Cruz v Seven Park Ave. Corp.
Annotate this CaseDecided on November 5, 2004
Supreme Court, Kings County
Juan Ray Cruz, Plaintiff,
against
The Seven Park Avenue Corporation, National Restaurants Management, Inc., (d/b/a The Riese Operation, Riese Restaurants and Le Crosoissant Shop); 7 Park Ave. Operating Inc., Bellstell 7 Park Avenue Llc., and Riese Restaurants,, Defendants.
24917/99
Ira Harkavy, J.
Upon the foregoing papers, defendant Seven Park Avenue Corporation (Park) moves, pursuant to CPLR 3212, for summary judgment dismissing plaintiff Juan Ray Cruz's (plaintiff) complaint against it. Defendants National Restaurants Management, Inc., d/b/a Le Croissant Shop (National), 7 Park Avenue Operating, Inc. (Park Operating), and Riese Organization (Riese) (collectively, the National defendants) move for summary judgment dismissing plaintiff's Labor Law §§ 240 (1), 241 (6), and 200 claims against them. Plaintiff cross-moves for summary judgment [*2]against the National defendants under his Labor Law §§ 240 (1), 241 (6), and 200 causes of action. In a separate cross motion, plaintiff moves for summary judgment against Park under his Labor Law § 240 (1), 241 (6), and 200 causes of action.
Background Facts and Procedural History
The instant action arises out of a July 18, 1996 accident in which plaintiff sustained various injuries. At the time of the accident, plaintiff was employed by non-party Johnson Mechanical (Johnson) as an air conditioning technician/repairman. On the day of the accident, plaintiff and a co-worker/helper were dispatched by Johnson to repair a non-functioning air-conditioning unit on the first floor of a commercial building located at 34th Street and Park Avenue in Manhattan known as "Le Croissant Shop (the premises or the shop)." The premises was owned by Park and leased and/or managed by the National defendants.
Upon entering the premises, plaintiff was informed by the manager of the shop that the air-conditioner was not working. Plaintiff then determined that the subject air-conditioning unit was suspended from the sub-ceiling of the premises and that there was a sheet rock ceiling between the air-conditioner and shop. Accordingly, in order to gain access to the air-conditioner, plaintiff and his co-worker set up a Johnson-owned 6-foot A-frame ladder below the position of the air-conditioning unit. Thereafter, while his co-worker held the ladder, plaintiff climbed the first step of the apparatus and began to saw through the sheet rock ceiling using a hand saw so that he could inspect the air-conditioner and make repairs. However, as plaintiff was sawing through the sheet rock, an access panel on the air-conditioner suddenly swung down, broke through the sheet rock, and struck plaintiff in the left eye. Plaintiff then fell off the ladder. There is no evidence that the ladder moved or shifted at the time of the accident.
By summons and complaint dated June 4, 1999, plaintiff brought the instant action against Park and the National defendants alleging violations of Labor Law §§ 240 (1), 241 (6), 200, as well as common-law negligence. In addition, plaintiff asserted a negligent hiring claim against the defendants. The instant motions are now before the court.
Plaintiff's Labor Law § 240 (1) Claim
Park and the National defendants separately move to dismiss plaintiff's Labor Law § 240 (1) claim. In so moving, these defendants raise the same arguments. Specifically, the defendants argue that the sole proximate cause of the accident was plaintiff's own actions rather than any defect in the ladder. In the alternative, the defendants maintain that the work that plaintiff was carrying out at the time of the accident amounted to routine maintenance and was not covered under Labor Law § 240 (1).
In opposition to these branches of defendants' respective motions, and in support of its own cross motions for summary judgment against defendants under Labor Law § 240 (1), plaintiff argues that, inasmuch as he was attempting to repair a non-functioning air-conditioning unit that was structurally attached to the ceiling of the premises, his work was more than "routine maintenance" and is covered under the statute. Plaintiff further argues that, inasmuch as he fell from the ladder that he was standing on, his injuries were caused by the inadequacy and/or lack of the type of safety devices enumerated in Labor Law § 240 (1).
