Stissi v Seagull Islandia, LLC
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Stissi v Seagull Islandia, LLC 2012 NY Slip Op 32571(U) October 3, 2012 Supreme Court, Suffolk County Docket Number: 17107/2009 Judge: William B. Rebolini 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] Shurt Form Order SUPREME COURT - STATE OF NEW YORK I.A.S. PART 7 - SUFFOLK COUNTY PRESENT: WILLIAM B. REBOLINI Justice Frank Stissi, Index No.: 1710712009 Plaintiff, Motion Sequence No.: 005; MD Motion Date: 6/1/12 SubmItted: 7/23/12 -agmnstSeagull Islal1d1u, LLC, Aresco Management Essential Electric Corp., Ball Construction, Ltd" LP Motion Sequence No : 006; XMG Motion Date: 7/2/12 Submitted; 7/23/12 and Sav Morc Mechamcal, Inc., Defendants. Attomey for Plaintiff: Latus, Latas & DiPippo, P.c. 22-] 5 31>1Street, 2"J Floor Astona, nY 11 JOS Clerk of the Court Attorney for Defendants Seagull Islandia, LLC. Arcsco Management, Ltd. and Ball Construction LP: Cornell Grace, P.c. 225 Broadway, SUlte 1400 New York, NY 10007 AttorneY' for Defendant Essential Electric C01]). Bello & Larkin ISO Motor Parkway, Hauppauge, SUIte NY 11788 405 [* 2] Stissi v. Seagull Island. Index No.: 17107/2009 lOt al. Upollthe following papers numbered 1 to 28 read upon tillS motIon for summary Judgrnent :1I1dcn.lS'; ITlotlon fur le:lve [0 serve second supplemental blll of particulars: NotICe of rvlotit11land suppurtll1g papers, I - 15. Notice of Cross Motion and supporting papers, 10 - 24: Answering Allid:lvilS and supporting papers, 16 - 18,25 - 26: RcplYlng AffidaVits and supporting I)apcrs, 27- 2S. It IS ORUl:;RED that this motion by defendants Seagull Islandia, L.LC., Aresco Management Ltd. and Ball ConstructIOn, LP. for an order pursuant to CPLR 32J 2 grant ing sUlllmary J udgrnent III their I'avor disrl1lsslng: !he complmrH as against them is denied: and It lS further ORDl:'RE'D that thiS cross mOlion by plallltiff for an order pursuant I'llIII leave to serve d second supplemental billaI' particulars IS granted. to CPLR 3042 grantmg Thls IS an actlOn to recover damages for injUries allegedly susta1l1ed by plaint liT on .Ianuary 5, 2009 during the course of hiS employment WIth non-party Cable Worx, thc communicatIOns ne! wor!dng cable contractor, when he C:lme in contact with exposed electrical wIring whi Ie standing on :1 ladder and was electrocuted and fell. The accidcnt occurred III the second floor conference mom of a bul1cilng located at 2950 Exprcssway Drivc South, IslandIa, New York. The building IS u\Vncd by ckfendant Se'-lgull Islandia. L.L.C. (Seagull). Defendant Aresco Managcmcnt Ltd. (Arescu) was the property manager for defendant Seagull. Non-party United Hcalthcare leased the second flour or the building from clefendant Seagull. At the time of plaintiff's aCCIdent, Unlled Healthcare was remodeling, or renovating, its leased space and had hired defendant Ball COllstructlUn, L.P. (Ball) as general contractor. Defendant Ball had hired defendant Essential Electric Corp. (Essential Electric) as an electncal subcontractor for the project. UnrteJ He<.rlthcare contracted directly \Vlth plaintllTs employer By illS complaint, plamtifl alleges causes of actlon forcOlT1mon-law negligence und vIol allons or Lahor Law ~~ 200, 240 and 241 (6). The Court's computerized records indic~lle thai the note of ISSUCIn thiS action was filed on January 1,10 I1. Defendants Seagull, Aresco and Ball now move for summary Judgmen! dismissII1g the compl:lInl as agall1:~t thelll on the grounds that they did not direct, supervise or control plainlJlT's worl\ and did nOl create or have any notice of any dangerous condition, and that plaintiff sulleI'cd :1\vorKplace hazard unrelated to pl~lIntitTs need for a sarety dC-Vice under Lahor Law ~ 24(). They ~llso argue lhat they arc elltnled to slllllm:lry judgment lnasmuch as Lahor Law ~ 241 1.6) IS Inapplicable to remodeling projects and, III allY event, plaintl!l cannot dcmonslTate that defendants vIolaled ,Iny proVIsIon of the Industrial Code or that any such violation was a substantial I'actor In L:auslIlg thc subJcct aCCident. Their SUbl111sslOnsIn support