Torres v City of New York

[*1] Torres v City of New York 2008 NY Slip Op 52021(U) [21 Misc 3d 1109(A)] Decided on September 8, 2008 Supreme Court, Bronx County Salerno, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 8, 2008
Supreme Court, Bronx County

Carlos Torres and Lucina Tagano, Plaintiffs,

against

The City of New York, Defendant.



25186/05



Attorneys for Defendant

Guy Calo

Cerussi & Spring

The City of New York

One North Lexington Avenue

White Plains, New York 10601-1700

(914)-948-1200

Attorneys for Plaintiffs

Stadtmauer & Associates

230 Park Avenue, Suite 2525

New York, New York 10169

(212) 986-6200

George D. Salerno, J.

Defendant moves, pursuant to CPLR 3212, for an order dismissing plaintiffs' complaint. Plaintiffs cross move, pursuant to General Municipal Law §50-e(6) for an order granting leave, to amend their Notice of Claim to assert vicarious liability claims against defendant premised on Labor Law §§ 200, 240(1) and 241(6).

BACKGROUND

The essential facts which form the background to both defendant's and plaintiffs' motions arise from an accident which occurred at a job site on October 20, 2004 where plaintiff, Carlos Torres, was employed by a nonparty construction company, Apple Builders & Renovation Inc. It is undisputed that on the day of the accident Torres was working on the roof of Walton High School located in the Bronx,[FN1] and while cutting a piece of metal from a metal rod with a machine called a grinder, a piece of metal from the metal rod flew up and became lodged in Torres' left eye allegedly causing permanent loss of vision. [FN2] Defendant does not dispute that when this accident occurred Torres was not wearing protective goggles. [FN3]

PLAINTIFFS' NOTICE OF CLAIM

Defendant does not dispute that the Notice of Claim filed by Torres was timely served and named only Torres as the injured party. The Notice of Claim admittedly did not assert a claim on behalf of Lucina Tagano, Torres' spouse.[FN4]

PLAINTIFFS' COMPLAINT

The summons and complaint were also timely served and named both Torres and his spouse, Lucina Tagano, as plaintiffs. [FN5] The complaint pleads three separate causes of action [*2]charging defendant with negligent conduct in failing to provide Torres with a safe place to work, failing to provide Torres with proper eye protection and violating Labor Law Sections 200, 240(1) and 241(6). Plaintiffs' second cause of action seeks a recovery based upon a violation of the Industrial Code (12 NYCRR)§23-1.8(a), alleging that Torres should have been provided with eye protection goggles, and in a separate paragraph alleges that defendant, pursuant to Labor Law §241(6), as the owner of the property on premises where plaintiff Torres was working, had a non delegable duty to protect him. The third cause of action sets forth a cause of action on behalf of Torres's wife for loss of consortium.[FN6]

The complaint is dated December 26, 2005, which plaintiffs assert is the date when their action was commenced. Defendant does not dispute this, and consequently it is evident that plaintiffs timely commenced their action (see General Municipal Law § 50-i). [FN7] Plaintiffs' bill of particulars also notified defendant that Torres intended to pursue liability claims against defendant premised on violations of Labor Law §§200, 240(1), 241(6) and Industrial Code (12 NYCRR) 23-18(a). [FN8] It is also evident that the Notice of Claim served by plaintiff Torres does not specifically mention that he is asserting a claim or that defendant violated Labor Law §§200, 240(1) and 241(6).

DEFENDANT'S ARGUMENTS

It is this omission, that is, the absence of language in the Notice of Claim served by Torres which does not refer to sections of the Labor Laws of the State of New York or to the Industrial Code, that defendant contends warrants dismissing plaintiffs' complaint. Defendant points to General Municipal Law § 50-e(2) which sets forth the form of the notice of claim and its contents. This section states in pertinent part:

Form of notice; contents. The notice shall be in writing, [*3]

sworn to by or on behalf of the claimant, and shall set forth:

(1) the name and post-office address of each claimant,

and of his attorney, if any; (2) the nature of the claim;

(3) the time when, the place where and the manner in

which the claim arose; and (4) the items of damage or

injuries claimed to have been sustained so far as then

practicable... A supplemental claim shall be provided by

the claimant within fifteen days of the request. In the

event the supplemental demand is not served within

fifteen days, the court, on motion may order that it be

provided by the claimant.

