Bonvino v Long Is. Coll. Hosp.

[*1] Bonvino v Long Is. Coll. Hosp. 2008 NY Slip Op 52034(U) [21 Misc 3d 1110(A)] Decided on October 6, 2008 Supreme Court, Kings County Saitta, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 6, 2008
Supreme Court, Kings County

Thomas Bonvino, Plaintiff,

against

Long Island College Hospital and Barr & Barr Inc., Defendants,



15943/2005

Wayne P. Saitta, J.

Defendants, LONG ISLAND COLLEGE HOSPITAL and BARR & BARR INC., (hereinafter "Defendants"), move this Court for an Order pursuant to CPLR § 3212 dismissing the complaint of Plaintiff THOMAS BONVINO, (hereinafter "Plaintiff" or "Bonvino"), on the ground that there can be no liability on the part of the Defendants for the incident giving rise to the complaint. Plaintiff cross moves to amend the complaint to add causes of action based upon Labor Law §§200 and 241(6).

Upon reading the Notice of Motion for Summary Judgment of Defendants, dated December 10th, 2007, together with the Affirmation in Support of Dawn C. Wheeler, Esq., counsel for Defendants, dated December 10th, 2007, and all exhibits annexed thereto; the Affidavits of Jeffrey Gentile and Richard Kearn, dated November 12th, 2007; the Cross Motion to Amend the Complaint of the Plaintiff, dated April 16th, 2008, together with the Affirmation in Support of Plaintiff's Cross Motion and in Opposition to Defendants' Motions of Jordana L. Fishman, Esq., counsel for Plaintiff, and all exhibits annexed thereto; the Affirmation in [*2]Opposition to the Cross Motion and Reply Affirmation of Dawn C. Wheeler, Esq., dated May 28th, 2008; the Reply Affirmation of Jordana L. Fishman, Esq., dated June 11th, 2008, and after argument of counsel and due deliberation thereon, the Defendants' motion is denied and the Plaintiff's cross motion is denied for the reasons set forth below.

FACTS

This action arises out of injuries sustained by Plaintiff who slipped and fell on an

unidentified object in a parking lot located on Columbia Street between Kane and Irving Streets in Brooklyn, NY. LICH had a month to month lease with the City of New York, who was the out of possession owner. LICH had orally given permission to Barr & Barr Inc., a general contractor who was doing work for LICH, to use the lot for its workers since there was limited parking in the area. Barr and Barr Inc. gave its workers permits and keys to access the lot. The lot was unpaved and enclosed by a chain link fence. It is unclear as to what, if any, regular security or monitoring was afforded to the lot by LICH. At approximately 6:30 a.m. on June 17th, 2002, Plaintiff drove into the lot and parked his car. After exiting his vehicle, Plaintiff took two steps and then "stepped on a hard object that rolled and gave away [his] footing". He fell backwards and, using his arm to break his fall, he sustained injuries.

ARGUMENTS

Defendants argue that since Plaintiff does not know what he fell on, he is unable to establish proximate cause which is fatal to his cause of action.

Defendants further argue that Plaintiff failed to prove that Defendants had actual or constructive notice of the defective condition which caused him to fall.

Plaintiff seeks leave file and serve a supplemental summons and an amended complaint to plead additional violations, specifically of Labor Law §200 and §241(6).

Plaintiffs further argue that Defendants have met their burden on summary judgment because Defendants failed to keep the lot in a reasonably safe condition, and because they had notice of the dangerous condition which caused Plaintiff's loss. Plaintiff argues that because the condition was ongoing and recurring, he need not describe the object upon which he fell in order for Defendants to be liable. Finally, Plaintiff argues that the amendments should be allowed as the new causes of action arise out of the same set of facts and circumstances as the originally pled claims, and therefore there is no prejudice to the Defendants.

Defendants oppose Plaintiff's cross motion, asserting that the Labor Law does not apply to this situation as the parking lot was not part of the work site. Defendants also argue that the cross-motion is untimely and that the three year statute of limitations on a Labor Law claim has expired.

ANALYSIS

It is well established that a moving party for summary judgment must make a prima facie showing of entitlement as a matter of law, offering sufficient evidence to demonstrate the absence of any material issue of fact. Winegrad v. New York Univ. Med. Center, 64 NY2d 851, 853 (1985). Once there is a prima facie showing, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form to establish material issues of fact which require a trial of action. Zuckerman v. City of New York, 49 NY2d 557 (1980); Alvarez v. Prospect Hosp., 68 NY2d 320 (1986). However, where the moving party [*3]fails to make a prima facie showing, the motion must be denied regardless of the sufficiency of the opposing party's papers.

A motion for summary judgment will be granted "if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party". CPLR §3212 (b).The "motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact." Id.

When considering a summary judgment motion for failure to make out a case, this Court is required to accept the Plaintiff's evidence as true and give it the benefit of "every reasonable inference which can be reasonably drawn from that evidence." Secof v. Greens Condominium, 551 NYS2d 563, {158 AD2d 591} citing, Goldstein v. Hauptman, 131 AD2d 724 (2nd Dept. 1987).

