Matthews v 400 Fifth Ave. LLC

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Matthews v 400 Fifth Ave. LLC 2012 NY Slip Op 31884(U) July 16, 2012 Supreme Court, New York County Docket Number: 101477/2010 Judge: Doris Ling-Cohan 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] - MATTHEWS, PHILLIP vs. 400 FIFTH REALfY SEQUENCE NUMBER : 003 SUMMARY JUDGMENT -c . 3 Lwoex NO, [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 36 X c-------------------------------------- P H I L L I P MATTHEWS, P l a i n t i f E, Jndcx No. : 101.477/10 -against- Motion S e q . No.: 003 4 0 0 F I F T H AVENUE LLC, PAVARINI McGOVERN LLC and G.C. IRONWORKS, Degendants. Defendants move, pursuant to CPLR 3212, f o r s u m m a r W & m n t dismissing the complaint. CLERK'S OFFICE P l a i n t i f f cross-moves, pursuant to C P L R 3212, for partial summary judgment on his c a u s e s of action based o n violations of Labor Law 5 5 2 4 0 (1) a n d 2 4 1 (6). BACKGROUND Plaintiff alleges t h a t , on September 2 4 , 2 0 0 9 , h e injured h i s l e g a n d knee when a metal g r a t e fell o n h i s l e f t t h i g h w h i l e h e was p a i n t i n g i n a n elevator shaft. The complaint alleges causes oE action based on common-law negligence and violations of Labor Law §§ 200, 240 (1) a n d 2 4 1 (6). A t t h e t i m e of t h e occurrence, plaintiff w a s employed b y n o n p a r t y Fugitec, a s a n apprentice member of the International Unj-on of Elevator C o n t r a c t o r s , Local No. 1. F u g i t e c was engaged t o i n s t a l l several elevator banks i n t h e premises owned by 1 [* 3] I' d e f e n d a n t 400 F i f t h R e a l t y LLC ( 4 0 0 F i f t h ) At his examination b e f o r e t r i a l (EBT), plaintiff testified that F u g i t e c supplied all t h e tools and equipment that he u s e d , and h i s work vas s u p e r v i s e d and d i r e c t e d b y a F u g i t e c foreman named Neil. Murphy ( M u r p h y ) . P l a i n t i f f EBT, a t 2 0 . P l a i n t i f f usually worked with a fellow journeyman, and the only work that he performed alone c o n s i s t e d of preparing 'T-rails for installation in a n elevator shaft, which was done on a f l o o r , and consisted of cleaning and scraping the T-rails arid bolting on "fish plates." Id. a t 2 4 - 2 5 . P l a i n t i f f r e c e i v e d safety instructions f r o m his union, a n d F u g i t e c held s a f e t y m e e t i n g s e v e r y Monday. Id. at 21. For the t h r e e days p r i o r to the a c c i d e n t , plainti ¬f h a d been painting steel in an e l e v a t o r shaft. I d . a t 26-27, 2 9 . To paint, p l a i n t i f f stood on wood d e c k i n g that F u g i t e c installed i n the s h a f t a c r o s s what would be the 2 7 t h f l o o r (id. at 29-30, 43) and, when necessary, plaintiff would p l a c e a wooden A-frame Id. at 29-31, 5 3 . ladder on t h e decking to paint. On the day of the a c c i d e n t , when p l a j - n t i f f was in t h e elevator s h a f t on the 27'" f l o o r d e c k , plaintiff stated that there was no work going on above him, across t h e shaft, at what would b e the 2 8 t t 1 floor. At the 2 n t h floor l e v e l , there w a s a steel g r a t i n g floor, a n d plaintiff never o b s e r v e d a n y o n e working on that grating. Id. a t 31-33, 44. 2 Plaintiff a v e r r e d t h a t h e [* 4] t - never worked below ironworkers i n s t a l l i n g g r a t e s , and t h a t t h e r e were no ironworkers toiling above him. Id. at 4 8 - 4 9 . Immediately before the a c c i d e n t o c c u r r e d , p l a i n t i f f had disembarked from a ladder and was s t a n d i n g on t h e wood decking using a paint b r u s h t o paint structural s t e e l . Id. at 53. The s t e e l g r a t e fell on h i m j u s t after h e got o f f t h e ladder, a n d h e d j d n o t h e a r a n y noise o r o t h e r disruption above him b e f o r e it fell. I d . at 51, 53-54, 109. g