of the motion include the pleachngs. pLlIl1tiIrs bi lis of parl](.:ulars, the contract between Ulllteu Ilealthcare and defendant Ball, the suhcuntracl hetween defenciant Ball and defendant Essential Ele-ctne, the discovery respollses 01' defendant EsselltJaI Electnc. the deposllion transcripts uf plall1tiff, Cr:ug Paciover all behalf of defendant Are-sco. Theodore F Wanen on behalf of defendant BaiL and Robcrt J. Kuufman on hehall' or defendant Essellllal Electric and a Ball inCIdent report. [* 3] Slissi v. St'agullisiancl. ('1al. Index No.: 1710712009 Page .3 In opposition to the motion, plaintiff contends that he was not provided with adequate safety devices under Labor Lmv ~40 to prevent him from railing after being electrocuted and that he has slated a claim under Llhor Law § 241 (6) based on a violation of 12 NYCRR § ~.3-L13 tb)(4) inasmuch as he was engaged in an '·alteration" of the building berng renovated. PhlintilT also \.'ontcnds that defendants had authOlity to cOlllral the manner of plaintiff's work inasmuch as defendant Arcsco visited the property and watched thc progress of construction and defendant Ball coordinated I-vhcn the trades would work ,-Ind the work they would perl·orm. PIUIlltltl i"llrthcl' contends rhal dcl'cndunls created and had notice or t he dangerous condition lli"the exposed Junction hox and poor lighting conditions. * Plallltiff cross-moves for an order pursuant to CPLR 3042 granting him leave to serve a second supplemelllal bill ofpm1iculars adding lhe allegation that defendants violated 12 NYCRR 2.3-1. 1.3 (b)( 4). Plaintiff maintainS that said allegation was inadvertently omitted from his hill of particulars and supplemental bill of pal1iculars, thut the proposed second supplemental bill of pal1iculars has merit, and that defendants will not be prejudiced by the new allegation as it docs not raise a new theory of liability Of new facts. PlaintilT submits his proposed second supplemental bi II of pal1iculars in support of his cross motion. * Defendant Essenlial Elecllic argues in opposition to the cross motionlhat the Ilew allegations arc inapplicable to it and defendants Seagull, Areseo and Ball argue III opposition that the new allegations constitute new theones and a prejudicial altempt at this lafe Junctufe to avoid dismissal on summary judgment. Defendants Seagull, Arcsca and Ball contend thai the new Industnal Code proviSion is completely di fferent from the provisions plainti ff originally alleged and that defendants have had no opportunity to eonduci discovery related to said new provision. 12 NYCRR ~ l.l~ (b) (4) provides: Protection of empluyees. No employer shaJJ surfer or permit an cmployee 10 work 10 such proximity to any part of an electric power circun that he may contact such circuit in the course of his work unless the employee IS protected against electnc shOCK by de-energizing the circuit and grounding It or by guarding such circuit by clTective insulalion or other meuns. In work areas where the exaCl locations of underground electric power hnes are unknown. persons usingjack hammers, bars or other hund lools which may contact such power lines shall be provided with insulated protective gloves. body aprons and footwear. Paragraph -+ or plaintilT" S OIiglnal bills of particulars include ullegations that defendants were ncgligent "in failing to shUl down the electJical power whi Ie the plainriff was work Ing: in fadlllg to sccure all electrical boxes and/or junction boxes: in failing to properly cap any and all eleclrical wires: 1IlaJJowlIlg uncapped clcctncal wires to remain exposed." [)Iaintill"s proposed second supplemental bill of particulars docs not prejudice defendants ill,lSlllUCh as it docs IWI articulate a nc\v theory of liability. but merely al1'lplil"ics plaintJlT"s L~lhor [* 4] Stissi \'. Sl',lgull Island. ct al. ludE'"\: No.: 1710712009 PagE' -l Law ~ 141 (6) cause of aCllon (see f-lagenul1l v lIome Depot U.S.A., fIlC., 4S ADld 730, 846 N YS~d plaintiff's request for leave 10 serve a second supplemental billllt· particulars in order to assert a violation of 12 NYCRR 23- I 13 (b)(4) as a predicate for his Labor Law ~ 241 (6) cause of UCtiOIlIS granted (see id.). 