Labor Law § 240(1) provides in pertinent part that: "All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or [*3]control the work, in the erection, demolition, repairing, [or] altering . . . of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance 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 employed."
Labor Law § 240(1) was enacted to "prevent those types of accidents in which the scaffold, hoist, stay, ladder or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person." (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [1993]). In order to accomplish this goal, the statute places the responsibility for safety practices and safety devices on owners, general contractors, and their agents who "are best situated to bear that responsibility" (id. at 500; see also Zimmer v Chemung County Perf. Arts, 65 NY2d 513, 520 [1985]). "The duty imposed by Labor Law § 240(1) is nondelegable and . . . an owner or contractor who breaches that duty may be held liable in damages regardless of whether it has actually exercised supervision or control over the work" (Ross at 500). Furthermore, the statute is to be construed as liberally as possible in order to accomplish its protective goals (Martinez v City of New York, 93 NY2d 322, 326 [1999]). However, "[n]ot every worker who falls at a construction site . . . gives rise to the extraordinary protections of Labor Law § 240 (1) (Narducci v Manhasset Bay Assocs., 96 NY2d 259, 267 [2001]). Rather, only those accidents proximately caused by a Labor Law § 240 (1) violation will result in the imposition of liability under the statute (Blake v Neighborhood Hous. Services of New York City, 1 NY3d 280, 287 [2003]).
Initially, there is no merit to defendants' argument that plaintiff's own actions were the sole proximate cause of the accident. Generally speaking, the sole proximate cause defense applies when there is evidence that a worker misused a safety device. For example, in Blake, which defendants rely upon in support of their argument, there was evidence that the plaintiff failed to engage the locking clips on a ladder that ultimately collapsed (Blake, 1 NY3d at 285).[FN1] Similarly, in Plass v Solotoff (5 AD3d 365 [2004]), the plaintiff voluntarily elected not to use two planks on a scaffold, thereby leaving a three and one-half-foot gap on the scaffold platform.
Here there is no evidence that plaintiff misused the ladder that he was standing upon or that his act of standing below the sheet rock that he was sawing through was the sole proximate cause of the accident. Indeed, the evidence before the court indicates that his was the only way that plaintiff could gain access to the air-conditioning unit.
Furthermore, under the facts of this case, the court finds that plaintiff's activities at the shop constituted repair work under Labor Law § 240 (1) and is therefore covered under the statute. It is true that merely replacing minor components on an air-conditioning unit that periodically become worn-out constitutes routine maintenance and is not covered under Labor Law § 240 (1) (see e.g. [*4]Esposito v New York City Indus. Dev. Agency, 305 AD2d 108 [2003]; Jehle v Adams Hotel Assocs., 264 AD2d 354 [1999]). However, here, plaintiff was attempting to repair a non-functioning air-conditioner that was structurally attached to the premises. Thus his work involved more than simple maintenance (Sprague v Peckham Materials Corp., 240 AD2d 392, 393). In addition, given the fact that plaintiff had to saw through a permanent ceiling in order to gain access to the unit, this was not the type of work that was carried out on a routine or regular basis.
Accordingly, those branches of Park and the National defendants' motions which seek to dismiss plaintiff's Labor Law § 240 (1) cause of action are denied.
Plaintiff's cross motion for summary judgment under his Labor Law § 240 (1) cause of action must be denied as well. While it is undisputed that plaintiff fell from a ladder, it is well-settled that "[a] fall from a ladder, by itself, is not sufficient to impose liability under Labor Law § 240 (1)" (Olberding v Dixie Contr., 302 AD2d 574 [2003]). There must be proof that the subject ladder was defective before a court may award plaintiff summary judgment (Williams v Dover Home Improvement, 276 AD2d 626, 627 [2000]; Avendano v Sazerac, Inc., 248 AD2d 340, 341 [1998]).