r a k e fell w i t h o u t warning. According t o plaintiff, t h e s t e e l Id. a t 109. Plaintiff s t a t e d t h a t h e d i d not know what c a u s e d t h e steel. g r a t e t o f a l l , h e n e v e r a s k e d anyone what caused it to f a l l , and i t d i d n o t h i t anything on t h e way down. After p l a i n t i f f Id. was h i t , two ironworkers who were working in the a d j a c e n t elevator s h a f t came t o help him up. Id. at 59. Although Murphy and h i s fellow workers advised him to g e t a n ambulance, plaintiff took a taxi to New York University Hospital. Id. at 64. Cosmo A r g i ' r o (Argiro), a foreman with d e f e n d a n t G.C. Ironworks ( G C ) , one of t h e subcontractors f o r t h e p r o j e c t , was a l s o deposed in this matter and testified that GC was engaged t o i n s t a l l i r o n grates i n the elevator s h a f t s at t h e premises where the accident occurred. Argiro EBT, at 10-12, 23-24. Argiro stated that Fugitec w a s t h e elevator engineer f o r t h e project:, and t h a t GC did not have the a u t h o r i t y t o supervise o r d i r e c t F u q i t e c employees. I d . at 25-26. 3 According to Argirs, when GC , [* 5] needed t o work i n a n elevator s h a f t , he would n o t i f y Fugitec, and GC would n e v e r work in g n e l e v a t o r s h a f t without l e t t i n g F u g i t e c know f i r s t . Id. a t 2 9 , 3 4 . On t h e d a y of t h e o c c u r r e n c e , A r g i r o s p o k e w i t h Murphy t o n o t i f y him t h a t GC would be w o r k i n g i n t h e s h a f t s on t h e 27 f l o o r , a n d Murphy approved G C s access t o that s h a f t . 45, 53-54. I#. at 3 0 , The w o r k t h a t GC performed on that d a y was to weld t h e g r a t i - n g on t o p o f s t e e l beams t h a t had been welded t o the i n t e r i o r s o f t h e elevator s h a f t s . I d . at 37-39, 45, 50. P l a i n t i f f was working i n t h e Same s h a f t , directly below t h e GC workers. Id. at 5 2 . Argiro s a y s that, s e v e r a l times that d a y , , he warned p l a i n t i f f t o w a t c h o u t because he and other GC emp.loyees were working above him. I d . a t 61, 77. Argiro s t a t e d t h a t h e d i d n o t have any a u t h o r i t y t o f o r b i d p l a i n t i f f from w o r k i n g in the s h a f t . Id. at 61. Argiro testified that, when t h e grate f e l l , plaintiff was d i r e c t l y b e n e a t h him. According to Argiro, while t h e GC workers were welding t h e metal grating, \\one q f t h e p i e c e s just g o t loose somehow, just f e l l and went on top of [ p l a i n t i f f ] - his leg. I. Id. at 62. Argiro maintained that t h e r e are no devices that would p r e v e n t a grate from f a l l i n g in this situation, and that h e was unaware of a n y procedures or devices that were supposed t o be used to p r e v e n t a g r a t e from falling during i n s t a l l a t i o n . 72 . 4 .Id. a t [* 6] P a v a r i n i McGovern LLC (Pavarini), was t h e g e n e r a l contractor f o r t h e project. Edward Lydon ( L y d o n ) , Pavarini's p r o j e c t superintendent, was also deposed in this m a t t e r a n d testified that he was responsible for coordinating the work of the subcontractors, but that h e did not manage them directly, nor did he have any supervisory authority over the subcontractors' employees. Lydon EBT, at 9, 45. Lydon stated that Pavarini engaged GC to perform a l l non-structural iron work at the project, including the installation of platforms at the b a s e of the elevator shafts, inspection p l a t f o r m s and work platforms at \ the top the s h a f t s . Id. a t 3 2 , 4 0 - 4 1 . Lydon said t h a t Pavarini also hired Fugitec to install all components related to the elevators, and that it was Fugitec's responsibility to s u p p l y its workers w i t h a l l s a f e t y devices f o r working in the elevator s h a f t s , including s a f e t y