Rossi v Laoudis of Calverton, LLC

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Rossi v Laoudis of Calverton, LLC 2012 NY Slip Op 30542(U) February 11, 2012 Supreme Court, Suffolk County Docket Number: 09-21606 Judge: Peter H. Mayer Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] INDEX No. CAL. No. 09-21606 11-013100'1 SUPREME COURT - STATE OF NEW YORK IAS. PART 17 - SUFFOLK COUNTY PRESENT: Hon. PETER H. MAYER Justice of the Supreme Court MOTION DATE 8-15-11 ADJ. DATE 10-14-11 Mot. Set]. # 001 - MG; CASEDISP ---------------------------------------------------------------X WILLIAM ROSSI, Plaintiff, DAVIS & FERBER, LLP Attorney for Plaintiff 1345 Motor Parkway Islandia, New York 11749 -againstLAOUDIS OF CALVERTON, LLC, Defendant. TROMELLO, McDONNELL & KEHOE Attorney far Defendant P.O. 80x 9038 Melville, New York 11747 ---------------------------------------------------------------J( Upon the reading and filing of the following papers in this matter: (1) Notice of Motion/Order to Show Cause by (he r.lt:fendant, dated July 8, 2011, and supporting papers 1- 14 (including Memorandum of Law dated __ ); (2) Affirmation ill Opposition by the plaintiff, dated September 27, 2011 and supporting papers] 5 - 18; (3) Reply Afrn11lation by the defendant, dated October 12,2011 <l1ll1upporting papers 19 - 21, (5) Other _ s ("lid aftcl heJlilig COl1l,sel!l'01111 :lIgtllllCil!Sin SUppOliof ,md opposed to liJ", llitltion); <lnd now UPON DUE DELIBERATION AND CONSIDERA nON BY THE COURT ofthe f"cegoingpapcrs, the motion is decided as follows: it is ORDERED that this motion by defendant for an order pursuant to CPLR 3212 grantmg sUIllmary judgment in its favor dismissing the complaint is granted. This is an action 10 recover damages for injuries allegedly sustained by plalntl IT, a route driver and laborer for non-party PODS of cw Yark. LLC (PODS), on August 16, 2007. The accident occurred in a warehouse facility known as Building 6 on premises located at 4062 Grumman Boulevard, Calverton, New York. The building was once a hangar used by Grumman to build aircraft It has a concrete trench under the Ooor running the length orlhe building housing pipes that are no longer in use. The trench is covered by a series of heavy steel plates. At the time of plaintiffs accident, the building was o\vned by defendant. Laoudis of Calverton, LLC (Laoudis), and leased by PODS to store its storage containers pursuant to a written commercialleasc. The accident allegedly OCCUlTed while plalnli [fwas entering, and his body was partially within, the approxllnatcly four foot deep concrete trench in thc warehouse floor and a steel plate hit his exposed right hip causing him to fall into the trench. At the time orthe accident, plaintiff was attempting, on his own, to [* 2] Rossi v Laoudis orCalVCI1011.LLC !ndex No. 09-21606 Page NO.2 replace the steel plate to cover the trench by sliding it with his hands ofTof the forklift that \Vas holding It and onTOa bar he had placed over the trench. Plailltiff's right foot had slipped all "something" IIIth-: trench before touching the bottom c:111sillg is body to knock the bar placed across the top Mthe trencb and the st8el h plate to I~lllinto h1m. Just pnor to these events, plmllliffhad applled concrete, pursuant to one supervisol"'s dIrection to fix a small area oCll1issing concrete 011 the warehouse noor ,It the edge orthe trench where the steel plate had rested. He had done so WIth the tools and supplies provided by said supervisor, and with another supervisor's assistance. There were no wltTlesscs to plaintiffs accident. Plain{iff alleges that defendant controls the premIses and that defendant, its agents. servalllS, and/or employees supervised and controlled the construction, alteration and repair of the premises. In addition. plainti ff alleges that defendant, its agents, servants, and/or employees were negligent in. among other things, failing to provide plaintiff with a safe place to work; causing or pennitting foreign