Here, plaintiff has failed to present any evidence that the ladder that he was using collapsed, shifted, was inadequately secured, or was otherwise defective. Rather, the evidence before the court merely indicates that plaintiff fell from the ladder after being struck in the eye by an access panel on the air-conditioner. Accordingly, plaintiff has failed to demonstrate that he is entitled to summary judgment under his Labor Law § 240 (1) cause of action (Grogan v Norlite Corp., 282 AD2d 781, 782 [2002]; Weber v 1111 Park Ave. Realty Corp., 253 AD2d 376, 377 [1998]; Gange v Tilles Investment Co., 220 AD2d 556, 558 [1995]).[FN2]
Plaintiff's Labor Law § 241 (6) Claim
Park and the National Defendants also separately move to dismiss plaintiff's Labor Law § 241 (6) cause of action. In so moving, the defendants point out that plaintiff failed to allege any New York State Industrial Code violations in support of his Labor Law § 241 (6) cause of action. In opposition to these branches of defendants' motions, and in support of his own motion for summary judgment under Labor Law § 241 (6), plaintiff has submitted a supplemental bill of particulars in which he alleges violations of 12 NYCRR 23-1.7(a)(1) and (2), 23-1.8(a) and (c)(1), 23-1.15(a-e), 23-1.16(a)-(f), 23-1.17(a)-(e), 23-3.3(b)(5), (c), and (g), 23-1.21(b)(1), (b)(3)(i-iv), (b)(4)(i-v), (b)(8), (e)(1), (e)(2), (e)(3), and (e)(4).
In reply to plaintiff's cross motion, defendants maintain that the court should disregard plaintiff's supplemental bill of particulars since it was served without leave of the court. Defendants also argue that the regulations cited by plaintiff are inapplicable in this case and that, in any event, plaintiff was not engaged in work protected under Labor Law § 241 (6) at the time of the accident.
Labor Law §241(6) provides in pertinent part that: "All areas in which construction, excavation or demolition work is being performed shall be so [*5]constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to persons employed therein or lawfully frequenting such places."
Labor Law § 241(6), which was enacted to provide workers engaged in construction, demolition, and excavation work with reasonable and adequate safety protections, places a nondelegable duty upon owners and general contractors, and their agents to comply with the specific safety rules set forth in the Industrial Code (Ross, 81 NY2d at 501-502). Accordingly, in order to support a cause of action under Labor Law § 241(6), a plaintiff must demonstrate that his or her 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 (Ross at 502; Ares v State, 80 NY2d 959, 960 [1992]; see also Adams v Glass Fab, 212 AD2d 972, 973 [1995]).
Initially, the court has already determined that plaintiff's activities at the time of the accident qualify as "repair" work under Labor Law § 240 (1). Such work also falls within the definition of "construction work" for purposes of Labor Law § 241 (6) (see 12 NYCRR 23-1.4[13]). Consequently, there is no merit to defendants' arguments that plaintiff's work at the time of the accident was not protected under Labor Law § 241 (6).
Turning to the issue of plaintiff's supplemental bill of particulars, technically, plaintiff should have sought leave from the court prior to serving this pleading alleging various Industrial Code violations. However, as long as no new factual allegations or theories of liability are raised, courts may consider alleged Industrial Code violations raised for the first time in opposition papers to a summary motion or grant plaintiff leave to amend his or her bill of particulars to add such allegations, sua sponte (Latino v Nolan and Taylor-Howe Funeral Home, 300 AD2d 631, 633-634 [2002]; Kelleir v Supreme Indus. Park, 293 AD2d 513, 514 [2002]). Here, the Industrial Code violations alleged in plaintiff's supplemental bill of particulars do rest upon new factual allegations or new theories of liability. Accordingly, the court will consider these allegations in deciding the motions before it.
Most of the Industrial Code provisions cited in the supplemental bill of particulars are not applicable in this case. Specifically, 12 NYCRR 23-1.7(a)(1) requires protection against falling material in areas normally exposed to such hazards while 1.7(a)(2) requires that areas which are exposed to falling material be barricaded when employees are not required to work in such areas. Here, plaintiff was not injured in an area normally exposed to falling material (Quinlan v City of New York, 293 AD2d 262263 [2002]). Indeed, the swinging down of the access panel on the air-conditioner was an unexpected occurrence. Furthermore, plaintiff needed to be in the area in order to perform his work. Thus, barricades were not an option.
