Johnson v Small Mall, LLC

[*1] Johnson v Small Mall, LLC 2009 NY Slip Op 52315(U) [25 Misc 3d 1227(A)] Decided on November 5, 2009 Supreme Court, Broome County Lebous, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 5, 2009
Supreme Court, Broome County

Craig D. Johnson, Plaintiff,

against

The Small Mall, LLC, Defendant.



2006-2183



APPEARANCES:

COUNSEL FOR PLAINTIFF:LACHMAN & GORTON

BY:PETER A. GORTON, ESQ., OF COUNSEL

1500 E. MAIN STREET

P.O. BOX 89

ENDICOTT, NY 13760

COUNSEL FOR DEFENDANT:LEVENE, GOULDIN & THOMPSON, LLP

BY:DAVID F. McCARTHY, ESQ., OF COUNSEL

P.O. BOX F-1706

BINGHAMTON, NY 13902

Ferris D. Lebous, J.

Plaintiff Craig D. Johnson moves for summary judgment on the issue of liability on his Labor Law § 240 (1) cause of action. Defendant opposes the motion and cross-moves for summary judgment dismissing plaintiff's Labor Law §§ 200 and 241 (6) causes of action. Plaintiff opposes defendant's cross-motion.

BACKGROUNDOn February 1, 2006, plaintiff was employed as a carpenter for Andrew R. Mancini Associates, Inc. (hereinafter "Mancini"). Defendant hired Mancini to act as the general contractor to repair a roof truss system at defendant's premises located at 365 Harry L. Drive in Johnson City, New York (hereinafter "Subject Premises").[FN1]

On the date of this accident, plaintiff was in the process of taking down support towers which had been used in the course of the truss system repair. Plaintiff described the support towers as "three by three scaffold from the floor to the bottom of the truss" (Plaintiff's Ex F, p 20). Plaintiff also described the work site as containing "[t]wo walkways running the length of the building, which were equipped with handrails. There were also walkways extending the width of the building. The handrails and the width wise walkways were removed prior to my accident" (Plaintiff's Reply Affidavit, ¶ 2 [emphasis added]). Plaintiff indicated the walkways were comprised of four feet wide plywood above the sheet rock ceiling installed by Mancini (Pl Ex F, p 27). Plaintiff stated that the purpose of "[t]he walkway was just to get you close to where you had to go" but then he would have to walk on top of the joists to access specific work areas (Pl Ex F, p 28). Plaintiff also avers that "[t]here were no other walkways provided, including but not limited to the area where I was working at the time of my accident" (Plaintiff's Reply Affidavit, ¶ 3).

Plaintiff describes the accident as follows:

[I] was up in the ceiling handing parts down to other workmen. In the process of so doing, I was standing on the ceiling joists, which we had to walk across in order to get to areas where we had to work.

As I was walking on the joists, my right foot caught a wire, and as I jumped to the next joist as I was trying to pull my said foot out of the wire, I lost my balance and my right foot initially went through the sheet rock below the joists.

I basically then threw myself down, in an effort to prevent my falling through the ceiling, and hit my ribs on a joist. I heard the sheet rock crack, and I tried to grab onto a joist to prevent falling though [sic] the sheet rock, but I could not hold on, and I fell through the sheet rock to the floor, from a height of approximately 12 to 16 feet.

(Plaintiff's Affidavit, ¶¶ 5-7). [*2]

This action was commenced on October 6, 2006. The Summons and Complaint allege violations of Labor Law §§ 200, 240 (1) and 241 (6). By way of this motion, plaintiff seeks summary judgment on the issue of liability solely with respect to his Labor Law § 240 (1) cause of action. Defendant's cross-motion seeks dismissal of plaintiff's Labor Law §§ 200 and 241 (6) causes of action.

The court heard oral argument from counsel on October 16, 2009.

DISCUSSION

I.LABOR LAW § 200 AND COMMON-LAW NEGLIGENCE

Labor Law § 200 is "[a] codification of the common-law duty of an owner or contractor to exercise reasonable care to provide workers with a safe place to work [citations omitted]" (Miller v Wilmorite, Inc., 231 AD2d 843, 843 [1996]). It is well-settled that "[g]eneral supervisory authority at the work site for the purpose of overseeing the progress of the work and inspecting the work product has been found insufficient to establish a cause of action under Labor Law § 200 [citations omitted]" (Riccio v Shaker Pine, Inc., 262 AD2d 746, 748 [1999], lv denied 93 NY2d 1042 [1999]). In other words, "Labor Law § 200 and common law negligence claims must be dismissed in the absence of proof of the owner's actual control, notwithstanding the existence of questions of fact regarding an owner's contractual right of control [citations omitted; emphases in original])" (Brown v New York City Economic Dev. Corp., 234 AD2d 33, 33 [1996]). Additionally, the Court of Appeals has held that this duty does not extend to those hazards that may be readily observed by reasonable use of the senses in light of the worker's age, intelligence and experience (Gasper v Ford Motor Co., 13 NY2d 104, 110 [1963]).