objects to be in the trench in WhlChhe was perfo1111lng repair work thereby creating a dangerous and defeC1Jvecondition; and failing to provide or ercct scaffolding, hoists, stays, ladders, slings, blocks, pulleys, ropes and other devices for the proper protection of pia inti ffin violation of Lab or Law § 24(). Plainti ff also alleges that defcn(hl1lthad ~lctua1 and constructive notice of the alleged dangerous and defect1ve condition as it eXIsted for a long and unreasonable length of time. By his bill of particulars, p!mnti fr claims that defendant violated Labor Law §* 200 and 241 (6) and by his supplemental bi II of particulars, he elallns that the followmg sectIOns of the Industrial Code were VIolated: 12 NYCRR § 23·4. I (a), (b), § 23·4.2 (a), (b), (t), (g), (k), (I), and § 23· 1.7 (c)(2). Defendant now moves for summary judgment in Its favor dismissing the complaint. Defendant asserts that plaintiffs work is not subject to the protections of the Labor Law inasmuch as plaintiff was directed by his employer to make a small repair to the floor as PaJ1of PODS' routine maintenance, that there was no ongoing construction, excavatIon or demolition, and that it did not direct, supcrvise or control the manner or method of plainti frs work. In addition, defendant asserts that it was an out-of-possession landlord that citd not retain any control over the prcl11i~es.that pursuant to the terms oCthe lease, PODS was responsible for maintenance and repairs, ancl that it did llot have notice 0 r any alleged dangerous condition Defendant also asserts that all oftlle Industrial Code provisions cited by plaintdT are inapplJcable to the circumstances of this incident. Defendant further asserts that the sole proximate calise ofthe accident was plainti frs own negligence in attempting to replace the steel plate himscl fwithout the use of the forkli nand entering the trench without any direction or instruction. Defendant's submissions in support of its motion Include the pleadings ..plaintiffs bill of particulars and supplemental bills of particulars. the deposition transcripts of plaintiff and of Steven Skopelitis, property manager of defendant, the commercial lease between defendant and PODS. and the affidavits of Terry Lachner and Billy Labozetta. employees of PODS. <JndofStevel1 Skopelitis. In opposition to the motioll, plainti ITcontcnds that he was not performing routine 1l1atntenullce,since he had never performed cemellt work on the tloor; the height <It ferentiaJ canllot be characterized as r deminimls under Labor Lmv 240: the steel plate was not properly or sufTiciently secured: and plall'ltiITwas not equipped with devices that would have prevented his injury such as braces. shelVing or other containment barricrs or units. In addition, plaintiff argues that although PODS was responsible for ma1l1tenance and repairs pursuant to thc lease. defcndant admits that it made repairs to the concrete. Plainti rr also contends that dcfendant had notice of the defect 1llasmuch as defcndant did prior work in and around * [* 3] Rossi v Laoudis ofCalvcl1011, Index No. 09-21606 Page No.3 L1.C the area of the hazard, was aware [hat the structure and integrity of the cemem was questionable, and fai led to seal or secure the trenches. Plainti reemphasizes that the steel plate and trench posed a foresecab Ie "iJllger that should have been rcmc<hcd by defendant by weldlllg thc plates or filling the Ircnchcs pnor to plai11lifrs accident. In support of hiS OpposItion, plainldT submits an Invoice for "floor in-IIII" li·om 2(J05 ,me! photographs or stnps of concrete betwccn two steel plalcs. It is well settled that the party moving for sUlllmary Judgmcnl must make a prima facie showing of entitlement to judgment as a matter onaw, offering sufficient cvidence in admissible form (0 demonstrate the absence of any matcrial issues of fact (see Alvarez v Pro~pect Hosp .. 68 NY2d 320. 