Cunha v City of New York

[*1] Cunha v City of New York 2007 NY Slip Op 52404(U) [18 Misc 3d 1104(A)] Decided on December 7, 2007 Supreme Court, New York County Stallman, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 7, 2007
Supreme Court, New York County

Antonio Cunha, Plaintiff,

against

City of New York, Defendant.



108414/05



Appearances:

For Plaintiff:

Jaroslawicz & Jaros, Esqs.

By: David Tolchin, Esq.

225 Broadway, 24th Floor

New York, New York 10007

(212) 227-2780

Torino & Bernstein, P.C.

By: Eva J. Tompkins, Esq.

200 Old Country Road, Suite 220

Mineola, New York 11501

(516) 747-4301

Michael D. Stallman, J.

In this action, arising out of a construction site accident, plaintiff moves, pursuant to CPLR 3212: (1) for summary judgment on the issue of defendant's liability under Labor Law §§ 240 (1) and 241 (6); (2) to set this matter down for trial on the sole issue of plaintiff's damages; (3) to strike the answer; and (4) to resolve the issue of whether the City contracted with Trocom Construction Corp. (Trocom), plaintiff's employer, for the work which plaintiff was performing. Defendant cross-moves [*2]for summary judgment dismissing the complaint.

BACKGROUND

On March 7, 2005, while working on a project involving the removal and replacement of pipes in the street known as Old Slip, in lower Manhattan, plaintiff fell part way into an open manhole, and was injured. While accounts of how the accident happened differ, what is clear is that plaintiff was walking backward, directing a Bobcat in moving piping debris or materials from one area of the work site to another when he fell into the open manhole. The manhole cover had been removed to accommodate ConEd workers who were also working at the site. As Old Slip is a public street, the City is the owner of the site.

Striking the Answer

The part of plaintiff's motion which seeks an order striking the answer is denied. Although the City did not produce the correct contract between the City and Trocom for over a year, in spite of several court orders to do so, the Court finds that the City's failure was neither willful nor contumacious, such as to merit striking its answer (see e.g. Nieves v City of New York, 35 AD3d 557, 558 [2d Dept 2006]; Mateo v City of New York, 274 AD2d 337 [1st Dept 2000]). Rather, several projects for which the City had entered contracts with Trocom were progressing at the same time and in the same location, and it was difficult to discover which contract for which project applied, especially because three City Departments were possibly involved: Parks and Recreation, Design and Construction, and Environmental Protection. Contrary to plaintiff's assumptions, there is no evidence before the Court that indicates that the City failed to diligently search for and produce the correct contract. Neither is there any evidence that plaintiff has been prejudiced by the delay in the contract's production. The City does not dispute its ownership of the street, and has admitted that the contract which plaintiff possesses is the correct contract. While plaintiff urges the Court to follow the precedent of Figdor v City of New York (33 AD3d 560 [1st Dept 2006]) and strike defendant's answer, Figdor is inapposite. There is no indication here that defendant's discovery responses were "inexcusably lax" or that defendant proceeded with a "cavalier attitude" in its dealings with the court or plaintiff (id. at 561). The part of plaintiff's motion which seeks the striking of defendant's answer is denied. Resolving the Issue of Whether Defendant Contracted with Trocom for the Work Being Done at the Site

This part of plaintiff's motion is denied as moot, because the City has both produced the proper contract between itself and Trocom, and admitted that that contract is the one pursuant to which plaintiff was working at the site.

Summary Judgment on the Issue of Defendant's Liability

"The proponent of a motion for summary judgment must demonstrate that there are no material issues of fact in dispute, and that it is entitled to judgment as a matter of law" (Dallas-Stephenson v Waisman, 39 AD3d 303, 306 [1st Dept 2007], citing Winegrad v New York University Medical Center, 64 NY2d 851, 853 [1985]). However, "[o]nce the movant makes the required showing, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of a material issue of fact that precludes summary judgment and requires a trial" (ibid., citing Alvarez v Prospect Hospital, 68 NY2d 320, 324 [1986]). "The court's role, in passing on a motion for summary judgment, is solely to determine if [*3]any triable issues exist, not to determine the merits of any such issues" (Sheehan v Gong, 2 AD3d 166, 168 [1st Dept 2003], citing Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]).