12 NYCRR 23-1.15 (a)-(e) require the use of "safety railings" of certain specifications. Here, plaintiff's accident was not related to the lack or inadequacy of such safety railings. 12 NYCRR 23-1.16 (a)-(f) requires the use of safety belts, harnesses, tail lines and lifelines. Inasmuch as plaintiff was only standing on the first rung of the ladder when he fell, such equipment was unnecessary, and in any event, would not have prevented plaintiff from falling off the ladder. Similarly, 12 NYCRR [*6]23-1.7(a)-(e) require the use of certain "life nets." Again, since plaintiff was only standing on the first rung of the ladder, this was not a situation where life nets should have been employed.
12 NYCRR 23-3.3(b)(5), (c), and (g) require certain safety protections during operations involving "demolition by hand." Here, plaintiff was not performing demolition work at the time of the accident. Consequently these regulations are not applicable.
12 NYCRR 23-1.21(b)(1) and (b)(3)(i-iv) require that ladders meet certain strength requirements and preclude the use of ladders with broken parts or defects. Here, there is no evidence that the accident was caused by or related to any lack of strength, broken part, or defect in the ladder. 23-1.21(b)(4)(i-v) require that ladders be adequately secured against slipping and sagging. Here, there is no evidence that the ladder slipped or sagged at the time of the accident. 23-1.21(b)(8) requires that A-frame ladders be equipped with locking spreaders to hold the base of the ladder in place. There is no evidence that the subject ladder lacked such a spreader or that the accident was caused by the lack of such a spreader. 23-1.21(e)(1)-(4) set forth certain requirements that stepladders must meet. There is no evidence that the ladder used by plaintiff failed to meet such requirements or that such a failure had anything to do with the accident.
Accordingly, plaintiff may not rely upon alleged violations of 12 NYCRR 23-1.7(a)(1) and (2), 23-1.15(a-e), 23-1.16(a)-(f), 23-1.17(a)-(e), 23-3.3(b)(5), (c), and (g), 23-1.21(b)(1), (b)(3)(i-iv), (b)(4)(i-v), (b)(8), (e)(1), (e)(2), (e)(3), and (e)(4), in support of his Labor Law § 241 cause of action.
However, to the extent that he relies upon 12 NYCRR 23-1.8(a) and (c)(1), plaintiff has a viable Labor Law § 241 (6) cause of action. 23-1.8(a) requires that eye protection equipment be provided to and used by workers who are engaged in "any . . . operation which may endanger the eyes." This regulation is sufficiently specific to support a Labor Law § 241 (6) claim. Furthermore, inasmuch as plaintiff was not wearing eye protection at the time of the accident, plaintiff's work posed a foreseeable danger to his eyes, and plaintiff did in fact sustain injuries to his eye, this regulation is applicable in this case (Dennis v City of New York, 304 AD2d 611 [2003]).
12 NYCRR 23-1.8(c)(1) requires that head protection be provided to and used by workers in areas where there is a risk of being struck by falling object. This provision is sufficiently specific to support a Labor Law § 241 (6) claim. Furthermore, this provision is applicable inasmuch as plaintiff was not wearing head protection at the time of the accident and a visored hard-hat arguably would have deflected the falling access panel before it struck plaintiff in the eye. Under the circumstances, to the extent that plaintiff's Labor Law § 241 (6) cause of action is based upon alleged violations of 23-1.8(a) and (c)(1), those branches of Park and the National defendants motions which seek to dismiss this claim are denied.