lines and harnesses, handrails and s a f e t y platforms. Id. at 42-43, 89. According to Lydon, Fugitec i n s t a l l e d s a f e t y platfQrms in the e l e v a t o r s h a f t . Id. at 8 9 . Lydon maintained t h a t subcontractors w e r e n o t required to seek Pavarini's permission to work in an elevator shaft, b u t t h a t the subcontractors would coordinate such work d i r e c t l y with Fugitec. Id. at 44-45. Lydon said that he did not personally remember F u g i t e c and GC w o r k e r s working in the elevator shafts at t h e same time, but that it was Fugitec's responsibility to m a k e sure that no Fugitec employees were working in an elevator s h a f t 5 [* 7] a t ,the same time t h a t a subcontractor was a l s o w o r k i n g in t h e shaft. Id. at 60, 65. Defendants a r g u e that, despite t h e absolutle liability imposed on owners and general c o n t r a c t o r s , pursuant to Labor Law S 240 (l), it i s still necessary for an injured w o r k e r to prove that a violation of the statute was t h e proximate cause of the .injury and that an accident alone is insufficient t o e s t a b l i s h liability. F u r t h e r , to impose liability on the owner and g e n e r a l . c o n t r a c t o r , t h e worker must p r o v i d e evidence that the object that struck the worker f e l l while b e i n g h o i s t e d o r secured. I Defendants assert t h a t this was not the situation in the case al: bar. Defendants also a r g u e that the sections of t h e Z n d u s t , r i a l Code c i t e d by plaintiff are inapplicable t o the facts of t h e c a s e and cannot support a claim based on a violation of Labor Law 5 241 ( 6 ) . P l a i n t i f f a l l e g e s violations of I n d u s t r i a l Code s e c t i o n s 2 3 - 1.'7, 23-2.1 and 23-2.5. Defendants a s s e r t that these sections are inapplicable because: (1) section 23-1.7 has been held not to a p p l y to a w o r k e r s t r u c k by a falling o b j e c t ; ( 2 ) section 23-2.1 only applies to situations in which material is being s t o r e d ; and ( 3 ) section 2 3 - 2 . 5 mandates platforms in e l e v a t o r shafts a t l e a s t 30 feet or two s t o r i e s , whichever is less, t o p r o t e c t workers from falling objects, whereas, in t h e instant matter, t h e g r a t e fell only eight or nine feet. 6 [* 8] .c ' L a s t l y , defendants claim t h a t p l a i n t i f f cannot maintain causes of action based on comman-law negligence or a violation of Labor L a w 5 200, b e c a u s e plaintiff only t o o k instructions from Fugitec, and defendants did n o t d i r e c t or control plaintiff's work. In opposition to defendants' motion, p l a i n t i f f maintains that summary judgment in favor of defendants on his Labor Law § 2 4 0 (1) cause of action must be denied because owners and g e n e r a l contractors are absolutely l i a b l e for injuries to w o r k e r s resulting from the f a i l u r e to provide adequate protection at a j o b site. P l a i n t i f f also argues that sections 23-1.7 ( b ) (I.) (a) a n d 2 3 - 2 . 5 of the Industrial Code are sufficiently s p e c i f i c to support h i s Labor Law 5 2 4 1 (6) cause of action. Since p l a i n t i f f did not argue t h e applicability of Industrial Code § 23-2.1, such claim is deemed abandoned. Lastly, plaintiff asserts t h a t his causes of a c t i o n based on common-1.sw negligence and Labor Law 5 200 should n o t be dismissed because Pavarini had general supervisory control over the construction site. The court notes that plaintiff does not argue whether these claims should be dismissed as asserted agai-nsl: GC and 400 F i f t h . t n support of his cross motion f o r partial summary judgment o n h i s c a u s e s of a c t i o n b a s e d on Labor Law 7 §§ 240 (1) and 241 [* 9] ik1 ' r " ( 6 ) , p l a i n t i f f , in sum and s u b s t a n c e , r e i t e r a t e s h i s arguments p r e s e n t e d in opposition