Nalepa v South Hill Bus. Campus, LLC

[*1] Nalepa v South Hill Bus. Campus, LLC 2013 NY Slip Op 50831(U) Decided on March 15, 2013 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 15, 2013
Supreme Court, Broome County

Michael Nalepa, Plaintiff,

against

South Hill Business Campus, LLC, Defendant.



2010-2864



COUNSEL FOR PLAINTIFF:

HINMAN, HOWARD & KATTELL, LLP

BY:TINA FERNANDEZ, ESQ. AND PAUL T. SHEPPARD, ESQ., OF COUNSEL

700 SECURITY MUTUAL BUILDING

P.O. BOX 5250

BINGHAMTON, NY 13902

COUNSEL FOR DEFENDANT:

SANTACROSE & FRARY

BY:KEITH FRARY, ESQ. AND SEAN A. TOMKO, ESQ., OF COUNSEL

ONE COLUMBIA CIRCLE

ALBANY, NY 12203

Ferris D. Lebous, J.

This Decision & Order addresses four motions and cross-motions.

First, plaintiff Michael Nalepa moves for partial summary judgment on liability on his

Labor Law § 240 (1) and § 241 (6) causes of action.

Second, defendant South Hill Business Campus, LLC (SHBC) cross-moves for summary judgment dismissing plaintiff's complaint in its entirety including the negligence and Labor Law §§ 200, 240 (1) and 241 (6) causes of action.

Third, plaintiff cross-moves for permission to amend his complaint and bill of particulars to add certain provisions of the Industrial Code in support of his Labor Law § 241 (6) cause of action.

Fourth, defendant cross-moves to amend its answer to expressly include the affirmative defenses of "sole proximate cause" and "recalcitrant worker".

The court heard oral argument from counsel on February 15, 2013.

BACKGROUNDOn November 2, 2007, plaintiff was employed by Evans Mechanical, Inc. as a pipefitter. Plaintiff and a co-worker, Scott Moore, were assigned to a construction project at defendant's property located in Ithaca, New York. Just prior to this accident, plaintiff was working at ground level in the pipe chase behind the wall in the bathroom, while his co-worker was in the ceiling above the men's room tracing water lines. The co-worker, Mr. Moore, called out to plaintiff for assistance in tracing one of the water lines, so plaintiff exited the pipe chase. When plaintiff existed the pipe chase room and entered the bathroom he saw an opening in the ceiling and an unopened A-frame ladder leaning against the bathroom wall just under the opening. Plaintiff knew the ladder was not owned by his employer, but rather was owned and/or used by defendant's employees. Plaintiff candidly states that "[b[ecause the ladder was leaning against the wall in the exact location that I needed to access the ceiling, I used this SHBC ladder" (Plaintiff's Affidavit, ¶ 8).[FN1]

It is undisputed that plaintiff used the A-frame ladder while it was leaning against the wall in its closed position and did not open the ladder to its full open and locked position. Plaintiff began climbing the ladder and when he was approximately five feet off the ground the ladder began slipping straight out from the wall. Plaintiff fell and fractured his heel bone. [*2]

This action was commenced on October 29, 2010. The Summons and Complaint allege a common law negligence cause of action, as well as violations of Labor Law §§ 200, 240 (1) and 241 (6).

In November 2011, David McElligot, a private investigator retained by the workers' compensation carrier for plaintiff's employer, Evans Mechanical, investigated the accident, took photographs, interviewed witnesses, and issued a report.

Additionally, one Josh Miner, a maintenance worker for SHBC, was deposed and stated that SHBC owned at least two 10 foot wooden ladders similar to the ladder shown in photographs and that he had left one of those ladders in the bathroom.

DISCUSSION

I.CROSS-MOTIONS TO AMEND

Plaintiff seeks permission to amend his complaint and bill of particulars to cite additional provisions of the Industrial Code in support of his Labor Law § 241 (6) cause of action.Defendant seeks permission to amend its answer to include the affirmative defenses that plaintiff's actions were the sole proximate cause of the accident and/or that plaintiff's actions were that of a recalcitrant worker which were the proximate cause of the accident.

As the court advised during oral argument, both cross-motions to amend are granted and the court will deem the motion and cross-motion for summary judgment directed to the proposed amended pleadings. While there is case law advising that summary judgment motions are premature and should be stayed in the face of motions to amend (Greene v Hayes, 30 AD3d 808, 810 [3rd Dept 2006]), the court finds such delay is not necessary here since both parties have essentially conceded that there is no prejudice or surprise in the proposed amendments. Further, despite plaintiff's ever growing and changing list of Industrial Code violations and this court's general disfavor of such continuous changes, leave to amend in Labor Law § 241 (6) cases are usually granted and will be here (Borowicz v International Paper Co., 245 AD2d 682, 683-684 [3rd Dept 1997]).

In view of the foregoing, plaintiff's cross-motion to amend his complaint and bill of particulars and defendant's cross-motion to amend its answer are both granted.

