Cohen v New York City Indus. Dev. Agency

[*1] Cohen v New York City Indus. Dev. Agency 2011 NY Slip Op 50365(U) Decided on January 28, 2011 Supreme Court, New York County Friedman, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 28, 2011
Supreme Court, New York County

Michael Cohen, Plaintiff(s),

against

New York City Industrial Development Agency et al., Defendant(s).



111512/2008

 

Attorneys for the Plaintiff

KAZMIERCZUK & McGRATH

103-1 6 Metropolitan Avenue

Forest Hills, NY 1 1375

Attorneys for the Defend and Third-party plaintiff.

And Second Third-party Plaintiff

NEW YORK CITY INDUSTRIAL DEVELOPMENT

AGENCY, UTSA NATIONAL TENNIS CENTER

INCORPORATED, UNITED STATES TENNIS

ASSOCIATION INCORPORATED

and J. H. MACK, LLC,

LAW OFFICES OF CHARLES J. SEIGEL

40 Wall Street, 7th Floor

New York, NY 10005

Attorneys for Second-third Party Defendant

GlAQUlNTO MASONRY, INC.

MARSHALL, CONWAY, WRIGHT & BRADLEY

116 John Street

New York, NY 10038

Attorney for Third-party Defendant

Bruce A. Torino, Esq.

TORINO & BERNSTEIN, P.C.

SERVICES, INC. s/h/a PRE-FAB

CONSTRUCTION , I NC. 200 Old Country Road, Ste. 220

Mineola, New York 11 501

(516) 747-4301 Fax: (516) 747-5956

Marcy S. Friedman, J.

In this Labor Law action, plaintiff sues for injuries sustained when he allegedly tripped and fell on construction debris at the United States Tennis Center in Flushing Meadows, Queens, on December 27, 2007. Third-party defendant Pre-Fab Construction Services, Inc. (Pre-Fab) moves for summary judgment dismissing plaintiff's complaint and the third-party complaint against it. Defendants New York City Industrial Development Agency, USTA National Tennis Center Incorporated and United States Tennis Association Incorporated (collectively USTA or owner-defendants) and defendant J.H. Mack, LLC (JH Mack) together cross-move for summary judgment dismissing plaintiff's complaint. Second-third party defendant Giaquinto Masonry, Inc. (Giaquinto) cross-moves for summary judgment dismissing plaintiff's Labor Law §§ 240(1) and 241(6) claims and dismissing the second-third party complaint against it. The branch of defendants' motions and cross-motions for summary judgment dismissing plaintiff's § 240(1) claim is unopposed. (See P.'s Opp. at ¶ 2.)

The following material facts are undisputed: Plaintiff, an ironworker, was employed by Pre-Fab, the structural steel erection subcontractor. The owners hired JH Mack as the general contractor for the project. Giaquinto was a masonry subcontractor hired by JH Mack.

At the time of the accident, plaintiff and a co-worker were carrying steel beams in an open area that was eventually to be enclosed tennis courts. (P.'s Dep. at 39-40 [FN1]; Dep. Of Charles Kapp [Pre-Fab's President] at 22.)Plaintiff testified that as he and a co-worker were moving a beam, he slipped and fell on a piece of plastic with oil on it that was partially imbedded in the sand floor. (P.'s Dep. at 53-60.)

Labor Law § 241(6)

Labor Law §241(6) provides:

All contractors and owners and their agents . . . shall comply with the following requirements:

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 the persons employed therein or lawfully frequenting such places. The commissioner may make rules to carry into effect the provisions of this subdivision, and the owners and contractors and their agents for such work, except owners of one and two-family dwellings who contract for but do not direct or control the work, shall comply therewith.

It is well settled that this statute requires owners and contractors and their agents "to provide reasonable and adequate protection and safety for workers and to comply with the specific safety [*2]rules and regulations promulgated by the Commissioner of the Department of Labor." (Ross v Curtis Palmer Hydro-Elec. Co., 81 NY2d 494, 501-502 [1993].) This duty is nondelegable, and a plaintiff need not show that the defendant exercised supervision or control over the worksite to recover under this section. (Id. at 502.) In order to maintain a viable claim under Labor Law §241(6), however, the plaintiff must allege a violation of a provision of the Industrial Code that mandates compliance with "concrete specifications," as opposed to a provision that "establish[es] general safety standards." (Id. at 505.)

In opposition to defendants' motions and cross-motions for summary judgment, plaintiff alleges that defendants violated Industrial Code §§ 23-1.7(d) and 23-1.7(e)(2). (See McGrath Aff. In Opp. ¶ 19.)