In support of its motion to dismiss plaintiffs' complaint, defendant also argues that the loss of consortium claim,which is also absent from the Notice of Claim served by Torres, must be dismissed. [FN9] Here, defendant refers this Court to previous decisions rendered, such as, Bryant v. City of New York (188 AD2d 445, 446 [2d Dept. 1992]), where the court dismissed several causes of action due to plaintiff's failure to set forth in the notice of claim allegations concerning negligent hiring, training or supervision of municipal defendants. The gravity of this omission, defendants argued in Bryant, was compounded by plaintiff's failure to plead factual allegations in the complaint regarding the policies of the municipal defendants which led to the officers' conduct or conduct indicating approval of the improper conduct. In the case at bar plaintiff's complaint does contain specific references to several sections of the Labor Law which is the gist of plaintiff's action.

Defendant here, also relies upon the determination of the court in Murphy v. County of Nassau (84 AD2d 577, 443 N.Y.S 2d 432 [2d Dept. 1981]) where plaintiff was denied leave to amend his notice of claim and complaint to add causes of action for pain and suffering and loss of consortium. The court in Murphy, ruled out the cause of action for loss of consortium since plaintiff was not permitted to pursue a claim for pain and suffering. The court also pointed out that loss of consortium is not a pecuniary injury for which damages are recoverable in a wrongful death action, citing Liff v. Schildkrout, 49 NY2d 622, 404 NE2d 1288, 427 NYS2d 746 (1980).

DISCUSSION

Defendant's reliance on several other cases cited in its Memorandum of Law which allegedly support its argument that plaintiffs' Notice of Claim is deficient are not controlling. The purpose underlying the notice of claim requirement embodied in General Municipal Law § 50-e is to protect the municipality from fallacious claims and ensure that the municipality has ample opportunity to explore in a timely manner the merits of a plaintiff's claim (see Adkins v. City of New York, 43 NY2d 346, 350, 372 NE2d 311, 401 NYS2d 469 [1997]). General Municipal Law § 50-e(5) confers upon the court the discretion to grant or deny leave to serve a late notice of claim within certain parameters (see Matter of Porcaro v. City of New York, 20 AD3d 357, 358, 799 NYS2d 450 [1st Dept. 2005]; Matter of Dubowy v. City of New York, 305 AD2d 320, 321, 759 NYS2d 325 [1st Dept. 2003]), and some of the factors which the court will consider are [*4]whether plaintiff provided a reasonable excuse for failing to file the notice of claim within the time frame allotted by General Municipal Law § 50-e, whether the municipality had actual notice of the essential facts within 90 days after plaintiff's claim arose and whether the delay has prejudiced the municipality. Case law also makes it clear that the presence or absence of only one factor is not dispositive. (Matter of Semyonova v. N.Y.C.H.A.,15 AD3d 181, 182, 789 NYS2d 38 [1st Dept. 2005]; Matter of Dubowy v. City of New York, 305A.D.2d, supra , at 321).

The principal questions presented by defendant's motion and plaintiffs' cross motion is whether plaintiff Tagano's failure to serve a notice of claim that notifies defendant that she intended to pursue a claim for loss of consortium, and her husband Torres's failure to include particular language identifying the specific sections of the Labor Law which defendant allegedly violated, warrants dismissing plaintiffs' complaint because such omissions interfered with defendant's ability to conduct a timely investigation to ascertain the nature of their claims. Answering this broad question requires first a recognition that plaintiff Torres' Notice of Claim was timely. [FN10] Secondly, plaintiffs timely filed a complaint asserting causes of action based on a violation of several sections of the Labor Law that were appropriately identified. [FN11] Although only Torres testified at a 50-h hearing on September 23, 2005, he did acknowledge that he is married to Lucina Tagano and they live at home with their four (4) children. [FN12] Both Torres and his wife were later deposed at an examination before trial. [FN13] Finally, defendant has not established that it was prejudiced by alleged omissions in the Notice of Claim filed by plaintiffs.

