Polanski-Tarnawa v I. Grace Co., Inc.

[*1] Polanski-Tarnawa v I. Grace Co., Inc. 2007 NY Slip Op 51038(U) [15 Misc 3d 1139(A)] Decided on May 22, 2007 Supreme Court, Richmond County McMahon, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 22, 2007
Supreme Court, Richmond County

Jerzy Polanski-Tarnawa, Plaintiff,

against

I. Grace Co., Inc. and Fordham Marble, Defendants, I. Grace Co., Inc., Third-Party Plaintiff, Mead & Josipovich, Third-Party Defendant, I. Grace Co., Inc., Second Third-Party Plaintiff, Fordham Marble, Inc., Second Third-Party Defendant.



12936/04

Judith N. McMahon, J.

On September 18, 2003, the plaintiff allegedly was injured on a construction site at 820 Fifth Avenue, New York, New York. The general contractor for the renovation of the [*2]residential apartment was I. Grace Company, Inc. The plaintiff was an employee of Mead & Josipovich, Inc., the subcontractor responsible for installing interior doors. After carrying four doors out of the service elevator on to the eighth floor lobby, the plaintiff's right leg went about 8 to 10 inches through the temporary floor to the sub-floor.

Fordham Marble, Inc. was the subcontractor responsible for installing the limestone floor in the lobby, living room and kitchen. At the time of the plaintiff's accident, the installation of the flooring was almost complete. There were a few limestones that were to be replaced at the request of the owners [because they were of inferior quality], and stone saddles had to be installed in the threshold areas of the doorways. I. Grace had placed boards (there is a dispute as to whether they were homostate [½ inch thick cardboard sheet] or plywood) in the service elevator lobby to allow construction to continue without harming the flooring already done, and while waiting for the flooring to be finished.

In October, 2004, the plaintiff commenced this action against I. Grace alleging violations of Labor Law §§ 200, 240(1) and 241(6). In September, 2005, I. Grace commenced a third-party action for contractual indemnification against the plaintiff's employer, Mead & Josipovich. In February, 2006, I. Grace commenced a second third-party action for contractual indemnification against Fordham Marble. In September, 2006, the plaintiff served a supplemental summons and amended verified complaint adding Fordham Marble as a defendant. After issue was joined by service of answers by all defendants and the completion of discovery, Fordham Marble moved for summary judgment dismissing the complaint and the second third-party complaint. I. Grace also moved for summary judgment dismissing the complaint. The plaintiff cross-moved for partial summary judgment on liability with regard to the Labor Law §§ 200 and 241(6) causes of action.

Initially, the cause of action alleging a violation of Labor Law § 240(1) must be dismissed. Labor Law § 240(1) imposes absolute liability upon owners and contractors who fail to provide or erect safety devices necessary to give proper protection to workers exposed to elevation-related hazards (see, Misseritti v. Mark IV Constr., Co., 86 NY2d 487, 49-91 [1995]; Ross v. Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 500-01 [1993]; Rocovich v. Consolidated Edison Co., 78 NY2d 509, 513 [1991]). Here, as the subject work site was at ground level, scaffolding, hoists, ladders, and other elevation protective devices were unnecessary (see, Miller v. Weeden, 7 AD3d 684 [2d Dept. 2004]; Wells v. British Am. Dev. Corp., 2 AD3d 1141 [3d Dept. 2003]). As the plaintiff's injury resulted from the usual and ordinary dangers of a construction site, and was not an elevation-related hazard, Labor Law § 240(1) is inapplicable (see, Keavey v. New York State Dormitory Authority, 6 NY3d 859 [2006]; Toefer v. Long Is. R.R., 4 NY3d 399 [2005]).

