoists, and openings in the floor.

Subdivision (g), which is entitled "protection in other areas" provides, in relevant part, that "[e]very floor . . . within the building . . . that is subject to the hazard of falling debris or materials from above shall be boarded up to prevent the passage of any person through such area, or shall be fenced off by a substantial safety railing constructed and installed in compliance with this Part (rule) and placed not less than 20 feet from the perimeter of such floor opening or such area shall be provided with overhead protection in the form of tight planking at least two inches thick full size, exterior grade plywood at least three-quarters inch thick or material of equivalent strength."

Footnote 7:Both plaintiff and defendants debate the application of the following cases when discussing the issue of whether expert testimony is required in this action:

In Morris v Pavarini Const., 9 NY3d 47 [2007]), where a carpenter was injured when an object, described as part of one of the incomplete concrete form's sides, fell on him, the court found that it was premature to dismiss plaintiff's Labor Law § 241(6) cause of action predicated on 12 NYCRR 23-2.2 since a more complete record was necessary both as to the nature of the object that caused the injury and the opinions of those expert in the construction of concrete walls as to whether the specific requirements imposed by the words "braced or tied together so as to maintain position and shape" could sensibly be applied to anything but "completed forms." In Morris, defendant's engineer suggested that the forms could have been tied together with straps to secure them to each other, but offered no further explanation of what should have been done, and defendants submitted no expert testimony.

In Giordano v. Forest City Ratner Companies, (43 AD3d 1106 [2007]), the plaintiff was in the process of creating a form into which concrete would later be poured when a gust of wind blew a piece of plywood into him, causing injuries. The court in Giordano noted that, in the Miller case, no experts were advanced by the defendants, and that the plaintiff's engineer did not address whether the words of the Industrial Code rule could sensibly be applied to anything but completed forms. Therefore, the court in Giordano averred that, "[l]ikewise, at bar we have no expert opinion addressing this issue" and declined to award summary judgment.

Footnote 8:Labor Law § 200 pertinently provides that:

"All places to which this chapter applies shall be constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein . . ."