Silva v City of New York

[*1] Silva v City of New York 2009 NY Slip Op 50886(U) [23 Misc 3d 1122(A)] Decided on April 21, 2009 Supreme Court, Kings County Saitta, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 21, 2009
Supreme Court, Kings County

Joseph Silva and Eliza Silva, Plaintiffs,

against

The City of New York, Defendant.



13134/2001



Plaintiff Attorney -

Pellegrini & Associates, LLC

336 West 37th Street, suite 905

New York, New York 10018

(212) 219-8312

Defendant Attorney -

One North Lexington Avenue

White Plains, New York 10601-1700

(914) 948-1200

Greg Ribreau

Wayne P. Saitta, J.

Defendant, THE CITY of NEW YORK, (hereinafter "Defendant"), moves this court for an Order pursuant to CPLR §3212 for Summary Judgment against the Plaintiffs, and Plaintiffs cross move for an Order pursuant to CPLR §3212 for partial Summary Judgment against the Defendant.

Upon reading the Notice of Motion by Greg Ribreau, Esq., Attorney for Defendant, dated August 26th, 2008, together with the Affidavit in Support dated August 26th, 2008, and all exhibits annexed thereto, together with the Memorandum of Law in Support of Motion for [*2]Summary Judgment by Defendant, dated August 26th, 2008; the Reply Affidavit in Partial Support of Plaintiffs' Motion to Extend Time to file the Note of Issue by Greg Ribreau, Esq., dated October 16th, 2008, and all exhibits annexed thereto; the Cross-Motion of Frank L. Pellegrini, Attorney for Plaintiffs, JOSEPH SILVA and ELIZA SILVA, (hereinafter "Plaintiffs"), dated October 31st, 2008, together with the Affirmation in Support and in Opposition by Frank L. Pellegrini, Esq., dated October 31st, 2008, and all exhibits annexed thereto; Defendant's Opposition to Plaintiffs' Cross-Motion for Partial Summary Judgment by Greg Ribreau, Esq., dated January 8th, 2009; Defendant's Affidavit in Reply to Plaintiffs' Opposition by Greg Ribreau, Esq., dated January 13th, 2009; and after argument of counsel and due deliberation thereon, Defendant's motion for Summary Judgment is denied in part and granted in part, and the Plaintiffs' motion for partial Summary Judgment is denied for the reasons set forth below.

FACTS

This action arises from an accident which occurred on October 20th, 2000 while Plaintiff Joseph Silva, was removing paint from the Williamsburg Bridge. Plaintiff was employed at the time by L & L Painting Co., Inc., (hereinafter "L & L"), who had been hired by the City of New York to perform certain cleaning, repair and painting services to the bridge.

It is undisputed that Plaintiff was working with a blast hose at the time he was injured. The whip hose came apart at the coupling, causing the whip hose to strike Plaintiff in the ankle, causing him injury. L & L Painting provided all of the hoses and other equipment Plaintiff was using at the time he was injured.

The City hired Massand Engineering, L.S., P.C., (hereinafter "Massand"), to perform certain supervisory functions on the site. The scope of their role and responsibilities is in dispute.

ARGUMENTS

Defendant argues that it is entitled to summary judgment on the Labor Law §200 and common law negligence claims because it did not direct, supervise or control the Plaintiff's work or the injury producing activity, and it did not provide any equipment used at the time the injury was sustained, and it did not create or have notice of any dangerous or defective condition.

Defendant further argues it is entitled to summary judgment on the Labor Law §240(1) claim because the accident did not involve any elevation related hazard.

Finally, Defendant argues that the specific industrial code violations enumerated by Plaintiff are either too general or inapplicable to the facts of the instant action and therefore do not support a claim under Labor Law §241(6).

Plaintiffs oppose Defendant's motion arguing there are triable issues of fact as to whether Defendant retained and exercised some supervisory control over the negligently maintained work area which caused Plaintiff's injuries.

Plaintiffs cross move for summary judgment on the Labor Law §241(6) claim arguing there is no issue of fact as to the violation of NYS Industrial Code §23-1.10. It argues that the violation permits a finding of summary judgment as Labor Law §241(6) imposes absolute liability on an owner who fails to comply with the rules and regulations promulgated to ensure workers' safety.

ANALYSIS[*3]

It is well established that a moving party for summary judgment must make a prima facie showing of entitlement as a matter of law, offering sufficient evidence to demonstrate the absence of any material issue of fact. Winegrad v. New York Univ. Med. Center, 64 NY2d 851, 853 (1985). Once there is a prima facie showing, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form to establish material issues of fact which require a trial of action. Zuckerman v. City of New York, 49 NY2d 557 (1980); Alvarez v. Prospect Hosp., 68 NY2d 320 (1986). However, where the moving party fails to make a prima facie showing, the motion must be denied regardless of the sufficiency of the opposing party's papers.