Labor Law § 240 (1)

Labor Law § 240 (1) provides, in relevant part:

All contractors and owners and their agents ... in the erection, demolition, repairing, 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.

"[T]he section imposes absolute liability on owners, contractors and their agents for any breach of the statutory duty that proximately causes a plaintiff's injury" (Panek v County of Albany, 99 NY2d 452, 457 [2003], quoted in Blake v Neighborhood Housing Services of New York City, 1 NY3d 280, 287 [2003]). The statute applies "in circumstances where there are risks related to elevation differentials ... [where] the proper erection', construction', placement' or operation' of one or more devices of the sort listed in section 240 (1) would allegedly have prevented the injury" (Rocovich v Consolidated Edison Co., 78 NY2d 509, 514 [1991]). The Legislature intended the statute "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'" (Ross v Curtis-Palmer Hydro-Electric Co., 81 NY2d 494, 500-501 [1993], quoting Rocovich, 78 NY2d at 514). The "exceptional protection" afforded by the statute is not intended to "encompass any and all perils that may be connected in some tangential way with the effects of gravity" (id. at 501).

At least two Departments of the Appellate Division have come to differing conclusions regarding whether an uncovered manhole constitutes an elevated work site or an elevation-related hazard. The Fourth Department, in Allen v City of Buffalo (161 AD2d 1134 [4th Dept 1990]), found that "the uncovered manhole through which decedent fell was an elevated worksite" (id. at 1134). In that case, the decedent worked in a subterranean work area which he and his co-workers reached by traversing a field of approximately 50 manholes over compartments of a coagulation basin. The only way to gain access to their work area was by climbing down ladders placed at the opening of the uncovered manholes. On the day of the accident, a covering of snow had obscured the uncovered manholes. The Fourth Department found that "[u]nder these circumstances," the uncovered manhole was an elevated work site.

The Second Department, in Masullo v City of New York (253 AD2d 541 [2d Dept 1998]), found that "[w]hile the manhole may have been negligently left uncovered, this is not one of the gravity-related hazards or perils subject to the safeguards prescribed by Labor Law § 240 (1)" (id. at 542). In that case, the plaintiff worked for an entity that had been hired to replace certain sewer pipes located at a pumping station. The court concluded that "the fall was the type of ordinary and usual peril a worker is commonly exposed to at a construction site" (ibid. [internal quotation marks and citations omitted]). The court also noted that the injured plaintiff's work was "wholly unrelated to an elevation-related hazard, the manhole in which he fell" (ibid.).

What constitutes an elevated work site was addressed by the Third Department in D'Egidio [*4]v Frontier Insurance Co. (270 AD2d 763 [3d Dept 2000]), where the injured plaintiff's leg fell through a hole in a raised computer floor. The Court concluded that the floor was not

an elevated work site requiring the use of the protective devices enumerated in Labor Law § 240 (1). ... Rather, a work site is "elevated" within the meaning of the statute where the required work itself must be performed at an elevation, i.e., at the upper elevation differential, such that one of the devices enumerated in the statute will safely allow the worker to perform the task

(id. at 765). Moreover, the Third Department found that "the mere proximity to an elevation differential, alone, is insufficient to trigger the protection of Labor Law § 240 (1)" (id. at 766).

Here, there are differing versions of what plaintiff was doing at the time of his accident. He avers that he was walking backward, directing the Bobcat operator in moving pipes from one location to another at the work site, when he fell into the open manhole (Plaintiff's Depo., at 14, 25, 27-28, 32). His supervisor, Anatoly Veksler, attests that plaintiff had loaded steel sleeves into the front bucket of the Bobcat and was walking backwards, directing the Bobcat operator, "trying to bring the material as close as possible to the edge of the trench" where the pipes would be laid (Veksler Aff., ¶¶ 4, 6). At the same time, ConEd workers were inspecting a manhole "to which we would have to connect" (id., ¶ 5). Plaintiff was walking backwards towards the open manhole and trench when he fell (id., ¶ 6).