Identification of what caused Plaintiff to fall

Defendants argue that Plaintiff's inability to identify what he actually fell on means that any jury verdict in the Plaintiff's favor would necessarily have to be based upon improper speculation as to the cause of the loss. They cite Manning v. 6638 18th Avenue Realty, 28 AD3d 434, 814 NYS2d 178 NY, (2nd Dept 2006), in support of this position. In Manning, the plaintiff fell on debris while descending stairs. When asked about the debris, she stated that she "didn't really see anything", but that "there was always strings and paper". The inability to identify that debris actually contributed to the loss led the Court to conclude that the accident could have as easily been caused by "misstep or loss of balance".

Defendant also submits Hannan v. S. & G. LLC, 27 AD3d 619, 811 NYS2d 445 (2nd Dept 2006). In Hannan, it was held that summary judgment was appropriate where plaintiff "did not see anything on the sidewalk outside of the appellant's store at any time before his fall, and did not see any of the defendant's employees drop any fruit".

Those cases in which the courts have found the inability to pinpoint the cause of the fall to be fatal to the action have been those in which the plaintiff has relied upon "mere speculation" in asserting that debris caused the fall.

At bar, Plaintiff attested not only to the ongoing and persistent presence of debris in the lot, but also that just prior to his fall, he "stepped on a hard object with [his] right foot that rolled causing [him] to fall backwards", describing the object upon which he slipped and how it caused his fall. He further states that due to the excessive amount of debris all around him when he landed, he was unable to specifically identify the item which caused the fall.

Plaintiff further submits the affidavit of his grandmother whose statements support the fact that the area where Plaintiff fell was littered with bottles and other debris.

Plaintiff does not speculate that he fell on an object. He states he fell on something hard which rolled underneath him. While he did not see the object he did testify that he felt it and that it felt like a bottle. His inability to identify the specific object amidst the debris in an unpaved lot does not undermine his claim that it rolled underneath him causing him to lose his footing. The statements contained in his affidavit, if accepted by a jury, constitute sufficient evidence to permit a jury to conclude that debris on the site caused his fall.

Notice of hazardous condition to Defendants [*4]

Knowledge that there could be litter on property does not by itself constitute notice of a defect. Gordon v. American Museum of Natural History, 67 NY2d 836, 501 NYS2d 646, 492 NE2d 774 (1986). However, where it can be shown that an accumulation of debris could be a recurring hazardous condition, an owner may be held liable where a failure to correct the recurrent condition causes loss.

Due to its recurring nature, notice of a recurring hazard may be imputed to the owner upon a particular instance although the owner may not have been aware of the specific condition which caused the loss.

The Second Department held, in Weisenthal v. Pickman, 153 AD2d 849, 545 NYS2d 369 (2nd 1989), that the evidence adduced by plaintiff was sufficient to "permit the trier of fact to infer that defendants owned and had control" over an area in which litter had accumulated, and that defendants "failed to take the measures which were necessary in order to avoid the creation of the dangerous condition".

The Second Department's ruling in Weisenthal supported the fact that a plaintiff need not identify the exact piece of debris upon which he fell to support his claim.

Adoption of a rule that the plaintiff in cases such as this must prove that the defendants knew or should have known of the existence of the exact piece of debris which caused the accident would lead to absurd results. If, for example, a plaintiff were to prove that a defendant-landowner negligently allowed the floor of his premises to become dangerous as the result of an accumulation, over the course of several days, of hundreds of cigarette butts, it would be illogical to hold that the plaintiff's case must be dismissed, simply because of a failure to prove that the one particular cigarette butt which caused the accident had been on the floor for a long enough period of time to warrant a finding of constructive notice of its existence. Such a rule would not only be contrary to logic and common sense, it would also be contrary to express statements made by the courts in Gramm v. State of New York, 28 AD2d 787, 281 NYS2d 235, affd. 21 NY2d 1025, 291 NYS2d 7, 238 NE2d 498 on majority opn. at App.Div. and Kelsey v. Port Auth. of NY & N.J., 52 AD2d 801, 383 NYS2d 347, cases which were not overruled in Gordon. Id.

This ruling further held that where defendant has actual knowledge of a tendency for a dangerous condition to exist and recur, that landowner is charged with constructive notice of each specific recurrence of that condition. Weisenthal v. Pickman, 153 AD2d 849, 545 NYS2d 369, (2nd Dept 1989). See also Reilly v. Long Island R.R., 275 AD2d 767, 714 NYS2d 231 (2nd Dept 2000); Fundaro v. City of New York, 272 AD2d 516, 708 NYS2d 149 (2nd Dept 2000).

At bar there is a question of fact as to which if either Defendant, the lessee, LICH, or the alleged possessor of the lot, Barr & Barr Inc. had knowledge of the condition of the lot over time.

