Capuano v Tishman Constr. Corp.

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[*1] Capuano v Tishman Constr. Corp. 2011 NY Slip Op 52530(U) Decided on September 15, 2011 Supreme Court, Bronx County Brigantti-Hughes, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 15, 2011
Supreme Court, Bronx County

Philip Capuano and Danielle Capuano, Plaintiffs,


Tishman Construction Corporation, Tishman Construction Corporation of New York, Albert Einstein College of Medicine of Yeshiva University, Yeshiva University and Montefiore Medical Center, Defendants.


For the Plaintiff:

Michael J. Regan, Esq.

Duffy & Duffy

1370 RXR Plaza

Uniondale, NY 11556

For the Defendants:

Lawrence Getzler, Esq.

Molod Spitz & DeSantis, P.C.

1430 Broadway

New York, NY 10018

Mary Ann Brigantti-Hughes, J.

In an action for damages for personal injuries arising from an alleged construction related accident, plaintiffs Philip Capuano and Danielle Capuano (collectively referred to as "Plaintiffs"), move for partial summary judgment against defendants Tishman Construction Corporation, Tishman Construction Corporation of New York, Albert Einstein College of Medicine of Yeshiva University, Yeshiva University and Montefiore Medical Center [*2](collectively referred to as "Defendants") on their claims made under Labor Law §241(6). Defendants oppose.

I. Factual History

On February 26, 2007, plaintiff Philip Capuano (individually referred to as "Plaintiff"), a carpenter, was assigned to work on the fifth floor of a job site where he was directed to unload and install sheets of "abuse board", a heavy-duty version of sheet rock. Defendants collectively were the construction manager and owners of the job site at issue. Plaintiff was working on the fifth floor in a 30' by 30' laboratory with no windows. Plaintiff had unloaded 10 sheets of abuse board, each 4' by 10', weighing 90 to 100 pounds. He picked up one of the boards and was carrying it to be installed when he tripped on a piece of discarded sprinkler pipe. Plaintiff described the pipe as "a 12 inch to 18 inch piece of 1 inch to 1 1/4 inch sprinkler pipe". Plaintiff testified that none of the interior temporary lights were functioning, and the nearest lights were 20 feet behind him. He submits an affidavit in further support of this motion, where he states the little natural light entered his work area, and the lack of adequate lighting prevented him from seeing the floor clearly enough.

Defendant's lead supervisor on the job site was Carla Sciara. Ms. Sciara testified that defendant Tishman was responsible for picking up debris left behind by subcontractors, and the collection process would occur every day. She confirmed that a subcontractor, Sirina Fire Protection, had been working in the area of the incident cutting in sprinkler heads. Sirina would have been using pipe that fit the description of what allegedly caused Plaintiff's accident.

Plaintiff now moves for summary judgment on his claims under Labor Law §241(6).

Plaintiff's engineering expert, Stanley H. Fein, opined that Tishman's failure to maintain Plaintiff's work space free from debris constituted a violation of §23-1.7(e)(2) of the industrial code. He further opined that failure to provide adequate lighting constituted a violation of §23-1.30 of the Industrial Code, which proximately caused the accident.

In opposition. Defendants argue that no one witnessed plaintiff's accident. The last time he walked through the area where the accident occurred was two days prior, and he did not observe debris on the floor. Prior to the accident, he stated that he never observed problems with the lighting conditions. Plaintiff's stated that he traversed the area where his accident occurred two times before the accident, and did not have any trouble seeing the area at that time. He did not tell anyone about the accident until the next day. Defendants argue that there are factual issues as to whether they were responsible for cleaning the subject area of debris or tools.

II. Standard of Review

"[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the [*3]absence of any material issues of fact. Failure to make such prima facie showing requires denial of the motion, regardless of the sufficiency of the opposing papers." Alvarez v. Prospect Hosp., 68 NY2d 320, 324 (1986). There is no requirement that the proof for said motion be submitted in affidavit form, rather, the requirement is that the evidence proffered be in admissible form. Muniz v. Bacchus, 282 AD2d 387 (1st Dept. 2001). Accordingly, affirmations from attorneys having no personal knowledge of the facts are not evidence and offer nothing more than hearsay. Reuben Israelson v. Sidney Rubin, 20 AD2d 668 (2nd Dept. 1964); Erin Federico v. City of Mechanicville, 141 AD2d 1002 (3rd Dept. 1988).

Once a movant meets his initial burden, the burden shifts to the opponent, who must then produce sufficient evidence, also in admissible form, to establish the existence of a triable issue of fact. Zuckerman v. City of New York, 49 NY2d 557 (1980). When deciding a summary judgment motion the role of the Court is to make determinations as to the existence of bonafide issues of fact and not to delve into or resolve issues of credibility. Knepka v. Tallman, 278 AD2d 811 (4th Dept. 2000).