In considering the case law and the facts of this matter, the Court concludes that the street on which plaintiff was working was not an elevated work site, and that it did not expose plaintiff to an elevation-related risk. Plaintiff's task involved transferring piping materials along the street from one area of the work site to another. Walking along a street does not put a worker at risk of falling from an elevated work site, such that safety devices of the type enumerated in Labor Law § 240 (1) are required. The presence of manholes is a common feature of city streets, and covered or uncovered, the presence of this particular manhole was unrelated to the performance of plaintiff's work. In light of all of the circumstances, the Court finds that plaintiff's accident was the result of an ordinary hazard of the workplace, and his injuries are not covered by Labor Law § 240 (1).

Accordingly, the part of plaintiff's motion which seeks summary judgment on the issue of defendant's liability under Labor Law § 240 (1) is denied, and the part of defendant's cross motion which seeks summary judgment dismissing plaintiff's Labor Law § 240 (1) claim is granted.

Labor Law § 241 (6)

Section 241 (6), which imposes a nondelegable duty upon an owner or general contractor to see to it that the construction, demolition and excavation operations at the workplace are conducted so as to provide for the reasonable and adequate protection of the workers, is not self-executing. To establish liability under the statute, a plaintiff must specifically plead and prove the violation of an applicable Industrial Code regulation. The Code regulation must constitute a specific, positive command, not one that merely reiterates the common law standard of negligence. The regulation must also be applicable to the facts and be the proximate cause of the plaintiff's injury [internal citations omitted]

(Buckley v Columbia Grammar and Preparatory, 44 AD3d 263, 271 [1st Dept 2007]). The duty is imposed "regardless of the absence of control, supervision, or direction of the work" (Romero v J [*5]& S Simcha, Inc., 39 AD3d 838, 839 [2d Dept 2007]; see also Ferrero v Best Modular Homes, Inc., 33 AD3d 847, 851 [2d Dept 2006]). A finding that a party has violated Labor Law § 241 (6) is only some evidence of negligence; it does not result in absolute liability or a finding of negligence as a matter of law (see e.g. Long v Forest-Fehlhaber, 55 NY2d 154, 160 [1982]; see also Mulhern v Manhasset Bay Yacht Club, 22 AD3d 470, 471 [2d Dept 2005]; Ramputi v Ryder Construction Co., 12 AD3d 260, 261 [1st Dept 2004]).

The issue of whether the City was the "owner" of the worksite for purposes of Labor Law § 241 (6) must be resolved in the affirmative. Initially, the City has admitted that it is the owner of Old Slip, a public street. In addition, it is uncontested that the City contracted with Trocom for the work which plaintiff was performing at the time of his accident. This determination that the City was the "owner" of plaintiff's workplace for purposes of Labor Law § 241 (6) accords with the Appellate Division, Second Department's finding in Romero v J & S Simcha, Inc. (39 AD3d at 839), where the City admitted that it owned the property where the plaintiff was injured, and had issued a permit for the work.

The decisions in Albanese v City of New York (5 NY3d 217 [2005]) and Villani v City of New York (171 AD2d 418 [1st Dept 1991]), where the courts found that the City was not the "owner" under Labor Law § 241 (6), do not require a different result. In Albanese, the plaintiff was standing on a scaffold suspended above the Bruckner Expressway. He was injured when a tractor-trailer traveling along the expressway struck the bottom of the scaffold and plaintiff was thrown into the air and fell back onto the scaffold. The Court of Appeals found that the City was not an "owner" because the State of New York had initiated the project and had hired the general contractor and construction manager. The City was not a signatory to the contracts; it did not participate in the selection of, or negotiation with, the contracting parties; and it performed none of the work. The extent of the City's involvement in the project was "largely confined to its regulatory responsibilities arising out of its [issuance of] work permits" (Albanese, 5 NY3d at 221).

The First Department, in Villani, found that the City could not be held liable to the plaintiff because the plaintiff "failed to establish that the City was the owner' under Labor Law § 241 (6) of the subject worksite" (Villani, 171 AD2d at 419). Plaintiff there had been injured by a flash explosion in a manhole which was "owned, controlled and maintained by Con Edison" (ibid.).

The City here has admitted that it was the owner of the street, and the evidence confirms the admission. Thus, the next issues are whether Labor Law § 241 (6) and any Industrial Code sections apply in this matter.

