Diresta v 150 W. End Ave. Apt. Corp.

[*1] Diresta v 150 W. End Ave. Apt. Corp. 2007 NY Slip Op 51183(U) [15 Misc 3d 1146(A)] Decided on June 8, 2007 Supreme Court, Richmond County Minardo, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 8, 2007
Supreme Court, Richmond County

Eric Diresta, Plaintiff,

against

150 West End Avenue Apartment Corp., Defendant.



049-001

Philip G. Minardo, J.

This is an action to recover compensatory damages for personal injuries allegedly sustained when plaintiff fell on a broken step of an exterior stairway leading from the elevator house to the roof of commercial premises at 150 West End Avenue, Brooklyn, New York. At the time of the accident, plaintiff was an elevator repairman-helper, employed by Staley Elevator, Inc. (not a party to this action) and was engaged in the renovation of an existing elevator complex in the building.

Plaintiff's theory of liability rests on common law negligence and violation of Labor Law sections 200, 240, 241(6) and 241-a. As further expounded in his Bill of Particulars, plaintiff also relies on the doctrine of res ipsa loquitur in support of his negligence claim..

Defendant is the owner of the subject premises, and bases its motion for summary judgment on plaintiff's purported "failure to prove violations of Labor Law §200 and Common Law Negligence, 241(6), OSHA and Res Ipsa Loquitur."

Labor Law section 241(6) imposes a non-delegable duty upon owners, contractors and their agents to provide reasonable and adequate protection and safety for workers at a construction site and to comply with the specific safety rules required by the Commissioner of the Department of Labor (see Allen v. Cloutier Constr Corp, 44 NY2d 290 [1978]). Therefore, in order to support a cause of action pursuant to that section, " a plaintiff must demonstrate that his or her injuries were proximately caused by a violation of the Industrial Code regulation that is applicable to the circumstances of the accident" (Biafora v City of New York, 27 AD3d 506, 508 [2nd Dept 2006]).Plaintiff's failure to do so here is fatal to his claim this section of the Labor Law (Owen v Commercial Sites, 284 AD2d 315 [2nd Dept 2001]).

In this regard, plaintiff's general reliance on the Occupational Safety and Health [*2]Administration regulations is misplaced. OSHA regulations do not provide a specific, statutory duty, a violation of which would result in defendant's liability under Labor Law section 241(6) (see e.g. Khan v. Bangla Motor and Body Shop,27 AD3d 526 [2006]).

Labor Law section 240(1) requires inter alia that an owner provide proper protection to a worker employed at a construction site who is exposed to elevation-related risks. Here, plaintiff was working on the "modernization" of the building's elevator system and therefore was engaged in the type of work specifically protected under Labor Law section 240(1). However, the accident which he suffered was not related to the performance of that protected work. Rather, plaintiff tripped as he descended the exterior stairway leading from the elevator house to the roof. The stairway upon which he tripped was a normal appurtenance to the building and was not designed as a safety device to protect him from elevation-related risk; accordingly its use is not a predicate for a cause of action under this section (Norton v. Park Plaza Owners Corp, 263 AD2d 531 [2nd

Dept 1999]). Moreover, even were it conceded that his use of the stairs was integrally related to the performance of a covered act, it is undisputed that the stairway was equipped with handrails, and plaintiff points to no device enumerated by the statute which would otherwise have been required to protect him while walking down the stairs. Accordingly, upon searching the record on this motion for summary judgment, so much of plaintiff's claim as is grounded in Labor Law section 240(1) is dismissed.

By its terms, Labor Law section241-a applies to "Protection of workmen in or at elevator shaftways, hatchways and stairwells." It mandates that persons working in or at an open elevator shaft be protected by sound planking across the opening at levels not more than two stories above and not more than one story below such workers, or by other means specified in the rules of the board. Its purpose is to protect workers either from falling through the shaft for more than one story or from being hit from above by falling debris or other materials (Sharp v. Scandic Wall Ltd. Partnership, 306 AD2d 39 [1st Dept 2003]). Therefore, it is inapplicable to the circumstances presented here, and so much of plaintiff's cause of action as is grounded in violation of this section also is dismissed.

In contrast to sections 240, 241 and 241-a, which apply to construction sites or construction work, Labor Law Section 200 mandates that all workplaces be so equipped, or operated so as to provide "reasonable and adequate protection" to the persons employed there. Also in contrast to sections 240 and 241(6), section 200 has been deemed a codification of common law, and, as such, liability can be imposed under this section only if the party charged with violating it was negligent. As generally applied, this requirement means that a party cannot be held liable unless it controlled the work being done by plaintiff or knew or should have known of the condition or work practice

at issue and had the ability or authority to correct it. Here, as owner, defendant, as owner, had a general duty to keep its premises in a reasonably safe condition. Therefore, in order to meet its initial burden for summary dismissal of plaintiff's common law and statutory claims of negligence, defendant was required to establish as a matter of law that it neither created the allegedly dangerous condition nor had actual or constructive notice of its existence (see Finger v Cortese, 28 AD3d 1089, 1090 [4th Dept 2006]). This it has failed to do. [*3]

Although defendant denies actual notice of the stairway's condition and asserts that there is no proof that it had created a dangerous condition, it offers no evidence of either (1) the condition of the steps on the day in question or (2) when the stairway had last been inspected or otherwise maintained in a reasonably safe condition (see Finger v Cortese, 28 AD3d at 1091). Accordingly, that portion of defendant's motion addressed to plaintiff's common law negligence and Labor Law section 200 claims is denied.[FN1]

Finally, defendant seeks summary judgment based upon plaintiff's "failure to prove . . .Res Ipsa Loquitur." Res ipsa loquitur is not a discrete cause of action; rather, it represents the application of circumstantial evidence to permit a trier of fact to draw an inference of negligence solely from the happening of the accident. While plaintiff's complaint does not expressly make out a negligence cause of action based upon the theory of res ipsa loquitur, his Bill of Particulars specifically states, among other claims, that he intends to rely on that theory in support of his negligence claim (see e.g, Mogilansky v 250 Broadway Assocs, 29 AD3d 374 [1st Dept 2006]).

Here, as noted, the question of negligence, if any, is not ripe for summary judgment, defendant having failed to meet its initial burden to present evidence establishing prima facie that it neither created nor had notice of the allegedly dangerous condition. At this point in the litigation the record is insufficient for the court to determine, as a matter of law, whether res ipsa loquitur applies or whether defendant was otherwise negligent (Mogilansky v 250 Broadway Assocs, 29 AD3d at 377).

Accordingly, it is

ORDERED that defendant's motion for summary judgment is granted to the extent that so much of the complaint as is grounded upon Labor Law sections 240(1), 241(6), and 241-a; and violation of the Occupational and Safety Health Act is granted; and it is further

ORDERED that those claims are severed and dismissed; and it is further

ORDERED that the balance of the motion is denied: and it is further

ORDERED that the Clerk shall enter judgment accordingly.

ENTER

Dated:June 8, 2007s/ Philip G. Minardo

J.S.C. Footnotes

Footnote 1: In this regard, an alleged violation of an OSHA regulation is not a predicate for a claim against defendant under Labor Law § 200. "OSHA governs employee/employer relationships ... Since [defendant was] not an employer of [plaintiff] ... the OSHA regulations do not provide a specific, statutory duty, a violation of which would result in [its] liability" (Khan v. Bangla Motor and Body Shop, Inc., 27 AD3d at 528- 529 [2006] ).