Humala v City of New York

[*1] Humala v City of New York 2005 NY Slip Op 51863(U) Decided on November 4, 2005 Supreme Court, New York County Ling-Cohan, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 4, 2005
Supreme Court, New York County

JOSE HUMALA, Plaintiff,

against

THE CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF PARKS AND RECREATION, and BRYANT PARK RESTORATION CORPORATION, Defendants.



108806/02



for plaintiff: Law Offices of Steven Weissman

150 East 39th St, Suite 101

NY, NY 10016

(212) 697-7444

for defendants: Steven R. Sundheim & Assos.

777 Westchester Ave. - Suite 204

White Plains, NY 10604

(914) 949-5322

Doris Ling-Cohan, J.

Plaintiff Jose Humala was injured moving a piece of bluestone at Bryant Park in New York City. Plaintiff sued the City of New York ("City"), the owner of the park, the New York City Department of Parks, and Bryant Park Restoration Corporation (BPRC), a not-for-profit organization that manages the park. Defendants move for summary judgment pursuant to CPLR 3212 dismissing the complaint.[FN1] Plaintiff cross-moves to be allowed to supplement his bill of particulars for a second time.

BPRC hired plaintiff's employer, Melva Construction Corporation (Melva), to take out the bluestones paving the ground in a section of Bryant Park and install new bluestones. According to plaintiff, on November 19, 2001, Melva instructed plaintiff to use a hand truck to transport the new bluestones to the place where they would be installed. At his deposition, plaintiff testified that it took three to four workers to place a stone on the hand truck. Because of the size of the stones, only one could be placed on the hand truck at a time. Melva ordered that one person push the hand truck.

The first time that plaintiff pushed a hand truck with a stone, it took him approximately 15 minutes to travel from the sidewalk outside the park to the job location inside the park, a distance of nearly 100 feet. Plaintiff pushed the hand truck on an inclined concrete path which was cracked and covered with gravel, soil, and small stones. Plaintiff believes that the items on the path resulted from the work that another company was doing on the lawn in the park. The same items covered the lawn next to the pathway. Plaintiff had to move very slowly, and he had to stop to rest because the stone was so heavy. Because the path was inclined, plaintiff had to push strongly while going forwards and upwards. At a certain point, the inclination ended and the path became level.

After delivering the first stone to the worksite, plaintiff returned to the sidewalk and [*2]three workers loaded another stone on the hand truck. The stone was 57 by 27 inches and about four inches thick, larger than the first stone. Plaintiff alleges that, when he reached the point on the path where the ground became level, the hand truck went backwards, and the stone turned to the right and fell out of the hand truck, landing on his right foot. His foot was severely injured. Plaintiff's first cause of action sounds in common law negligence. The second cause of action alleges violations of Labor Law § 200, 240, and 241.

On a motion for summary judgment, the moving party has the burden of providing sufficient evidence to eliminate any material issues of fact from the case (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). To defeat the motion, the defending party must produce by admissible evidence the existence of a factual issue requiring trial (Zuckerman v City of New York, 49 NY2d 557, 560 [1980]). Summary judgment is not granted if there is any doubt as to whether a triable issue exists (Rotuba Extruders v Ceppos, 46 NY2d 223, 231 [1978]).

Plaintiff alleges that defendants, through their negligence and violation of Industrial Code regulations (12 NYCRR 21.0 et seq.), created dangerous conditions which led to plaintiff's accident, and that defendants had notice of said conditions. Plaintiff also claims that defendants violated sections of article 26 of Occupational Safety and Health Administration (OSHA) regulations. To obtain summary judgment dismissing these claims, defendants must show that no dangerous condition existed. Alternatively, they must show that there was no proximate cause between the allegedly dangerous condition and the accident, or that they had no notice of the dangerous condition (see Brennan v Carriage House Motor Cars, Ltd., 224 AD2d 204, 205 [1st Dept 1996]).