The replacement of pipes in Old Slip required excavation of the street. Thus, Labor Law § 241 (6) applies. Defendant's contention that section 241 (6) does not apply because the risk of the open manhole was open and obvious and seen by plaintiff only a few minutes before his accident is without merit. Nevertheless, these circumstances "merely negate[] any duty that defendant owed plaintiff to warn of potentially dangerous conditions; they do not, without more, obviate the duty to provide a reasonably safe workplace [internal quotation marks, ellipses and citations omitted]" (England v Vacri Construction Corp., 24 AD3d 1122, 1124 [3d Dept 2005]; see also Verel v Ferguson Electric Construction Co., 41 AD3d 1154, 1156 [4th Dept 2007] ["the open and obvious nature of the allegedly dangerous condition in this case does not negate the duty to maintain (the) premises in a reasonably safe condition but, (instead), bears only on the injured person's comparative fault (internal quotation marks and citation omitted)"]). Comparative negligence is a valid defense [*6]to a Labor Law § 241 (6) claim (see Spages v Gary Null Associates, 14 AD3d 425, 426 [1st Dept 2005]).

Plaintiff's complaint and bill of particulars allege that defendant violated the following sections of the Industrial Code (12 NYCRR Part 23): 23-1.7 (b) (1) (i), (ii), and (iii); 23-1.7 (e) (1) and (2); 23-1.15; 23-1.33; 23-2.1 (a) and (b); 23-2.2; and 23-4.2 (h) and (i).

Section 23-1.7 (b) (1) follows: (b) Falling hazards.

(1) Hazardous openings

(i) Every hazardous opening into which a person may step or fall shall be guarded by a substantial cover fastened in place or by a safety railing constructed and installed in compliance with this Part (rule).

(ii) Where free access into such an opening is required by work in progress, a barrier or safety railing constructed and installed in compliance with this Part (rule) shall guard such opening and the means of free access to the opening shall be a substantial gate. Such gate shall swing in a direction away from the opening and shall be kept latched except for entry and exit.

(iii) Where employees are required to work close to the edge of such an opening, such employees shall be protected as follows:

(a) Two-inch planking, full size, or material of equivalent strength installed not more than one floor or 15 feet, whichever is less, beneath the opening; or

(b) An approved life net installed not more than five feet beneath the opening; or

(c) An approved safety belt with attached lifeline which is properly secured to a substantial fixed anchorage.

Section 23-1.7 (b) (1) (i) has been found to be sufficiently specific to be able to support a Labor Law § 241 (6) claim (see e.g. O'Connor v Lincoln Metrocenter Partners, L.P., 266 AD2d 60 [1st Dept 1999]). Section 23-1.7 (b) (1) (iii) has also been found to be specific enough (see e.g. Luckern v Lyonsdale Energy Ltd. Partnership, 281 AD2d 884 [4th Dept 2001]).

Although the part of section 23-1.7 (b) (1) (i) which requires the manhole to have a "substantial cover fastened in place" obviously cannot apply because the manhole cover had to be removed so the ConEd workers could get in and out of it, the part of the provision which requires a safety railing may apply. The requirement of section 23-1.7 (b) (1) (ii) that a safety rail be provided even when free access to the opening is needed may also apply. However, section 23-1.7 (b) (1) (iii) does not apply, because plaintiff fell less than 15 feet (see Dzieran v 1800 Boston Road, LLC, 25 AD3d 336, 338 [1st Dept 2006]), and because the provisions of that subsection would preclude access in and out of the manhole.

Sections 23-1.7 (e) (1) and (2) pertain to tripping hazards. The section is inapplicable because plaintiff did not trip on anything.

Section 23-1.15 does not apply where no railing was provided (see Dzieran, 25 AD3d at 337).

Section 23-1.33 is specific enough to support a section 241 (6) claim (see e.g. Ozzimo v H.E.S., Inc., 249 AD2d 912 [4th Dept 1998]), but the provision is inapplicable here because it "does not apply to any city in the State of New York having a population of one million or [*7]more persons." In addition, "12 NYCRR 23-1.33 does not apply to workers on a construction site" (Mancini v Pedra Construction, 293 AD2d 453, 454 [2d Dept 2002]).