508 NYS2d 923 [ 1986]: Zuckerman v Ciry of Nell' York, 49 NY2d 557, 427 NYS2d 595 [1980]; Fr;ends of An;mals, Juc. v Associated Fur Mfrs., Inc., 46 NY2d 1065,416 NYS2d 790 [1979]). The failure to make such a prima racie showing requires the denial of (he motion regardless of the sufficiency oflhe opposing papers (see W;llegmti New York UII;V. Med. etr., 64 NY2d 851, 487 NYS2d 316 [19g5J). "Once this sho\ving has been made, however, the burden shifts to the party opposing the motion for summary Judgment to produce cvidcntl,llY proofl11 admissible f0ll11 sufficient to establish the existence ofmatcrial issues afflict which require a trial oCthe action" (Ah'lfrez v Prospect lJo~p" sl/pra at 324, 508 NYS2d 923, citing to ZuckernulIl v City of New York, supra at 562, 427 NYS2d 595). 11 Plaintiff's deposition testimony from June 15,2010 reveals that he was directed by his immediate supervisor, Billy Labozetta (Mr. Labozctta), to "take care of the hole in the floor," that is. to fix a small area or concrete that was rnissll1g at the edge of the trench in the floor, and was infonned of an upcoming corporate inspection by PODS. According to plaintiff, he was not told how he was to pcrfonn the work, he had not previously perfoffiled this type of repair to the floor, but the floor had been repaired daily through the replacement of wood squares. Mr. Labozclta provided plaintiffwith the tools and supplies for the work, which included a trowel, crowbar, hammer and two bags of cement, and plaintiff obtained other tools [i'om a storage container on site. A forklift was used 10 lift and hold the hcavy steel plate while plaintiff performed the concrete applicatIon as he kneeled on the Door at the edgeofthe open trench. For a 15 minute period during plaintiffs concrete application work anoth!.:r supervisor, Terry Lachner (Mr. Laehner), was inside the trench holding a board wherc the plate used to SIt. Aftcr plaintiff completed the concrete application and Mr. Lachner had left, pla1l1tilT attempted to slide the steel plate over the trench so that the sleel plate would be level or "flush" in the new cement with the rest or the floor. He placed a bar across the width orthe trench, the steel platc was on an angle onlhe forklil1 with the tip of the steel plate on the bar. plaintiff slid the plate halfway across the bar then attempted to enter the remaining opening of the trench. Plaintiff explaincd that he kneeled and put his right Icg into the trench ncarthe balancing steel plate, his right foot rolled off of something bctween the pipe and a chunk of concrete within the trench and touched the floor of the trcnch, so that his right leg was in the trench up 10 his femur. According 10 plaintiff, the sliding of his foot caused the stcel plalc to slide offofthe bar on which it was balanced and hit hiS right hip, causl11g hillll0 fall into the trench. Plaintirfslatcd that 'lfIer he came out orthe trench, Mr. Ltlbo~etta walkcd (lver to help him, and observed that plainllffhad a cuI 011 hiS finger tlut required three stitches. Plaintifftcsillicd that at no timc during hiS employment with PODS was he ever supcrvised, directed or controlled by anyone from Laoudis in pcrlorl1llllg any [ask or function. Derendant's property manager, Steven Skopclitis (Mr. Skopelitis), testified at his deposition 011 February 22. 2011 that the subject building is approximately 400,000 square feet. and that the stecl platcs [* 4] ROSSIv LlOUdis of Calverton, Index No. 09-11606 LLC Page No.4 III the noor arc eaclJ approxlmakly lour Ceetby two-and-a-half-(eet, \vclgh 100 to 300 pounds, dnd run the length 0 I'the budding covenng a trench that houses hydraulic pIpes that arc no longer used. Mr. Skopclitls explained Lhat the concrete outlines (he trench at floor level and that (he steel plates rest on the concrete. He testified that he had no notlcc of any defective condition orthe t100r. or the concrete 111 noor, or any the repair of the concrete around the steel plates in the floor by defendant or PODS or anyone else pnor (0 or at the time of plam/lIT's accident. Mr. Skopelitis