Section 23-1.7(d), which concerns slipping hazards, is sufficiently specific to support a cause of action under § 241(6).[FN2] (See Jennings v Lefcon Partnership, 250 AD2d 388 [1st Dept 1998].) Contrary to defendants' contention, this section "do[es] not require that the slippery surface in question be elevated." (McCraw v United Parcel Serv., 263 AD2d 499 [2d Dept 1999].) Moreover, while plaintiff was working in an open area, it constituted a "floor" within the meaning of this section, as the area was within the perimeter of the building that was being constructed. (See Temes v Columbus Centre LLC, 48 AD3d 281 [1st Dept 2008]; McCraw, 263 AD2d at 500.)[FN3] However, plaintiff contends that he slipped on a piece of oily plastic embedded in the sand floor. Mere construction debris is not the type of slippery condition to which this section applies. (See D'Acunti v New York City Sch. Constr. Auth., 300 AD2d 107 [1st Dept 2002]; Nankervis v Long Isl. Univ., 78 AD3d 799 [2d Dept 2010]; Aguilera v Pistilli Const. & Dev. Corp., 63 AD3d 763 [2d Dept 2009]; Salinas v Barney Skanska Const. Co., 2 AD3d 619 [2d Dept 2003].) Accordingly, plaintiff's claim must be dismissed to the extent he relies upon this section.

Industrial Code § 23-1.7(e)(2), which concerns tripping hazards, is also sufficiently specific to support a claim under § 241(6). (See Smith v McClier Corp., 22 AD3d 369 [1st Dept 2005].) This section, in contrast to § 23-1.7(d), expressly applies to accumulations of debris.[FN4] Plaintiff was undisputedly working in the area in which he allegedly fell, and thus, contrary to the defendant's contention, the open floor constituted a work area within the meaning of this section. [*3](See Canning v Barney's New York, 289 AD2d 32 [1st Dept 2001].) Nor may defendants escape liability based on their contention that plaintiff testified that he slipped, rather than tripped, on the debris. (See e.g. Collins v Switzer Const. Group, 69 AD3d 407 [1st Dept 2010] [finding triable issues of fact under § 23-1.7[e][2] where plaintiff "slipped on debris scattered around" the ladder on which he was working]. Compare Ventura v Lancet Arch, Inc., 5 AD3d 1053 [4th Dept 2004].) Plaintiff may accordingly maintain his § 241(6) claim based on this Industrial Code section.

The court is unpersuaded by defendant Pre-Fab's further contention that plaintiff's deposition testimony that he fell on oily plastic is a "feigned attempt to avoid the consequences of earlier pre-suit' admissions," and that the complaint should accordingly be dismissed. (See Torino Aff. In Support of Pre-Fab's Motion ¶ 96.) In support of this contention, defendant cites plaintiff's deposition testimony, at his workers' compensation hearing, that after his accident, "I really hurt myself because I was throwing my tools in the garage." (See Transcript Of Workers' Compensation Hearing dated June 26, 2008 [Tr.] [Pre-Fab Motion Ex. S], at 6.) Defendant also relies upon plaintiff's medical records containing statements that plaintiff's injury occurred while plaintiff was moving boxes in his garage. (See Pre-Fab Motion Ex. O.)

Plaintiff's testimony at his workers' compensation hearing is not inconsistent with his claim in this action that he was injured when he slipped and fell while at work. At the workers' compensation hearing, plaintiff first gave testimony that he fell at work, "was in pain," and went home. (Tr. at 5.) He later testified that he hurt himself when putting his tools in the garage. (Id. at 6.) At his deposition, plaintiff also testified that when he went home after his accident, he experienced worse pain while putting his tools into his garage. (See P.'s Dep at 131.) A jury could conclude, based on this testimony, that he sustained injuries both at work and at home.

As to the medical records, it is well settled that "[h]ospital records fall within the business records exception [of the hearsay rule] when they reflect[ ] acts, occurrences or events that relate to diagnosis, prognosis or treatment or are otherwise helpful to an understanding of the medical or surgical aspects of ... [the particular patient's] hospitalization. Where details of how a particular injury occurred are not useful for purposes of medical diagnosis or treatment, they are not considered to have been recorded in the regular course of the hospital's business." (People v Ortega, ____ NY3d ____; 2010 WL 4720694 [2010] [internal quotation marks and citation omitted].)

On this record, defendants make no showing that the manner in which plaintiff sustained his back injury, ie., whether by slipping on debris or moving boxes in his garage, is relevant to his treatment. Even assuming arguendo that the statements sought to be submitted by defendants in the medical records relate to diagnosis or treatment of plaintiff's injury (see id.), they are not admissible because defendants fail to demonstrate that plaintiff was the author of the statements. Defendants submit the testimony of Dr. Jeffrey Wheeler, the emergency room doctor at the time plaintiff went to the hospital. While he testified as to the hospital's practice of obtaining information directly from the patient (see Wheeler Dep. at 12), he did not have personal knowledge as to the information in plaintiff's personal records because he did not take it himself. (See id. at 20.) Indeed, plaintiff testified that the statement in at least one of the records was written by his wife, and not by him. (See P.'s Dep. at 93-94.) Accordingly, plaintiff's statements cannot be admitted as an admission. (See Haulotte v Prudential Ins. Co. Of Am., 266 AD2d 38 [*4][1st Dept 1999].)