Plaintiff's first bill of particulars lists numerous state and OSHA regulations allegedly violated by defendants. Defendants' motion for summary judgment seeks dismissal of plaintiff's Labor Law 241(6) claim which are based upon such violations. Plaintiff's opposition to the motion, however, does not address all of the violations that defendants argue should be dismissed. Plaintiff also does not oppose defendant's arguments with respect to dismissal of plaintiff's Labor Law § 240 claims. This decision therefore addresses only the regulations and violations that plaintiff has opposed. The court deems that plaintiff has abandoned his reliance on the violations that he chose not to oppose and therefore grants summary judgment of dismissal with respect thereto (see 430 West 23rd Street Tenants Corp. v. 23rd Assoc, 155 AD2d 237, 239 (1st Dept 1989); Musillo v Marist College, 306 AD2d 782, 784 [3d Dept 2003]).

Plaintiff submits his proposed second supplemental bill of particulars with his cross motion. The proposed bill of particulars cites the same Industrial Code regulations as the first bill of particulars, except for one addition in the proposed bill, section (e) of 12 NYCRR 23-2.2 (concrete work). This regulation provides that "[r]eshoring shall be provided when necessary to safely support slabs and beams after stripping or where such members are subjected to superimposed loads due to construction on upper levels." This regulation clearly has nothing to do with plaintiff's case. As there is no merit to the proposed second bill of particulars, the cross motion is denied.

In opposition to the motion, plaintiff initially submitted an affidavit in English. Defendants pointed out that, at his deposition, plaintiff testified through a Spanish-English translator. Plaintiff stated that he spoke virtually no English (Humala Deposition [Depo.], at 33-34). Defendants therefore argue in their reply that the affidavit is inadmissible as evidence [*3]opposing the motion for summary judgment, because it was not accompanied by a translator's affidavit and there is no proof that it was translated to plaintiff.

By order of this court dated May 20, 2005, this court afforded plaintiff an opportunity to provide a translator's affidavit, such as the one previously submitted, accompanied by an affidavit of translation. In response, plaintiff's attorney submitted the same affidavit by the plaintiff in English, with the addition of a statement by the translator. The translator's statement is not sworn. The notary's stamp and signature follow the translator's statement. There is no notary stamp following plaintiff's signature. Because of these defects and because the attorney has had two opportunities to submit plaintiff's affidavit in the proper form, the affidavit will not be considered. Even if this Court were to consider plaintiff's affidavit to have been submitted in proper form, it fails to raise any factual issues with respect to the claims dismissed below.

The court will discuss defendant's arguments in favor of summary judgment seriatim.

1. Plaintiff cannot prevail because he does not know how the accident happened

At his deposition, plaintiff revealed that he was not sure what made the hand truck go backwards and the stone fall out. According to defendants, this means that plaintiff cannot possibly prevail on any of his causes of action, since he does not know what caused the accident. However, plaintiff's inability to identify the exact substance that caused his accident is not a reason to dismiss his claims (see Brown v Brause Plaza, LLC, 19 AD3d 626, 627-628 [2d Dept 2005]). Plaintiff's allegations that there was a mixture of dirt and small stones on the path and that the hand truck struck something on the path which caused the stone to fall out are sufficient to present to a jury. From these allegations, a jury can deduce that the items on the path caused the hand truck to go backwards and the stone to fall out.

2. Labor Law § 241 (6)

Labor Law § 241(6) imposes a nondelegable duty upon owners and contractors to provide reasonable and adequate protection and safety to construction workers (Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 878 [1993]). Liability under the statute is vicarious, rendering owners and contractors responsible for the negligence of others whom they did not supervise (Toefer v Long Island R.R., 4 NY3d 399, 409 [2005]; Rizzuto v L. A. Wenger Contr. Co., 91 NY2d 343, 350 [1998]). To make a case under Labor Law § 241 (6), a plaintiff must prove that the accident was caused by a violation of a provision of the Industrial Code that sets forth a specific standard of conduct, rather than a mere reiteration of common-law principals (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 502 [1993]). Since liability is vicarious, plaintiff does not have to prove that defendants violated the Industrial Code themselves or knew about a violation, but only that there was a violation that caused his accident.