302 [2d [)Cpl 2007]) Therefore, Plainti frtestl fled al his deposllion 011 October 19.2010 that on Ihe date oflhe aCCident he was Inslall ing new cable wmng by runmng it lhrough the dropped ceiling of the conference roOIll. He indicated that he was standing on a step, second from the top. of an approximately eight-step. fiberglass. A-frame, Cable Worx ladder, that he described to be in good condition. I Je was alone in the conference room Platntiff explained his work as running a "cat six" cable lhrough the dropped ceiling to a condUIt, hollow pipe, through rhe wall and dropplllg the cable into ajem box in the wall. Plarntiff described the dropped ceiling as being :J.pproximately ten feet above the floor and the area abuve the dropped ceIling as approximately five feet ll1 height. There wcre no ceiling lllcs. In addition. plainUfftcsII I"iedlhat when he looked Into the space above the dropped ceiling to see where [he Glble was ,1l1dwhere il was tt) run, he saw no WIring. Approximalely five minutes aftcr having entered Ihe room he received an electrical shock 10 hlS left h:J.ncl. He stated thai he \vas nol weuring any gloves and hIS hand \vas about :J.fOOl or !'oot-:J.nd-a-half above the dropped ceiling when he receiwd all electrical shock. Plamtiff believed thatlhe electrical shock callle from a junction box in the ceiling above him which had no plate on It and had exposed wires. He did not observe the wire that gave him the electrical shock. No one else was III the room when the accident occurred. His [cstimony indicates th:J.lafter the electlicul shock he found himself crouched on metal slUds three 10 three-and-a-half feet :J.WUY from the ladder. He also testified that he did nOI know i frhe ladder wus in lhe same location that il was prior to his fall. According to plall1till, after hiS I"all,Ted Warren entered the room and asked hIm irhe was alright and afler plamtiff walked oul of the room, Ted Warrell called the clectrtclan ll1tO lhe l"(lom and pl:lIllti f1'overheard W,lITen asking the electricIan If there was Iive eleCII"lClly in the room and [hc electriCian giggled :J.nd responded "of course there's live electricity in the roOl11." Plaintiff further testified that he had never been in the conference room prior (0 the d:J.tc of the accident, und that there were electricians working at the job site Ihat day. Plaintirf also JesClibed that generally when working alongside electricians, the electricians entered rhe work site before the communication workers and notified the communications workers if there was runllinge1cclrlcity in the work :J.rca. On lhe dale of the accident none of the electricians notified plaintiff :J.nd he did not speak 10 any electricians prior 10 his accident. Craig Padover testified at his depOSition on March 16.20 II that he IS president of c1efcndalll Aresco. ;,t commercial real estate man:J.gemellt company, which manages the suhjecl bui lding owned hy defendanl Seagull. He lesllfied that he visited the property two to three times a week prior to the subject lllcidcnt. was present ill the building on the datc ot'the incident. and that as propel1y man;lgcI· he had 110 dulles or responslbi llttes to oversee or monitor the project. Mr. P:J.dover reculleJ ,mother incident involving an Essential Eleetnc electrician workmg al a panel on the north Side of Ihe building in ,,·hieh there was an ex.ploslon at the panel but he could not recall whether It W:J.S prior to or subscquclH to plaintiff's incidenl. He :J.lsorecalled an incident. subsequcnt 10 plalntl ff S Incidelll. [* 5] Stissi \'. Scagullisialld. ct .11. Index No.: 1710712009 Pagc 5 in \vhich a wnrker sustained a low voltage electric shock. Ile stated that if he had seen an unsafe condition prior lO plmntiff's accident he would have notified Ted Warren, and that he did not rcc~dl ma)..:lng any such complamts. The deposition testimony of Theodore F. Wancn on March 16, 2011 reveals that hc was a construction superintendent for defendant BaJl, which began work on the renovation in mldNovember 2008. ML