II.SUMMARY JUDGMENT

A.NEGLIGENCE AND LABOR LAW § 200

The court will first address that portion of defendant's cross-motion seeking summary judgment dismissing plaintiff's negligence and Labor Law § 200 causes of action. Plaintiff did not make an affirmative motion with respect to these two causes of action. 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 [4th Dept 1996]). [*3]

Defendant argues plaintiff's common law negligence and Labor Law § 200 claims should be dismissed because plaintiff admitted in his deposition that no one from defendant instructed him on how to perform his work (Def Ex K, pp 31-32). Plaintiff opposes the motion by arguing that proof of supervision or control is only necessary if the injury arose from the manner of work, but not if it arose from a dangerous condition on the job site. Plaintiff alleges the injury here arose from a dangerous condition on the job site (e.g., the dusty floor and defective ladder) and, as such, he need not establish supervision or control. Plaintiff further argues that when, as here, the allegation is that the injury arose from a dangerous condition, the only inquiry relates to whether defendant created or had notice (actual or constructive) of the dangerous condition (Minorczyk v Dormitory Auth. of the State of NY, 74 AD3d 675 [1st Dept. 2010]).

In reply, defendant argues that this plaintiff's injury arose solely from his manner of work, not any dangerous condition, so that supervision and control is a required element of these causes of action (Lyon v Kuhn, 279 AD2d 760 [3rd Dept 2001]). According to defendant's expert, Ernest J. Gailor, if this ladder had been used properly in its open and locked position, the conditions of the floor could not have caused the ladder's fall.

The court finds that this matter does not relate to conditions on the job site but rather plaintiff's misuse of the ladder. Further, in this court's view, the Third Department's analysis in Lyon clearly sets forth that the requirement of supervision and control is a required element of proof under these causes of action. More specifically, in Lyon, the Third Department's stated:

[w]e reject plaintiff's contention that liability may be imposed upon a showing that defendant had either authority to control the activity bringing about the injury or actual or constructive knowledge of the condition that caused the accident. In our prior decisions, we have taken great effort to make clear that, in order to prevail on a Labor Law § 200 cause of action, the plaintiff must establish that the owner or contractor both exercised supervisory control over the operation and had actual or constructive knowledge of the unsafe manner in which the work was being performed [citations omitted]

(Lyon, 279 AD2d at 761 [emphases added]).

Here, plaintiff has conceded a lack of supervision or control and, as such, is unable to establish supervisory control and actual or constructive knowledge of the dangerous condition (or a question of fact relative thereto). Accordingly, defendant's cross-motion to dismiss plaintiff's negligence and Labor Law § 200 causes of action will be granted.

B.LABOR LAW § 240 (1)

There are two competing motions pending relative to plaintiff's Labor Law § 240 (1) cause of action, namely plaintiff's motion for partial summary judgment on liability and defendant's cross-motion for summary judgment dismissing plaintiff's complaint relative to said cause of action.

Labor Law § 240 (1) was enacted "[i]n recognition of the exceptionally dangerous [*4]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.

Generally, "[i]t is conceptually impossible for a statutory violation (which serves as a proximate cause for a plaintiff's injury) to occupy the same ground as a plaintiff's sole proximate cause of the injury. Thus, if a statutory violation is a proximate cause of an injury, the plaintiff cannot be solely to blame for it. Conversely, if the plaintiff is solely to blame for the injury, it necessarily means that there has been no statutory violation" (Blake v Neighborhood Hous. Servs. of NY City, 1 NY3d 280, 290 [2003]; emphasis added).

The court will first address plaintiff's motion for summary judgment and then address defendant's cross-motion for summary judgment on this cause of action. With respect to plaintiff's motion for summary judgment, plaintiff argues that "[w]here the device collapses, slips or otherwise fails to perform its function of supporting the workers...", a prima facie entitlement to partial summary judgment is established (Squires v Marini Bldrs., 293 AD2d 808, 808-809 [3rd Dept 2002], lv denied 99 NY2d 502 [2002], quoting Beesimer v Albany Ave./Rte. 9 Realty, 216 AD2d 853, 854). Quite simply, plaintiff argues that he has established a statutory violation as a matter of law based upon the undisputed allegation that this ladder slipped out from under him.

In opposition, defendant argues that its expert proof establishes that the subject ladder was a proper and appropriate safety device for the project at issue. Defendant's expert, Ernest J. Gailor, opines that the subject ladder, had it been properly used in the open and locked position, was a stable and proper safety device and that it was plaintiff's failure to properly use the A-frame ladder which was the sole proximate cause of this accident. Based upon defendant's expert proof that plaintiff did not properly use an otherwise adequate safety device, the court finds that defendant has raised a question of fact with respect thereto sufficient to deny plaintiff's motion for summary judgment on Labor Law § 240 (1).