did state that ddenclant did perform concrete work in December 2005 in the truck delivery area at the front of the building, which was approximately 200 feet <l\vay from the area of pia lilt iff's accident. Mr. Lachner, a Storage Center Manager for PODS, states in his affidaVIt dated June 21, 2011that he not only supervised plaintiffs work, he assisted plallltiff on the date 0 fthe alleged accIdent. He cxp!allls that he \vas in the trench clearing small pieces ofloose concrete fiom the edgc and helped place a two by fOLlrConn to hold the wet concrete. In addition, he states that the work was essentIally patch111g a small chipped area of the concrete IJp of the trench with concrete, which was considered routine maintenance in order to maintam the building in good condition and allow the forklifts to easily drive over the metal plates. Mr. Lachner further states that once the concrete was 111 place, he left and plaintiJrs rcmainingjob was to clean up. According to Mr. Lachner, plaintifT had no reason to access the trench and no reason andlor mstructions to move the steel plate by himself without the use of the forklift. He indicates that he is not aware of any prior complaints concen1l11g the trenches, or any pnor complall1ts made by PODS or Its employees or anyone else to the defendant landlord concerning the trenches. Mr. Lachner explains that the more than 200-pound steel plates covering the trenches facilitate their abi lity to drive thclr forklihs over the trenches while tnll1sporting storage containers from one area of the leased space to another. Mr. Labozetta, a Storagc Center Manager for PODS, states in his affidavit dated June 21,2011 that on thedatc ofplaintlfrs accident, he was plaintiff's 1I111l1cdiate supervisor, he was present at the facility, and no complaints \vcre ever made to defendant regarding the heavy steel plates covering the trenches. He notcs that on occasion PODS would spot weld somc of the stecl plates to minimize their bouncl1lg when driven over by a vehicle or forklift. According to Mr. Labozctta, Mr. Lachner informed him upon returning to the office that plaIntiff \vas cleaning up, and when plaintiff did not return (0 the office he went to the trench to see what was taking plainti ff so long and found plaintiff SItting on the ground outside the trench, plalllti ffhad cut hIS finger, and told Mr. Labo7.etta that he \V<lS cut by the trowel. Both Mr. Lachner and Mr. Labozctta emphaSize ill thClr anidavils that there was no ongoing construction, demolition or excavation work occulTmg at the faCility during the time of plaintiffs aCCident and that baSIC maintenance and repair were the responsIbility of PODS. The subject commcrcJallcase provides in paragraph 4, entitled "Care and Maintenance of Premises," that "Tenant shall, at his own expense and at all times, maintalll the prcmlses 111 same order and repair the as they were at (he commencement of the lease, including plate glass, electrical wiring, plulllhmg and hC8ting installations, overhead doors, hanger doors, exit and passagc doors, walls and parlitions and any other system or cquipmc11lupon the premIses Tenant shall be responsible for allnccessary repaIl"S to the premIses caused {rom [SIC] Tenant's use of the premises, excluding (he roof, exterior walls, structural foundations and ma1l1 water and waste lines. which shal1 be m<lintaillcd by Landlord" Paragr<lph 5 of the leasc, entitied "Alterations," provides, "Tcnanl shall not, without first obtaining the written cOllscni Ortlle Landlord, make any alterations, additions, or improvements, in, to or about the premises." [* 5] Rossi v Laoudis of CaiVL'rtoll.LLC Index No. 09-21606 Page NO.5 Labor l.aw §* 200. 240. and 241 apply to owners, gelleral contractors. or Ihcir "agents" (Labor Law *§ 200 [I]' 240 [I], 241). Common to all cases imposing Lahor Law §§ 240 (I) and 141 (6) liability on an out-of-possesslOn owner is somc nexus betwcen the owner and Ihe worker, whether by a lease agreement or gr3nt of an easement. or other properly intercs! (Abbllliello II Lancaster Studio Assocs .. 