Carty v Port Auth. of NY & N.J.

[*1] Carty v Port Auth. of NY & N.J. 2004 NY Slip Op 51801(U) Decided on December 16, 2004 Supreme Court, Bronx County Salman, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 16, 2004
Supreme Court, Bronx County

JOHN CARTY, Plaintiff

against

THE PORT AUTHORITY OF NEW YORK and NEW JERSEY, Defendant



8849/2003

Barry Salman, J.

The motion by defendant Port Authority of New York and New Jersey (Port Authority) for summary judgment dismissing each of the plaintiff's causes of action is decided as follows.

Plaintiff John Carty (Carty) sues to recover damages for personal injuries sustained as the result of slip and fall accident which occurred as he was returning to his work assignment after a meal break at approximately 1:10 A.M. on October 23, 2002. Plaintiff testified in his most recent affidavit that he "...slipped on a stone object that was raised higher than the level of the walking surface..[FN1]." on the floor of the PATH tunnel near Vessey Street ( the location). At the time of the accident, Plaintiff Canty was an employee of Yonkers/Tully/Pegno (YTP) performing carpentry work the night shift at the location which extended 7:00 P.M to 7:00 A.M..

It is uncontested that defendant Port Authority owned, operated and controlled the PATH, a quasi-public train-transportation system linking New Jersey and lower Manhattan. A portion of the PATH system, including a train station and adjacent train-tracks located beneath the land which had held New York City's former World Trade Center complex, had been severely damaged in the "9/11" attack. It is uncontested that, post-"9/11", defendant Port Authority undertook a massive rebuilding project for the PATH system in this area and had engaged YTP to act as its general contractor for the restoration and reconstruction work.

Plaintiff Carty commenced his action against Port Authority on or about February 24, 2003. Plaintiff states in his complaint that "...he was caused to trip and fall and/or slip and fall ...as a result of the negligence of the defendant PORT AUTHORITY, its agents, servants and employees...[and] that the defendant PORT AUTHORITY had actual and constructive notice of the dangerous conditions existing on its premises and/or the PORT AUTHORITY caused or created said dangerous conditions...". The complaint further contends [*2]that plaintiff's injuries were "...solely due to the defendant's negligence..."[FN2]. On or about May 13, 2003, plaintiff served an amended complaint in which he added a second cause of action in which he noted his employment by YTP and claims that "...[p]ursuant to Sections 200, 240 and 241 of the Labor Law together with the rules and regulations promulgated thereunder and the defendant has a non delegable duty to the plaintiff, and is thereby responsible for the negligence of any and all of the contractors, including [YTP] causing or contributing to the happening of this occurrence...."[FN3]

Medical records presented in support of plaintiff's claims indicate that a November 15, 2002 MRI of plaintiff's right knee shows that he sustained a probable tear of the posterior horn of his medial meniscus. It also showed that the entire lateral meniscus showed no abnormality. The MRI is also reflective of degenerative changes in the plaintiff's condition [FN4].

After the issue was joined, the defendant Port Authority served plaintiff with a demand for a verified bill of particulars, a notice to take oral depositions and a related demand for discovery. The court held preliminary conference on October 8, 2003. Subsequently, plaintiff presented his verified bill of particulars, dated December 2, 2003, wherein he states: "The defendant violated Sections 200, 240 and 241 of the labor law together with the state regulations promulgated thereunder, and applicable OSHA regulations...". The bill of particulars presented by plaintiff contains no further specificity as to which code, rule or regulation was allegedly violated by defendant Port Authority; how this failure took place or what its proximity was to plaintiff's accident [FN5].

Plaintiff Carty was deposed on February 19, 2004 and Port Authority representative Omar Solomon (Solomon) was deposed on March 5, 2004. A compliance was held by the court on March 16, 2004. Although plaintiff's non-party witnesses Sean Firth (Firth), Patrick Crean (Crean) and Stephen Philbin (Philbin) were not deposed until over three months later, on June 28, 2004, plaintiff filed his note of issue with the court on March 19, 2004.

Defendant Port Authority now moves for summary judgment dismissing plaintiff's complaint pursuant to CLR 3212. Defendant supports this request contending that the admissible evidence adduced leaves no question that it neither directed nor controlled plaintiff Carty in the performance of his work done for general contractor YTP at the location. It argues that there is insufficient evidence to establish any relevant act of negligence committed on the part of the Port Authority. Defendant further argues that there is insufficient admissible evidence to establish that defendant Port Authority created, or was ever given actual or constructive notice of, the alleged dangerous conditions at the location which are said to have proximately led to the [*3]plaintiff's slip and fall. According, defendant contends that there is no issue that no prima facie cause of action is set forth by the plaintiff against the Port Authority under the theory of Labor Law Section 200, or common law negligence.