Warren testified that he was the fuJJ-lime supeJintendent of the subject project and that his duties Illvolvcd coordinating {he trades and keeping the client schedule and that he rep0l1ed lO a United Heallhcarc representative and to Craig Padover regarding any building related Issues. He stated that he met regularly with Mr. Padover, who stopped at the budding on a daily basis. Lou Ottranda was the project manager and Michael Cooney was the general supervIsor. In addition, he testified that as the general contractor, defendant Ball hired the various trades working on the project, including Essential Electric. He also stated that Essential Electric had a supervIsor or foreman present on a regular baSIS named Eddie Gomez and a project manager named Andrew Rabbi who was present approximately once a month. Mr. WalTen expJallled that there would be weekly job site meetings with the trades and the trade foremen, including Mr. Gomez, that mcluded the discussion of safety issues. He stated that generally the electricians work first and are still on the site when the cablc contractor is working, and that there was no safety meeting regarding coordinating the electrical and communicalions and data wiling of lhe building prior to the subject accident. According to Mr. Wan·en, Essential Eleclric was present on the job site at the beginning of the projcct and Cable Worx slarted shortly before plaintiff's accident. There were weekly coordinalion meetings with the representative of the client, United Healthcare, and Mr. Padover, and during one such meeting he would have told the client representative that he was ready for the cable workers to come in and work with the other trades. Mr. Warrcn also testJl'icct that plaintiff and hiS partner had reported to him 011 the morlllng of the incident and Mr. Warren showed them wherc the comtnulllcations closet was located, twO rooms :Iway from the room where the incident oCCUlTed, but he did not take any steps to make sure that they were not working in the same area as the electricians. He further testified that he had finished a c1icnt meeting in a pantry area of the job site when he heard an atypical noise from another room and when he went [0 investigate he and plaintiff met at the door of the room plamtiffhad been in. He desclibed plaintiff as irate and when asked whether he was okay, plaintiff responded that he had just been electrocuted, that there was an open box that was live above the ceiling and that as he was pullmg cable his hand hit the open box wires. ML Warren noted that prior to the meeting plaintiff had been working with another employee and he asked plaintiff after the incident where his partner was and plallltitT said that he had left. Mr. Wan'en believed that the lack of a partner contrlbutcd to plaJlltdf's accident and that it was 110t(he responslblltty or Ball to provide safelY equlpmenl. Mr. Warren deSCribed the height of fourleen feel. There \\IUS an A-fTame ladder localed III the room where plaintiff's accident lhat the cover was held in the open position the grid ceiling JS eight feet and the cedmg above as in the room. Mr. WalTen observed the junction box oCCUlTedund saw that it was six inches by six inches, by one screw. and that approxllnatelylO wires were [* 6] Stissi v. Se~gl1l1 Island. ct <II. Index No.: 17107/2009 Page 8 proper protection, and whether plalIltiff should have been provided with additional safety devIces (see Gange v Tilles 1/1v, Co., supra; see a/so Quackenbush v Gar-Bell Assocs., 2 AD3d 824, 769 NYS2d 387 j 2d Dept 2003]) Therefore, that portion of defendants' motion for summary Judgment disrnlSSlTlg plumtiff'::; Labor Law ~ 240 (1) cause of action is denied. * Labor Law 241 (6) provides: "All areas 111 which construction, excavation or demolItion work IS being performed shall be so constructed, shored, cqLllpped, guarded, ammged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therem or lawfully frequenting such places." Labor La\v ~ 241 (6) "imposes il nondelegable duty of reasonable care upon owners and contractors 'to provide reasonable and adequate protection and safety' to persons employed Ill, or lawfully frequenting, all areas in which construction, excavatIon or demolition work is being performed" (Rizzuto v L.A. WellgerColltr. Co., 91 NYld 343, 348, 670 NYS2d 816 1I998J, quoting Labor La\v S 141 [6j: see llarri~<ollv State, 88 AD3d 95 1,931 NYS2d 662 [2d Dcpt 2011]). Inasmuch as the statllte is not self-executing, a plaintiff must allege il VIOlation of a specll'ic and applicable provisIon of the Industrial Code (see Wilinski v 334 East 92mllIolls. Dev. Fund Corp., supra; Ross v Curtis-Palmer Hydro-Elec. Co., supra; Jam v New York Racing /1."'