to defendants' motion. In further support of h i s cross rnotiQn, plaintiff p r o v i d e s the affidavit of Scott Silberman (Silberman), a professional engineer, who o p i n e d , with a reasonable degree of site s a f e t y engineering certainty, t h a t defendants violated t h e provisions a f the Labor Law by "permitt[ing] plaintiff to w o r k in an area w h e r e h e was e x p o s e d to falling materials or objects w i t h o u t t h e b e n e f i t of overhead p r o t e c t i o n . . . and in failing to p l a c e or secure the m e t a l grating in place s o as to p r e v e n t it from shifting or falling." Silberman's Q p i n i o n was based on his personal site inspection, made more than one year after the accident, defendants' pleadings, and daily logs prepared at the time of t h e gccident. Silberman goes on to s t a t e that d platform s h o u l d have been constructed underneath t h e area i n which t h e grating was being installed so as to p r e v e n t o b j e c t s from falling until t h e g r a t e was properly secured. \ tr I n opposition to plaintiff's cross motion, and in r e p l y to 1 pXainti ¬f's opposition to their motion, defendants contend that <J t h e c r o s s motion s h o u l d be denied as untimely, h a v i n g been filed more than 60 days a f t e r t h e note of issue wis filed, in r contravention of Part rules. issue wa5 Defendants say that the n o t e of filed on August 31, 2011, m a k i n g dispositive motions d u e on October 31, 2011. > Defendants' motion was filed on October [* 10] 31, 201.1, and p l a i n t i f f ' s 2012. CKOSS motion was filed on J a n u a r y 6, Thus, plaintiff's motion is untimely, a5 it was not filed w i t h i n 60 d a y s of the filing of t h e n o t e of issue, a s required by this P a r t ' s Rules. (1" Dept 2 0 0 5 ) ; ( 2 " " Dcpt 2 0 0 5 ) . See Colon v. C i t y of N e w York, 1 5 A D 3 d 1 7 3 Thompson v . Leben Home f o r Adults, 1 7 A D 3 d 3 4 7 M o r e o v e r , the c o u r t notes t h a t p l a i n t i f f failed / to p r o f f e r a good f a i t h basis for his delay in moving for summary judgment as r e q u i r e d ; thus, p l a i n t i f f ' s m o t i o n would be denied an such basis. Nevertheless, e v e n i f this c o u r t w e r e t o consider plaintiff's motion on t h e merits, as detailed below, plaintiff is n o t entitled to summary judgment. Defendants also claim t h a t Silberman's affidavit is f a t a l l y defective in that this expert was undisclosed and, consequently, his affidavit should not be considered. Moreover, defendants had their own e x p e r t , Bernard Lorenz ( L o r e n z ) , a professional '4 f Lorenz, in h i s a f f i d a v i t , s t a t e d t h a t h e reviewed t h e same documents a s Silberman, p l u s the deposition testimony of the witnesses, and opined, w i t h a reasonable degree of engineering - c e r t a i n t y , t h a t the facts of t h e case do n o t support t h e claim t h a t defendants v i o l a t e d Labor Law § 240 ( I . ) / since the work being p e r f o r m e d did n o t r e q u i r e a n y safety devices and t h e work being performed by GC was unrelated to plaintiff's t a s k s . Lorenz a 1 5 0 o p i n e d that t h e facts o f t h e case do n o t s u p p o r t 9 [* 11] 1 plaintiff's Labor Law , . § 241 ( 6 ) claims, because a n elevator s h a f t . i s n o t a place where persons are required to w o r k or p a s s t h r o u g h t h a t is n o r m a 1 . l y exposed t o fall-ing objects, and the e v i d e n c e i n d i c a t e s that platforms, as required by section 2 3 - % . 