A motion for summary judgment will be granted "if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party". CPLR §3212 (b).The "motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact." Id.

When considering a summary judgment motion for failure to make out a case, this Court is required to accept the Plaintiff's evidence as true and give it the benefit of "every reasonable inference which can be reasonably drawn from that evidence." Secof v. Greens Condominium, 158 AD2d 591 citing, Goldstein v. Hauptman, 131 AD2d 724 (2nd Dept. 1987).

Labor Law §200 / Common Law Negligence

A landowner will be liable for violation of Labor Law § 200 and common-law negligence when the injuries complained of fall into one of two broad categories: either a dangerous condition on the premises, or in the manner in which the work was performed.

If the cause of the loss involves a defect in the premises, the owner may be liable where he either created the dangerous condition, or had actual or constructive notice of the condition. Ortega v. Puccia, 57 AD3d 54 (2nd Dept 2008). If the issue is the manner of work, no liability will attach to an owner even if he or she had notice of the unsafe manner in which the work was being conducted unless the owner had the authority to "supervise or control the performance of the work". Id., at 330. "A defendant has the authority to supervise or control the work for purposes of Labor Law §200 when that defendant bears the responsibility for the manner in which the work is performed". Id.

Having control over the manner in which work is performed includes having control over the provision of, and safety of, the tools necessary to do the work. An owner, therefore, cannot be held liable for defective equipment where it did not provide the equipment or have the authority to supervise or control the provision of the equipment. See Persichilli v. Triborough Bridge and Tunnel Authority, 16 NY2d 136, 262 NYS2d 476 (1965). In Persichilli the Court held that an employer will not be held liable for the method of work of a contractor where the contractor provided unsafe appliances. Similarly, at bar, the owner cannot be held liable for the unsafe manner of work, specifically by the provision of a defective blast hose, where it is undisputed that the employer, and not the owner, provided the allegedly unsafe equipment. A party a who has no control over the provision of the manner of work, the provision of necessary equipment, does not stand in the shoes of the party that did have control where the equipment caused the loss. Id., at 146. Patrick Nestor, the project manager for the City, testified that the City did not have any [*4]employees doing the physical work on the bridge, that it did not supervise any employees, and that the City did not provide or inspect any equipment being used in the project. It is undisputed that L & L, and not Defendant, provided Plaintiff with the equipment used by Plaintiff to complete his work. Plaintiff admits that L & L provided the allegedly defective equipment which caused the loss. Patrick Nestor states that he never inspected L & Ls equipment.

Defendant hired Massand and it is disputed between the parties as to what Massand's role was at the work site; Plaintiff alleges Massand supervised the operations at the work site while Defendant argues Massand's role was limited to "monitoring the progress of the Williamsburg Bridge project and ensure the painting was done according to contract specification".

"General supervisory authority at a worksite for the purpose of overseeing the progress of the work and inspecting the work product is insufficient to impose liability for common-law negligence and under Labor Law §200." Dos Santos v. STV Engineers, Inc., 8 AD3d 223, 778 NYS2d 48 (2 Dept 2004). "To impose such liability, the defendant must have the authority to control the activity bringing about the injury so as to enable it to avoid or correct the unsafe condition." Id.

Plaintiff submits a letter from Frank Schwalenberg, Contract Administrator for Massand to Leon Levittt, Director of Bridge Painting for the New York City Department of Transportation. The letter reads, in pertinent part, "[a]nother concern is that a Massand representative should be present when any work is being done. Massand carries responsibility for the project and as advised by its risk management carrier, must have its staff on site whenever it is assuming any responsibilities. Therefore with the addition of a full time staff to Massand, as provided in the approved change order, Massand and the City are properly protected."

Upon review of certain records created and maintained by Massand, it also appears Massand had some ability to direct the work being performed by L & L. On the Engineer's Daily Project Diary dated June 9, 2000, the remarks section notes that "yard clean up ordered" and "reblasting n. leg is selected areas ordered". On June 14, 2000, the Engineer's Daily Project Diary read "L & L advised to rig tower in accordance with Steinman's approved [illegible]". The June 22, 2000 and June 30, 2000 reports read that L & L was told to perform certain clean up duties. On July 11, 2000 report, there is a remark that "L & L told at meeting to fix south work bridge on Manhattan side per Steinman's comments". Finally, on July 18, 2000, a remark states, "Removed equipment and L & L directed to clean debris and to repair missing rails on temp work bridges".

Although these documents support the position that Defendant had some authority to direct L & L to do specific tasks which were typically corrective or remedial in nature, they do not show that Defendant bore the responsibility for the manner in which the work was performed.Plaintiff produced no evidence that Massard supervised the manner in which Plaintiff performed his work or had any role in the provision or maintenance of the equipment used.