In the first instance, the court notes that defendant's cross-motion makes no argument relative to the issue of supervision and control. Rather, defendant's only argument in support of its cross-motion to dismiss the Labor Law § 200 cause of action is that the hazard, if any, was "readily observable" by plaintiff. For his part, plaintiff makes a passing reference in his reply papers to the issue of supervision and control, but only to the extent that he argues the issue is premature because he has not yet conducted depositions of defendant.[FN2] Due to the total failure of proof on the issue of supervision and control, defendant's cross-motion to dismiss the Labor Law § 200 must be denied.

As a separate and distinct reason for denial, even if the court were to assume the requisite degree of supervision and control, the court finds questions of fact exist with respect to whether the hazard in this case - the wires - were readily observable. Defendant asserts that plaintiff was an experienced carpenter who had been on this job site for 8-9 weeks and who conceded that "there were wires everywhere" (Pl Ex F, p 30). However, despite plaintiff's statement, defendant produced no evidentiary proof describing the width and length of the wires, their coloring, their location, the number of wires on the joists, or the lighting conditions all of which would be [*3]pertinent factors in determining whether the wires were readily observable as a matter of law. In fact, the defense offers no affidavit from anyone with first hand knowledge of the work site.[FN3] Thus, the court finds questions of fact exist as to whether the hazard in this case was readily observable.

In view of the foregoing, defendant's cross-motion to dismiss plaintiff's Labor Law § 200 cause of action is denied.

II.LABOR LAW § 240 (1)

Labor Law § 240 (1) was enacted "[i]n recognition of the exceptionally dangerous conditions posed by elevation differentials at work sites...for workers laboring under unique gravity-related hazards [citation omitted]" (Misseritti v Mark IV Constr. Co., 86 NY2d 487, 491 [1995], rearg. denied 87 NY2d 969 [1996]). Labor Law § 240 (1) states, in pertinent part, that:

[a]ll contractors and owners and their agents...in the erection, demolition, repairing, altering, painting, cleaning or pointing 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.

Plaintiff moves for summary judgment on the issue of liability on his Labor Law § 240 (1) cause of action alleging that there was a "[t]otal absence and lack of availability of proper safety devices [which] was the actual and proximate cause of his fall and resulting injuries" (Affidavit of Peter A. Gorton, Esq., ¶ 15).

In opposition, defendant argues that plaintiff was provided with scaffolding to protect him by way of two wooden walkways and the joists in the ceiling area. In support of this argument, defendant cites a variety of cases which it argues supports the conclusion that the joists may be deemed to be scaffolding (Lagzdins v United Welfare Fund-Sec. Div. Marriott Corp., 77 AD2d 585 [2nd Dept 1980]; Borland v Sampson Steel Fabricators, 298 AD2d 831 [4th Dept 2002]; McGurk v Turner Constr. Co., 127 AD2d 526 [1st Dept 1987]).

The cases cited by defendant recognize that the old rule stood for the proposition that surfaces which consisted of the work itself could not also constitute a scaffold within the meaning of Labor Law § 240(1). However, the old rule "[a]ppears to have given way to the extent that the work itself may now become part of the place to work and may fall within the statute [citation omitted]" (Kennedy v McKay, 86 AD2d 597, 798 [2nd Dept 1982]). As such, in view of this record, the court finds that even though the joists may have constituted the "work itself" they clearly became "part of the place to work" based upon plaintiff's uncontradicted deposition testimony that the workers used the joists as walkways. In view of the foregoing, the [*4]court finds that the joists became the functional equivalent of scaffolding bringing this case within the purview of Labor Law § 240 (1).

Thus, the next question presented is whether or not said safety device (e.g. the joists) failed to provide proper protection as a matter of law. If a safety device such as a scaffold were to collapse then a prima facie violation of the statute is established as a matter of law. However, here, the safety device (e.g. the joists) did not collapse, rather plaintiff argues that the safety device failed in that they were "[f]raught with peril, because of the tangle of wires between them [the joists], which were not covered, removed or otherwise secured, and obviously, because of the extremely limited area to step on and try to maintain one's balance" (Reply Affidavit of Peter A. Gorton, Esq., ¶ 7). Plaintiff also avers that walkways and railings were removed from the work site prior to his accident (Plaintiff's Reply Affidavit, ¶ 6). This statement went uncontradicted from anyone with firsthand knowledge. In this court's view, questions of fact exist as to whether or not said safety device (e.g. the joists) failed to provide proper protection as a matter of law.