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. and Gas. Corp., 82 NY2d 876, 877 [1993]). To support a cause of action pursuant to § 241(6), the plaintiff must allege a specific and concrete provision of the Industrial Code was violated and that the violation proximately caused his injuries (see, Rosado v. Briarwoods Farm, 19 AD3d 396 [2d Dept. 2005]; Plass v. Solotoff, 5 AD3d 365 [*3][2d Dept. 2004]). The plaintiff alleges that the defendants violated Industrial Code 12 NYCRR 231.7(e)(1) which requires passageways in construction sites to be kept clear of tripping hazards. This regulation is specific enough to support a cause of action pursuant to Labor Law § 241(6) (see, McDonagh v. Victoria's Secret, Inc., 9 AD3d 395 [2d Dept. 2004]; Herman v. St. John's Episcopal Hosp., 242 AD2d 316 [2d Dept. 1997]). Thus, to be entitled to summary judgment, the defendants must make a prima facie showing that the alleged violation of the Industrial Code was not a proximate cause of the accident (see, Biafora v. City of New York, 27 AD3d 506 [2d Dept. 2006]; Rosado v. Briarwoods Farm, Inc., 19 AD3d 396, supra]).

The defendants contend that the alleged violation of the provision of the Industrial Code requiring passageways to be free of tripping hazards was not a proximate cause of the accident because the plaintiff did not trip on debris, but rather tripped on a hole caused by the absence of stones in the lobby. However, the plaintiff contends that he tripped over the homostate board, a tripping hazard, and then fell through the unfinished flooring. As there is a question of fact as to proximate cause that must be resolved by the jury, summary judgment cannot be awarded on the Labor Law 241(6) cause of action (see, Rizzuto v. L.A. Wenger Contracting Co., Inc., 91 NY2d 343 [1998]; Ferrero v. Best Modular Homes, Inc., 33 AD2d 847 [2d Dept. 2006]; Johnson v. Flatbush Presbyterian Church, 29 AD3d 862 [2d Dept. 2006].

Labor Law § 200 is a codification of the common-law duty imposed upon an owner or employer to provide construction site workers with a safe place to work (see, Jock v. Fien, 80 NY2d 965, 967 [1992]; Brown v. Brause Plaza, LLC, 19 AD3d 626 [2d Dept. 2005]). The statute applies to owners and contractors who exercise control or supervision over the work being performed, or who have either created a dangerous condition or had actual or constructive notice of such condition (see, Lombardi v. Stout, 80 NY2d 290, 294-295[1992]; DeBlase v. Herbert Constr. Co., Inc., 5 AD3d 624 [2d Dept. 2004]). The plaintiff sets forth two theories of liability under Labor Law § 200 as to defendant I. Grace Co.: (1) as the general contractor who exercised control over the subcontractors, it is responsible for the allegedly dangerous condition created by Fordham Marble; and (2) it created the dangerous condition by placing the homostate board over the unfinished floor. The plaintiff also contends that Fordham Marble created the allegedly dangerous condition by leaving gaps in the floor. These triable issues as to whether the defendants created the allegedly dangerous condition which caused the plaintiff to fall preclude the granting of summary judgment on the Labor Law § 200 cause of action (see, Hatfield v. Bridgedale, LLC, 28 AD3d 608 [2d Dept. 2006]; Fernez v. Kellogg, 2 AD3d 397 [2d Dept. 2003]).

Finally, because there are triable issues of fact as to whether Fordham Marble or I. Grace created the allegedly dangerous condition, that branch of Fordham Marble's motion for summary judgment in the second third-party action for contractual indemnification must be denied (see, Kelly v. City of New York, 32 AD3d 901 [2d Dept. 2006]; Brasch v. Yonkers Constr. Co., 306 AD2d 508 [2d Dept. 2003]).

Accordingly, it is,

ORDERED that the branches of the motions of defendants I. Grace Co., Inc. and Fordham Marble, Inc. for partial summary judgment dismissing the cause of action based [*4]on a violation of Labor Law § 240(1) is granted; and it is further,

ORDERED that the branches of the motions of defendants I. Grace Co., Inc. and Fordham Marble, Inc. for partial summary judgment dismissing the causes of action based on violations of Labor Law §§ 200 and 241(6) are denied; and it is further,

ORDERED that the branch of Fordham Marble's motion for summary judgment in the second third-party action for contractual indemnification is denied; and it is further,

ORDERED that the plaintiff's cross-motion for partial summary judgment on the issue of liability on the causes of action based on violation of Labor Law §§ 200 and 241(6) is denied.

THIS IS THE DECISION AND ORDER OF THE COURT.

EN T E R,

Dated: May 22, 2007

J.S.C.