.m" Illc .. 8) AD3d 1121, 1113,9'27 NYS2d 87 [2d Dept 20 Ill; f)'Elia v City (~f New York, 81 AD3d 682, 684, 9J() NYS2d IY6 [Old Dept 201 I]). * LahorLaw 24 I (6) applies to the subject project because it involved alteration of a bUilding or structure, which satIsfies the definItion of construction work (see 12 NYCRR 23-1.4 [b]lJ 31: McLean v 405 Webster Ave. Assocs'., _ AD3d_, 2012 NY Slip Op 06286 [ld Dept20 12,]; see a/so Joblon v Solow, supra; Schick v 200 Blydellhurgh, ['LC, supra; Becker v AND Desig1l Corp., 51 AD3d 834, 837). Pla1l1tiff's \'mrk involved running a cable Into the wall (see McLean v 405 Web,\'ter Ave. Assocs., supra). Defendants failed to demonstrate that plallltifl' \vas not engaged 111 a covered actIvity when he was Injured. that there was no VIOlation of the relevant Industnal Code SCCllOIl,12 NYCRR 2:"i-l.13[bH4]. and that such VIOlation was not a proximate cause of hIs injury (see f1arri.\' v Arnell COIl.\·tr. orp., 47 AD3d 768, 850 NYS2d 547 ['2d Dept 2008]). Therefore, that C portioll of defendants' motIOn I'or summary Judgment dismissing plaintiff's Labor Law 241 (6) cause of action is denied * Labor Law ~ 200 IS a coclJfication of the common-law duty of landowners and gener~d COll!T,lCtorSto provide workers with a reasonably safe place to work (,1'(;'1:' Comes v New York State Elee. and Ga,')" orp., 81 NY2d 876, 609 NYSld 168 [1993J; RO,H l' Crtrtis~Palmer llydro·Electric C Co., supnt, Lombardi v Stout, 80 NYld290. 590 NYS2d 55 11992]; Rojas v ,Schwartz, 74 AD3d ]046,003 NYSld 484 [lei Dept 1010]). Where a dangerous conditIon of premises is at ISSllt~, property owners mdY be held liable for a violatioIl of Labor Law 200 or based on commoIl-la\-v negl igence i r t hc owner c]thcr created the dangerous condition Lhat eauscdthe aCCIdent ur had ~letll,l1 ur consLructl ve notice of the condition (see Ortega v Puccia, 57 AD3d 54, 866 NYS2d 323 [2d Dcpt l008]). By contrast, when a cl<mn arISes out of alleged defects or dangers In the methods or materials of the work, there CWl be no recovery against the owner or general contractor under Labor Law 200 or cornman-law negligence unless it is show'Il that the party to bc charged had the :lllthority to superv] sc or control the perl'orrnance of the work (.I'I:'C id,). * * [* 7] Stissi v. Seagull Island. et al. Index No.: 1710712009 Pag(' <) There rem<lln trrable Issues of fact as to whether defendants exercised sufficient dircctlon and control over the performance of the work to Impose IwbllJty under Labor Law 200, and questions of fact \vlth respect to notlCe and prOX11l1<lteause (see Bardouille v Structure· Tone, Inc., 282 AD2d c 635.724 NYS2d 75l [.ld Dept 2001]). There is contradictory testimony as to whether the 11lcidenl IllVOlvlllg an electrical panel exploslOn occulTed prior to or after plaintiff's Incident, and if It did occur prior to plaintiff's incldcnt, It 105 unclear whether it would have provIded notice regarding plainti I'f's incident. Therefore, that pOl1ion of defendants' motion for summary Judgment dismlssing plaintiff's Lahar L.lw ~ 200 unu common-law negllgence causes of action IS denied. * I\ccordmgly, the motion for summary Judgment IS denied and the cross motion for leave to serve a second supplemental bill of particulars is granted. Dated: I 1ff} (Ll c· I - I ; - I ,'t '~r I' t(,i..,i ~ -L'"li}'~"',- / .",J/{, )tC(C$-l '.( /.' .. ' , .. ·\..,,'t-t HON. WILLIAM B. REBOLlNI, .I.S.C. ___ FINAL DISPOSITION x NON-FINAL DISPOSITION
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