Nor, it is contended by defendant Port Authority, is there any of the requisite specificity in plaintiff's complaint, or related pleadings, enumerating or specifying what section, or sections, of the building, industrial or relevant code or rule defendant Port Authority allegedly violated, how it was violated by the Port Authority and/or how this alleged violation proximately led to plaintiff's accident. It is argued by defendant Port Authority that plaintiff's lack of such specificity fatally flaws the his complaint, such written specificity in being a requisite part of the pleading and proof of a successful Labor Law case under Labor Law Section 241(6). Accordingly, the defendant contends that there is no issue that plaintiff's cause of action under brought pursuant to Labor Law Section 241(6) has no merit as a matter of law.

Finally, defendant Port Authority also alleges that there is no issue that the proof adduced fails to frame a question that plaintiff's claim does not support a claim under Labor Law Section 240(1) which deals with injuries arising form gravity related hazards. Defendant notes that plaintiff's alleged slip and fall while walking back for a 1:00 A.M. on the floor of the PATH tunnels beneath the then destroyed World Trade complex unquestionable fails to present the height-based construction hazards which this section of the Labor Law was created to protect workers against. Accordingly, defendant Port Authority contends that there is no issue that there is no merit to plaintiff's claim under the Labor Law Section 240(1) theory.

For these, and other reasons, defendant Port Authority contends that there is no unresolved issue that plaintiff has failed to sufficient set forth a prima facie case to sustain any of his causes of action for recovery for his trip and fall injuries. Accordingly, Port Authority argues that it is entitled to summary judgment dismissing plaintiff's entire complaint.

Defendant Port Authority further relies, inter alia, on the deposition testimony of Omar Solomon (Solomon), the Port Authority representative, stating that plaintiff's employer and general contractor, YTP, employed its own safety officers for the project to oversee the work done at the location. Solomon, then an assistant-engineer for Port Authority, also testified that his authority as a Port Authority representative on the project was limited to inspecting day-to-day construction activities in order to make sure that the project plans and drawings were actually being built at the location. Solomon specifically denied that he ever directed or supervised any of the work of the individual contractors, including YTP, or their employees [FN6]. Nor did the anyone employed from the Port Authority undertake in any way to control or order the construction workers how to performed their jobs. Solomon also testified that he recalled no reports or complaints ever being made to him concerning problems with the lighting conditions in the tunnel. Solomon also stated that he saw regularly placed light panels or fixtures throughout the location, and that he found no "dark spots" when he walked through the tunnels [FN7].

Additionally, Solomon testified that he was aware from his walks within [*4]the tunnels that their floors were often damp from being "power washed", he testified that he did not find them slippery. He further testified that he, personally, did not know about any prior slip and fall accidents.

Plaintiff Canty opposes the granting of the defendant's motion contending that material issues of fact are sufficiently presented to require a plenary trial for his recovery. He relies on the testimony of several non-party witnesses to provide admissible evidence to frame the requisite unresolved issues of fact.

More specifically, plaintiff argues in his papers in opposition that the evidence adduced shows that defendant Port Authority is liable to his for his injury as it was on notice of the alleged conditions which proximately caused plaintiff's slip and fall. Plaintiff relies on the testimony adduced by non-party deposition witnesses Firth, Crean and Philbin to show that dangerous conditions existed in the tunnel at the location that led to his accident. Plaintiff quotes from excerpts of these depositions to establish that the lights and lighting conditions in the tunnel at the time of the accident were unsatisfactory and that the tunnel surface was wet and slippery, constituting a violation of the NYCRR code under sections 23-1.30 [illumination], 23-1.7 [slipping and tripping hazards in working areas] and 23-1-5 [general responsibilities of employers]. Plaintiff argues that the evidence adduced supports his position sufficiently to overcome the defendant Port Authority's summary judgment motion for the dismissal of his claims made pursuant to Labor Law Section 200, common law negligence, and Section 241(6).

There appears to be no argument from plaintiff Canty in opposition to the granting of summary judgment dismissal to plaintiff's claim based on an alleged violation of Labor Law Section 240(1).

Firth testified that he had worked for a period of time at the location with the plaintiff as a carpenter for YTP. Firth testified at deposition that the YTP-carpenter shop steward was Crean and that Crean held weekly fifteen minute (15) safety meetings for the workers. Firth testified that complaints were made at the YTP safety meetings concerning a lack of light in parts of the tunnel. However, Firth also testified that it was the YTP electricians, a separate unit under the YTP umbrella, who were responsible to provide the lighting fixtures and panels in the tunnels so that the work could be done. Firth also indicated that periodically each tunnel was "power-washed" by other YTP personnel which made the area damp; but he testified that he recalled no complaints about the surface flooring of the tunnel being made at the safety meetings. Firth testified, however, that, other than at the YTP meetings, he never complained about the conditions in the tunnels. Firth also testified that he had no knowledge if, or to whom, any of the complaints voiced at Crean's meetings were reported "up the line" to the YTP shop foremen or beyond.

While acknowledging that he had seen a man he believed to be a Port Authority representative walking in the tunnel from time to time, whom he allegedly identified by a distinctive safety vest, Firth stated that he, personally, never spoke to anyone from the Port Authority. Firth testified that his employment at the location at ended some time prior to plaintiff's accident. Accordingly, Firth acknowledged that he did not actually witness the [*5]plaintiff's accident nor was he present at the location on the date at issue [FN8].

Crean, the YTP carpenters shop steward testified, inter alia, at deposition that he heard complaints from his carpenters on an almost weekly basis at his safety meetings. However, Crean also explained that it was dark in sections of the tunnel because the light bulbs were periodically knocked out in some spots by the trucks that drove through the tunnels working on the massive project. Crean specifically testified that, at the time of plaintiff's accident, "...the lights were being replaced...[FN9]".

Crean also testified that complaints about lighting conditions in the tunnel were made and relayed to various foremen and supervisors working for YTP in a "chain of command" that was said to extend to general foremen of the carpenters - night shift, Freddy Fazio [or Faso] or Jerry Bruen. Crean conjectured that the designated general foremen "... would address the general foreman for the engineers working the pumps or the general foreman for electricians..." with the complaints.

It is clear from all of the evidence adduced that all of the personnel noted by Crean worked for the various construction trades directly within the employment and supervisory authority of YTP exclusively. When asked if any of the complaints made at the safety meetings were forwarded beyond YTP and over to the Port Authority personnel, Crean noted only a John Graham, the "Health and safety officer at the district council", apparently a construction union related officer, who came in to test the air in the tunnels for carbon monoxide issues.

However, when asked if any of the YTP foremen reported the workers' complaints to Port Authority personnel, or even said that they had made such a report to Port Authority representatives, Crean testified that "I couldn't tell you.". Asked if Port Authority employees were at the location on a daily basis, Crean stated "There could be one guy", whose name he did not know. When asked this "guy"s position, Crean said he thought the "guy" might be " a bean-counter, counted heads". There is no evidence that Crean, or anyone else from YTP, ever spoke to this "guy", the "bean counter", at all, let alone put him on notice concerning the workers' complaints. Nor is there any admissible proof that the "guy" mentioned by Crean was really a Port Authority employee, or was, in fact, Port Authority deposition representative Solomon. [FN10]

Philbin, who also worked for a period of time as a carpenter doing post-"9/11" reconstruction work in the World Trade Center area, testified that he believed he was working for a different company and doing different carpentry work than plaintiff Carty, with whom he was friends from previous construction jobs. Philbin testified that he had heard of [*6]Carty's accident law suit through co-workers and Carty had told him about the suit about nine to ten months after the fact. Philbin stated the he had attended the carpenters' safety meeting held be Crean and that complaints about lighting were made; although he recalled no mention of problems related to the regular power washing of the tunnels. It is unrefuted that all complaints were orally made to Crean. Philbin testified that he, personally, never made a complaint to anyone from the Port Authority.

Philbin testified that he "witnessed" the plaintiff's accident. He, plaintiff and others were returning from meal break, reentering the PATH tunnels. Philbin stated that he was walking ahead of Canty at the time. He could not recall if anyone in the group had a flash light; but recalled that there was water on the flooring surface. Philbin testified that he, Crean and a few others picked Canty up after he fell down on one knee. Philbin indicated that there appeared to be no visible bleeding. Philbin testified that Canty did not say anything on the day of the accident as to what caused him to fall down. Philbin said he then "escorted" Canty from the tunnel for medical treatment.

Philbin said that , "as far as he knew", there were people from the Port Authority who visited the tunnels, but that he knew no one by name. Philbin testified that Port Authority personnel never inspected the tunnels; that Port Authority personnel did not tell any of the workers how to perform their jobs; that they did not direct the workers' activities; that no Port Authority police were ever on site and that no Port Authority personnel ever attended the shop stewards' safety meetings. Philbin admitted in his testimony that he had no knowledge that any of the complaints made by anyone at the carpenters' safety meetings ever were made to anyone from the Port Authority [FN11].

APPLICABLE LAW

SUMMARY JUDGMENT ISSUES

The proponent of a motion for summary judgment carries the initial burden of production of evidence as well as the burden of persuasion. (Alvarez v. Prospect Hospital, 68 NY2d 320, 508 NYS2d 923, 501 NE2d 320 [1986].) Thus, the moving party must tender [FN12] sufficient evidence to demonstrate as a matter of law the absence of a material issue of fact. Once that initial burden has been satisfied, the "burden of production" (not the burden of persuasion) shifts to the opponent, who must now go forward and produce sufficient evidence in admissible form to establish the existence of a triable issue of fact. The burden of persuasion, however, always remains where it began, i.e., with the proponent of the issue. Thus "if the evidence on the issue is evenly balanced, the party that bears the burden must lose." (Director, Office of Workers Compensation Programs v. Greenwich Collieries, 512 U.S. 267, 114 S. Ct. 2251, 129 L. Ed. 2d 221 (1994); 300 East 34th Street Co. v. Habeeb, 248 AD2d 50, 683 NYS2d 175 [1st Dept. 1997].) [*7]

