Kauffman v New York City Sch. Constr. Auth.

[*1] Kauffman v New York City Sch. Constr. Auth. 2017 NY Slip Op 50455(U) Decided on March 27, 2017 Supreme Court, Queens County McDonald, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 27, 2017
Supreme Court, Queens County

Craig Kauffman, Plaintiff,

against

New York City School Construction Authority, Defendant.



700419/2015
Robert J. McDonald, J.

The following electronically filed documents read on this motion by defendant for an Order pursuant to CPLR 3212, granting summary judgment to defendant and dismissing the complaint:

Papers

Numbered

Notice of Motion-Affirmation-Exhibits...............EF 37 - 54

Affirmation in Opposition...........................EF 55

Reply Affirmation...................................EF 56

This is an action to recover damages for personal injuries allegedly sustained by plaintiff on June 3, 2014 when he tripped and fell on a scaffold due to uneven, raised wooden planks, and his helmet flew off. Plaintiff alleges that as he fell forward, his head hit a support beam from the ceiling and he proceeded to fall backwards.

Plaintiff served a Notice of Claim on July 7, 2014. He appeared fora General Municipal Law 50-H on October 17, 2014. Plaintiff commenced this action on January 16, 2015 by filing a summons and complaint, claiming that defendant violated

New York Labor Law §§ 240(1), 200, and 241(6), as well as various sections of Rule 23 of the Industrial Code of New York and common-law negligence. Defendant served a verified answer on [*2]March 2, 2015. A Note of Issue was filed on August 18, 2016. This matter is currently pending on the Trial Scheduling Part's calendar for June 8, 2017. Defendant now timely moves for summary judgment.

In support of the motion, defendant submits an affirmation from counsel, Porsha Johnson, Esq.; a copy of the Notice of Claim; a copy of the transcript from the 50-H hearing; a copy of the pleadings; a copy of the verified bill of particulars; copies of the compliance conference order and the preliminary conference order; copies of the transcripts of the examinations before trial of plaintiff taken on July 5, 2016 and defendant by Lissa Pauld taken on September 20, 2016; a copy of the Note of Issue; a copy of the supplemental verified bill of particulars; printouts of 12 NYCRR 23-5.1 and 234-1.7; and a copy of the jobsite incident report.

At his examination before trial, plaintiff testified that in May of 2014 he was employed as a bricklayer at a jobsite located on Hillside Avenue, in Queens County, New York. He was assigned to the job for approximately six weeks and was supervised by Joe LaBerbera, a foreman named Tommy, a bricklayer foreman named Mark, and two foremen both named John. All of his supervisors and foremen were employed by Silverite Construction and instructed him on what to do each day. He did not report to anyone else, no one else provided instruction on the performance of his work duties, and no one else inspected or supervised his work. On the day of the incident, he reported to work at 6:30 a.m. He received instructions from his supervisor, Tommy. He was assigned to work in the basement, laying blocks in an elevator shaft and adjusting the width between the cinderblocks. He was required to use a scaffold constructed by Silverite Construction. The scaffold extended the entire width of the elevator shaft. The scaffold had a pipe frame with wooden plank platforms. The scaffold was equipped with railings around the open areas. While working on the scaffold platform, a laborer yelled his name for him to retrieve a cut block. He turned and moved toward the location where the cut block was located. While retrieving the cut block, the front portion of his right foot tripped on a raised platform board, causing him to strike his head on an overhead structural beam. He did not fall to the ground below, but fell backward onto the scaffold platform. At the time of the incident, he was moving decently quickly. He was not running. After his fall, he observed a raised platform board. The board was made of wood and raised approximately two to four inches high. He did not see the raised board at any time prior to his fall. After the incident, he informed his supervisor Joe. He completed an accident report the following week. At the time of the incident, and for the entirety of the day leading up to the incident, the scaffolding platform [*3]and work area had debris all over it. However, he did not slip on any substances on the floor of the scaffold platform. He made no complaints regarding the scaffold platform or the scaffold boards at any time. There were issues with lighting at the site, which he complained of prior to the subject incident. The morning of the incident, he complained of the lighting at the site. He spoke with Tommy during the coffee break and stated that he needed light.

Lissa Pauld appeared for a deposition on behalf of defendant. She testified that she has been employed in the construction industry for 20 years and by defendant for seven years as a Project Officer. She is responsible for overseeing the construction of schools in New York City. She monitors the schedule and construction activity in the field. She was assigned as the Project Officer at the subject location. Defendant owned the jobsite and acted as construction manager of the project. Silverite Construction won the bid to act as the General Contractor of the project. There were two other project officers employed by defendant on the jobsite as well as support staff. Defendant maintained an office on the jobsite. Defendant had to approve any and all contractors hired to work and had the authority to stop work if they saw an unsafe condition. Defendant had site safety people on site on a regular basis who walked the site and inspected the work. Silverite Construction employed site safety management at the project and conducted weekly safety meetings. As construction manager, defendant oversaw the project, but did not perform or partake in any construction work or activity. Defendant contracted only with Silverite Construction and did not enter into an agreement with any subcontractors. Defendant did not provide any safety equipment on site. She was notified of plaintiff's incident by Silverite Construction Site Safety Manager, Barry McGregor. She completed an accident report.