Nor do defendants raise a triable issue of fact as to whether the accident actually occurred, based on the testimony of plaintiff's co-worker, Wayne Kraft. Mr. Kraft merely testified at the workers' compensation hearing that he did not recall the incident of plaintiff falling while he and the plaintiff were carrying the beam. (See Tr. at 24-25.)

The court has considered defendants' remaining contentions and finds them without merit. Accordingly, the branch of defendants' motion for summary judgment dismissing plaintiff's claim under § 241(6) should be denied to the extent plaintiff relies upon Industrial Code § 23-1.7(e)(2).

Labor Law § 200 and Common Law Negligence

Labor Law §200(1) provides in pertinent part, as follows: All places to which this chapter applies shall be so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein or lawfully frequenting such places. All machinery, equipment, and devices in such places shall be so placed, operated, guarded, and lighted as to provide reasonable and adequate protection to all such persons.

Labor Law §200 is a codification of the common law duty imposed upon an owner or contractor to provide construction workers with a safe place to work. (See Comes v New York State Elec. and Gas Corp., 82 NY2d 876 [1993].) An implicit precondition to this duty "is that the party charged with that responsibility have the authority to control the activity bringing about the injury to enable it to avoid or correct an unsafe condition." (Russin v Louis N. Picciano & Son, 54 NY2d 311, 317 [1981].)

Thus, "[w]here the alleged defect or dangerous condition arises from the contractor's methods and the owner exercises no supervisory control over the operation, no liability attaches to the owner under the common law or under Labor Law §200." (Comes, 82 NY2d at 877. See also Ross, 81 NY2d at 505 [same for general contractor]; Reilly v Newireen Assocs., 303 AD2d 214 [1st Dept 2003], lv denied 100 NY2d 508.)

Recent authority has clarified that where a Labor Law §200 claim is based on a dangerous condition on the site, it is not necessary to show supervisory control over the manner of performance of the injury producing work; the only issue is whether there was notice of the condition. (See Minorczyk v Dormitory Authrity of the State of New York, 74 AD3d 675 [1st Dept 2010]; Seda v Epstein 72 AD3d 455 [1st Dept 2010]; Urban v No.5 Times Square Dev., LLC, 62 AD3d 553 [1st Dept 2009]; Murphy v Columbia Univ., 4 AD3d 200 [1st Dept 2004].)

Here, defendants make a prima facie showing that they did not have actual or constructive notice of debris in the area in which plaintiff was working. USTA's managing director, Daniel Zausner, testified that he conducted a weekly walk-through of the site, and that if he observed a dangerous condition, he would inform JH Mack. (See Zausner Dep. at 20-23.) JH Mack's project manager, Thomas Brennan, testified that each subcontractor was to stock pile its own construction debris, and that a labor force would pick it up. (See Brennan Dep. at 19-20.) Plaintiff testified that he did not see the alleged plastic debris prior to his accident, and did not tell anyone about debris in the work area. (See P.'s Dep. at 57, 26.) Moreover, Pre-Fab's president, Charles Kapp, testified that no one complained to him about plastic or debris being [*5]present at the work site. (See Kapp Dep. at 36-37.) This testimony is sufficient to make a prima facie showing that defendants did not have constructive notice of the alleged plastic on which plaintiff fell.

In opposition, plaintiff fails to raise a triable issue of fact. While plaintiff testified that the plastic on which he fell was "kind of in the sand, like it's been there for a while" (see P.'s Dep. at 60), he also testified that he did not know how long it had been there. (Id. at 58.) This testimony, standing alone, is insufficient to raise a triable issue of fact as to whether the plastic was there a sufficient amount of time for defendants to discover and remedy it. (See Gordon v American Museum of Nat. History, 67 NY2d 836 [1986].) Accordingly, plaintiff's claims against defendants under § 200 and for common law negligence must be dismissed.

Indemnification

Pre-Fab moves for summary judgment dismissing JH Mack's third-party complaint against it. JH Mack's common law indemnification and contribution claim must be dismissed, as it is undisputed that plaintiff did not suffer a grave injury under Workers' Compensation Law § 11.