The role of the court is to determine if bona fide issues of fact exist, and not to resolve issues of credibility. As the Court stated in Knepka v. Tallman (278 AD2d 811, 718 NYS2d 541 [4th Dept. 2000]):

Supreme Court erred in resolving issues of credibility in granting defendants' motion for summary judgment dismissing the complaint (see, Mickelson v. Babcock, 190 AD2d 1037, 593 NYS2d 657; see generally, Black v. Chittenden, 69 NY2d 665, 669, 511 NYS2d 833, 503 NE2d 1370; Capelin Assocs. v. Globe Mfg. Corp., 34 NY2d 338, 341, 357 NYS2d 478, 313 NE2d 776). Any inconsistencies between the deposition testimony of plaintiffs and their affidavits submitted in opposition to the motion present credibility issues for trial (see, Schoen v. Rochester Gas & Elec., 242 AD2d 928, 665 NYS2d 372; Mickelson v. Babcock, supra ).

(See also, Diaz v. New York Downtown Hosp., 99 NY2d 542 (2002) {quoted from infra}; and, see Perez v. Bronx Park South Associates, 285 AD2d 402, 728 NYS2d 33 [1st Dept. 2001]; Glick & Dullock v. Tri-Pac Export Corp., 22 NY2d 439, 441 Singh v. Kolcaj Realty Corp, 283 AD2d 350, 725 NYS2d 37 [1st Dept. 2001]; et al.)

The court's function on this motion for summary judgment is issue finding rather than issue determination. (Sillman v. Twentieth Century Fox Film Corp., 3 NY2d 395, 144 NE2d 387, 165 NYS2d 49 [1957]). Since summary judgment is a drastic remedy, it should not be granted where there is any doubt as to the existence of a triable issue. (Rotuba Extruders v. Ceppos, 46 NY2d 223, 385 NE2d 1068, 413 NYS2d 141 [1978].) Thus, when the existence of an issue of fact is even arguable or debatable, summary judgment should be denied. (Stone v. Goodson, 8 NY2d 8, 167 NE2d 328, 200 NYS2d 627 [1960]; Sillman v. Twentieth Century Fox Film Corp., supra ).



LAW RELATING TO LABOR LAW SECTION 240(1):

It is well settled that Labor Law Section 240(1) imposes on all contractors, owners and their agents liability for damages to workers who are injured in the course of their employment in the building and renovation trades when an elevation related hazard is a proximate cause of an injury. Section 240(1) of the Labor Law requires that:

"All contractors and owners and their agents ... who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing 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." [emphasis added]

Owners and contractors who fail to provide workers with these adequate and reliable height related safety devices for use in the performance of such work are responsible under a strict liability theory to any worker who is injured as a result of a violation. (see, Zimmer v. Chemung County Performing Arts, Inc., 65 NY2d 513 [1985], et al.). Therefore, although a plaintiff is not required to prove negligence on the part of the defendant owner, contractor or subcontractor in order to sustain his claim under the Labor Law Section 240, he must [*8]demonstrate that he was subjected to an elevation related risk which the statute was designed to obviate and that there was a causal connection between a violation of the statute and the injury sustained. Thus, not all injuries sustained while working at a height are covered. As stated by the Court of Appeals in Gordon:

"... Labor Law 240(1) was designed to prevent those types of accidents in which the scaffold, ladder or other protective device inadequate to shield the injured worker fromharm directly flowing from the application of the force of gravity to an object or person. The right of recovery afforded by the statute does not extend to other types of harm even if the harm in question was caused by an inadequate, malfunctioning or defectively designed scaffold". (emphasis added; Gordon v. Eastern Railway Supply, Inc., 82 NY2d 555, 606 NYS2d 127 [1993]).

It is well settled that in order to impose absolute liability upon a responsible entity, the injured plaintiff must establish by admissible evidence that a violation of the relied upon Labor Law Section has occurred, and that this violation was the proximate, if not the only, cause of the plaintiff's injuries. (Smith v. Hooker Chemicals, 89 AD2d 361, 455 NYS2d 446, app. dismissed, 58 NY2d 824.).

In order to impose absolute liability upon a responsible entity, the injured plaintiff needs to prove that a violation of Labor Law 240 occurred, and that the violation was "a" proximate cause (not the only cause) of the plaintiff's injuries. (Smith v. Hooker Chemicals, 89 AD2d 361, 455 NYS2d 446, app. dismissed, 58 NY2d 824.).