A. 12 NYCRR 23-1.7 Protection from general hazards

Industrial Code provisions, 12 NYCRR 23-1.7 (e) (1) and (2), constitute concrete specifications providing a predicate cause of action under section 241 (6) of the Labor Law (Farina v Plaza Constr. Co., 238 AD2d 158, 159 [1st Dept 1997]). They provide: (e) Tripping and other hazards.(1) Passageways. All passageways shall be kept free from accumulations of dirt and debris and from any other obstructions or conditions which could cause tripping . ***(2) Working areas. The parts of floors, platforms and similar areas where persons [*4]work or pass shall be kept free from accumulations of dirt and debris and from scattered tools and materials *** insofar as may be consistent with the work being

performed

(12 NYCRR 23-1.7 [e] [1], [2]).

Defendant alleges that 12 NYCRR 23-1.7 (e) does not apply to plaintiff's case because plaintiff did not slip or trip. The regulation applies, however, to accidents caused by the slipping or tripping of things. In Sergio v Benjolo N.V. (168 AD2d 235, 236 [1st Dept 1990]), the plaintiff was injured when stacked cartons fell beneath the wheels of his tool box, causing it to come to a sudden stop and throw him to the ground. In Scotti v Federation Dev. Corp. (289 AD2d 322, 323 [2d Dept 2001]), debris on the floor caused the ladder upon which the plaintiff was standing to fall to the side, causing plaintiff to fall. In Joshua v Structure Tone, Inc., (NYLJ, Jan. 6, 2003, at 26, col 5 [Sup Ct, Kings County, Bonina, J.]), the accident occurred when another worker's ladder slipped upon debris on the floor and struck plaintiff's ladder, causing it to fall over.

Here, the pain of the stone falling on his foot caused plaintiff to fall (Humala Depo., at 35). It is alleged that the stone fell because the hand truck slipped backwards and the hand truck went backwards because it struck an impediment. This description of the accident fits the regulation's requirement of slipping or tripping.

Liability under 12 NYCRR 23-1.7 (e) depends upon plaintiff showing that he was injured in a passageway, as required by section (e) (1), or in a working area, as required by section (e) (2). The passageway part of the regulation does not apply to a plaintiff who "slipped in an open area of the construction site, and not within a defined walkway or passageway" (Morra v White, 276 AD2d 536, 537 [2d Dept 2000]; see also Dalanna v City of New York, 308 AD2d 400, 401 [1st Dept 2003] [although regularly traversed to bring supplies to the work area, the place of the accident was a common, open area between the job site and the street and not a passageway]; Jennings v Lefcon Partnership., 250 AD2d 388, 389 [1st Dept 1998] [injury occurred in an open area between two high-rises under construction, not a passageway]; Lenard v 1251 Americas Assoc., 241 AD2d 391, 392 [1st Dept 1997] [plaintiff was injured in an open area rather than in a passageway]).

On the other hand, a working place is an area where people are working (Canning v Barney's New York, 289 AD2d 32, 34 [1st Dept 2001] [the place of injury was a working area rather than a passageway, because it was constantly used for loading and unloading materials and debris]; Dalanna, 308 AD2d at 401 [place of injury was regularly traversed to bring supplies to the worksite and could be described as a working area]).

Provided that the description of the place of injury is consistent and sufficient, the court may determine whether it was a passageway or working area on a motion for summary judgment (see Appelbaum v 100 Church LLC, 6 AD3d 310, 310 [1st Dept 2004]). Here, the evidence shows that plaintiff was hurt in an open common area, where, as he stated, he was performing a task that he was hired to perform. The court deems that plaintiff's accident did not occur in a passageway, but in a working area. Plaintiff fails to counter defendant's showing.

