Gonzalez v Fortway LLC

[*1] Gonzalez v Fortway LLC 2009 NY Slip Op 50132(U) [22 Misc 3d 1115(A)] Decided on January 27, 2009 Supreme Court, Kings County Partnow, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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

Carlos Gonzalez, Plaintiff,

against

Fortway LLC and Trident Developers, Inc., Defendants.



38814/05



Plaintiff was represented by: Dinkes & Schwitzer, 112 Madison Ave., NY NY 10016

(212)683-3800

Defendant was represented by: Barry, McTiernan & Moore 2 Rector Street, 14th floor, NY NY10006(212)313-3600

Mark I. Partnow, J.

Upon the foregoing papers, plaintiff Carlos Gonzalez (plaintiff) moves, pursuant to CPLR 3212, for summary judgment against defendants Fortway LLC (Fortway) and Trident Developers, Inc. (Trident) (collectively, defendants) under his Labor Law §§ 240 (1) and 241 (6) causes of action. Defendants cross-move for summary judgment dismissing plaintiff's Labor Law §§ 240 (1), 241 (6), 200, and common-law negligence causes of action.

On October 28, 2005, plaintiff sustained head injuries during the demolition phase of renovation project involving the conversion of an old movie theater located at 6722 Fort Hamilton Parkway in Brooklyn, New York (the building or the theater) into a six story building containing both commercial and residential space. Prior to the accident, Fortway, which owned the building, retained Trident to serve as the general contractor on the renovation project.[FN1] Thereafter, Trident hired various subcontractors to perform different aspects of the renovation work. Among these subcontractors was plaintiff's employer, Final Contracting Corp. (Final), which was retained to perform demolition work.[FN2] [*2]

For several months prior to the accident, plaintiff and his Final co-workers were performing demolition work inside the theater. Among other things, this involved removing the theater's domed plaster ceiling. Once the plaster ceiling was demolished, the roof structure of the building became visible from inside the theater. Also uncovered was a cast iron drainage pipe that ran horizontally in the space between the (now demolished) plaster ceiling and the roof of the building. Once the horizontal section of pipe reached the corner of the building, it connected with another cast iron pipe that ran vertically to the ground. The purpose of these pipes was to remove any storm water that collected on the roof of the building during inclement weather.

According to plaintiff's deposition testimony and sworn affidavit, the now exposed drainpipe was not secured or braced and, consequently, he was concerned that it might fall down upon workers positioned below the pipe during the demolition work. Accordingly, plaintiff spoke to his Final foreman, Antonio "Tony" Suce about this potential hazard some three days prior to the accident. In his own affidavit, Mr. Suce states that the drainpipe was not braced or secured in any way and that he too was concerned that it might fall down upon workers situated below. Mr. Suce further states that he spoke with John and Spiro Geroulanos about removing the pipe. However, according to Mr. Suce, the Geroulanos brothers refused to allow him to remove the drainpipe and told him that they wanted to preserve it for use in the new construction.

At his own deposition, Spiro Geroulanos acknowledged that he told Mr. Suce not to remove the drainpipe since it was still needed to remove storm water from the roof. However, Spiro Geroulanos also testified that Mr. Suce never expressed any concern that the drainpipe was inadequately secured. In fact, according to Mr. Geroulanos, the pipes were "secured well. It was tough to take them down" and "they weren't hanging there by themselves all these years. They were already secured." Spiro Geroulanos also testified that the drainpipe was secured to the ceiling using metal "band iron" supports. Finally, Mr. Geroulanos testified that Mr. Suce assured him that the pipe was "secure and safe."