The complaint contains a separate cause of action on behalf of plaintiff Tagano. Consortium represents the marital partner's interest in the continuance of the marital relationships as it existed at its inception. A claim for loss of consortium by the injured party's spouse is joined with the main action. Presumably her testimony at her pre-trial deposition sufficiently apprised defendant of her claim and consequently defendant was able to secure the necessary information. Indeed, it is difficult for this Court to understand in what manner, if any, defendant was unable to learn the basis upon which both the derivative cause of action and the factual basis upon which Torres' Labor Law claims are grounded given the discovery history which preceded defendant's motion.

Moreover, a review of cases such as Sciolto v. New York Tr. Auth (288 AD2d 144, 734 NYS2d 9 [1st Dept. 2001]); Burgarella v. City of New York (265 AD2d 361, 697 NYS2d 68 [2d Dept. 1999]) and Dodd v. Warren (110 AD2d 807, 488 NYS2d 70 [2d Dept. 1985]), clearly indicates that defendant is not entitled to dismiss the loss of consortium claim set forth in plaintiffs' complaint.

Our courts have consistently held that the notice of claim statute, General Municipal Law § 50-e, is to be applied flexibly, and that flexibility is the key to balance two countervailing [*5]interests: on the one hand, protecting municipal defendants from stale or frivolous claims, and on the other hand, ensuring that a meritorious case is not dismissed for a ministerial error. (see Rosenbaum v. City of New York, 24 AD3d 349, 806 NYS2d 543 (2005), rev'd on other grounds, 8 NY3d 1, 828 NYS2d 228, 861 NE2d 43). Moreover, our courts have also recognized that the notice requirement set forth in General Municipal Law was not meant to be used as "a sword to cut down honest claims but merely as a shield to protect municipalities against spurious ones." (Lomax v. New York City Health and Hosps. Corp., 262 AD2d 2, 4, 690 NYS2d 548 [1st Dept. 1999]; see also Matter of Quiroz v. City of New York, 154 AD2d 315, 316, 546 NYS2d 604

[1st Dept.1989]). In Lomax, the court looked at the issue of amending notices of claim. Specifically, the court considered the amendment provision in General Municipal Law § 50-e (6) which states, in relevant part, that provided there is no prejudice to the other party, "At any time after the service of a notice of claim and at any stage of an action[...] a mistake, omission, irregularity or defect made in good faith in the notice of claim, [...] may be corrected, supplied or disregarded [...] in the discretion of the court."(Lomax, 262 AD2d at 3, 690 NYS2d at 549).

This Court is not suggesting that a claimant may unconditionally add a new cause of action or theory of liability which was not referred to or implied in the notice of claim (see e.g. Mazzilli v. City of New York, 154 AD2d 355, 545 NYS2d 833 [2d Dept. 1989]; Wanczowski v. City of New York, 186 AD2d 397, 588 NYS2d 1011 [1st Dept. 1992]); however, a theory of liability related to or implied by what is clearly stated in the notice of claim should be permitted to proceed; particularly when as here, plaintiff Torres' Labor Law claims can only prevail if the facts as set forth in the Notice of Claim and asserted in plaintiffs' complaint support the legal conclusion required to sustain an action which is premised on violations of Labor Law §§ 200, 240(1), and 241(6).