Based on the above testimony, counsel for defendant contends that summary judgment must be granted in favor of defendant. Counsel first argues that Labor Law § 240 is inapplicable because the incident was not caused by an elevated or gravity related activity. Next, counsel argues that the Industrial Code violations cited by plaintiff are inapplicable, and thus, do not support a Labor Law § 241(6) claim. Lastly, counsel contends that plaintiff's claims of negligence and violations of Labor Law § 200 fail as defendant did not supervise or control plaintiff, and defendant did not provide any equipment to plaintiff.

In opposition, counsel for plaintiff, Michael C. O'Malley, Esq., contends that there is at least a triable issue of fact as to whether defendant was negligent in its supervision of the site [*4]as the testimony established that defendant had three project officers on site at all times, a safety staff that came to the site on a regular basis, and as defendant had the authority to stop work and have conditions rectified. Regarding Labor Law § 241(6), counsel contends that the debris on the platform, uneven planking, poor lighting, and a scaffold constructed with a top platform just five feet directly under an overhead beam establishes a viable cause of action. As to Labor Law § 240(1), counsel argues that it was the scaffold's height that subjected plaintiff to an injury as plaintiff struck his head on an overhead beam. The appropriate safety device would have been one that lowered the height of the scaffold so as not to allow plaintiff to be injured by the beam that was above him.

The proponent of a summary judgment motion has the initial burden of submitting evidence in admissible form demonstrating the absence of any triable issues of fact and establishing an entitlement to judgment as a matter of law (see Ayotte v Gervasio, 81 NY2d 1062 [1993]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]; Zuckerman v City of New York, 49 NY2d 557 [1980]). Once the requisite showing has been made, the burden shifts to the opposing party to produce admissible evidence sufficient to establish the existence of a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]).

Labor Law § 200 is a "codification of the common-law duty imposed upon an owner or general contractor to provide construction site workers with a safe place to work" (Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 877 [1993]). It follows that the party charged with responsibility must have the authority to control the activity that caused the injury, or have actual or constructive notice of the alleged unsafe condition to be liable under common-law negligence and/or Labor Law § 200 (see id.; Gallagher v Resnick, 107 AD3d 942 [2d Dept. 2013]; Acosta v Hadjigavriel, 18 AD3d 406 [2d Dept. 2005]).

The evidence in the record demonstrates that defendant did not supervise, direct, or control the method or manner in which plaintiff performed his work (see Lofaso v J.P. Murphy Assoc., 37 AD3d 769, 771 [2d Dept. 2007]). Plaintiff testified that he had no contact with any of defendant's employees, and no one, aside from Silverite Construction's employees, instructed him on what to do. Although defendant was the owner and manager of the jobsite, mere presence at the jobsite and the ability to perform general supervisory control over a jobsite, is insufficient to impose liability under Labor Law § 200 (see Orellana v Dutcher Ave. Bldrs., Inc., 58 AD3d 612 [2d Dept. 2009]). Moreover, "the [*5]right to generally supervise the work, stop the contractor's work if a safety violation is noted, or to ensure compliance with safety regulations and contract specifications is insufficient to impose liability under Labor Law § 200 or for common-law negligence" (Gasques v State of New York, 59 AD3d 666, 668 [2d Dept. 2009], aff'd 15 NY3d 869 [2010]; see Russin v Louis Picciano & Son, 54 NY2d 311 [1981]); Austin v Consolidated Edison, Inc., 79 AD3d 682 [2d Dept. 2010]). Here, the deposition testimony of Ms. Pauld demonstrated that defendant's authority was limited to overseeing the construction, which is insufficient to impose liability under Labor Law § 200. In opposition, plaintiff failed to raise a triable issue of fact as to whether defendant possessed authority to supervise or control the work sufficient to render it liable under Labor Law § 200. Moreover, plaintiff himself even testified that he was exclusively supervised by Silverite Construction employees.