Finally, defendant also attempts to raise the argument that plaintiff's conduct in trying to step across a gap between the ceiling joists equates to the sole proximate cause of this accident. It is well-settled that while comparative or contributory negligence is not a defense under 240 (1), there can be no liability if a plaintiff's own actions are the sole proximate cause of the accident (Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35, 39 [2004]). Here, however, plaintiff states that there were no walkways provided in the area he was working and he would not have been able to access his work area if he stayed on the remaining walkway (Plaintiff's Reply Affidavit, ¶¶ 3 & 8). The court finds there are questions of fact relative to whether plaintiff's decision to step across the joists equated to the sole proximate cause of this accident.

In sum, the court finds that there are questions of fact warranting the denial of plaintiff''s motion for summary judgment on Labor Law § 240 (1).

III.LABOR LAW § 241 (6)

Labor Law § 241 (6) requires that owners and contractors provide reasonable and adequate protection and safety for workers by requiring them to comply with specific safety rules and regulations promulgated by the Commissioner of the Department of Labor, as opposed to general safety standards regulations (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501-502, 505 [1993]).[FN4] This duty is nondelegable and the injured party need not show that a landowner exercised supervision and control over the work site (Long v Forest-Fehlhaber, 55 NY2d 154, 159 [1982]). A plaintiff must also establish that the violation of a specific safety regulation was a proximate cause of the accident (Ares v State of New York, 80 NY2d 959, 960 [1992]). [*5]

The basis for defendant's cross-motion is plaintiff's failure to identify any Industrial Code provision in either his complaint, verified bill of particulars, or initial moving papers. Not surprisingly, plaintiff's reply papers cite - for the first time - a provision of the Industrial Code allegedly violated by defendant, namely 12 NYCRR § 23-5.1 (f).[FN5] As such, this court must determine whether Industrial Code § 23-5.1 (f) is sufficiently specific so as to support a Labor Law § 241 (6) cause of action.

12 NYCRR § 23-5.1(f) states: "Scaffold maintenance and repair. Every scaffold shall be maintained in good repair and every defect, unsafe condition or non compliance with this part (rule) shall be immediately corrected before further use of such scaffold." Quite simply, the Third Department has previously stated that "[t]he regulation plaintiffs rely on, 12 NYCRR 23-5.1(f), does not meet [the specificity] standard as it is a subpart of the general provisions for all scaffolds and, as such, lacks any degree of specificity" (Moutray v Baron, 244 AD2d 618, 619, [3rd Dept 1997], lv denied 91 NY2d 808 [1998]). Consequently, defendant's cross-motion to dismiss plaintiff's Labor Law §241 (6) cause of action must be granted.

CONCLUSION

For the reasons stated, the court finds as follows:

(1)Defendant's cross-motion for summary judgment dismissing plaintiff's Labor Law § 200 cause of action is DENIED;

(2)Plaintiff's motion for summary judgment on his Labor Law § 240 (1) cause of action is DENIED; and (3)Defendant's cross-motion for summary judgment dismissing plaintiff's Labor Law § 241 (6) cause of action is GRANTED.

The foregoing constitutes an order of the court.

It is so ordered.

Dated: November 5, 2009

Binghamton, New York

s/ Ferris D. Lebous

Hon. Ferris D. Lebous

Justice, Supreme Court Footnotes

Footnote 1: Defendant leased the Subject Premises to Music City Promotions, LLC d/b/a Magic City Music Hall.

Footnote 2:There is no explanation as to why depositions of defendant have yet to be held in this 3 year old case.

Footnote 3:Defendant's cross-motion consists only of a Notice of Cross-Motion and supporting Memorandum of Law.

Footnote 4: The Commissioner's rules, known as the State Industrial Code, are contained in Title 12 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("NYCRR").

Footnote 5:With respect to plaintiff's delay, the Third Department has noted that although it does "[n]ot condone this dilatory practice", as long as the "belatedly cited regulation" sets forth a specific safety rule that is applicable to the case at hand, then the Labor Law § 241 (6) cause of action may proceed (Mills v Niagara Mohawk Power Corp., 262 AD2d 901, 902 [1999]).