Lastly, because summary judgment is such a drastic remedy, it should never be granted when there is any doubt as to the existence of a triable issue of fact. Ro[illegible text]uba Extruders v. Ceppos. 46 NY2d 223 (1978). When the existence of an issue of fact is even debatable, summary judgment should be denied. Stone v. Goodson, 8 NY2d 8 (1960).

III. Analysis

Labor Law § 241 (6) imposes a nondelegable duty of reasonable care upon owners and contractors "to provide reasonable and adequate protection and safety" to persons employed in. or lawfully frequenting, all areas in which construction, excavation or demolition work is being performed. Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501-502 (1993). This section of labor law imposes liability on general contractors and owners for the negligence of a subcontractor, even in the absence of control or supervision of the worksite. Rizzuto v. LA Wenger Constr. Co., 91 NY2d 343 (1998). On a Labor Law §241(6) claim, prima facie entitlement to summary judgment is established when a plaintiff demonstrates that a defendant has violated a rule or regulation promulgated by the Commissioner of Labor, which mandates compliance with concrete specifications. Dipalma v. MT[illegible text], 20 Misc 3d 1128(A) (NY Sup. Ct., Bx. Cty. 2008). citing ICF Kaiser Enfineers Corp v. Charles Shu[illegible text]ump & Sons Co., 227 AD2d 959 (4th Dept. 1996). Plaintiff must also establish that any breach of the labor law was the proximate cause of the injuries alleged. Id., citing Kane v. Peter Coundorous, 293 AD2d 309 (1st Dept.2002).

To the extent that a plaintiff asserts a viable claim under this section, the plaintiff need not show that the defendant exercised supervision or control over the work site in order to establish a right of recovery, but must demonstrate that his injuries were proximately caused by a violation of an applicable Industrial Code regulation. Penta v. Related Cos., L.P., 286 AD2d 674 (2d Dep't 2001). The regulation(s) relied on must be "concrete specifications" as opposed to general safety [*4]standards. Ross v. Curtis-Palmer Hydro Electric, et al., 81 NY2d 494 (1993). The interpretation of Industrial Code is a question of law for the court to decide. See, e.g., Penta supra.

Violation of a section of the Industrial Code does not result in absolute liability but is merely some evidence of negligence. Ross, supra. Zimmer, supra. Moreover, where such a violation is established, it does not conclusively establish a defendant's liability as a matter of law, but constitutes some evidence of negligence and reserves the issue of whether the equipment, operation or conduct at the work site was reasonable and adequate under the particular circumstances. Seaman v. Bellmore Fire Dist., 59 AD3d 515 (2nd Dept. 2009), citing Rizzuto v. L.A. Wenger Contr. Co., supra.; see Long v. Forest-Fehlhaber, 55 NY2d 154, 160, (1982). Once it has been alleged that a concrete specification of the rules applicable to the facts of the case has been violated, it is for the jury to decide whether the negligence of some party to, or participant in the construction project caused plaintiff's injury. Rizzuto v. LA Wenger Contracting Co., Inc., supra. This includes an inquiry into whether plaintiff himself was comparatively negligent, and whether safety measures employed were "reasonable and adequate" under the circumstances. See Zimmer v. Chemung County Performing Arts, 65 NY2d 513 (1985)(because violation of administrative rules cannot rise to the level of negligence as a matter of law, contributory and comparative negligence are defenses to an action based on such a violation). Where a plaintiff establishes, however, both a violation and causation, summary judgment on its Labor Law §241(6) claim is appropriate where no issue of material fact is raised by the defendant. See e.g. McGarry v. CVTP [illegible text] LLC, 55 AD3d 441 (1st Dept. 2008).

In this matter. Plaintiff alleges violations of 12 NYCRR 23-1.7(e)92) (Working areas. Work floors shall be kept free from accumulations of dirt and debris and from scattered tools and materials...), and 12 NYCRR 23-1.30 (Illumination sufficient for safe working conditions shall be provided wherever persons are required to work or pass in construction... operations, but in no case shall such illumination be less than 10 foot candles in any area where persons are required to work nor less than five foot candles in any passageway, stairway, landing or similar area where a person is required to pass). Both of these specifications have been held to be specifically "concrete" so that Plaintiff may rely on them in a lawsuit. See O'Hare v. City of New York, 280 AD2d 458 (2nd Dept. 2001)(as to 23-1.7[e][2]), see also Hernander v. Columbus Centre, LLC, 50 AD3d 597 (1st Dept. 2008)(as to 23-130).