3 NY3d 4(J,51. 781 NYS2d 477 [1004]; Sr!r! ColemaJ1 v City of New York, 91 NY2d 821. 666 NYS2d 553 [1997]; GonloJ1 \I/::astern Ry. Supply, Inc., 82 NYld 555, 606 NYS2d 127 [1993J; Celestine v City of New York, 86 AD2d 592,446 NYS2d 131 [2d Ocpt 1982], q[fd 59 NY2d 938, 466 NYS2d 319 [1983]). So long as a VIOlation of the statute proximately results in injury, the owner's lack of notice or control over the work is not conclusive. Thus, an out~or-:'posscssion landlord may not escape strict liabi lily ~ISan owner based all its lack or notice or control over the work ordered by Its tenant (Sallatilss )' CO/lsolidated Investing Co., II/C.. 10 NY3d 333. 858 NYS2d 67 [2008]). The burden placed upon a defendant seeking summary Judgment on the ground that it is not an owner is a heavy one (see S'lIlatas!!' \I COllsolidated Illvesting Co., fIlC., supra at 341342,858 NYS2d 67). Here, defendant's status as an out-of-possession landlord/owner docs not shield it fl·om liability under Labor Law §§ 240 (1) or 241 (6) since the record shows that there was a clear nexus betwcen it and the injured plaintiff (see Ali v Richmond Industrial Corp., 59 AD3d 469, 873 NYS2d 207 [2d Dcpt 2009]). Labor Law § 240 (1) requires that owners and contractors: "in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or stmcture shall fumish or crcct, or cause to be fumished or erected for the perfonnancc 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 cmployed." Where a worker is engaged in routine maintenancc, the statute IS inapplicable (see Smith "Shell Oil Co., 85 NY2d 1000,630 NYS2d 962 [1995]; Fox)' H & M lIennes & 1llauritz, L.P., 83 AD3d 889, 890, 922 NYS2d 139 [2d Depl 20111). The type of accident triggering Labor Law 240 (I) coverage is one that will sustain the allegatlOll that an adequate "scaffold. hoist, stay, ladder or other protective deviec" would have "shield[ cd] the injured worker from hall1l directly flowlllg from the application of I' e forcc ofgr<lvily to an object or person" (Rwmer" New York Stock h Exch., Tnc., 13 NY3d 599, G03, 895 NYS2d 279 [2009], quoting Ross v Curtis-Palmer J-lydro-Elec. Co.. 8l NY2d 494, 501, 60 I NYS2d 49 [1993 J [emphasis removed]; see Salazar )! NO)'alel: Contracting Corp.. _ NY3d _, 2011 NY Slip 01' 08446 [Nov 21,20 I J]). "[TJhe purpose oCtile strict liability statute is to protect construction workers not from routine workplace risks, but frolll the pronounced nsks arising Crom construction \vork sitc elevation di fferentia!s, and. accordingly, ... therc will be no liabIlity under the statute unless the injury producing accident is attributablc to thc latter SOli of risk" (RullIler "New }'ork Stock Excll., IIlC., supra; see /)lIl'is v Wyeth Pharmaceuticals, Illc., 86 AD3d 907,909.928 NYS2d 377 [3d Dept 2011 D. "Where thcre is no statutory violation, or where the plaintiff is the sale proximate calise of hIs or her own injuries, there can bc no recovery under Labor Law § 240 (1 )" (Treu v Cappelletti, 71 AD3d 994. 997,897 NYS2d 199[2d Dept 201 OJ; see Poracki v St. Alm)"s Roman Carholic C!1tlJ"ch,82 AD3d 1192. 1194, 920 NYS2d 233 [2d Dcp! 2011]). * Hcre, defendant established its pnllla faCIe entitlemcnt to judgment as a mailer of law dismissing plainti frs Labor Law 240 (1) eausc of action by demonslruting that the clevation di !Tcrential W<lS minimal as plainti ff was alrcady partially inside the four foot deep trench with his femur exposed whcn the steel plutc hit illS hip. and a lack or Cailurcofa device prescribed by Labor Law 240 (1) for hOisting or sccunng the steel plate did not proximately cause his inj lIry (see Cambl)lj' Lincoln Gardens, 50 AD3d 1081,857 NYS2c1 * * [* 6] ROSSI v LlOUdis orCalvcrton. Index No. 09-11606 Pagc NO.6 LLC 215 [2d Dept 2008J; compare Pritchard v Tull)' COllstr. Co., IlIc.. 82 AD3d 730. 