Defendants' next argument is based on the rule that if the object that caused the plaintiff to trip or fall is an integral part of the construction work being performed, it is not debris and its presence cannot support a violation of 12 NYCRR 23-1.7 (e) (see Lenard, 241 AD2d at 393; [*5]Vieira v Tishman Constr. Corp., 255 AD2d 235, 235-236 [1st Dept 1998]). Defendants maintain that, since plaintiff does not know exactly what things caused the hand truck to stop, plaintiff cannot show that those things did not result from his employer's construction. Plaintiff testified that the items on the pathway were caused by another crew working on the lawn, not his employer. Defendants fail to address this question. Therefore, whether the items on the path were an integral part of plaintiff's work is a question for the factfinder.

The claim pertaining to passageways pursuant to12 NYCRR 23-1.7 (e) (1) is dismissed. The claim pertaining to working areas, section (e) (2), is not dismissed and may proceed to trial.

B. 12 NYCRR 23-1.23 Earth ramps and runways

Section (a) of 12 NYCRR 23-1.23 concerns the construction of earth ramps and runways. They must be constructed of suitable embankment material and placed in layers at most three feet in depth (12 NYCRR 23-1.23 [a]). Plaintiff did not fall on an earth ramp or a runway specially constructed for the work that he was performing. Thus, this regulation has no application to the manner in which plaintiff allegedly sustained his injury and any claims based upon the violation of such statue is dismissed.

C. 12 NYCRR 23-1.28 Hand-propelled vehicles

The regulation provides in pertinent part: (a) Maintenance. Hand-propelled vehicles shall be maintained in good repair. Hand-propelled vehicles having damaged handles or any loose parts shall not be used.(b) Wheels and handles. Wheels of hand-propelled vehicles shall be maintained free-running and well secured to the frames of the vehicles.

(12 NYCRR 23-1.28 [a], [b]).

Plaintiff testified that the hand truck had two wheels, and that it was the kind used to transport boxes (Humala Depo., at 28-29). Plaintiff also said that the thing used to transport the stones was a wheelbarrow (id. at 28). The first bill of particulars refers to a wheelbarrel/handcart (Verified Bill of Particulars, ¶ 7). The hand truck had "a square platform in the bottom with the two wheels and from there are two metal bars and you hold from there" (Humala Depo., at 30). The hand truck had no handles, just the metal bars (id.).

Defendant correctly contends that plaintiff has not presented any evidence that anything was wrong with the hand truck. Although plaintiff claims that the hand truck had no handles, he says that it had the metal bars to hold on to. This evidence is not enough to sustain a claim that the handles were not there or that they were somehow defective. Nowhere does plaintiff allege that the wheels on the vehicle were loose or somehow defective. In addition, whether the hand truck was the proper type of transporter for the stones is not a question addressed by the cited regulation. Therefore, plaintiff's 241(6) claim based upon the violation of 12 NYCRR 23-1.28 is dismissed.

D. 12 NYCRR 23-2.1 Maintenance and housekeeping

Section (a) (1) of 12 NYCRR 23-2.1 provides that building materials must be stored in an orderly manner. This has nothing to do with plaintiff's accident and therefore plaintiff's claim with respect to such regulation is dismissed.