5 (1.) of the Industrial Code were in p l a c e , since p l a i n t i f f was s t a n d i n q on one and the GC workers were on the one immediately above him. Further, Lorenz states that Labor Law 5 200 is inapplicable sLnce t h e defendants d i d n o t supervise or direct plaintiff's work. L a s t l y , Lorenz challenges s e v e r a l of the conclusions reached by Silberman, stating that Silberman fails to indicate any I a u t h o r i t y for h i s conclusions. Defendants argue, in the ,alternative, that a jury s h o u l d decide I . i a b i l i t y u n d e r Labor Law 55 240 (1) and 241 ( 6 ) . DISCUSSION "The proponent o f a summasy,judgment motion must make a prima f a c i e showing of entitlement t o judgment as a matter of law, tendering sufficient e v i d e n c e to eliminate a n y material issues of fact from the case [ i n t e r n a l quotation marks and citation omitted] *'' (' 1' Dept 2 0 0 6 ) . S a n t i a g o v F i l s t e i n , 35 AD3d 184, 1 8 5 - 1 8 6 T h e burden then s h i f t s to t h e motion's opponent to "present evidentiary facts in admissible f o r m s u f f i c i e n t t c r r a i s e a g e n u i n e , triable issue of fact." Mazurek v Metropolitan Muscum of A r t , 2 7 AD3d 227, 2 2 8 ( l S t Dept 2 0 0 6 ) ; 10 see Zuckerman v [* 12] C i t y o f N e w York, 49 NY2d 557, 5 6 2 (1980). If t h e r e is a n y d o u b t a s to t h e existence of a triable fact, the motion for summary See judgment must be denied. Rotuba E x t r u d e r s , Inc. v ceppos, 4 6 N Y 2 d 2 2 3 , 231 ( 1 9 7 8 ) . Section 240 (1) of t h e N e w Y o r k Labor Law s t a t e s , in pertinent p a r t : "All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but: do not direct or c o n t r o l the work, in the erection, demolition, repairing, alkering, painting, cleaning of pointing of a building or s t r u c t u r e shall furnish or erect, os cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, h a n g e r s , blocks, pulleys, b r a c e s , irons, ropes, a n d other devices which shall be so constructed, placed a n d operated as to give p r o p e r p r o t e c t i o n t o a person so employed. " As stated by t h e Court in Rocovich v C o n s o l i d a t e d E d i s o n Company ( 7 8 NY2d 509, 513 [1991]), "It is settled that section 240 (1) is to be construed as liberally as may be for the accomplishment of the purpose f o r which it was t h u s framed. Thus, we have i . n t e r p r e t e d the section a s imposing absolute liability for a breach which has proximately caused an i n j u r y . . In furtherance of t h i s same legislative purpose of protecting workers against the known h a z a r d s of the occupa tJ.on, we h a v e determined that the d u t y under s e c t i o n 240 (1) is n o n d e l e g a b l e and t h a t an owner 1.s l i a b l c f o r a violation of the section even though t h e -job was performed by a n independent contractor o v e r which i t exercised no supervision or control [internal quotation marks and citations omitted]." .. L a b o r Law 5 2 4 0 (1) was designed t o protect workers a g a i n s t elevation-related r i s k s . "In order to prevail upon a claim gursuant to Labor Law 5 240 (l), a plaintiff must establish that 11 [* 13] t h e s t a t u t e was v i o l a t e d , and t h a t t h i s violation was a proximate C ~ L E S E of : Zqqba v E a s y Shopping C o r p . , 2 4 6 A D 2 d his i n j u r i e s . " 539, 541 (2d Dept 1 9 9 8 ) . This section of the Labor Law applies to falling O b j e c t s a s well as to falling workers ( N a r d u c c i v Manhasset- B a y A s s o c $ a t e s , 9 6 NY2d 2 5 9 [ 2 0 0 1 ] ) , a n d t h e critical question i s "whethey the harm flows directly f r o m t h e application o f the f o r c e of g r a v i t y to the o b j e c t . " Runner v N e w York Stock Exchange, fnc., 13 NY3d 599, 604 (2009); see a l s o W i l i n s k j v 334 E a s t 92jnd H o u s i n g Development Fund C o r p . , 18 NY3d 1 (2011). In order to prevail on a cause of action based on a v i o l . a t i o n of Labor Law 5 2 4 0 (l), a p l a i n t i f f must show that the o b j e c t f e l l while being hoisted or secured because of the a b s e n c e of a s a f e t y d e v i c e of the kind enumerated in the s t a t u t e . Quattrocchi v F . J . S c h i a