It is further clear to this court that when the circumstances demonstrate that a statutory violation was a contributing factor to a worker's fall from a ladder or scaffold, the worker's comparative negligence (as distinguished from intentional wrongdoing) is factually and legally irrelevant, and should not be used to defeat summary judgment on the pretext or speculation that the accident may have been caused "solely" because of the culpable conduct of the worker. (See, Kyle v. City of New York, 268 A,D,2d 192, 196, 707 NYS2d 445 [1st Dept.2000][FN13].). As observed by the Court of Appeals in Ross: [*9]

"... Labor Law § 240(1)'s list of required safety devices,.... evinces a clear legislative intent to provide exceptional protection for workers against the 'special hazards' that arise when the work site either is itself elevated or is positioned below, the level where 'materials or load [are] hoisted or secured.'....[The] "special hazards" referred to are limited to such specific gravity-related accidents as falling from a height or being struck by a falling object that was improperly hoisted or inadequately secured [citation omitted]. "(Ross v. Curtis-Palmer Hydro-Electric Company, 81 NY2d 494, supra at 500-501, 601 NYS2d 49, 618 NE2d 82 [emphasis supplied].)

In other words, as interpreted in Ross, (supra ) and its progeny, Section 240 was designed 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.

LAW RELATED TO LABOR LAW SECTION 241(6):

a. Labor Law Section 241(6), Generally:

Labor Law Section 241(6) imposes on designated parties the obligation to provide construction workers with a "safe work place" and places upon such parties a non- delegable strict liability for any injuries suffered by a worker injured as a result of their violation of a statutory mandate. Subsequent case law has defined and clarified the ramifications of this statutory scheme.

The Court of Appeals, in Rizzutov. L.A.Wenger Contracting Co , supra , revisited this area of law commenting on its earlier decision Ross v Curtis-Palmer Hydro-Electric Co., supra . In this ruling, it stated:

"...Most recently, in Ross v Curtis-Palmer Hydro-Elec. Co. (supra ), we refined the standard of liability under section 241 (6) by requiring that the rule or regulation alleged to have been breached be a ' "specific, positive command" ' (81 NY2d, at 504, supra ), rather than a ' "reiteration of common-law standards" ' which would merely incorporate into the State Industrial Code a general duty of care (id.). We distinguished between

Code provisions 'mandating compliance with concrete specifications and those that establish general safety standards' (id., at 505), cautioning that any other rule would permit recovery under section 241 (6) against a non-supervising owner or general contractor merely by application of broad, nonspecific regulatory language and 'would seriously distort the scheme of liability ... that has been developed in our case law' (id., at 504).

As the foregoing demonstrates, although this Court has consistently rejected the notion that a violation of section 241 (6) results in absolute liability irrespective of the absence of some negligent act which caused the injury, we have repeatedly recognized that section 241 (6) imposes a nondelegable duty upon an owner or general contractor to respond in damages for injuries sustained due to another party's negligence in failing to conduct their construction, demolition or excavation operations so as to provide for the reasonable and adequate protection of the persons employed therein. Thus, once it has been alleged that a concrete specification of the Code has been violated, it is for the jury to determine whether the negligence of some party to, or participant in, the construction project caused plaintiff's injury. If proven, the general [*10]contractor (or owner, as the case may be) is vicariously liable without regard to his or her fault (see, Allen v Cloutier Constr. Corp., supra ; see also, Monroe v City of New York, 67 AD2d, at 104, supra ; PJI 2:216A, at 807-809 [1997])....".

In order to impose vicarious liability on a property owner or general contractor under Section 241(6), the injured party must first show that the damages suffered were due to the negligence of a subcontractor or other agent who violated an applicable building or industrial code or rule; and thereby, failed to maintain the reasonable safety of the work-site.

Where the authority over the individual worker has been delegated to a subcontractor, or "third-party", the question of who bears the responsibility for any consequent accident must be resolved by a showing of who had actual authority and/or control over the work place and/or the injured worker. As discussed by the Second Department, Appellate Division, in Everitt v. Nozkowski, 285 AD2d 442 (2001), at pp. 443-444:

"...Labor Law § 241 (6) places on owners, contractors, and their agents a nondelegable duty to keep areas in which construction work is being performed safe for those employed at such places (see, Ross v Curtis-Palmer Hydro-Elec. Co., supra , 81 NY2d at 501-502; Long v Forest- Fehlhaber, 55 NY2d 154, 159; DaSilva v Jantron Indus., 155 AD2d 510). 'When the work giving rise to these duties has been delegated to a third party, that third party then obtains the concomitant authority to supervise and control that work and becomes a statutory "agent" of the owner or general contractor' (Russin v Picciano & Son, supra , 54 NY2d at 318). The interpretation by the Court of Appeals of the 'statutory "agent" ' language limits the liability of a contractor as agent for a general contractor or owner for job site injuries to those areas and activities within the scope of the work delegated, or, in other words, to the particular agency created (see, Russin v Picciano & Son, supra , 54 NY2d at 318; Rice v City of Cortland, 262 AD2d 770, 771). The determinative factor on the issue of control is not whether a subcontractor furnishes equipment but whether he has control of the work being done and the authority to insist that proper safety practices be followed (see, Kehoe v Segal, 272 AD2d 583, 584; Serpe v Eyris Prods., 243 AD2d 375, 380).". (Emphasis added.). G. Labor Law Section 241(6)

b. Pleading and Proof of Violation of Specific Rule or Code Section in a Section 241(6) claim:

Accordingly, the courts have recognized that, in order to set forth a sufficient prima facie case for liability under Section 241(6), an injured worker must plead and show that a "concrete specification of the Code has been violated". It is further well settled that an alleged violation of a non-specific or factually inapplicable rule will not satisfy the statutory requirement. As stated in Basile v. ICF Kaiser, 227 AD2d 959, 643 NYS2d 854 (4th Dept., 1996):

"...To establish a prima facie cause of action under Labor Law § 241 (6), plaintiff was required to show that defendants, as nonsupervising owners or contractors, violated a specific rule or regulation of the Commissioner of Labor 'mandating compliance with concrete specifications' (Ross v Curtis- Palmer Hydro-Elec. Co., supra , at 505). He failed to meet that burden. Industrial Code (12 NYCRR) § 23-1.5 states a general standard of care and does not support a Labor Law § 241 (6) violation (McGrath v Lake Tree Vil. Assocs., 216 AD2d 877; see also, Dombrowski v [*11]Schwartz, 217 AD2d 914)....".

Similarly, the Second Department, Appellate Division, noted the requirement that, to succeed, a plaintiff must plead and prove that the injury was proximately the result of a "specific" violation of code. In Greenwood v. Shearson, Lehman & Hutton, 238 AD2d 311, 656 NYS2d 295 (2nd Dept.,1997), wherein the appellate reversed a lower court's denial of summary judgment dismissal to property owner Shearson, Lehman & Hutton. In so doing, the Second Department stated:

"...In order to support a claim under this section, a plaintiff must allege a violation of a specific 'concrete' provision of the industrial code (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 505; see, Biszick v Ninnie Constr. Corp., 209 AD2d 661; Gordineer v County of Orange, 205 AD2d 584). In this case, the plaintiffs allege a violation of 12 NYCRR 23-1.5 (a) as well as violations of the Occupational Safety and Health Act (OSHA). 12 NYCRR 23- 1.5 is a regulation that relates to general safety standards and, accordingly, will not provide a basis for a claim under Labor Law § 241 (6) (see, Vernieri v Empire Realty Co., 219 AD2d 593, 597; McGrath v Lake Tree Vil. Assocs., 216 AD2d 877; Stairs v State St. Assocs., 206 AD2d 817, 818). Likewise, violations of OSHA standards do not provide a basis for liability under Labor Law § 241 (6) (see, Vernieri v Empire Realty Co., supra ; McGrath v Lake Tree Vil. Assocs., supra ; McSweeney v Rochester Gas & Elec. Corp., 216 AD2d 878)...."

Labor Law Section 200 : Common Law Negligence:

Finally, Labor Law Section 200 contains the statutory codification of liability based upon common law negligence. To sustain a sufficient prima facie case for liability pursuant to Labor Law Section 200, a plaintiff must sustain the same elements as is required to sustain a claim for recovery under a theory of common law negligence.

In order to sustain a cause of action sounding in common law negligence, a plaintiff must show that defendant breached a duty of care owed to the plaintiff and that said breach proximately caused the plaintiff resulting accident and injury. A successful plaintiff must also show by admissible evidence that the defendant either created the hazardous condition which proximately led to the injury, or had actual or constructive notice of it. (See Gordon v. American Museum of Natural History , 76 NY2d 836, 501 AD2d 646 (1986), et al.).

Consequently, where liability for a worker's injury is sought to be placed against a owner of the property upon which a work related accident has taken place, a successful plaintiff must first be prepared to establish that such an owner was either on notice of the dangerous condition which proximately caused the accident, or, actively participated and/or controlled the work being done by the injured worker.

Recently, the Second Department, Appellate Division, discussed Labor Law Section 200 in Paladino v. Society of New York Hosp., 307 AD2d 343, 762 NYS2d 637 (2 Dept., 2003), wherein it stated:

"This provision applies to owners, contractors, or their agents, who 'have the authority to control the activity bringing about the injury to enable it to avoid or correct an unsafe condition' (Russin v Picciano & Son, supra at 317; see Rizzuto v Wenger Contr. Co., 91 NY2d 343, 352 [1998]; Lombardi v Stout, 80 NY2d 290, 295 [1992]; Kerins v Vassar Coll., 293 AD2d 514, 515 [2002]). [*12]In order for liability to attach under Labor Law § 200 or under a theory of common-law negligence, an owner or contractor must have created or had have actual or constructive notice of the defective condition which caused the accident (see Maggi v Innovax Methods Group Co., 250 AD2d 576, 578 [1998])."[FN14]

Elements of a case for negligence in a "slip and fall" matter:

It is axiomatic, that duty is a necessary element of any action sounding in negligence. (Eiseman v. State of New York, supra , and Pulka v. Edelman, supra .).