On October 28, 2005, some three days after the discussions involving the drainpipe, plaintiff and a co-worker, Jose Leon [FN3], were cutting a small beam that protruded from the wall of the building while standing on a lift platform approximately 20-25 feet above the ground and 20-25 feet below the horizontal section of the drainage pipe. While performing this work, a five to six-foot section of the drainage pipe weighing approximately 25-30 pounds suddenly fell from the roof area and struck plaintiff in the head, thereby causing various injuries.[FN4] [*3]

It is unclear what caused the drainage pipe to break loose at this exact point in time. Plaintiff testified that the plaster ceiling did not support the pipe and therefore, the removal of the ceiling does not appear to have weakened the drainpipe's preexisting means of support. Furthermore, according to the affidavits by plaintiff, Mr. Suce, and Mr. Leon, the beam cutting work that plaintiff and Mr. Leon were performing at the time of the accident was unrelated to the falling drainpipe. In any event, after the accident, the remaining sections of the drainpipe were removed in order to prevent any further accidents.

By summons and complaint dated December 22, 2005, plaintiff commenced the instant action against defendants alleging violations of Labor Law §§ 240 (1), 241 (6)[FN5], 200, as well as common-law negligence. Thereafter, defendants answered the complaint and the matter proceeded to discovery. Discovery is now complete and the instant motions are before the court.

Plaintiff's Labor Law § 240 (1) Claim

Plaintiff moves for summary judgment under his Labor Law § 240 (1) cause of action. In support of this branch of his motion, plaintiff points to his own deposition testimony, and submits sworn affidavits by himself, Mr. Suce, and Mr. Leon. Taken together, this evidence indicates that an unsecured iron drainage pipe that had become exposed during the course of demolition work on the movie theater broke lose while plaintiff was working below and fell a distance of 20-25 feet before striking plaintiff in the head. This evidence further indicates that prior to the accident, plaintiff and his foreman Mr. Suce were well aware that the unsecured drainage pipe posed a hazard to workers positioned below, and in fact sought permission to remove this hazard, but were denied such permission by the Spiro and John Geroulanos. Under the circumstances, plaintiff argues that his accident was caused by a Labor Law § 240 (1) violation inasmuch as he was stuck by an unsecured falling object that clearly should have been secured, removed, or otherwise protected against given gravity-related risks that were not only obvious, but were actually pointed out to defendants' principals prior to the accident. Plaintiff further argues that as the respective owner and general contractor on the renovation project, Fortway and Trident are liable for the injuries caused by this Labor Law § 240 (1) violation as a matter of law.

In opposition to plaintiff's motion for summary judgment under Labor Law § 240 (1), and in support of their own cross motion to dismiss this claim, defendants argue that this is not the type of falling object case which is covered under the statute. In particular, defendants note that the mere fact that a worker is struck by a falling object does not demonstrate that Labor Law § 240 (1) is applicable. Rather, the statute only applies in falling object cases when a worker is struck by an object that is being hoisted or that otherwise requires securing. Here, it is undisputed that the drainpipe was not being hoisted at the time it fell. Moreover, defendants argue that drainpipe was not an object that should have been [*4]secured since it was unforeseeable that the pipe posed an elevation -related hazard inherent in the ongoing demolition work. In this regard, defendants note that the drainpipe was an actual part of the structure of the building and that it was not being worked upon at the time of the accident. In addition, defendants point out that the removal of the plaster dome ceiling merely exposed the drainpipe and there is no evidence that this former ceiling served to support the pipe. Finally, defendants point to Spiro Geroulanos' deposition testimony, wherein he stated that Tony Suce told him that the drainpipe was safely secured prior to the accident.

