Romero v Trump Vil. Apts. Two LLC

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[*1] Romero v Trump Vil. Apts. Two LLC 2008 NY Slip Op 51887(U) [20 Misc 3d 1145(A)] Decided on September 16, 2008 Supreme Court, Kings County Schneier, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 16, 2008
Supreme Court, Kings County

Miguel Romero, Plaintiff,


Trump Village Apartments Two LLC, Sea Breeze West-First, Inc. and Iva West Development LLC, Defendants.






(212) 972 -5656







(212) 683 - 9700

Martin Schneier, J.

This is an action by plaintiff, Miguel Romero (Romero) to recover damages for personal injuries based upon Labor Law violations and common-law negligence. Plaintiff moves for summary judgment on the issue of liability pursuant to Labor Laws sections 240(1), and/or 241(6), and/or 200 and for leave to [*2]amend his Bill of Particulars to include specific Industrial Code and OSHA violations. Defendants Trump Village Apartments Two LLC and Sea Breeze West-First, Inc.

(Trump Village) move for summary judgment dismissing the plaintiffs claims pursuant to Labor Law sections 240(1), 241(6), 200 and, common law negligence.


The instant action is based on an accident which allegedly occurred on August 23, 2005. At that time, the plaintiff was employed as a day laborer by WLC Construction Corporation, to assist in removing a chain link fence which surrounded the perimeter of a lot owned by Trump Village and then to erect a new wooden fence on the property.

The chain link fence was elevated above ground 2.5 meters (8 feet, 2 inches) high with vertical posts and heavy horizontal metal pipes on top held in place by clamps. At the worksite plaintiff was given pliers and a "WLC CONSTRUCTION" baseball cap.

It is uncontroverted that plaintiff was standing on the ground with his arms raised holding and securing the fence in place while his co-worker removed several fence pipe clamps when, the vertical fence post and ground dirt suddenly gave way, and caused the end of a horizontal pipe on top of the fence to fall 85 centimeters (33.5 inches) and strike plaintiff on the head, knocking him to the ground.


Labor Law Section 240(1) provides, in pertinent part, that: "All contractors and owners.....who contract for but do not direct or control the work, in the erection, demolition.....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, irons, ropes and other devices which shall be so constructed, placed and operated as to give protection to a person so employed."

Labor Law Section 240(1) is to be interpreted as liberally as possible in order to accomplish its protective goals. (Sanatass v. Consolidated Inv. Co., Inc. 10 NY3d 333 [2008]) The purpose of this statue is to safeguard a worker from injury caused by inadequate protective devices designed to shield the worker from falling objects. (Boyle v 42nd St. Dev. Project Inc., 38 AD3d 404 [1st Dept 2007]).

A violation of Labor Law Section 240(1) which proximately causes an employee to sustain an injury makes the owner absolutely liable for the employee's [*3]work related injury (Sanatss, supra).

The issue to before the Court is whether there was a violation of Labor Law Section 240(1) and did that violation proximately cause plaintiff's injury?

A threshold question is whether the plaintiff was engaged in an activity protected by Labor Law section 240(1). As noted earlier, Labor Law section 240(1) applies to the demolition of a structure. A "structure" is "any production or piece of work artificially built up or composed of parts joined together in some definite manner" (Lewis Moors v. Contel of NY, 78 NY2d 942, [1991]). An eight feet high chain link fence is a structure within the meaning of Labor Law Section 240(1) and, an injury occurring while in the course of removing it is a covered activity, (Carino v. Webster Place Associates, 45 AD3d 351 (1st Dept [2007]).

Labor Law Section 240 (1) requires owners to provide workers with appropriate safety devices to protect against specific gravity-related accidents, such as being struck by a falling object, which was not properly secured (Portillo v. Roby Anne Dev. LLC, 32 AD3d 421 (2d Dept. [2006]). In this case, the end of the horizontal fence pipe fell 33 inches and struck plaintiff on the head while he was holding the chain link fence because the pipe clamps had been removed and, thus, the pipe became unsecure. Furthermore, the fall of 33 inches was not de minimis and, therefore, plaintiff is entitled to Labor Law 240(1) protection. (Salinas v Barney Skanska Constr. Co. 2 AD3d 619 (2d Dept. [2003])

The fall of an elevated unsecured chain link fence pipe is not an "Ordinary Construction Risk," but is a typical elevation-related falling object case and, thus, Labor Law § 240(1) applies. The pipe should have been completely secured or some safety device should have been used in the meantime to prevent the "special hazard" of a gravity-related accident caused by being struck by a falling object that was inadequately secured (Ross v Curtis-Palmer Hydro-Elec.Co., 81 NY2d 494 [1993], Boyle, supra.)

It is undisputed that no safety devices were provided to either prevent the pipe from falling or to protect the plaintiff's head from being struck by the falling pipe. Although plaintiff is not required to specify which particular safety device would have prevented his injury (Noble v Amcc Corp., 277 AD2d 20 (1st Dept 2000)), it should be noted that plaintiff was given only a baseball cap and not a construction helmet.

The court finds that the plaintiff has established that he was engaged in a protected activity at the time of the accident and that the injury was caused by the failure to provide adequate safety devices. The defendants have failed to raise an issue of fact in opposition. Accordingly, the plaintiff's motion for summary [*4]judgment on the issue of liability pursuant to Labor Law section 240(1) is granted. Trump Village's motion for summary judgment dismissing plaintiff's Labor Law section 240(1) claim is denied.

Labor Law Section 200 is the codification of the common-law duty of an owner to provide workers with a safe place to work. This statute applies to owners 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 conditions (Singh v Black Diamonds LLC, 24 AD3d 138 [2d Dept 2005]; Brown v Brause Plaza, LLC, 19 AD3d 626 [2d Dept 2005]).

"An implicit precondition to this duty to provide a safe place to work is that the party charged with that responsibility have the authority to control the activity bringing about the injury to enable it to avoid or correct an unsafe condition" (Russin v Picciano, 54 NY2d 311 [1981])

Where, as here, an alleged dangerous condition arises from a subcontractor's methods over which defendant's exercised no supervisory control or had any input into, there is no liability under Labor Law section 200 or common-law negligence (Lombardi v Stout 80 NY2D 290 [1st Dept 1991])

Accordingly, Trump Village's motion for summary judgment is granted and the plaintiff's claims pursuant to Labor Law section 200 and common law negligence are dismissed.

With respect to the Labor Law section 241(6) summary judgment motions by plaintiff and defendant, the Court declines to consider them as they are moot in view of the determinations herein.

Plaintiff seeks to amend his Bill of Particulars to allege additional Industrial Code and OSHA violations. The Note of Issue by which plaintiff certified that he was ready for trial was filed on March 6, 2008.

Although leave should be freely granted absent prejudice to amend a Bill of Particulars and lateness alone is not a sufficient basis for denying leave to amend, leave should be denied where the amended Bill of Particulars alleges new theories of liability which substantially prejudices defendants. Here the claim of additional Industrial Code and OSHA violations by defendants does, by its very nature, create new theories of liability.

Accordingly, the court in the exercise of its discretion denies plaintiff's motion for leave to serve the proposed amended Bill of Particulars.


In sum, plaintiff's motion is granted only to the extent that plaintiff is granted summary judgment on his claim pursuant to Labor Law Section 240(1). [*5]Defendant's motion for summary judgment is granted only to the extent that plaintiff's claims pursuant to Labor Law section 200 and common law negligence are dismissed. Plaintiff's motion for leave to serve an amended Bill of Particulars is denied.

This constitutes the decision and order of the Court.



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