In order to sustain a slip and fall accident case, there must be a the showing that the alleged defendant(s) breached a duty of care owed to the injured party and that said breach proximately caused the resulting accident and injury. Further, a plaintiff must show that the alleged defendant(s) either created the alleged hazardous condition or that they had actual or constructive notice of it. (See Piacquadio v. Recine Realty Corp., 84 NY2d 967 (1994), Gordon v. American Museum of Natural History , 76 NY2d 836 (1986), Akins v. Glenns Falls City District , 53 NY2d 325 (1981), Morchik v. Trinity School, 257 AD2d 534 (1st Dept., 1999), et al.).

To constitute constructive notice, a hazardous defect must be visible and apparent and it must exist for sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it.(See Gordon v. American Museum of Natural History, supra , et al..).

DISCUSSION AND CONCLUSIONS

Based on careful review of the admissible evidence submitted and the law as enunciated by our appellate courts, the Court finds as follows:

1. It is clear from all of the facts adduced that plaintiff's slip and fall accident does not involve a height or gravity related hazard or dangerous condition as is required to trigger the protection provided to a construction worker pursuant to Labor Law Section 240(1). Accordingly, defendant Port Authority's motion for summary judgment dismissal of this theory for plaintiff's claim for recovery is granted. The grant of summary judgment dismissal to the Labor Law Section 240(1) cause of action is made without any apparent opposition from the plaintiff.

2. The law is well settled that in order to set forth a sufficient prima facie case for [*13]liability under Section 241(6), an injured worker must plead and demonstrate by admissible evidence that a "concrete specification of the Code has been violated". It is further well settled that an alleged violation of a non-specific rule or code section, such as 12 NYCRR Section 23-1.5, which sets out the general standard of care, will not satisfy the regular statutory requirement. (See Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 505; see, Biszick v Ninnie Constr. Corp., 209 AD2d 661; Gordineer v County of Orange, 205 AD2d 584 and Basile v. ICF Kaiser, supra , et al.).

It is clear from the plaintiff's pleading papers that he failed to set forth, with the requisite specificity, the section or code allegedly violated by defendant Port Authority that proximately caused his trip and fall accident. Plaintiff belated addition to his papers in opposition to the pending summary judgment motion for dismissal wherein he contends that his accident was proximately caused by a failure of property owner Port Authority to abide by 12 NYCRR Section 23-1.30, Illumination, or 12 NYCRR Section 23-17, Slipping and Tripping Hazards, fail to satisfy the pleading requirements set forth by the outstanding appellate case law. His reliance on the general responsibility language in 12 NYCRR Section 23-1.5 has been held to be insufficient to support a successful claim. (See Vernieri v Empire Realty Co., 219 AD2d 593, 597; McGrath v Lake Tree Vil. Assocs., 216 AD2d 877; Stairs v State St. Assocs., 206 AD2d 817, 818; McSweeney v Rochester Gas & Elec. Corp., 216 AD2d 878) and Greenwood v. Shearson, Lehman & Hutton, supra , et al.).

Based on the pleadings as presented and the law as enunciated, the plaintiff has failed to overcome the defendant Prot Authority's pending motion for summary judgment dismissal of the claim made for recovery pursuant to Labor Law Section 241(6).

3. The law is clear the in order to set forth a successful claim for recovery under Labor Law Section 200, where the defendant is an owner, general contractor or sub-contractors, the claimant must demonstrate that said defendant had the authority to control the activity which led to plaintiff's injury and/or exercised the control over the work site to enable the avoidance or correction of the proximate unsafe condition. ( See Russin v Picciano & Son, supra at 317; see Rizzuto v Wenger Contr. Co., 91 NY2d 343, 352 [1998]; Lombardi v Stout, 80 NY2d 290, 295 [1992]; Kerins v Vassar Coll., 293 AD2d 514, 515 [2002]).

In other words, in order for a plaintiff to set forth a prima facie case for liability under Labor Law § 200, which is the statutory equivalent of the common-law theory of negligence, an owner or contractor must be shown to have created, or had have actual or constructive notice, of the defective condition which caused the accident (see Maggi v Innovax Methods Group Co., 250 AD2d 576, 578 [1998]).

Based on the papers submitted and admissible evidence adduced, the plaintiff has failed in this burden of proof.

Solomon's testimony clearly establishes that he, as the unrefuted representative for the Port Authority, had neither control or authority over the different laborers who were performing reconstruction work under general contractor YTP in the PATH tunnels after the "9/11" attack. It is Solomon's sworn testimony that he received reports of no complaints from the workers concerning conditions in the location. Nor does his testimony show that he was made aware, or on notice of, any dangerous conditions which existed and were allowed to continue during the course of the project. [*14]

While plaintiff relies on his own testimony, as well as that from three other workers in the tunnel, Firth, Crean and Philbin, a reading of all of this testimonial evidence only reaffirms that there was no apparent direct contact between any of the construction workers, their foremen or their trade leadership and any personnel from the Port Authority during the progress of the reconstruction work. None of testifying persons relied upon by the plaintiff has indicated that he had ever personally spoken to a representative of the Port Authority about anything. Nor did any of these witnesses testify that he was aware of any co-worker making a complaint - or any other - report to a person from the Port Authority. It is uncontested from the testimony set forth that many complaints were made among the trades workers themselves, and even to voiced at trade-foremen led safety meetings. However, it is equally clear that there is no evidence that any of these many complaints were ever forwarded by anyone from YTP, or any other entity working in the tunnel, to anyone representing the Port Authority.