91S NYS2d [54 [2d Dcp! 201 1])_ NOiably. the steel plate was not bemg hoisted or secured or othelWlsc being moved vertically from one elevatIon to another. inste,ld, it was being moved by sliding it hOrlwntally over the bar spanning the irencb, and the steel plate tIpped over because plaintitTknocked il ofT the bar when he slipped (see Dm'is \' Wyeth Pharmaceuticals, IIIC., S/lIJra; ftlueller I' PSEG Power N, Y., II/C., 83 !\D3d 1274, 922 NYS2d 588 [3d Dcpt 2(11); see also Natale v City of Nelli York, 33 AD3d 772, 822 NYS2d 771 (2d Dept 2006]). PlaintdTs argument in opposition that the elevation diffcrential cannot be viewed as de minimis. given the weight of the steel plate and the amount of force it was capable of generating, even III a fall of a shon distance, IS inapplicable to the subject circumstances where there was no appreciable vertical movement of the steel plate, it merely tipped and slid into his hip (compare Wilinski v 334 East 9211(1How;. Dev. Fund Corp., 18 NY3d 1, _ NYS2d _ (2011] [debris from a wall being demolished hit unsecured ten foot tall vertical plumbing pipcs that were four inches in diameter causing them to topple and fall at least four fect before striking the five-fool-six-ineh tall plaintiff]; RU/1ner v Nelli York Stock Excll., /lIc.,slIpra at 601-605, 895 NYS2d 279 [the specific task being perfolllled at the time ofplaintiff~s injury was moving a heavy reel from a higher to a lower elevation, the d,mger to be guarded against arose li·om the recl's insufficiently checked descent, and plamtl ff's inj llry Oowed directly from the effect of gravity on the reel as it descended]; see Harris )' City of Nelli York, 83 AD3d 104, lOS, 923 NYS2d 2 [1st Dept 2011 D. Plaintiff, as the tenant's employee given the task of repairing the concrete at the edge of the trench, cannot avail himself of the argument that the accident could have been avoided if defendant had pennanently covered all the trenches thereby eliminating his task of repairing the concrete. Plaintiffs task of repairing the trench's edge required that the trench be open to access its edge. A recent decision of the COlirt of Appeals, Salazar v NOllale.\:: Contracting Corp., _ NY3d _, 2011 NY Slip Op 08446 [Nov 21, 2011], IIlV01vescircumstances very similar to those of plainti ff in Salazal', the accident OCCUlTedn a basement i that had a trench system for piping. Salazar and the other workmen were laying a concrete floor by pouring and spreadIng concrete over the entire basement 11001', llleluding the trenches, which were described by Salazar as being approximately two feet wide and three to four feet deep Salazar was injured as he was walking backwards raking concretc, \vhen he stepped into a trench thal was p,uiially filled With concrcte, his right foot hit the boltom of the trench, and his right leg folded underneath him. The Court of Appeals held that "Labor Law § 240 (l) should be construed with a common sense approach to the realities of the workplace at issue" and found that "the installation ofa protective device would have been contrary to the objectives of the work plan in the basement" (see id.). The same can be said of the instant circumstances, where plaintifTpurposely entered the four foot deep trench to replace the heavy steel plate so that the steel plate would cover the trench and sit level With the floor ill the newly applied celllent on the edge of the trench. Notably, there \Vas a forkli ft available that had lifted and was holding the steel plate near the trench. and plainti ff chose not use the forkli ft to replace the steel plate ovcr the trench but instcad attempted to slide the steel plate offofthc forkllft onto a bar with his hands while standing pal1ially in the trench. This is a situation where plaintiff, all his own initiative, took a foolhardy risk which resulted in injury (see e_g_ 111olltgomel:J')' Fedaal Express Corp .. 