Recently the court in Goodwin v. NYCHA, (42 AD3d 63, 834 NYS2d 181 [1st Dept. 2007]) reviewed the determination of the court below which granted a defendant's motion for summary judgment dismissing a plaintiff's complaint. The action in Goodwin was instituted by a husband and wife for a personal injury claim and loss of consortium which arose from a slip and fall at a building owned by NYCHA. Judge Catterson, writing for a unanimous court, revisited the purpose of a notice of claim and the test to be applied to determine whether the information set forth on a notice of claim satisfies the requirement imposed by General Municipal Law § 50-e, and said:

"It is well established that the purpose of the notice of

claim is to give a municipal authority the opportunity to

investigate. Teresta v.City of New York, 304 NY 440,

443, 108 NE2d 397, 398 (1952). The test of the notice's

sufficiency is "whether it includes information sufficient to

enable the city to investigate the claim." O'Brien v. City

of Syracuse, 54 NY2d 353, 358, 445 NYS2d 687, 689,

429 NE2d 1158, 1160 (1981); see also Rosenbaum v.

City of New York, 8 NY3d 1, 10, 828 NYS2d 228,

861 NE2d 43, 48 (2006) ("courts should focus on the

purpose served by a Notice of Claim; whether based on

the claimant's description municipal authorities can locate [*6]

the place, fix the time and understand the nature of the

[claim]".

Plaintiff Torres' Notice of Claim identified in precise detail the type of work he performed when the accident occurred; the location where he was working when the accident happened; what he was doing when the injury

occurred; the name of his employer; the contract which his employer entered into; the nature of the work which his employer contracted to perform; the absence of the safety equipment which led to his injury; the existing conditions present under which Torres was required to perform his tasks which he was compelled to perform. [FN14] Moreover, as the court pointed out in Goodwin, 42 A.D.2d 63, supra , when faced with the issue regarding the sufficiency of a notice of claim the court "may look to evidence adduced at a section 50-h hearing, and to such other evidence as is properly before the court." (see D'Alessandro v. New York City Tr. Auth. 83 NY2d 891, 893[1994]). Here, not only was there a 50-h hearing, but Torres and his wife also testified at an examination before trial. Finally, it is incumbent for the defendant to demonstrate the manner in which it is prejudiced by plaintiffs' failure to set forth in the notice of claim the sections of the Labor Law they intend to pursue when they serve a complaint. Prejudice will not be presumed (see Zahra v. N.Y.C.H.A., 16 AD3d 245, 791 NYS2d 546 [1st Dept. 2005]; Williams v. City of New York, 229 AD2d 114, 117, 654 NYS2d 775 [1st Dept. 1997]).

DEFENDANT'S ALTERNATIVE RELIEF REQUEST

Defendant's motion also seeks alternative relief, arguing that it is entitled to summary judgment dismissing plaintiff's causes of action relating to Labor Law §§200, 240(1) and 241(6).

Labor Law §200

Labor Law §200 is a codification of the common law duty of an owner or employer to provide employees with a safe place to work (see Jock v. Fien, 80 NY2d 965, 590 NYS2d 878, 605 NE2d 365 [1992]). Liability under Labor Law §200 cannot be imposed unless plaintiff establishes that the owner or general contractor supervised or controlled the work performed, or had actual or constructive notice of the unsafe condition which precipitated plaintiff's injury (see Comes v. New York State Elec. & Gas Corp., 82 NY2d 876, 609 NYS2d 168, 631 NE2d 110 [1993]; Murray v. South End Improvement Corp., 263 AD2d 577, 578, 693 NYS2d 264 [3d Dept. 1999]; Butigian v. Port Authority of New York and New Jersey, 266 AD2d 133, 699 NYS2d 41 [1st Dept. 1999] [no evidence that owner or tenant exercised supervisory control over plaintiff's work].)

The Appellate Division, First Department, recently emphasized the requirement of direct control for a finding of liability under Labor Law §200 as follows:

"Where a claim under Labor Law § 200 is based upon alleged

defects or dangers arising from a subcontractor's methods or

materials, liability cannot be imposed on an owner or general

contractor unless it shown that it exercised some supervisory

control over the work. [citation omitted] It is well settled that

an implicit precondition to th[e] duty [to maintain a safe construction site] is that the [*7]party to be charged with that obligation have the authority to control the activity bringing about the injury to enable it to avoid or correct an unsafe condition' [citation omitted]. General

supervisory authority is insufficient to constitute supervisory control;

it must be demonstrated that the contractor controlled the manner in which the plaintiff performed his or her work, i.e., how the injury-producing work was performed [citation omitted]." (Hughes v. Tishman Construction Corp., 40 AD3d 305, 836 NYS2d 86

[1st Dept. 2007]).