m e C o n s t r u c t i o n Corp., 4 4 A D 3 d 3 7 7 Dept 2 0 0 ' / ) , a f f d 11 NY3d 7 5 7 ( 2 0 0 8 ) . I n t h e c a s e at bar, " t r i a b l e questions of fact preclude summary judgment on plaintiff's Labor Law 5 240 (1) claim, including whether t h e [steel grates] were adequately [secured] i n preparation for t h e i r being welded i n p l a c e . Quattxocchi v F.J. S c h i a i n e C o n s t r u c t i o n Corp., 11 NY3d 757, 759 (2008). Tn addition, t h e parties have provided conflicting expert alfidavits, which p r e c l u d e granting summary judgment on t h i s cause of action. G o w a n s v O t i s Marshall F a r m s , Inc., 8 5 A D 3 d 1 7 0 4 ( 4 r h Dept 2011). The fact that plaintiff's expert was not 12 I [* 14] previously d i s c l o s e d is not a b a r to t h e c o u r t considering it for the p u r p o s e s of a summary judgment motion. 27 MiSc 3d 1207(A), 2010 N Y S l i p Op 5 0 6 0 8 ( U ) Osterhout v Banker, (Sup Ct, Wayne County 2010), a f f d 90 A D 3 d 1 5 2 8 4"' Dept 2011): see aJso D j e d d a h v W i l l i a m s , 89 AD3d 513 (1"' Dept 2 0 1 1 . ) . As a consequence of the foregoing, that portion of defendants' motion s e e k i n g summary judgment dismissing plaintiff's Labor Law 5 2 4 0 (1) cause of action and plaintiff's cross motion s e e k i n g partial summary judgment on this claim are both denied. Labor Law 5 241 (6) states: "Construction, excavation and demoliti.on work. All contractors and owners and their agents, except owners of o n e and two-family dwellings who contract for b u t do not direct or control the wo'rk, when constructing or demol.ishing buildings or doing any excavating in connection therewith, shall comply w i t h the following requirements: *** All areas in which construction, excavation or demoljtion w o r k is being performed shall be s o constructed, s h o r e d , equipped, guarded, arranged, operated and conducted as to p r o v i d e reasonable and adequate protection a n d safety to the persons employed therein or lawfully frequenting such p l a c e s . The commissioner may make rules to c a r r y into effect the provisions of this subdivision, and the owners and c o n t r a c t o r s and their agents for such w o r k , except owners of one and two-family dwellings who contract for b u t do not direct or control the work, shall comply therewith." To p r e v a i l on a cause of action based on Labor Law § 241 ( 6 ) , a plaintiff must establish a violation of an a p p l i c a b l e Industri.al Codeprovision which s e t s f o r t h a specific standard of 13 [* 15] 343 (1998). However, while proof of a violation of a s p e c i f i c Industrial Code regulation is r e q u i r e d t o sustain an a c t i o n undep Labor Law § 241 ( 6 ) , such proof does not establish liability, and is m e r e l y evidence of negligence. Ross v C u r t i s - P a l m e r Hydso- E l e c t r i c Company, 8 1 NY2d 494 (1993). Plaintiff alleges violations of sections 2 3 - 1 . 7 and 23-2.5 of the Industrial Code as shpport for his cause of action based on a violation of Labor Law 5 2 4 1 (6). In a similar situation, in which a worker was i n j u r e d by a n o b j e c t falling in an elevator s h a f t , t h e Appellate Division held that section 23-1.7 is inapplicable because this regulation o n l y appl.ies t o pl.aces normally exposed t o falling material ur o b j e c t s , and not where an o b j e c t u n e x p e c t e d l y falls on a w o r k e r in a n a r e a not normally exposed to such hazards. Columbia G r a m m a r thus, 5 2 3 - 1 . 7 & Buckley v Preparatory, 44 A D 3 d 263 ( l s tDept 2007); is inapplicable. 'The provisions of section 23-2.5 of the Industrial Code are a l . s o inapp1.icabl.e to the case at b a r . Section 23-2.5 of the 1ndust:rja.L Code provides, in pertinent p a r t , t h a t a , t i g h t platform p l a n k i n g must be i n s t a l l e d not more t h a n two s t o r i e s or 30 feet, whichever is less, above the level where work i s being performed. In t h e instant matter, Lydon testified that such pl.iltform was p l a c e d in the s h a f t b y Fugitec, and t h e r e is no 14 - [* 16] . . .. . .. .