Leonard v Garbade Constr. Corp.

[*1] Leonard v Garbade Constr. Corp. 2009 NY Slip Op 50507(U) [22 Misc 3d 1139(A)] Decided on March 17, 2009 Supreme Court, Broome County Lebous, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 17, 2009
Supreme Court, Broome County

Linda Leonard, Plaintiff,

against

Garbade Construction Corp., Defendant.



2005-1455



APPEARANCES:

COUNSEL FOR PLAINTIFF:

YOUNG & YOUNG

BY:JOHN W. YOUNG, ESQ., OF COUNSEL

22 RIVERSIDE DRIVE

BINGHAMTON, NY 13905

COUNSEL FOR DEFENDANT:

COSTELLO, COONEY & FEARON, PLLC

BY:DANIEL P. FLETCHER, ESQ., OF COUNSEL

205 SOUTH SALINA STREET

SYRACUSE, NY 13202-1327

Ferris D. Lebous, J.

Defendant Garbade Construction Corp. (hereinafter sometimes "Garbade") moves for summary judgment dismissing plaintiff's complaint alleging violations of common law negligence, Labor Law §§ 200, 240 (1), and 241 (6). Plaintiff Linda Leonard opposes the motion with respect to common law negligence, Labor Law §§ 200 and 241 (6), but does not oppose the dismissal of her Labor Law § 240 (1) cause of action.

BACKGROUND

On May 12, 2003, plaintiff, Linda Leonard, age 54, was employed by Chenango Valley Central School District as a custodian at Chenango Valley High School and had been so employed since 1986. Prior to 2003, Chenango Valley Central School District had undertaken a major remodeling project that included portions of Chenango Valley High School. The School District hired defendant Garbade to serve as "construction manager" for the project pursuant to a written contract (hereinafter "Construction Manager Agreement"), as well as four prime contractors including Welliver McGuire, the general construction contractor.

On May 12, 2003, at approximately 1:45 p.m., plaintiff was pulling a small wagon containing broken down cardboard boxes to transport them to an outdoor recycling bin. Plaintiff was accompanied by her supervisor, John Galusha. In order to reach the outdoor recycling bin plaintiff had walked from an interior hallway, through a door on the same level into the so-called "dock area", and headed a short distance towards overhead doors which exited outdoors. The exit contained one step with an 18 inch high differential which was normally covered with a ramp approximately three feet by fifteen feet.

Just prior to the accident, plaintiff indicates that she took 6-8 steps towards the ramp, "[h]esitated and turned my side a tad bit to say something to John [Galusha], and I stepped down thinking the [ramp] was there. Because it's always there, and it was not there" (Plaintiff's EBT, pp 47- 49). Plaintiff also stated that she was "[t]hinking the ramp was there, because it's been there for years, I just assumed or, not assumed but do what I normally do, step on the ramp and go down the ramp. And it wasn't there and I went down" (Pl's EBT, p 29).

Unbeknownst to plaintiff the ramp had been removed and she fell to the ground. Plaintiff did not seek medical attention until five months later in October 2003 when she was diagnosed with a torn right rotator cuff, ultimately undergoing corrective surgery in November 2003.

This action was commenced upon the filing of a summons and complaint on July 26, 2005. Garbade interposed an answer on January 11, 2006.

By way of this motion, defendant seeks dismissal of the complaint. The court heard oral arguments from counsel on February 20, 2009 at which time plaintiff withdrew her Labor Law § 240 (1) cause of action. This Decision & Order addresses the remaining causes of action under common law negligence and Labor Law §§ 200 and 241 (6).

[*2]DISCUSSION

I.Class of Workers Protected under Labor Law

Labor Law § 200 is "[a] codification of the common-law duty of an owner or contractor to exercise reasonable care to provide workers with a safe place to work [citations omitted]" (Miller v Wilmorite, Inc., 231 AD2d 843, 843 [1996]). Labor Law § 241 (6) mandates owners and contractors provide reasonable and adequate protection and safety for workers by requiring them to comply with specific safety rules and regulations promulgated by the Commissioner of the Department of Labor (Ross v Curtis-Palmer Hydro-Electric Co., 81 NY2d 494, 501-502, [1993]).[FN1] Moreover, Labor Law § 241 (6) does not provide protection to workers unless they are engaged in construction, excavation, or demolition work.