Section (b) provides that debris must be disposed of by methods that will not endanger [*6]anyone. The Appellate Departments disagree as to whether 12 NYCRR 23-2.1 (b) is sufficiently specific to form the basis of a section 241 (6) cause of action, with the First and Second Departments holding that it is not (Madir v 21-23 Maiden Lane Realty, LLC, 9 AD3d 450, 452 [2d Dept 2004]; Quinlan v City of New York, 293 AD2d 262, 262 [1st Dept 2002]; Canning, 289 AD2d at 33-34; Fowler v CCS Queens Corp., 279 AD2d 505, 505 [2d Dept 2001]; Lynch v Abax, Inc., 268 AD2d 366, 367 [1st Dept 2000]; Mendoza v Marche Libre Assocs., 256 AD2d 133, 133 [1st Dept 1998]); cf Scally v Regional Indus. Partnership, 9 AD3d 865, 868 [4th Dept 2004]; Donnelly v City of Niagara Falls, 5 AD3d 1103, 1104 [4th Dept 2004]; Perry v City of Syracuse Indus. Dev. Agency, 283 AD2d 1017, 1017 [4th Dept 2001]). In accordance with the First Department precedent, this court holds that the cited regulation does not support a section 241 (6) cause of action.

Based upon the above, plaintiff may maintain his Labor Law § 241(6) claim with respect to a violation of 12 NYCRR 23-1.7 (e) (2); however, such cause of action with respect to the other asserted statutory violations are dismissed.

3. Labor Law § 200

Labor Law § 200 codifies "the common-law duty imposed upon an owner or general contractor to maintain a safe construction site" (Rizzuto, 91 NY2d at 352). Liability attaches to a landowner only when the accident was caused by a dangerous condition at the work site, and then only if the owner exercised supervision and control over the work performed at the site or had actual or constructive notice of the unsafe condition causing the accident (Vaneer v 993 Intervale Ave. Hous. Dev. Fund Corp., 5 AD3d 161, 162-163 [1st Dept 2003]). "Where the alleged defect or dangerous condition arises from the contractor's methods and the owner exercises no supervisory control over the operation, no liability attaches to the owner under the common law or under Labor Law § 200" (Comes, 82 NY2d at 877).

Defendant contends that defendants had no authority to supervise or control the work of plaintiff or his employer. BPRC was the defendant most involved with Melva's work. BPRC's principal testified that he "would check to see what they were doing, but not on a regular or not on a *** constant basis" (Bussolini Depo., at 14). He checked to see what Melva was doing, every second or third day or once a week (id. at 17, 60). He would look at the completed work and discuss work coming up the next day or the day after (id.). BPRC did not make any suggestions about how to do the work and had no input as to how Melva should perform the work (id. at 17, 51). The principal never attended a safety meeting at the job site, never saw any such meetings, and never asked Melva to hold one (id. at 49, 50).

BPRC's testimony is prima facie evidence that defendants did not supervise or control plaintiff's work. The general oversight practiced by BPRC "is not to be equated with the direct supervision and control over the manner of the work's performance necessary to establish liability" (Gonzalez v United Parcel Service, 249 AD2d 210, 210-211 [1st Dept 1998]; see also Mitchell v New York Univ.,12 AD3d 200, 201 (1st Dept 2004]; Buccini v 1568 Broadway Assocs., 250 AD2d 466, 469 [1st Dept 1998]). In response, plaintiff has nothing but speculation. Therefore, any claim based on defendants' alleged supervision or control of plaintiff's work cannot be maintained.

However, defendants fail to meet their burden of establishing as a matter of law that they did not have notice of the allegedly dangerous condition on the premises. In fact, defendants did [*7]not address this issue at all. An owner may be liable because it created the condition of the work place or had actual or constructive knowledge of it (Murphy v Columbia Univ., 4 AD3d 200, 201-202 [1st Dept 2004]). Defendant's memorandum of law alleges that plaintiff's employer created the condition of the pathway on which plaintiff was injured. However, plaintiff stated that his company was not working in that area and that the items on the pathway were due to the work that another company was doing on the lawn. A question of fact exists regarding the creation of the allegedly dangerous condition or whether defendants knew of it. Thus, the Labor Law § 200 claim is not dismissed.

4. Plaintiff's claim for past and future lost earnings

Plaintiff has made a claim for lost earnings and future earnings. Defendants contend that plaintiff's status as an undocumented worker who is not authorized to work in the United States precludes him from recovering such damages. At his deposition, plaintiff acknowledged that he was in the United States illegally (Humala Depo., at 9-10).