Labor Law § 240(1) 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, [or] altering . . . 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) was enacted to "prevent those types of accidents in which the scaffold, hoist, stay, ladder or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person" (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [1993] [emphasis in original]). In order to accomplish this goal, the statute places the responsibility for safety practices and safety devices on owners, general contractors, and their agents who "are best situated to bear that responsibility" (id. at 500; see also Zimmer v Chemung County Perf. Arts, 65 NY2d 513, 520 [1985]). "The duty imposed by Labor Law § 240(1) is nondelegable and . . . an owner or contractor who breaches that duty may be held liable in damages regardless of whether it has actually exercised supervision or control over the work" (Ross, 81 NY2d at 500). However, given the exceptional protection offered by Labor Law § 240(1), the statute does not cover accidents merely tangentially related to the effects of gravity. Rather, gravity must be a direct factor in the accident as when a worker falls from a height or is struck by a falling object (Ross, 81 NY2d at 501; Rocovich v Consolidated Edison Co., 78 NY2d 509, 513 [1991]). Moreover, in falling object cases such as the instant one, the "plaintiff must show more than simply that an object fell causing injury to a worker. 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 Assocs., 96 NY2d 259, 268 [2001] [emphasis in original]).

Here, it is undisputed that plaintiff was struck in the head with section of a drainpipe that had fallen a distance of 20-25 feet. Thus, the matter clearly falls within the ambit of a falling object cases. Accordingly, under the Narducci analysis, the question becomes whether the object fell while being hoisted or secured because of the absence of a Labor Law § 240 (1) safety device. In addressing this question, the court initially notes that, [*5]notwithstanding the Narducci court's use of the phrase "while being hoisted or secured," the fact that the drainpipe was not actually in the process of being hoisted or secured when it fell does not render Labor Law § 240 (1) inapplicable (Quattrocchi v F.J. Sciame Constr. Corp., 11 NY3d 757 [2008]; Outar v City of New York, 5 NY3d 731 [2005]). Instead, the determinative factor is whether or not the drainpipe was an object that required securing.

While there is no bright line test for establishing when an object requires securing under the statute, generally, "the determination of the type of protective device required for a particular job turns on the foreseeable risks of harm presented by the nature of the work being performed" (Buckley v Columbia Grammar and Preparatory, 44 AD3d 263, 268 [2007], lv denied 10 NY3d 710 [2008]). In other words, if there was a significant and foreseeable risk that the object would fall while the plaintiff was performing his or her work at a lower elevation, owners and contractors will be held liable under Labor Law § 240 (1) for the inadequacy or lack of securing devices. For example, an unsecured package of shingles stacked on a sloped roof is a load that requires securing under the statute given the obvious risk that such a load could fall on workers below (Coque v Wildflower Estates, Dev., Inc., 31 AD3d 484, 487-488 [2006]). Similarly, an unsecured steel beam which fell and struck a worker while other workers were removing masonry and wood that held the beam in place constitutes violation of Labor Law § 240 (1) as a matter of law since a loose beam positioned high above a work site presents gravity-related risks (Bornschein v Shuman, 7 AD3d 476, 478 [2004]).

In contrast, where the falling of the object could not reasonably be anticipated given the work that the plaintiff was carrying out, no liability will attach under the statute. Thus, for example, counterweights which fell down an elevator shaft and struck a worker are not loads that require securing since the counterweights were placed in a frame in their intended eventual resting place in accordance the elevator design (Buckley, 44 AD3d at 270).

Here, there is conflicting evidence regarding whether the falling of the drainpipe could have been reasonably anticipated and therefore, the question of whether the drainpipe was a load that required securing under Labor Law § 240 (1) must be resolved by the trier of fact. In this regard, plaintiff's affidavit and deposition testimony, as well as Mr. Leon and Mr. Suce's affidavits indicate that once the drainpipe became exposed, they were concerned that it could fall down upon workers positioned below inasmuch as the pipe was not in any way secured. Mr. Suce's affidavit also indicates that he related these concerns to the Geroulanos brothers but he was refused permission to remove the pipe. On the other hand, Spiro Geroulanos' deposition testimony indicates that the drain pipe was well-secured with band iron supports. This testimony also indicates that there was no reason to suspect that the pipe might fall given the fact that it had been held in place for years and Mr. Suce assured him that the pipe was adequately supported. Ultimately, the question of defendants' liability under Labor Law § 240 (1) hinges upon which of these versions of the events the jury chooses to credit.