The other category by which liability may be imposed for failure to provide a safe workplace is when the cause of the loss involves a defect in the premises. An owner may be liable where he either created the dangerous condition, or had actual or constructive notice of the condition. Ortega v. Puccia, 57 AD3d 54 (2nd Dept 2008).

However, in this case, the specific unsafe condition which is alleged to have caused the [*5]injury, the severe abrading of the hose, is a defect in the equipment, not a dangerous condition at the site.

Since the cause of the accident was the alleged defective equipment provided by the employer and Plaintiff has not shown that the owner controlled the maintenance of the equipment or supervised the manner of his performance of his work, the Defendant is not liable under Labor Law §200 or common law negligence.

Labor Law §240(1)

Defendant argues that it is entitled to summary judgment as to Plaintiff's third cause of action which alleges a violation of Labor Law § 240(1) as Plaintiff's injury was not the result of an elevation related hazard.

"Labor Law § 240(1) provides exceptional protection for workers against the special hazards that arise when the work site itself is either elevated or is positioned below the level where materials or load are being hoisted or secured." Gasques v. State, 59 AD3d 666, 873 NYS2d 717 (2nd Dept 2009), quoting Natale v. City of New York, 33 AD3d 772, 773-774, 822 NYS2d 771; see Narducci v. Manhasset Bay Assoc., 96 NY2d 259, 267-268, 727 NYS2d 37, 750 NE2d 1085).

Plaintiff does not oppose Defendant's motion as to this cause of action nor does he allege any facts which would support a finding that his accident was elevation related.

Labor Law §241(6)

Defendant argues it is entitled to summary judgment as to the Plaintiff's claim under Labor Law §241(6). In response, Plaintiffs cross move for summary judgment on this cause of action.

To recover under Labor Law § 241(6), a plaintiff must establish the violation of a NYS Industrial Code provision which sets forth specific, applicable safety standards. Wein v. Amato Properties, LLC, 30 AD3d 506, 816 NYS2d 370 (2nd Dept 2006).

New York's case law has drawn a distinction between "general and specific commands" found in the Code, finding that strict liability for an alleged violation of the Industrial Code only occurs where some "concrete specification" in the regulations was violated; the violation of a general safety provision does not give rise to strict liability under Labor Law § 241(6), see Ross v. Curtis-Palmer Hydro-Electric Co., 81 NY2d 494, 601 NYS2d 49 (1993). See also Rizzuto v. L.A. Wegner Contracting Co., 91 NY2d 343 670 N.Y.S2d 816 (1998).In this case, Plaintiff alleges several violations of the Industrial Code, all of which are either too general or inapplicable, with the exception of 23-1.10(b)(2). This section, which covers pneumatic blast hoses, provides,

§ 23-1.10 Hand tools.

(b) Electrical and pneumatic hand tools.

(2) Electric and hose lines. Electric and hose lines shall be guarded by location or by covering to prevent severe abrasion and to prevent any tripping hazard.

In his deposition testimony, Plaintiff states that a portion of the hose came off the coupling, and that it appeared that the hose was ripped where the screws hold it to the coupling. [*6]He states that he never saw any guard or covering on the hose and believes that the hose became worn from being unprotected. These observations, while not conclusive, provide a sufficient basis to allow a jury to conclude that the hose ripped and separated because the hose was not properly covered as required by the Industrial Code.

Defendant argues that Plaintiff has not submitted evidence that the "on/off" switch was not within easy reach, as is required by Industrial Code 23-1.10(b)(1), and that no other provision of the regulation is applicable to this case.

However, subsection (b)(2) addresses hose lines and states that they should be "guarded by location or by covering to prevent severe abrasion and to prevent any tripping hazard".

Defendant argues that this subsection is not applicable because Plaintiff did not trip as a result of the hose line. However, Plaintiff does not allege that he tripped over the hose but that had the line been covered, the coupling would not have be worn to the point of separating from the hose line, thereby causing Plaintiff's injuries.

This section of the Industrial Code is sufficiently specific to support a claim under Labor Law §241(6). Plaintiff's testimony that after the hose came apart, he observed that it was ripped and had not been covered, is sufficient to raise questions of fact as to whether Defendant violated this section by failing to cover the hose line, and whether such failure was a proximate cause of the accident.

WHEREFORE, that part of Defendant's motion for summary judgment dismissing Plaintiffs' causes of action pursuant to Labor Law §240(1), §200 and common law negligence is herein granted, Defendant's motion to dismiss Plaintiffs' causes of action pursuant to Labor Law §241(6) is denied, and Plaintiffs' cross motion for summary judgment as to Labor Law§241(6) is denied. This constitutes the decision and order of the Court.

ENTER,

JSC