Here, while it is true, based upon the deposition testimony provided by Julio Matos, a custodial engineer employed by the Board of Education, that the construction undertaken at Walton High School was supervised by the School Construction Authority, the general contractor, defendant did not control the method of the injury producing activity that was performed by Torres. Where a claim under Labor Law §200 is based on alleged defects or damages arising from the subcontractor's failure to provide adequate safety devices which is the circumstance here, liability cannot be imposed on an owner or general contractor unless it is shown that they exercised the requisite supervisory control over the work. (Ross v. Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 505, 618 NE2d 82, 601 NYS2d 49[1993]. See also, Fresco v. 157 East 72nd Street Condominium, 2 AD3d 326, 769 NYS2d 536 (1st Dept. 2003), where the court held that a plaintiff's Labor Law §200 claim was dismissed since no evidence was presented that the general contractor had actual or constructive notice that his employer did not provide safety goggles; see also, Lally v. JGN Construction Corp., 295 AD2d 148, 743 NYS2d 451 [1st Dept. 2002]).

Labor Law 240

Section 240 of the Labor Law states: 1. All contractors and owners and their agents, except owners of one andtwo-family dwellings who contract for but do not direct or control thework, in the erection, demolition, repairing, altering, painting, cleaning orpointing of a building or structure shall furnish or erect, or cause to befurnished or erected for the performance of such labor scaffolding, hoists,stays ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, andother devices which shall be so constructed, placed and operated as togive proper protection to a person so employed.

When it is shown "that a violation of Section 240 was a contributing cause of [an accident and injury to a plaintiff]," absolute liability is vicariously imposed on all "contractors and owners and their agents." (Zimmer v. Chemung County Performing Arts, Inc., 65 NY2d 513, 524, 493 NYS2d 102 [1985]; Rizzuto v. L.A. Wenger Contracting Co., Inc., 91 NY2d 343 [1998]). It is equally "well settled that the injured's contributory negligence is not a defense to a claim based on Labor Law §240(1) and that the injured's culpability, if any, does not operate to reduce the owner/contractor's liability for failing to provide adequate safety devices." (Stolt v. General Foods Corp., 81 NY2d 918, 920, 597 NYS2d 650 [1993]). Therefore, to establish liability, plaintiff must show that the statute was violated [in that he was not furnished with the necessary equipment to give him proper protection] and that the violation was a proximate cause of his injury. (Blake v. Neighborhood Housing, 1 NY3d 280, 803 NE2d 757, 771 NYS2d 484 [*8][2003]).

Section 240(1) provides that the statutory duty is non delegable. It does not require that the owner exercise supervision or control over the work site before liability attaches (see Ross v. Curtis-Palmer Hydro-Elec. Co., supra , 81 NY2d at 501-502). However, although §240(1) does not expressly limit its application to a narrow class of construction activity, the statute has been consistently applied to accidents which arise from elevation related accidents (see Keaney v. City of New York, 24 AD3d 615, 808 NYS2d 335 [2d Dept. 2005]; Foote v. Lyonsdale Energy Limited Partnership, 23 AD3d 924, 805 NYS2d 163 [3d Dept. 2005]; Gonzalez v. Turner Construction Company, 21 AD3d 832, 801 NYS2d 310, 311 [1st Dept. 2005]; Guercio v. Metlife Inc., 15 AD3d 153, 789 NYS2d 120 [1st Dept. 2005]; Danton v. Joseph Van Valkenburg, 13 AD3d 931, 787 NYS2d 431 [3d Dept. 2004]; Dilluvio v. City of New York, 264 AD2d 115, 704 NYS2d 550 [1st Dept. 2000]). Here, although plaintiff was working on the roof when the accident occurred, his injury was not caused by his elevated activity.