Accordingly, plaintiff's motion for summary judgment under Labor Law § 240 (1), as well as defendants' cross motion to dismiss this cause of action are denied. [*6]

Plaintiff's Labor Law § 241 (6) Claim

Plaintiff moves for summary judgment under his Labor Law § 241 (6) cause of action. In so moving, plaintiff relies upon New York State Industrial Code regulations 12 NYCRR 23-3.3 (b)(3), 3.3 c, and 3.3 (g). Specifically, plaintiff maintains that these regulations are both specific and applicable given the circumstances of the accident. Plaintiff further argues that, as a matter of law, these regulations were violated and said violations resulted in his injuries.

In opposition to this branch of plaintiff's motion, and in support of their own motion for summary judgment dismissing plaintiff's Labor Law § 241 (6) cause of action, defendants argue that 12 NYCRR 23-3.3 (b)(3), 3.3 c, and 3.3 (g) are not applicable in this case.

Labor Law § 241(6) provides, in pertinent part, that:

"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 persons employed therein or lawfully frequenting such places."

Labor Law § 241(6), which was enacted to provide workers engaged in construction, demolition, and excavation work with reasonable and adequate safety protections, places a nondelegable duty upon owners and general contractors, and their agents to comply with the specific safety rules set forth in the Industrial Code (Ross, 81 NY2d at 501-502). Accordingly, in order to support a cause of action under Labor Law § 241(6), a plaintiff must demonstrate that his or her injuries were proximately caused by a violation of an Industrial Code provision that is applicable given the circumstances of the accident, and sets forth a concrete standard of conduct rather than a mere reiteration of common-law principals (id. at 502; Ares v State, 80 NY2d 959, 960 [1992]; see also Adams v Glass Fab, 212 AD2d 972, 973 [1995]).

As an initial matter the court notes that, although plaintiff relies exclusively upon alleged violations of 12 NYCRR 3.3 (b)(3), 3.3 c, and 3.3 (g) in support of his motion for summary judgment under Labor Law § 241 (6), plaintiff's bill of particulars alleges violations of other Industrial Code regulations, namely 12 NYCRR 23-1.7(a)(1) and 23-5.1(I). Furthermore, plaintiff's papers indicate that, although he is not relying on these regulations in support of his summary judgment motion, neither is he abandoning these alleged Industrial Code violations.[FN6] For their part, defendants' cross motion to dismiss plaintiff's Labor Law § 241 (6) claim contains no analysis of these Industrial Code regulations. Accordingly, defendants' motion to dismiss plaintiff's Labor Law § 241 (6) claim is denied to the extent that it is based upon 23-1.7(a)(1) and 5.1(I) inasmuch as defendants have failed to meet their prima facie burden of demonstration that these regulations are inapplicable or otherwise too general to support a claim under the statute. [*7]

Turning to the Industrial Code regulations which are discussed by the parties, 12 NYCRR 3.3 (b)(3), which applies to demolition by hand operations, provides that:

"Walls, chimneys and other parts of any building or other structure shall not be left unguarded in such condition that such parts may fall, collapse or be weakened by wind pressure or vibration."

While there is no dispute that this regulation is sufficiently specific to support a Labor Law § 241 (6) claim, the parties disagree over its applicability. In particular, defendants maintain that 3.3 (b)(3) is inapplicable since it only pertains to objects which are caused to fall by wind pressure or vibration and there is no evidence that these forces played a role in the falling of the drainpipe. In contrast, plaintiff argues that the "wind pressure or vibration" language in the regulation only applies to the weakening of structures, not the fall or collapse of part of a structure, which is what occurred in this case.