This finding is fully consistent with the testimony presented by Solomon, the Port Authority representative. The Court notes that it is unclear if the person conjectured by several of the trade-worker witnesses to be the Port Authority representative was actually such a representative - let alone Solomon himself. It is clear, however, that the none of the workers ever spoke to this so-called Port Authority "bean counter". It is equally clear that nobody who testified - including plaintiff himself - ever stated that he made a complaint or gave notice to Solomon, or any other Port Authority employee, concerning any alleged problematic conditions at the work site.

In light of the foregoing, the Court finds that the plaintiff has failed to overcome the defendant Port Authority's pending motion for summary judgment dismissal of the claim made pursuant of Labor Law Section 200.

The Court therefore grants the defendant Port Authority's motion for summary judgment dismissing the plaintiff's complaint.

This constitutes the decision and order of the Court.

Dated____________________2004

____________________________

J.S.C Footnotes

Footnote 1:Quoting from Carty's affidavit, dated September 7, 2004, at item 5, presented in support of his papers in opposition. (See Pl.'s in Oppos. Ex. D.).

Footnote 2:See Def.'s Ex. A - Pl.'s Feb. 24, 2003 Complaint.

Footnote 3:See Def.'s Ex. D - Amended May 13, 2003 Complaint.

Footnote 4:See Def.'s Ex. G - unsworn letter dated November 26, 2003, from the Orange Radiology Associates, PC, (ORA) to Dr. Daniel L. Schwartz, M.D. No copy of the MRI is submitted in sworn or admissible form in conjunction with the pending papers..

Footnote 5:See Def.'s Ex. G Pl.'s Bill of Particulars generally - note also, quote from item 18.

Footnote 6:See Pl.'s Ex, G - Solomon EBT, generally, and at pp. 6-11.

Footnote 7: See Solomon EBT at pp. 27-30 and 43.

Footnote 8:See generally, Pl.'s Ex. H - Firth EBT.

Footnote 9:Quoting from Pl.'s Ex. J - Crean EBT - on p. 25, l. 20-21 and see Crean's deposition generally..

Footnote 10:See Crean deposition testimony, generally from pp. 24 - 28.; quotes from p.25, l.3 ; p. 26 l.10; p. 27 l. 1-3; p. 27 l.19; p.27 l.23; p.28 l.2-6. Note also, Crean identified YTP night foremen Fazio and Bruen on pp. 13-14; as did Philbin p, Philbin EBT , pp. 12-14.

Footnote 11:See generally, Pl.'s Ex. I - Philbin's EBT testimony.

Footnote 12: There is no requirement that proof be submitted in the form of affidavit, as opposed to other acceptable forms, such as deposition testimony. Muniz v. Bacchus, 282 AD2d 387, 724 NYS2d 46 (1st Dept. 2001).

Footnote 13: In Kyle, supra , the plaintiff and other workers were engaged in affixing a pre-fabricated platform to the underside of the bridge, which after installation was to serve as a work surface for bridge repairs. The platform, which was installed with the use of two cranes, buckled and pitched over, causing death and serious injury to the workers. The court reasoned that, although the platform was part of the work in progress, plaintiff could only have performed the work while standing on the platform itself, and as no alternative scaffolding was provided, "the platform constituted a scaffold within the parameters of Labor Law § 240(1)." Nevertheless, the Court found that this "scaffold" was ineffective as a safety device since it "proved inadequate to shield plaintiff from the harm which flowed directly from the application of the force of gravity to his person." (Id. at 198, 707 NYS2d 445.) In addition, relying on a number of earlier cases cited in Alderman v. State of New York, 139 Misc2d 510, 528 NYS2d 280 [Court of Claims 1988], the Kyle panel stated and held that: "... We agree with the reasoning of the Court of Claims and note that other cases have held that Labor Law § 240(1) applies even in those situations when the scaffold which is alleged to have failed was in the process of being dismantled or constructed." [Citations omitted.].

Footnote 14: Labor Law Section 200 was also discussed in Greenwood v. Shearson, Lehman & Hutton, supra : "....Finally, liability cannot attach under Labor Law § 200 or common-law negligence because the plaintiffs failed to offer any evidence that the defendant owner maintained any direction or control over the manner in which the plaintiff performed his work (see, Lundquist v Ditmas Realty Co., 230 AD2d 830; Edwards v Twenty-Four Twenty-Six Main St. Assocs., 195 AD2d 592, supra )."