4 NY3c1805, 795 NYS2d 490 [2005]~ (/ lJarris I' City l~lNell' York, supra at 110,923 NYS2d 2 (I st Dept 20 II J). In light of tile foregoing, a determination oCwhdll\.T plaintiff was perfolllling a repair or routine maintenance prior to his accident IS unnecessary. Therefore. defendant is grunted summary judgment dismissing plallltl frs Labor Law 240 (I) claims. * Labor Law ~ 241 (6) "imposes a nondelegable duty of reasonable care upon owners and contraelOrs [* 7] ROSSIv Laoudis of Calvert 011. LLC Index No. 09-21606 Page NO.7 ·to provide reasonable and adequate protection and safety' to persons employed in. or lawfully frequenting. all areas in which construction. excavation or demolition work is being pcrfon11cd" (Ri::uto v L.A. We/lger COIltI". Co.. 91 NY2d 343. 348, 670 NYS2d 816 (\9981, quoting Labor Law § 24\ [6]; see Harrison l' StlIte. 88 AD3d 951,93\ NYS2d 662 [2d Dept 2011])_ Inasmuch as thc statute is not self-executing. a plmlltiff must allege a violation of a speci lic and applIcable provision of the Industrial Code (see Wilillski 11334East 92ml /lousing Del'. Fund Corp., supra; Ross v Curtis-Palmer flydro-Elec. Co.. supra at 530, 601 NYS2c1 49; .lara v Nell' York Racillg ASSI/., Iuc., 85 AD3d I 121, 1123, 927 NYS2d 87 l2d Dept 2011 J; D 'Elia v Cily oINell' York, 8 I AD3d 682, 684, 916 NYS2d 19612d Oept 2011)). The interpretation of an Industrial Code regulation and the determination as to whether a partlcular conditIOn comes wit11111 scope of the the regulation generally present questions of law Corthe court (see SpeJ/ce v Islaml Estates at .~lt. Sinai II, LLC, 79 A03d 936, <J14NYS2d 203 [2d Dept 20 lO); Messifla l' City olNew York, 300 AD2d 121, 752 NYS2d 608 [1st Dcpt 2002J; Pellill v Refilled Cos., 286 AD2d 674.730 NYS2d 140 [2d Dcpt 2001 l). Plaintiff alleges violations by defendant ofthe following sections of the Industrial Code, 12NYCRR § 23-4.1 (General Requirements in Excavation Operations), 12 NYCRR § 23-4.2 (Trench and Area Type Excavations), and § 23-1.7 (Protection from General Hazards). Initially, the Court notes that the adduced evidence reveals that plaintiff was not in an area where construction, excavation or demolition work was being perfonned. In addition, 12 NYCRR § 23-4.\ and 12 NYCRR § 23~4.2 are inapplicable to the circumstances ofplaintifrs accident inasmuch as bOlh sections relate to excavations and plaintiffs work did not involve any excavation (seeScarso l'M.G. Gelleral COJ/str. Corp., 16 AD3d 660, 792 NYS2d 546 l2d Dept 2005], Iv to appeal dismissed 5 NY3d 849, 806 NYS2d 168 [2005]). As for the last section alleged by plall1tiff, 12 NYCRR § 23~1.7 (e) (2) (protection from tripping and other hazards in working areas), it provides that "[t]l1e parts offioors, platfom1s 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 11lsofaras may be consistent wit11the work being performed," Said section 15 also inapplicable ll1asllluch as plaintiffdid not trip or slip on scattered tools, materials, or shmVprojections and to the extent that his foot 51 ipped on "something" hctween thc pipe and a chunk of cuncrete, that "something" was inside the trench, and not on the noor or the area \vhere plamtiffwas working or would pass. Thus, deCcndant made a prima facie showing oCentltIement to judgment as a matter of law dismissing plaintiff's Labor Law ~ 24\ (6) claims (see Settilllo v Ci(J! of New York, 61 AD3d 840, 878 NYS2d 89 l2d Oept 2009]). Plaintiffs argument in opposition that there is a question of fact as to whether the trench constituted a "passageway" uncler 12 NYCRR § 23-1.7 is unavailing. Plainlifftestified at his deposition that the trench wa.'