Jeffrey J. Gentile, the Project Manager of Construction for LICH at the time of the accident, stated in his EBT that in order for the parking lot to be usable, "there was [sic] some items or debris in the parking lot that had to be cleaned up and moved aside". He stated that the obligation to clean the lot was Barr & Barr Inc.'s, in exchange for LICH's courtesy of letting them use the lot. [*5]

Mr. Kearn of Barr & Barr stated that the lot needed to be cleaned up prior to its use and that the clean up of the parking lot was done by LICH.

Based upon the evidence submitted in support of the instant motions, it cannot be determined as a matter of law which party had the duty to maintain the lot or if either was aware of hazardous conditions existing in the lot.

Labor law §241(6)

Plaintiff seeks leave to amend the complaint in the instant action to add two causes of action sounding in Labor Law, §§200 and 241(6).

Defendants argue that the amendments are inappropriate as in order to be protected under the Labor Law, an individual must be engaged in protected activity, specifically "work of the types performed in construction, erection, alteration, repair, maintenance, painting or moving of buildings or other structures".

Plaintiff alleges that three specific Industrial Code violations allow him to bring his claim under Labor Law §241(6).

The sections allegedly violated deal with tripping and other hazards, specifically whether they occurred in a "passageway" or a "working area", and "maintenance and housekeeping" of the work area.

"Passageways" - Industrial Code §23-1.7 (e) - paragraph (1)

(1) Passageways. All passageways shall be kept free from accumulations of dirt and debris and from any other obstructions or conditions which could cause tripping. Sharp projections which could cut or puncture any person shall be removed or covered.

"Working Area" - Industrial Code §23-1.7 (e) - paragraph (2)

(2) Working areas. The parts of floors, platforms and similar areas where persons work or pass shall be kept free from accumulations of dirt and debris and from scattered tools and materials and from sharp projections insofar as may be consistent with the work being performed.

"Maintenance and Housekeeping" - Industrial Code §23-2.1 (b)

Disposal of debris. Debris shall be handled and disposed of by methods that will not endanger any person employed in the area of such disposal or any person lawfully frequenting such area.

Plaintiff states that the enclosed parking lot was a work area and passageway as it was discussed at weekly meetings, workers were instructed to park there, access was controlled by Barr & Barr Inc., the superintendents on the project sometimes used the lot, the lot was closed to the public, company vehicles parked there, workers transported their tools from the lot to the site, and finally, that workers had to go through the lot to access their work areas.

The fact that workers had the option of parking in the lot and walking from it to the worksite [*6]does not support the proposition that it was a passageway within the meaning of §23-1.7 (e)(1). A passageway is more accurately described as an area where work may not necessarily be conducted, but its use is necessary for the moving of materials to the site.

Plaintiff cites Adams v. Fred Alvaro Const. Corp., Inc., 161 AD2d 1014, 557

NYS2d 584, (3rd Dept 1990) in support of the parking lot being part of the work site. That Court stated "we have noted that the proximity of material or equipment to the actual construction site is not necessarily dispositive of whether liability exists away from the site, where a showing is made that the material or equipment is being readied for use in connection with the construction/excavation'." Id., at p. 1014 .

There is no allegation herein that material was loaded or unloaded in the parking lot or any construction was performed there. At most workers carried their tools from their cars through the lot on the way to the worksite. This is insufficient to make the lot a work area within the meaning of §23-1.7(e).

Nor can it be said that the parking lot was a passageway which had to be utilized in order to access the work site.

Plaintiff's testimony indicates that he did not have to access or pass through the parking lot to access the work site. Defendants state, and the Plaintiff does not dispute, that the lot was opened due to the lack of street parking available to the workers. There is no evidence to suggest that parking in the lot was the only means to access the work site or that Plaintiff was subject to Defendants' control while parking there, aside from having a permit to identify themselves as having permission to park there.

The intent of the Labor Law is protect workers on the work site, and where owners and contractors are best suited to ensure safe work conditions. Making a parking lot available for workers does not implicate worker safety protections under the Labor Law.

Due to the fact that the parking lot is neither a passageway nor a work area within the meaning of the Labor Law, the section relating to disposal of debris in the work area is also inapplicable. Further it has been held that Industrial Code §23-2.1 (b) is not specific enough to support a claim under Labor Law §241(6). Madir v. 21-23 Maiden Lane Realty, LLC, 9 AD3d 450, 452 (2nd Dept 2004); Fowler v. CCS Queens Corp., 279 AD2d 505, 505 (2nd Dept 2001).

Labor Law §200

Labor Law §200 is a codification of the common-law duty imposed on an owner or general contractor to provide a safe work place for workers at a construction site. The Court of Appeals has held that an implicit precondition to this duty is that the party charged with responsibility have the authority to control the activity bringing about the injury.

However, as discussed above, the parking lot was not part of the construction site nor was it a work area within the meaning of the statute. However, the fact that Plaintiff can not make out a claim under Labor Law §200 does not affect his common law negligence claim or whatever liability Defendants may have as owners or possessors of the premises.

WHEREFORE, Defendants' motion for summary judgment is denied and Plaintiff's cross motion which seeks to amend the complaint by adding claims pursuant to Labor Law §§200 and 241(6) is denied.

This constitutes the decision and order of the Court. [*7]

ENTER,

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JSC