-- .- . - . ... . . _ ---- -r B I e v i d e n c e that it was insufficient or was the cause of the accident that caused plaintiff's i n j u r i e s . W i t h respect to this cause of action, the c o u r t n o t e s that plai.ntifE's e x p e r t n e v e r s a y s that this section of the I n d u s t r i a l Code was viol-ated, b u t merely opines that other measures could have been t a k e n to avoid the accident, such as constructing planking immediately b e n e a t h the g r a t e being i n s t a l l e d , which is not mandated by s e c t i o n 23-2.5 of t h e Industrial Code. Therefore, w i t h respect to p l a i n t i f f ' s claim based on a violation I/ of Labor Law 5 241 ( 6 ) , there is no conflict between t h e e x p e r t affidavits. Based on the foregoing, that branch of defendants' motion to ,"i dismiss plaintiff's cause of action based on a violation of Labor Law § 241 (6) is granted, a n d the portion of plaintiff'-s ~ r o s s motion s e e k i n g partial summary judgment on this cause of action 'd is d e n i e d . Labor Law § 200 is the codification of the common-law d u t y to p r o v i d e workers w i t h a safe w o r k environment, a n d its provisions a p p l y to owners, g e n e r a l contractors, and t h e i r agents. Ross v Curtis-Palmer Hydro-Electsic Company, 81 N Y 2 d 494 (1993). T h e r e are two distinct standards a p p l i c a b l e to Labor Law 5 200 c a s e s , depending upon whether the accident is the result of a d a n g e r o u s condition, or whether the a c c i d e n t is t h e result of t h e means and methods used by the contractor to perform its work. 15 [* 17] t See e . g . McLeod v Corporation of Presiding Bishop of Chuxch of Jesus C h r i s t of L a t t e r D a y S a i n t s , 4 1 A D 3 d 7 9 6 (2d Dept 2 0 0 7 ) . In the instant matter, t h e accident allegedly occurred I because of the means and methods of operation, i . e . , the way in which t h e steel g r a t e was being placed in position to be welded, and the fact t h a t plaintiff was permitted to work in t h e s h a f t d i r e c t l y beneath workers welding steel grates. In s u c h circumstances, in o r d e r to hold the owner and/or general l 200, the i n j u r e d worker must contractor liable under Labor Lab produce evidence that the defendant e x e r c i s e d supervisory c o n t r o l I over t h e injury-producing work. Comes v N e w Yolk S t a t e E l e c t r i c I & Gas J tf + ~ \. C o r p . , 8 2 N Y 2 d 8 7 6 (1993); McFadden v Lee, 62 A D 3 d 9 6 6 ( 2 d Dept 2 0 0 9 ) v 4 . " ['TIhere is no evidence in the record that [defendants] a c t u a l l y directed, controlled or supervised plaintiff's work os were responsible for doing so. . . . R a t h e r , t h e record shows that . . . it was plaintiff's employer . . * that actually directed [plaintiff's work] [internal citations omitted] . " Torres v Morse Diesel I n t e r n a t i o n a l , I n c . , 14 AD3d 4 0 1 , 4 0 3 (1" Ucpt 2005). D e f e n d a n t s are entitled to "judgment as a matter of law b y demonstrating that t h e plaintiff's accident arose from the means and methods of his work, that t h e plaintiff's work was directed and controlled exclusively by h i s employes, a n d that they had no I guthority to exercise supervisory c o n t r o l o v e r his work." Robinson v C o u n t y of N a s s a u , 84 A D 3 d 9 1 9 , 16 920 (2d Dept 2011); [* 18] Persichilli v Tr.iborough B r i d g e (1965); & Tunnel Authority, 16 NY2d 1.36 C a m b i z a c a . v N e w York C i t y T r a n s i t Authority, 5'7 A D 3 d 701 (2d Dept 2 0 0 8 ) . I:'url.hermore, the "mere retention of contractual inspection p r i v i l e g e s or a g e n e r a l right to supervise