>not a passageway, that PODS employees walked on the steel plates covering the trenches, that PODS employees cJidnot perf0n11 any work insidc the trenches, and that they were not supposed to walk inside the trcnches. Plainti ff also argues in opposition that plaintiff was required to enter the trench and that t 2 NYCRR § 23-4 is applicable. According to plaintiff, although the trench was not being excavated when plaintiff was injured. it had been excavated at some time, and defendant failed to prevent access to the trench. which was foreseeably dangerous, and failed to safeguard him from entry into the trench. Here. plaintiff was not direeled or instructed to enter the trench, his work affixing a smal1 area ofcol1crete that was missing at the edge of the trench did not require him to actu<lllyenter the trench. Ulldhe voluntarily entered the trench after he had completed the work that"he had been directed to perfonn. As indicated hereinabove, plainti ITcanllot avail himsel f ofthe argument that iI'defendant had permanently covered the trench he would not have been inj urcd inasmuch as his task of repairing the trench's edge required that the trench be open to access its edge. PlaJntiWs deposition testimony demonstrates that the fact that the trench wns uncovered did not pose ~l [* 8] ROSSIv Laoudls of Calverton, Index No. 00-1 16()() Page No 8 LLC danger to plaintl!"!' Thus. plainufffaIlcd to raise a triable issue of I~lct wah respect 10 defcndnnt's liability pursuant to Labor Law ~241 (6) (see id.). Therefore, defendant IS granted summary judgment dlsmisslI1g plall1tirPs Labor Lnv ~ 141 (6) claims. Labor Law ~ 2UO is a codification of the comlllon-law duty llnposed upon an o\vner or general contractor to provide construction site workers with a safe place to work (see Comes v New York ,-S'tate lee. E & Gas COI7)" B2 NY2d 876, ()09 NYS2d 168 [1993]; Haider II Davis, 35 AD3d 3C)j, 827 NYS2d 179 [2d Dept 200C)]). Wherc the ll1Jury allegedly arises from the means and methods oCthe work perConnecL rather than a dangerous condition on the premises, an implicit precondition to this duty is that the party charged WIth that responsibility have the authority to supervise or control the actlVity bringing about the Il1jury (see flart v Commack Hotel, LLe, 85 AD3d I 117, 1118, 927 NYS2d 11 I [2d Dept 20 II J; Ferrero v Best Modular HOllies, Inc., 33 AD3d 847, 823 NYS2d 477 [2d Dept 2006]). An out-of-posscssionlandlord is not iJable for mjuries that occur on its premises unless it retains contTa] overthe premlses or is contractually bound to repair unsafe conditions (see Taylor v Lastres, 45 AD3d 835, 847 NYS2d 139 [2d Dept 2007]; Lindquist II C & C Landscape COlltrs., IIlC., 38 AD3d 616, 831 NYS2d 523[2d Dept 2007J; Yadegar l' Illtematiollal Food ftJkt., 37 AD3d 595, B30 NYS2d 244 [2d Dept2007]; Scott v Bergstol, 11 AD3d 525, 782 NYS2d 793 [2e1 Dept 2004]). Control may be evidenced by lease provislOns making the landlord responsible for repairs or by a course of conduct demonstrating that the landlord has assumed responsibility to mallltain a particular portion oCthe premises (see Taylor v Laslres, supra; Ever Will, Inc. v 1-]()Illdus. Assocs., LLe, 33 AD3d 845, 827 NYS2d 63 [2e1Dept 2006]; 1Viuby v 1(ustas, 7 AD3d G15, 775 NYS2d 906 [ 2d Dept 2004]). Here, defendant estabJ ished its prima faCie entitlement to summary judgment dismissll1g plainti ff's common-law negligence and Labor Law § 200 claims (see Robiuson v COlluty ofNassall, 84 AD3d 919, 920,923 NYS2d 135 [2d Dept 2011J; Enriquez)' B & D Dev., IIIC., 63 AD3d 780, 781, 880 NYS2e1 701 l2d Dept 2009]). Defendant's profJered proof demonstrated that plaintiffs accident arose from the means and methods of his work, not Cromlhe allegedly dangerous condition of the steel plate or the trench, that the work was directed and controlled exclusively by his fellow employees, and that defendant had no authority to exercise supervisory control over his work (see id.). Thus, the lease provlsiollS concerning repalrs and whether dercndant assumed control over the premises through its separate concrete work arc immaterial to this dctenlllllation. In opposition, p1ainti ff failed to offer eVidence sufficient to raise a triable issue of fact (see id.). Therefore, deCcndant is granted summary judgment dismissing plainti Frs common-law negligence and Labor Law ~ 200 claims. Accordingly, the instanllllotion is granted and the eomphlint / Dated: is dismissed in its entirely. I) // !//~~ 1/ PETERH. MAYER, ,VS.C '

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