As to JH Mack's contractual indemnification claim, § 4.6.1 of the contract between JH Mack and Pre-Fab provides that Pre-Fab shall indemnify JH Mack and the owners for all claims for personal injury "directly or indirectly caused, occasioned or contributed to in whole or in party, by reason of any action, omission, fault or negligence whether active or passive of Subcontractor." (Pre-Fab Motion Ex. N.) As held above, there is no evidence in this record that plaintiff's employer either caused or contributed to plaintiff's accident.[FN5] Accordingly, JH Mack's claim against Pre-Fab for contractual indemnification must be dismissed.

Giaquinto also moves for summary judgment dismissing the second third-party complaint against it. The indemnification provision between JH Mack and Giaquinto is identical to that in Pre-Fab's contract with JH Mack. In seeking indemnification from Giaquinto, defendants rely upon plaintiff's deposition testimony that the plastic on which he fell "looks like the plastic they use to wrap the concrete blocks." (P.'s Dep. at 57.) Giaquinto cites plaintiff's testimony that he did not know how the plastic got there. (Id. at 58.) Giaquinto also relies on plaintiff's testimony, at his second deposition, that he did not know where the plastic came from, and that he had seen blocks wrapped in similar plastic at other job sites, but did not see such blocks at this work site. (P.'s June 23, 2010 Dep. [Giaquinto Motion Ex. D] at 35-36.) In addition, Giaquinto offers the affidavit of its foreman who attests that Giaquinto's scope of work did not involve plastic or oil, and that he never received any complaints about plastic debris. (See McConnell Aff. ¶¶ 4-5 [Giaquinto Motion Ex. B].)

Plaintiff's speculative testimony as to the source of the plastic debris is insufficient to [*6]raise a triable issue of fact in opposition to Giaquinto's prima facie showing that it did not cause or contribute to plaintiff's accident. Accordingly, the contractual indemnification claims against it should be dismissed.

Giaquinto also argues that defendants' failure to procure insurance claim should be dismissed. Defendants argue that this branch of Giaquinto's motion is premature. However, second third-party plaintiffs do not plead a claim for failure to procure insurance. (See Second Third-Party Complaint [Pre-Fab Motion Ex. F].) Accordingly, the court need not address this claim.

It is accordingly hereby ORDERED that Pre-Fab's motion, and the owner defendants' and JH Mack's cross-motion, and Giaquinto's cross-motion for summary judgment are granted to the extent that it is

ORDERED that plaintiff's claims under Labor Law §§ 240(1) and 200, and for common law negligence are dismissed; and it is further

ORDERED that plaintiff's claim under Labor Law § 241(6) is dismissed except to the extent that it is based upon Industrial Code § 23-1.7(e)(2); and it is further

ORDERED that JH Mack's third-party complaint against Pre-Fab is dismissed; and it is further

ORDERED that JH Mack's and the owner-defendants' second third-party complaint against Giaquinto is dismissed.

This constitutes the decision and order of the court.

Dated:New York, New York

January 28, 2011

___________________________

MARCY FRIEDMAN, J.S.C. Footnotes

Footnote 1:Plaintiff was deposed twice in this action: First on December 10, 2009, and then on June 23, 2010. All references to plaintiff's deposition are from plaintiff's December 10, 2009 deposition, unless otherwise noted.

Footnote 2:This section provides: "Slipping hazards. Employers shall not suffer or permit any employee to use a floor, passageway, walkway, scaffold, platform or other elevated working surface which is in a slippery condition. Ice, snow, water, grease and any other foreign substance which may cause slippery footing shall be removed, sanded or covered to provide safe footing."

Footnote 3:The cases on which defendant Pre-Fab relies are not to the contrary. They hold § 23-1.7(d) inapplicable where the plaintiff fell in an open area that was not part of the work area. (See e.g. O'Gara v Humphreys & Harding, Inc., 282 AD2d 209 [1st Dept 2001]; Hertel v Heuber-Breuer Const. Co., 48 AD3d 1259 [4th Dept 2008]; Porazzo v City of New York, 39 AD3d 731 [2d Dept 2007].)

Footnote 4:This section provides: "Tripping and other hazards. (2) Working areas. The parts of floors, platforms and similar areas where persons work or pass shall be kept free from accumulations of dirt and debris and from scattered tools and materials and from sharp projections insofar as may be consistent with the work being performed."

Footnote 5:It is noted that § 4.6.1 of the parties' contract contains an additional indemnification provision requiring Pre-Fab to indemnify JH Mack for claims for personal injury "arising out of or in connection with, or as a consequence of the Work." However, JH Mack does not dispute that the applicable indemnification provision is the above-cited provision requiring indemnification for personal injuries caused or contributed to by Pre-Fab's act, omission, or fault. While JH Mack claims that Pre-Fab supervised and controlled plaintiff's work, it fails to make any showing that such supervision and control was in any way responsible for plaintiff's accident.