12 NYCRR 23-1.7(e)(2) applies where the evidence demonstrates that the plaintiff tripped while within his/her work area and that he/she tripped on tools, debris, or sharp projections, as well as wood, sheetrock, snow/ice, or scattered materials, Maza v. University Ave. Dev. Corp., 13 AD3d 65 (1st Dept. 2004). The regulation is not violated when the debris or tripping instrumentality is an integral part of the work being performed by the plaintiff at the time of the accident. Salinas v. Barney Skanska Construction Co., 2 AD3d 619 (2nd Dept. 2003).

To establish a violation of 12 NYCPR 23-1.30, a plaintiff must proffer evidence that conclusively establishes an absence of light in the subject area. The evidence must be more than just "vague" recitations that the lighting was "dark, poor" or that area as "a little dark". Carty v. [*5]Part Authority of NY, NJ, 32 AD3d 732 (1st Dept. 2006). For example, evidence that the subject area was dark enough so that the plaintiff could not read a newspaper was held to be sufficient to establish violation of 12 NYCRR §23-1.30. Vedrel v. Ferguson Elec. Const., 41 AD3d 1154 (4th Dept. 2007).

Plaintiff offers an engineer's expert report to establish Defendants' violation of the above regulations. In most instances, the interpretation of rules promulgated by the Commissioner of Labor presents a question of law for the court. Morris v. Pavarini Const., 9 NY3d 47 (2007); however, where the meaning of specialized terms in regulations is the issue, the court may entertain evidence, including expert opinions, to aid in its determination. Morris, supra. An expert may also testify that a particular condition or omission violated a rule or statute. Franco v Jay Cee of New York Corp., 36 AD3d 445 (1st Dept. 2007). In this matter, Plaintiff's expert based his opinion exclusively on Plaintiff'S testimony. He never personally inspected the premises or work conditions. The expert was not dealing with specialized terms in the alleged regulations. Mr. Fein was not authorized to opine regarding the meaning and applicability of the law. Id., citing Rodriguez v. NYCHA, 209 AD2d 260 (1st Dept. 1994). Accordingly, the report is not dispositive in determining Plaintiff's motion.

Still, Plaintiff has satisfied its burden of proving prima facie that (1) there were violations of the subject regulations, and (2) those violations proximately caused Plaintiff's injuries. Plaintiff's deposition testimony and affidavit in support of this motion demonstrate that he had insufficient artificial light in his work area, since the nearest light source was approximately 20 feet behind him, and he tripped on a small piece of piping, allegedly left behind from work performed the day before. Since Plaintiff testified he was working with "abuse board", the piping was not an integral part of the work he was performing. The deposition testimony of Ms. Sciara indicates that a subcontractor's work in "cutting" the piping constituted the materials that allegedly caused the fall. Plaintiff testified that, days prior he had walked around the accident she and found there to be adequate lighting. On the date of the accident, however, Plaintiff's affidavit states that the nearest light source was 20 feet behind him, and he could not see the floor he was walking on before the accident occurred. The light source was merely a string of individual light bulbs, none of which were functioning in front of where Plaintiff was walking when the accident occurred.

The burden therefore shifts to Defendants to demonstrated a material issue of fact as to either (1) violation of the industrial code, or (2) whether the violation proximately caused the accident. Defendants offer no affidavits from individuals with relevant personal knowledge. Defendant's attempts to undermine the credibility of Plaintiff inappropriately relies on an unsworn medical report, and are overly speculative. Urrea v. Sedgwick Avenue Associates, 191 AD2d 319, 595 N.Y.S.2d 46 [1st Dept., 1993]; Fernandez v. MHP Land Associates, 188 AD2d 417, 591 N.Y.S.2d 835 [1st Dept., 1992]). The deposition testimony of Ms. Sciara, who had no personal knowledge of this particular incident, testified that Tishman's subcontractors would look for debris or materials to clean up throughout a typical day. These laborers would clean up from 7AM to 4PM, or about an hour after trade workers were finished for the day. There is no testimony to refute Plaintiff's assertion that a section of piping was present on the floor at the [*6]time of his accident. There is no testimony to refute the assertion that the area contained insufficient lighting and Plaintiff could not see the floor at the time of his alleged accident. As the duty imposed by Labor Law §241(6) upon owners and general contractors is nondelegable, Defendants' arguments that the material which caused the alleged fall may have come from another subcontractor is of no moment.

Accordingly, Plaintiff's motion for summary judgment will be granted.

IV. Conclusion

Accordingly, it is hereby

ORDERED, that plaintiff's motion for summary judgment on the issue of liability, pursuant to CPLR 3212, is hereby GRANTED.

The above constitutes the Decision and Order of this Court.

Dated: September 15, 2011

Hon. Mary Ann Brigantti-Hughes, J.S.C.

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