Although there do not appear to be any Appellate Division cases addressing this particular issue, reported lower court decisions which have analyzed the matter have interpreted 23-3.3 (b)(3) as requiring that the forces of wind or vibration play a role in the accident, whether it involves a falling object, a collapse, or a weakening (Maternik v Edgemere by-the-Sea Corp., 19 Misc 3d 1118 (A) [2008]; German v City of New York, 14 Misc 3d 1204 (A) [2006]). That is to say, they interpret the regulation in the manner advocated by defendant. Furthermore, this court is in agreement with this reading of the regulation. Here, there is no evidence that vibrations or wind pressure caused the drainpipe to fall. Indeed, plaintiff's own affidavit states that his own work below the drainpipe had nothing to do with the accident. Accordingly, plaintiff's Labor Law § 241 (6) claim is dismissed to the extent that it relies upon a violation of 23-3.3(b)(3).

12 NYCRR 23-3.3 (c), states:

"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."

This regulation is sufficiently specific to support a Labor Law § 241 (6) claim (Salinas v Barney Skanska Constr. Co., 2 AD3d 619, 622-623 [2003]). In addition, this regulation is applicable in this case. In this regard, 23-3.3 (c) is intended to serve as a safeguard by requiring continuing inspections to uncover any hazards that might develop as demolition work progresses (id.). Here, the drainpipe that ultimately struck plaintiff was uncovered after the plaster ceiling was demolished. Furthermore, there is evidence that the pipe was unsecured and presented a hazard. Moreover, defendants have failed to demonstrate that continuous inspections were carried out as required under 23-3.3 (c). Accordingly, to the extent that plaintiff's Labor Law § 241 (6) claim is based upon a violation of this regulation, defendants' cross motion to dismiss this cause of action is denied. [*8]

However, notwithstanding the applicability of 23-3.3 (c), plaintiff is not entitled to summary judgment under his Labor Law § 241 (6) claim based upon a violation of this provision. A violation of an Industrial Code provision only constitutes some evidence of negligence and it is for the jury to determine whether defendants' conduct was reasonable and adequate under the circumstances (Belcastro v Hewlett-Woodmere Union Free School Dist., 286 AD2d 744, 746 [2001]). In any event, given Spiro Geroulanos' testimony that the drainpipe was securely fastened to the ceiling, there is an issue of fact as to whether the required inspections would have revealed that the drainpipe was at risk of falling. Accordingly, it cannot be said, as a matter of law, that the violation of this Industrial Code provision proximately caused the accident.

12 NYCRR 23-3.3(g), which pertains to demolition by hand, states in pertinent part:

"Every floor or equivalent area within the building or other structure 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 . . . or 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."

This regulation is sufficiently specific to support a Labor Law § 241 (6) cause of action (Zuluaga v P.P.C. Construction, LLC, 45 AD3d 479, 480 [2007]). However, 23-3.3(g) is not applicable in this case since plaintiff "was working in the area where the . . . falling material [was], and was not subject to falling debris from another area" (Salinas, 2 AD3d at 622). Accordingly, to the extent that it is based upon a violation of this Industrial Code provision, plaintiff's Labor Law § 241 (6) claim is dismissed.

Plaintiff's Labor Law § 200/Common-Law Negligence Claims

Defendants also move for summary judgment dismissing plaintiff's Labor Law § 200 and common-law negligence claims. In support of this branch of their motion, defendants point to Spiro Geroulanos' deposition testimony, as well as plaintiff's deposition testimony. According to defendants, this evidence demonstrates that they did not control or supervise plaintiff's work. In addition, defendants argue that they had no notice that the drain pipe constituted a dangerous condition inasmuch as Spiro Geroulanos testified that Mr. Suce informed him that the drainpipe was safe and secure.

In opposition to this branch of defendants' motion, plaintiff points to his own deposition testimony and affidavit, as well as Mr. Suce's affidavit. Specifically, plaintiff notes that this evidence indicates that, not only did the Geroulanos brothers have actual notice of the dangerous condition that caused the accident (i.e., the unsecured drainpipe), but they refused to allow Final to remove this hazard. Accordingly, plaintiff reasons that there are clearly issues of fact which preclude dismissing his Labor Law § 200 and common-law negligence claims.