As determined by the Appellate Division, First Department, in Sanango v 200 East 16th St. Hous. Corp. (15 AD3d 36, 41-42 [1st Dept 2004]) and Balbuena v IDR Realty LLC (13 AD3d 285, 286 [1st Dept 2004]), which this Court is bound to follow, undocumented workers are not entitled to recover lost earnings based on wages that they might have earned illegally in the United States. [FN2] The determination is based upon the opinion of the United States Supreme Court in Hoffman Plastic Compounds, Inc. v NLRB ( 535 US 137 [2002]) which interpreted the Immigration Reform and Control Act of 1986 (8 USC § 1324a et seq.), enacted to prohibit the employment of illegal aliens by penalizing them and their employers (Sanango, 15 AD3d at 39-40). The Appellate Division observed, "... we believe that plaintiff's acceptance of unlawful employment should be deemed to constitute misconduct contravening IRCA's policies whether or [*8]not he submitted false documents so as to expose himself to potential criminal liability" (id., at 42).

As defendants concede, plaintiff may recover for lost earnings to the wages he would have been able to earn in his home country of Ecuador, "since an award based on a prevailing foreign wage would not offend any federal policy" (Balbuena,13 AD3d at 286). The court disagrees with defendants that, because disclosure has ended, plaintiff may not offer evidence on comparable wages in Ecuador. Thus, dismissal of plaintiff's past and future lost earnings claim is not warranted.

In conclusion, it is

ORDERED that defendants' motion for summary judgment is granted only to the extent of: (a) dismissing plaintiff's claims, which are based on Labor Law § 240; (b) plaintiff's claims, which are based upon Labor Law § 241(6), may proceed with respect to a violation of 12 NYCRR § 23-1.7(e)(2) only; and ( c) all other asserted regulations with respect to plaintiff's Labor Law § 241(6) claims are also dismissed; and it is further

ORDERED that plaintiff's cross motion is denied; it is further

ORDERED that within 30 days of entry of this order, plaintiff shall serve a copy upon all parties with notice of entry.

Date:_______________

_____________________

Hon. Doris Ling-Cohan, J.S.C. C:\htformat\f5186350.txt Footnotes

Footnote 1: The Court acknowledges the assistance of Court Attorney Suzanne Haile in the drafting of this decision.

Footnote 2:The Appellate Division, Second Department has issued a recent decision disagreeing with the conclusion of the First Department in Sanango, and holding that IRCA does not preempt an award of lost earnings to an undocumented worker, based upon his projected earnings in the United States (Majlinger v Cassino Contr. Corp., ___ AD3d ___, 802 NYS2d 56, 2005 NY Slip Op 06785 [2d Dept, Sept. 19, 2005]; see also Balbuena v IDR Realty LLC, 13 AD3d at 286-289 [Ellerin, J. dissenting]). According to the Second Department in Majlinger, the First Department's construction of Hoffman Plastic Compounds, Inc. v NLRB (535 US 137) to support federal preemption of claims for lost earnings by undocumented workers in state tort actions is overly broad and could be applied to eliminate all rights and protections currently accorded to such individuals (Majlinger v Cassino Contr. Corp., 802 NYS2d at 63-64). The Second Department observed that allowing undocumented workers to recover lost earnings, based upon their projected earnings in this country, would further, rather than conflict with, federal immigration policy by denying employers an economic incentive to hire such workers, and would also advance important State policies, including the provisions of the Labor Law requiring employers to maintain safe workplaces (id., at 67-68). The Second Department did, however, conclude that a jury may take into account the plaintiff's undocumented status, "along with the myriad other factors relevant to a calculation of lost earnings" (id., at 68-69; see also Balbuena v IDR Realty LLC, 13 AD3d at 288 [Ellerin, J. dissenting]).