Labor Law 241(6)

Law Law 241 states, in pertinent part, as follows:

All contractors and owners and their agents, ...

when constructing or demolishing buildings or

doing any excavating on connection therewith,

shall comply with the following requirements:

6.All areas in which construction, excavation or

demolition work is being performed shall be so

constructed, shored, equipped, guarded, arranged,

operated and conducted as to provide reasonable

and adequate protection and safety to the persons

employed therein or lawfully frequenting such

places. The commissioner may make rules to carry into

effect the provisions of this subdivision and the

owners and contractors and their agents for such

work...shall comply therewith.

7. The commissioner may make the rules to provide the protection of workmen in connection with the excavation

work for the construction or demolishing buildings and

structuring or demolishing buildings and structures,

and the guarding of dangerous machinery used in

connection therewith, and the owners and contractors

and their agents for such work... shall comply therewith.

Thus, Section 241(6) imposes a non delegable duty upon an owner or contractor to provide reasonable adequate protection and safety for workers at a job site and also to comply with specific rules and regulations which are promulgated by the Department of Labor. In Ross v. Curtis-Palmer Hydro-Electric Co., supra , (81 NY2d 494), the Court of Appeals held that a cause [*9]of action under Labor Law Section 241(6) required evidence which established the violation of a specific implementing regulation of the Industrial Board of Appeals. In order to sustain a claim under Labor Law §241(6), the violations alleged must apply to the facts of the case. (Zdzinski v. North Star Construction, Inc., 242 AD2d 951, 662 NYS2d 887 [4th Dept.1997]). A plaintiff must demonstrate that the defendant violated a rule or regulation that sets forth a specific standard of conduct. (McCloud v. State, 237 AD2d 783, 654 NYS2d 860 [3d Dept.1997]). Compliance with a regulation of the Industrial Board of Appeals that sets forth a specific standard or conduct is also non delegable (see Long v. Forest Fehlhaber, 55 NY2d 154, 159, 433 NE2d 115, 448 NYS2d 132 [1982]). Manifestly, since the owner's duty under Section 241(6) is non delegable, liability is imposed whether or not the owner exercised control or supervision over the work performed. See Ross v. Curtis Palmer Hydro-Electric Co., supra , 81 NY2d 494, 502).

In the case at bar, Torres, in support of his claim under section 241(6), relies upon 12 N.Y.C.R.R.§ 23-1.8(a) of the Industrial Code which requires eye protection equipment to be provided and "used" by all persons who are engaged in cutting operations or grinding materials that may fly into the eye of a worker who is performing such activity. Whether an activity is protected by 12 N.Y.C.R.R. 23-1.8(a) of the Industrial Code, requiring furnishing a worker with eye protection equipment, has been held to present an issue which turns on whether the particular activity involves a foreseeable risk of an eye injury (see Cappiello v. Telehouse Intl. Corp., 193 AD2d 478, 480, 579 NYS2d 293 [1st Dept. 1993]). Here Torres was performing a work task allegedly at the direction of his supervisor who according to Torres, knew that he did not have protective goggles, and also significant, is the nature of the work he was doing. Torres was a bricklayer employed by Apple Builders and was installing "large stone blocks as part of the project to reconstruct the parapets surrounding the building. His work assignment was to cut metal rods into smaller sections using a wheel grinder." This type of work clearly demonstrates potential danger to Torres's eyes which is precisely what 12 N.Y.C.R.R. 23-1.8(a) was intended to prevent. Consequently, there is ample evidence showing that the injury plaintiff sustained was forseeable (see Fresco v. 157 East 72nd Street Condominium, 2 AD3d 326, 769 NYS2d 536, [1st Dept. 2003]; Galawanji v. 40 Sutton Street Place Condominium, 262 AD2d 55, 691 NYS2d 436 [1st Dept. 1999]).