Labor Law § 200 is merely a codification of the common-law duty placed upon owners and contractors to provide employees with a safe place to work (Kim v Herbert [*9]Constr. Co., 275 AD2d 709, 712 [2000]). Liability for causes of action sounding in common-law negligence and for violations of Labor Law § 200 is limited to those who exercise control or supervision over the plaintiff's work, or who have actual or constructive notice of an accident-causing unsafe condition (Bradley, 21 AD3d at 868; Aranda v Park East Constr., 4 AD3d 315 [2004]; Akins v Baker, 247 AD2d 562, 563 [1998]). Specifically, "[w]here a premises condition is at issue, property owners [and contractors] 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 [2008]). On the other hand, "when a claim arises out of alleged defects or dangers in the methods or materials of the work, recovery against the owner or general contractor cannot be had under Labor Law § 200 unless it is shown that the party to be charged had authority to supervise or control the performance of the work" (id.).

In the instant case, plaintiff's injury arose from an alleged dangerous condition at the premises in the form of the drainpipe hanging from the roof of the movie theater. Moreover, there is evidence in the form of Mr. Suce's affidavit that Spiro Geroulanos (the president of Trident and general partner of Fortway) and John Geroulanos (a general partner of Fortway) had actual notice of this dangerous condition and not only failed to remedy the condition, but actually prevented Final from removing the drainpipe. Alternatively, to the extent that the accident can be said to have arisen from Final's methods in carrying out its demolition work, there is an issue of fact regarding defendant's control over these methods given Mr. Suce's claim that defendants specifically directed him not to remove the drainpipe which he deemed to be a hazard.

Accordingly, that branch of defendants' cross motion which seeks summary judgment dismissing plaintiff's Labor Law § 200 and common-law negligence claim is denied.

Summary

In summary, the court rules as follows: (1) that branch of plaintiff's motion which seeks summary judgment under his Labor Law § 240 (1) cause of action is denied; (2) that branch of defendants' cross motion which seeks summary judgment dismissing plaintiff's Labor Law § 240 (1) cause of action is denied; (3) that branch of plaintiff's motion which seeks summary judgment under his Labor Law § 241 (6) cause of action is denied; (4) that branch of defendants' cross motion which seeks summary judgment dismissing plaintiff's Labor Law § 241 (6) cause of action is granted only to the extent that plaintiff relies upon violations of 12 NYCRR 23-3.3 (b)(3) and (g); and that branch of defendants' motion which seeks summary judgment dismissing plaintiff's Labor Law § 200/common-law negligence cause of action is denied.

This constitutes the decision and order of the court.

ENTER,

J. S. C. Footnotes

Footnote 1:Trident and Fortway were interrelated entities. In particular, Spiro Geroulanos was both president of Trident and a general partner of Fortway. Spiro Geroulanos' brother John Geroulanos was also a Fortway general partner.

Footnote 2:At one point at his deposition, Spiro Geroulanos claimed that Trident was not the general contractor for the demolition work. However, he retracted this testimony and admitted that Trident hired Final. Moreover, there is a written contract between Final and Trident for the demolition work.

Footnote 3:In his own affidavit, Mr. Leon avers that the drainpipe was not secured.

Footnote 4:Plaintiff was wearing a hard hat at the time of the accident.

Footnote 5:In his bill of particulars, plaintiff alleges violations of 12 NYCRR 23-1.21, 1.7(a), 1.8, 1.28, 2.1, 3.2, 3.3, and 3.4 in support of his Labor Law § 241 (6) cause of action. In a supplemental bill of particulars, plaintiff also alleges a violation of 13 NYCRR 23-5.1(I).

Footnote 6:Plaintiff does not discuss the remaining Industrial Code regulations set forth in his bill of particulars. Presumably, he is no longer relying on this alleged violations.