Plaintiff's cross motion for summary judgment under his Labor Law § 241 (6) cause of action must also be denied. It is well-settled that comparative negligence constitutes a legitimate defense to a Labor Law § 241 (6) claim (Edwards v C&D Unlimited, 295 AD2d 310, 311 [2002]). Given plaintiff's admission at his deposition that he was equipped with safety glasses but chose not to wear them while performing the subject work, there is a question of fact regarding plaintiff's comparative negligence that precludes awarding him summary judgment under Labor Law § 241 (6).
Plaintiff's Labor Law § 200/Common-Law Negligence Claim
Park and the National Defendants separately move for summary judgment dismissing plaintiff's Labor Law § 200/common-law negligence claims. In so moving, the defendants point out that they did not control or supervise plaintiff's work at the time of the accident. The defendants [*7]further maintain that they did not have notice of the risk posed by the access panel that struck plaintiff in the eye.
In opposition to these branches of defendants' motions, and in support of his own summary judgment motion under his Labor Law § 200/common-law negligence claims, plaintiff argues that defendants breached their duty to provide him with a safe workplace as a matter of law.
Labor Law § 200 is merely a codification of the common-law duty placed upon owners and contractors to provide employees with a safe place to work (Kim v Herbert Constr. Co., 275 AD2d 709, 712 [2000]). Liability for causes of action sounding in common-law negligence and for violations of Labor Law § 200 is limited to those who exercise control or supervision over the methods that plaintiff employs in his work, or who have actual or constructive notice of, or are otherwise responsible for an unsafe condition that causes an accident (Aranda v Park East Constr., 4 AD3d 315 [2004]; Akins v Baker, 247 AD2d 562, 563 [1998]).
It is undisputed that defendants did not control or supervise plaintiff's work. Furthermore, there is no evidence that they had notice that access panel on the air-conditioner, which was concealed behind a permanent ceiling, was in danger of swinging open. Consequently, those portions of defendants motions which seek to dismiss plaintiff's Labor Law § 200/common-law negligence claims are granted. That portion of plaintiff's cross motion which seeks summary judgment under these cause of action is denied.
Negligent Hiring Claim
Finally, Park moves to dismiss plaintiff's negligent hiring claim against it. In so moving, Park argues that plaintiff's accident was not caused by any negligence on the part of Park's employees. Plaintiff does not oppose this branch of Park's motion.
The evidence before the court demonstrates that the accident was not cause by any negligence on Park's part. Consequently, there is no basis for plaintiff's negligent hiring claim against Park.
Summary
In summary, the court rules as follows: (1) those branches of Park and the National defendants' motions which seek summary judgment dismissing plaintiff's Labor Law § 240 (1) cause of action are denied; (2) that branch of plaintiff's cross motion which seeks summary judgment against defendants under his Labor Law § 240 (1) cause of action is denied; (3) those branches of Park and the National defendants' motions which seek summary judgment dismissing plaintiff's Labor Law § 241 (6) cause of action are denied; (4) that branch of plaintiff's cross motion which seeks summary judgment against defendants under his Labor Law § 241 (6) cause of action is denied; (5) those branches of Park and the National defendants' motions which seek summary judgment dismissing plaintiff's Labor Law § 200/common-law negligence claims against them are granted; (6) that branch of plaintiff's cross motion which seeks summary judgment against defendants under his Labor Law § 200/common-law negligence causes of action is denied; and (7) that branch of Park's motion which seeks summary judgment dismissing plaintiff's negligent hiring claim against it is granted.
This constitutes the decision and order of the court.
E N T E R,
J. S. C.
Footnotes
Footnote 1: It should also be noted that in Blake, the Court of Appeals did not rule that the plaintiff's actions were the sole proximate cause as a matter of law as defendants would have this court do. Rather, the Court merely ruled that there was sufficient evidence to support a jury's factual determination that the plaintiff was the sole proximate cause of the accident.
Footnote 2: Although the issue is not raised in the papers before the court, a review of plaintiff's deposition testimony reveals that his injuries were largely (and possibly exclusively) confined to his left eye. Thus, plaintiff's Labor Law § 240 (1) claim may turn out to be largely moot since the eye injury occurred prior to plaintiff's fall from the ladder.
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