Labor Law § 240(1) provides that "[a]ll contractors and owners . . . shall furnish or erect, or cause to be furnished or erected . . . 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 [construction workers employed on the premises]" (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 499-500 [1993]; see Mingo v Lebedowicz, 57 AD3d 491 [2d Dept. 2008]). The purpose of this statute, commonly referred to as the "scaffold law," is to protect workers "by placing ultimate responsibility for safety practices at building construction jobs where such responsibility actually belongs, on the owner and general contractor, instead of on workers, who are scarcely in a position to protect themselves from accident" (Zimmer v Chemung County Performing Arts, 65 NY2d 513, 520 [1985][internal quotation marks omitted]). To prevail on a Labor Law § 240(1) cause of action, a plaintiff must establish that the statute was violated and that the violation was a proximate cause of the injuries (see Blake v Neighborhood Hous. Servs. of NY City, 1 NY3d 280 [2003]; Melchor v Singh, 90 AD3d 866 [2d Dept. 2011]; Rudnik v Brogor Realty Corp., 45 AD3d 828 [2d Dept. 2007]). A plaintiff cannot recover under Labor Law § 240 (1) if his or her actions were the sole proximate cause of the injuries (see Blake v Neighborhood Hous. Servs. of NY City, 1 NY3d 280 [2003]; Rudnik v Brogor Realty Corp., 45 AD3d 828 [2d Dept. 2007]).

Here, this Court finds that plaintiff's incident is outside the scope of Labor Law § 240 (1). Although plaintiff fell while he was at an elevated level, the incident occurred at the same level of plaintiff's work site, and thus, plaintiff's injury was not a result of an elevation-related risk (see Melber v 6333 Main [*6]St., 91 NY2d 759 [1998]; Nieves v Five Boro A.C. & Refrig. Corp., 246 AD2d 41 [2d Dept. 1999]; Reyes v Magnetic Constr.,Inc., 83 AD3d 512 [1st Dept. 2011]). Although plaintiff's counsel contends that the scaffold height should have been lowered, counsel fails to cite to any authority to support such contention.

To support a cause of action under Labor Law § 241(6), a plaintiff must demonstrate that the injuries were proximately caused by a violation of an Industrial Code provision that is applicable given the circumstances of the accident, and sets forth a concrete standard of conduct rather than a mere reiteration of common-law principals (Ares v State, 80 NY2d 959 [1992]; Adams v Glass Fab, 212 AD2d 972 [2d Dept. 1995]).

Plaintiff does not oppose defendant's branches of the motion seeking dismissal, on the grounds that such sections are inapplicable, of the cause of action under Labor Law § 241(6) premised on Industrial Code §§ 23-1.11, 23-1.15, 23-1.16, 23-1.17, 23-1.19, 23-1.22, 23-2.1, 23-5.1(a),(f),(c)-(e), (g)(k), 23-5.2, 23-5.3(a), (b), 23-1.7, and 23-1.7(e). Accordingly, dismissal is warranted regarding the above cited Industrial Code violations. Plaintiff does address three sections of the Industrial Code, §§ 23-5.1(I), 23-1.7(c)(1), and 23-1.30. Specifically, plaintiff alleges that pursuant to § 23-5.1(I), overhead protection should have been provided. Industrial Code § 23-5.1(I) sets forth the specifications for planking size and planking strength in circumstances where overhead protection is required. This section has been interpreted to require overhead protection in circumstances where protection was necessary due to objects falling from above onto workers below (see Zervos v City of New York, 8 AD3d 477 [2d Dept. 2004]). Here, plaintiff clearly testified that his fall was caused due to a raised platform. Moreover, plaintiff excluded the possibility that he slipped on debris. Plaintiff next cites to Industrial Code § 23-1.7(c)(1), however this section does not exist. Lastly, counsel cites to § 23-1.30. This section was first pled in plaintiff's supplemental bill of particulars, which was served after plaintiff filed the Note of Issue. This Court directs defendant to accept the supplemental verified bill of particulars as there was merely a two month delay from when plaintiff filed the Note of Issue until he served the supplemental verified bill of particulars. Moreover, defendant will not be unduly prejudiced or suffer surprise by such amendment as plaintiff was questioned about the lighting conditions at his deposition. Specifically, plaintiff testified that on the morning of the incident he told the foreman Tommy that he needed light. Based on such testimony, plaintiff raised an issue of fact regarding whether the lighting conditions contributed to the incident and whether defendant violated [*7]Industrial Code § 23-1.30 given the circumstances of the incident.

Accordingly, and based on the above reasons, it is hereby

ORDERED, that defendant's branches of its motion for summary judgment on plaintiff's claims premised upon Labor Law § 240(1), Labor Law § 200, and common law negligence are granted; and it is further

ORDERED, that defendant's branch of its motion for summary judgment on plaintiff's claims premised upon Labor Law § 241(6) is denied as to Industrial Code § 23-1.30 only.

Dated: March 27, 2017

Long Island City, NY

ROBERT J. McDONALD J.S.C.