does not amount to c o n t r o l sufficient to impose liability . . . in the absence of p r o o f of .. . . . a c t u a l control." B r o w n v N e w York C i t y Economic Development C o r p . , 2 3 4 A D 2 d 33, 3 3 ( l y t Dept 1 9 9 6 ) . In t h e case at bar, no evidence has been submitted to indicate khat defendants exercised any supervision or control o v e r plaintiff's work. Plaintiff's conclusory statement that defendants had significant and close involvement with t h e work being performed is insufficient to d e f e a t this portion of defendants' motion. Gilbert Fxank Corp. v F e d e r a l I n s u r a n c e Company, 7 0 NY2d 9 6 6 ( 1 9 8 8 ) ; Gusinsky v Genger, 7 4 AD3d 539 (1" Dept 2010) The court notes that the complaint does not distinguish which defendant each cause of a c t i o n is asserted a g a i n s t ; however, since Labor Law 5 200 only a p p l i e s t o owners and general contractors, the c o u r t concludes that this c a u s e of acLion .i.s riot asserted a s a g a i n s t GC, a subcontractor. F u r t h e r , t h e same arguments t h a t apply to 400 Fifth and Pavarini's supervision and J ' 1, control over plaintiff's work apply to their supervision a n d control over GC. 17 '1. , , ' ,...Y. 1 [* 19] As a consequence, t h a t portion o f defendants' motion s e e k i n g t o dismiss plaintiff's Labor Law $ 2 0 0 claim is g r a n t e d . That portion o f defendants' motion seeking to dismiss plaintiff's cause of action based on common-law negligence is g r a n t e d o n l y with r e s p e c t to 400 Fifth and Pavarini. That p o r t i o n of: defendants' motion seeking to d i s m i s s plaintiff's cause of action asserted as against GC is d e n i e d . Argiro, GC's employee, was welding the steel g r a t e s on t h e floor immediately above where plaintiff was working when one of the s t e e l g r a t e s f e l l , injuring p l a i n t i f f . Neither plaintiff nor A r g i r o knows what caused the s t e e l g r a t e to f a l l . Under common- law negliqence, a s u b c o n t r a c t o r may be h e l d liable f o r negligence w h e r e t h e r e is an i s s u e of fact a s to w h e t h e r the work i t performed, in this instance, welding the s t e e l grates, created the condition that caused plaintiff's injury. Brownell v B l u e S e a l . Feeds, Inc., 8 9 AD3d 1 4 2 5 ( 4 c h Dept 2011); Kelarakos v M a s s a p e q u a W a t e r D i s t r i c t , 38 A D 3 d 717 ( 2 d Dept 2 0 0 7 ) . T h e r e f o r e , plaintiff's cause of a c t i o n based on common-law negliqence c a n n o t be dismissed as asserted against GC. CONCLUSION Rased on the f o r e g o i n g , it is hereby OKDERED that the p o r t i o n of defendants' motion s e e k i n g summary judgment dismissing plaintiff's c a u s e s of a c t i o n b a s e d on violations of Labor Law §§ 2 0 0 and 241 (6) is g r a n t e d and s u c h 18 [* 20] causes of a c t i o n are dismissed; and it is f u r t h e r ORDERED t h a t t h e branch of d e f e n d a n t s ' motion s e e k i n g summary judgment dismissing plaintiff's cause of a c t i o n based on a violation o . Labor Law 5 2 4 0 ( 1 ) i s d e n i e d ; and it i s f u r t h e r f ORDERED t h a t t h e p o r t i o n of d e f e n d a n t s ' m o t i o n s e e k i n g to dismiss plaintiff's cause of action based on common-law negligence i s granted w i t h r e s p e c t to 4 0 0 F i f t h R e a l t y LLC and Pavarini. McGovern, LLC, b u t is: denied a s asserted against G.C. 'Ironworks; and i t is f u r t h e r ORDERED t h a t plaintiff's c r o s s m o t i o n is d e n i e d ; and it i s further ORDERED t h a t within 30 days of e n t r y of t h i s order, defendant 4 0 0 F i f t h R e a l t y LLC s h a l l serve a copy upon all p a r t i . e s , w i t h notice of entry. I FILED 'JUL 18 2012 J:\Sunmary Judgment\Mntthews.400 f i f t h a v e . 19 helewitz.wpd

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