To the extent that defendant has raised an argument regarding its status as the owner of the property, it is not disputed by the defendant that, in response to a notice to admit served by plaintiff's attorney, defendant admitted it was the owner of "real property known as Walton High School." [FN15] As the Court in Copertino v. Ward, (100 AD2d 565, 566, 473 NYS2d 494 [2d Dept. 1984]) explained, the term "owners" within the meaning of Labor Law §241 is not "limited to the titleholder ....[it] encompass[es] a person who has an interest in the property and who fulfill[s] the role of owner by contracting to have work performed for his benefit" (id). Here, based on the submissions, defendant City's ownership of the property made it liable for a violation of Labor Law §241(6) which occurred on its property regardless of whether it retained or controlled the contractor (see Allen v. Cloutier Construction Corp., 44 NY2d 290, 300-301, 376 NE2d 1276, [*10]405 NYS2d 630 [1978]).[FN16]

Finally, it has been repeatedly stated that the history of Labor Law 241(6) "clearly manifests the legislative intent to place the ultimate responsibility for safety practices at building construction jobs where such responsibility actually belongs on the owner and general contractor" (1969 NY Legis Ann at 407-408). Property owners are vicariously liable under §241(6) for injuries sustained by construction workers due to the negligence of a subcontractor in failing to maintain the work site in reasonably safe condition even where the owner exercises no [*11]direct supervisory control over the subcontractor (see Rizzuto, supra , 91 NY2d at 348-349).

CONCLUSION

Therefore defendant's motion is granted to the extent of dismissing those portions of plaintiffs' complaint which seek a recovery premised on negligence, Labor Law §200, and §240(1), and is otherwise denied. This Court has considered defendant's other arguments and finds them to be unavailing. Plaintiffs' cross motion is granted to the extent of granting leave to amend the Notice of Claim to specifically allege a claim pursuant to Labor Law §241(6).

This constitutes the decision and order of this court.

Dated: Sept. 8, 2008

George D. Salerno, J.S.C.

Footnotes

Footnote 1: Defendant's attorney's moving affidavit, p.3 ¶7; Plaintiff Torres' opposing affidavit, p.1 ¶ 1, 2.

Footnote 2: Defendant's Exhibit "A", Plaintiffs' Notice of Claim; Plaintiff Torres' opposing affidavit, p.2 ¶ 6 and 7.

Footnote 3: id.

Footnote 4: Defendant's Exhibit "A".

Footnote 5: Defendant's Exhibit "B".

Footnote 6: id.

Footnote 7: § 50-i. Presentation of tort claims; commencement of actions

1. No action or special proceeding shall be prosecuted or maintained

against a city for personal injury, alleged to have been sustained by

reason of the negligence or wrongful act of such city, unless, (a) a

notice of claim shall have been made and served upon the city, in

compliance with section fifty-e of this chapter, (b) it shall appear by

and as an allegation in the complaint or moving papers that at least

thirty days have elapsed since the service of such notice and that

adjustment or payment thereof has been neglected or refused and (c) the action or special proceeding shall be commenced within one year

and ninety days after the happening of the event upon which the claim

is based.

Footnote 8: Defendant's Exhibit "I", Plaintiffs' Bill of Particulars.

Footnote 9: Defendant's moving affidavit, p.9 and 10.

Footnote 10: Defendant's Exhibit "B", Plaintiffs' Notice of Claim.

Footnote 11: Defendant's Exhibit "G", Plaintiffs' Summons & Complaint.

Footnote 12: Defendant's Exhibit "D", pp. 5-6.

Footnote 13: Defendant's Exhibit "E" & "F".

Footnote 14: Defendant's Exhibit "A".

Footnote 15: Plaintiffs' Exhibits "O" & "P".

Footnote 16: The term "owners" which is set forth in Labor Law 241(6) applies to parties with a property interest who hire the general contractor to undertake the construction work on their behalf (Sweeting v. Board of Coop. Educational Services, 83 AD2d 103, 114, 443 NYS2d 910, [4th Dept. 1981]; mot for lv to app den, 56 NY2d 503); or where the property "might be leased to another", Gordon v. Eastern Ry. Supply, 82 NY2d 555 at 560 (1993); see also Coleman v. City of New York, 91 NY2d 821, 689 NE2d 523, 666 NYS2d 553 {91 NY2d 821} [1997]).