Defendant contends that plaintiff is not within the class of workers intended to be protected by either Labor Law § 200 or Labor Law § 241 (6). Plaintiff argues that both of these statutory provisions include protection for anyone lawfully frequenting the premises as that term is defined in the Industrial Code (12 NYCRR § 23-1.4 [b] [39]).[FN2] In other words, plaintiff argues that she is protected under the Labor Law because she was lawfully frequenting the premises as a school employee.

The Court of Appeals has previously rejected the argument raised by plaintiff herein. In

Mordkofsky v V.C.V. Development Corp., 76 NY2d 573 (1990), the Court of Appeals held that Labor Law § 200 and Labor Law § 241 (6) do not extend to the contract vendee of a building under construction. In reaching that determination, the Court of Appeals found that notwithstanding the statutory inclusion in sections 200 and 241 (6) of language referencing persons lawfully frequenting such places, the protections of the Labor Law are intended solely for workers and for workers whose employment is with an owner, a contractor or their agent (Mordkofsky, 76 NY2d at 576-577). Moreover, said worker must be employed in the nature of a "mechanic, workingman or laborer" within the meaning of Labor Law § 2(5) (Hammond v Alekna Construction, Inc. et al, 224 AD2d 1039 [1996] [secretary for Utica City School District was not engaged in a protected activity within Labor Law 241 (6)]; Warsaw v Eastern Rock Products, Inc., 193 AD2d 1115 [1993] [plaintiff engaged in normal occupation of repairing machinery and was not a part of any construction project or any renovation or alteration to the repair shop itself]; La Clair v Shelly Elec., Inc., 264 AD2d 55 [2000] [plaintiff installing sump pump was not engaged in any construction, excavation or demolition work, thus not engaged in any activity protected under Labor Law § 241 (6)]; Turner v Bivens, 151 Misc 2d 454 [1991]). Here, plaintiff was clearly engaged in her normal janitorial duties and was not part of the construction, excavation or demolition work taking place at the site. [*3]

In view of the foregoing, the court finds that plaintiff is not an intended beneficiary of either Labor Law §§200 or 241 (6). Consequently, defendant's motion for summary judgment dismissing plaintiff's Labor Law §§200 and 241 (6) causes of action is granted.

II.Common-law negligence and Labor Law § 200

As a separate and distinct basis for dismissal, defendant also argues that a party cannot be held liable under common law negligence and/or Labor Law § 200 absent a showing that: (1) the defendant supervised or controlled the manner and method of plaintiff's work; and (2) had actual or constructive notice of the dangerous condition (Ross, 81 NY2d 494).

With respect to the issue of supervision or control, it is well-settled that a "[g]eneral supervisory authority at the work site for the purpose of overseeing the progress of the work and inspecting the work product [is] insufficient to establish a cause of action under Labor Law § 200 [citations omitted]" (Riccio v Shaker Pine, Inc., 262 AD2d 746, 748 [1999], lv denied 93 NY2d 1042 [1999]). Moreover, the fact of "[m]ere retention of contractual inspection privileges or a general right to supervise does not amount to control sufficient to impose liability, and that where the injury is due to the method of work, Labor Law § 200 and common law negligence claims must be dismissed in the absence of proof of an owner's actual control, notwithstanding the existence of questions of fact regarding an owner's contractual right of control [citations omitted])" (Brown v New York City Economic Development Corp., 234 AD2d 33, 33 [1996]; emphases in original).

However, even if supervision or control of a worksite is established, liability for common law negligence and Labor Law § 200 will only be imposed if the owner had actual or constructive notice of the allegedly dangerous condition (Rapp v Zandri Const. Corp., 165 AD2d 639, 642 [1991]).

With respect to the first issue of actual control and/or supervision over plaintiff's work, Garbade has submitted evidentiary proof that it never instructed plaintiff on how or where to conduct her work. In fact, plaintiff's own deposition testimony, standing alone, confirms that she never dealt with Kane or any other Garbade employee (Pl's EBT, p 33).

In opposition, plaintiff relies upon the doctrine of collateral estoppel in relation to a decision issued by the Hon. Philip R. Rumsey in Carpenter v Garbade Const. Corp., 21 Misc 3d 1145(A), involving the same project at issue here. In Carpenter, the plaintiff was an employee of an asbestos abatement subcontractor who fell from scaffolding while engaged in asbestos abatement. Justice Rumsey granted summary judgment under common law negligence and Labor Law § 200, but denied summary judgment under Labor Law §§240 (1) and 241 (6) finding that the terms of the Construction Manager Agreement involving the implementation and monitoring of safety programs were ambiguous. More specifically, Justice Rumsey found that Garbade, as construction manager, could be held "[v]icariously liable for injuries sustained by a worker, as an agent of the owner, if Garbade had the authority to control the activity which led to the injuries under the terms of its contract with the school district [citations omitted]" [*4](Carpenter, 21 Misc 3d at 1146). It is noteworthy, however, that this same language did not prevent Justice Rumsey from finding that Garbade had alleged sufficient facts to establish it did not exercise actual supervision and control over Mr. Carpenter's work.