Section 23-2.1 (a) and (b) are inapplicable because the storage of material or equipment was not a proximate cause of plaintiff's accident.

Section 23-2.2, which concerns concrete work, does not apply.

While section 23-4.2 sets standards for "trench and area type excavations," and is specific enough to support a Labor Law § 241 (6) claim (see e.g. Davis v Manitou Constr. Co., 299 AD2d 927 [4th Dept 2002]), subsections (h) and (i) are inapplicable because plaintiff did not fall into a trench, and the lack of a barrier guarding the trench played no part in his accident.

In sum, the only provisions of the Industrial Code on which plaintiff's Labor Law § 241 (6) claim may be based are sections 23-1.7 (b) (1) (i) and (ii). Therefore, the part of defendant's cross motion which seeks summary judgment dismissing plaintiff's section 241 (6) claim is granted except with respect to the part of the claim which is based on these two sections of the Industrial Code. Plaintiff's motion for summary judgment on his section 241 claims is denied.

Labor Law § 200 and Common-Law Negligence

"Labor Law § 200, the codification of the common law negligence standard, imposes a duty upon an owner or general contractor to provide construction site workers with a safe place to work" (Buckley, 44 AD3d at 272).

Where ... a plaintiff's injuries stem not from the manner in which the work was being performed, but, rather, from a dangerous condition on the premises, a general contractor may be liable in common-law negligence and under Labor Law § 200 if it has control over the work site and actual or constructive notice of the dangerous condition

(Keating v Nanuet Board of Education, 40 AD3d 706, 708 [2d Dept 2007]).

The City has not met its burden of establishing its entitlement to summary judgment on the issue of its lack of notice of the dangerous condition. The papers give no indication of whether or not defendant had control over the work site or whether any of its personnel were on site such that defendant might have had actual notice of the open manhole. The City has provided insufficient detail to establish that the dangerous condition was not "visible and apparent and [did not] exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it" (Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]; see also Pesa v General Electric Co., 300 AD2d 53, 53-54 [1st Dept 2002]; in the non-Labor Law context, see Baptiste v 1626 Meat Corp., ___ AD3d ___, 2007 WL 3197531, 2007 NY App Div LEXIS 11030 [1st Dept 2007] [insufficient details]; Soto-Lopez v Board of Managers of Crescent Tower Condominium, ___ AD3d ___, 843 NYS2d 444 {44 AD3d 846} [2d Dept 2007] [insufficient evidence]; Scoppettone v ADJ Holding Corp., 41 AD3d 693 [2d Dept 2007] [nothing in circumstances would have aroused "suspicions" that dangerous condition existed]).

Because defendant has failed to meet its burden on its cross motion, summary judgment in its favor dismissing plaintiff's Labor Law § 200 and common-law negligence claims must be denied.

CONCLUSION

Accordingly, it is

ORDERED that the part of plaintiff's motion which seeks summary judgment on the issue [*8]of defendant's liability under Labor Law § 240 (1) is denied; and it is further

ORDERED that the part of plaintiff's motion which seeks summary judgment on the issue of defendant's liability under Labor Law § 241 (6) is denied; and it is further

ORDERED that the part of plaintiff's motion which seeks an order striking defendant's answer is denied; and it is further

ORDERED that the part of plaintiff's motion which seeks resolution of the issue of the City's contract with Trocom is denied as moot; and it is further

ORDERED that the part of defendant's cross motion which seeks summary judgment dismissing plaintiff's Labor Law § 240 (1) claim is granted; and it is further

ORDERED that the part of defendant's cross motion which seeks summary judgment dismissing plaintiff's Labor Law § 241 (6) claim is granted except to the extent that such claim is based on violations of Industrial Code §§ 23-1.7 (b) (1) (i) and (ii); and it is further

ORDERED that the part of defendant's cross motion which seeks summary judgment dismissing plaintiff's Labor Law § 200 and

common-law negligence causes of action is denied.

This decision constitutes the order of the Court.

Dated: December 7, 2007E N T E R

New York, New York

s/

_________________________

J.S.C.