It is well-settled that the application in New York of collateral estoppel requires that the party seeking the protection of the doctrine establish that the decisive, identical issue was necessarily decided in the prior action (D'Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659 [1990]; Church v New York State Thruway Authority, 16 AD3d 808, 809-810 [2005]). This court finds that the doctrine of collateral estoppel is not applicable here. The key issues in the case pending before this court involving the class of worker and protected activity were not issues in Carpenter. Stated another way, the plaintiff in Carpenter, unlike here, clearly qualified as a worker performing a protected activity protected by the Labor Law. The ambiguity in the Construction Manager Agreement identified by Justice Rumsey regarding Garbade's apparent obligation to implement and monitor safety programs ran to the subcontractor in Carpenter, not the School District's own employees. Quite simply, this court does not disagree with Justice Rumsey's finding of questions of fact in Carpenter, but rather finds that those findings are not pertinent to the issue of Garbade's control over plaintiff here, the School District's employee. Consequently, the court finds that plaintiff has failed to establish that collateral estoppel is applicable to the case at bar and, as such, has failed to come forward with any proof establishing Garbade exercised any actual control or supervision of this plaintiff's work (Barends v Louis P. Ciminelli Const. Co. Inc., 46 AD3d 1412 [2007]).

Having found the doctrine of collateral estoppel inapplicable, the court returns to the second argument that liability for common law negligence and Labor Law § 200 will only be imposed if the owner had actual or constructive notice of the allegedly dangerous condition.

Defendant asserts that even if the court were to have found actual control or supervision, there is no proof that Garbade created this dangerous condition or had actual or constructive notice of said condition.

Defendant argues that Clifford Kane, Garbade's sole on-site representative, avers that he did not recall a ramp or have any conversations with anyone regarding the ramp (Kane EBT, pp 22-25). Mr. Kane also avers that no one reported the ramp's removal to him prior to this accident (Kane EBT, pp 24-25). Plaintiff's supervisor, John Galusha, also stated that he was unaware of the ramp's removal prior to plaintiff's fall (Galusha EBT, p 68). Contrary to plaintiff's counsel representation during oral argument, the court was unable to find any proof in this record that Garbade received either actual or constructive notice of the missing ramp before this accident, rather only vague references to possible notice immediately after the accident.[FN3] Accordingly, the [*5]court finds that Garbade has also met its burden of establishing that it did not create this dangerous condition or have actual or constructive notice of the allegedly dangerous condition.

Accordingly, Garbade's motion for summary judgment dismissing plaintiff's common law negligence and Labor Law § 200 causes of action is granted.

Conclusion

For the reasons stated, the court finds that defendant's motion for summary judgment dismissing plaintiff's complaint is GRANTED in its entirety.

The foregoing constitutes an order of the court.

It is so ordered.

Dated:March 17, 2009

Binghamton, New York

s/ Ferris D. Lebous

Hon. Ferris D. Lebous

Justice, Supreme Court Footnotes

Footnote 1:The Commissioner's rules, known as the State Industrial Code, are contained in Title 12 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("NYCRR").

Footnote 2:12 NYCRR § 23-1.4 (b)(39) defines "Persons lawfully frequenting" as "[a]ny person exercising a lawful right of presence or passage in any area, including persons on a public sidewalk, street or highway."

Footnote 3:The court notes that plaintiff relies upon counsel's affirmation and deposition transcripts, but has not submitted affidavits from plaintiff or witness John Galusha. Moreover, the court notes that during his deposition testimony Mr. Galusha apparently retracted portions of a written statement previously provided to plaintiff's counsel in which he stated that a Garbade employee named Guy admitted to him after the accident that he had removed the ramp. Mr. Galusha concedes in his deposition that he had merely assumed this person worked for Garbade (Galusha EBT, pp 30-34). In any event, Mr. Kane submits an affidavit establishing that there was no Garbade employee named Guy on this project which has gone unrefuted by plaintiff. To the extent that this record reflects there was a Welliver McGuire employee named Guy who may have removed the ramp, plaintiff has not named Welliver McGuire as a defendant.