Next, the court turns to defendant's cross-motion for summary judgment on Labor Law § 240 (1). Defendant again relies on the expert proof of Mr. Gailor that the ladder was an adequate safety device if properly used in the open and locked position and that plaintiff's actions of using this ladder while it was leaning in a closed position against the wall was the sole proximate cause of the accident. In opposition, plaintiff has submitted an expert affidavit from Robert Pringle and [*5]argues his expert's affidavit creates a question of fact regarding said issues.[FN2]

Plaintiff urges this court to find, at the least, a battle of the experts on whether this ladder was an adequate safety device. However, in this court's view, a careful review of Mr. Pringle's affidavit reveals that he has not, in fact, issued any expert opinion on whether the subject ladder - if used correctly in the open and locked position - would have provided proper protection or whether plaintiff's misuse was the sole proximate cause of the accident. Mr. Pringle's opinions are all described in terms of plaintiff's use of the ladder in the closed position while leaning up against the wall. The only statement by Mr. Pringle on whether the ladder would have been an adequate safety device in the open and locked position is his statement that "[w]hen the slippery nature of the floor is viewed in conjunction with the ladder's level of disrepair, it is uncertain whether the spreader alone, with little help from the base of the ladder, would have been sufficient to counteract these lateral forces" (Pringle Affidavit, ¶ 16; emphasis added).

This statement simply does not counter defendant's expert, Mr. Gailor, who specifically expresses an expert opinion to a reasonable degree of certainty that if this ladder had been opened and locked it would have been adequate for the job performed and plaintiff's failure to use the ladder properly was the sole proximate cause of the accident. In other words, Mr. Pringle's statement that "it is uncertain" that if used correctly this ladder would have failed, does not equate to a legally sufficient expert opinion expressed in terms of reasonable certainty sufficient to oppose defendant's expert's opinions on these issues. While Mr. Pringle need not use any magic words in his affidavit, the court finds that he has rendered no opinion, only speculation and uncertainty, regarding the capability of this ladder if used properly in the open and locked position (Nieves v City of New York, 91 AD2d 938 [1st Dept 1983]. Thus, in this court's view, there is no conflicting expert opinion on whether this ladder was an adequate safety device if used correctly in the open and locked position and whether plaintiff's actions were the sole proximate cause of the accident and the court must accept the only expert proof offered on those narrow issues, namely defendant's expert, Mr. Gailor.

In view of the foregoing, the court finds as a matter of law that plaintiff misused an otherwise suitable safety device which was the sole proximate cause of the accident. Therefore, plaintiff's motion for summary judgment on Labor Law § 240 (1) is denied and defendant's cross-motion for summary judgment dismissing the Labor Law § 240 (1) cause of action is granted.

II.LABOR LAW § 241 (6)

Labor Law § 241 (6) mandates 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 [*6]safety standards regulations (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501-502, [1993]). 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"). A plaintiff must establish that the violation of the specific safety regulation was a proximate cause of the accident (Ross, 81 NY2d at 505).

The court notes that plaintiff's citations to Industrial Code regulations changed with every filing including his complaint, summary judgment papers, cross-motion to amend, and finally his expert's affidavit in opposition to defendant's cross-motion for summary judgment. Notably, the first three versions - even the initial moving papers - contained absolutely no analysis indicating how, if it all, the cited provision applied to the facts of this case. During oral argument, plaintiff's counsel itemized the provisions on which he was relying and they include all the provisions contained in the final submission, Mr. Pringle's expert affidavit, together with two other provisions contained in the cross-motion to amend. The court will review each cited Industrial Code provision identified by plaintiff's counsel to determine whether it cites a specific section and, if so, whether it is applicable to the case at hand.

A.Industrial Code § 23-1.5

In support of his motion for summary judgment on Labor Law §241 (6), plaintiff has cited several subdivisions including 23-1.5 (a), 23-1.5 (b), 23-1.5 (c) (1) and 23-1.5 (c) (3).

However, it is well settled that section 23-1.5, which sets forth an employer's "general responsibility" for health and safety in the workplace, is a general provision and not sufficiently specific to support a Labor Law § 241 (6) claim (Carty v Port Auth. of NY & N.J., 32 AD3d 732 [1st Dept 2006], lv denied 8 NY3d 814 [2007]; Sajid v Tribeca N. Assoc. L.P., 20 AD3d 301 [1st Dept 2005]; Knudsen v Pentzien Inc., 209 AD2d 909 [3rd Dept 1994][§ 23-1.5 (a)]; Maday v Gabe's Contr., LLC, 20 AD3d 513 [2nd Dept 2005] [§ 23-1.5 (c) (1)]). As such, plaintiff cannot rely on any of the subdivisions in Industrial Code § 23-1.5 to support his Labor Law § 241 (6) cause of action.

B.Industrial Code § 23-1.7 (e) (2)

12 NYCCR § 23-1.7 is entitled "Protection from General Hazards" and is divided into eight subdivisions (a) - (h). Subdivision § 23-1.7 (e) (2), entitled "working areas", states:

[t]he 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.

To the extent that the parties' memorandums of law reference section 23-1.7 (d), rather than (e) (2), both provisions deal with slippery conditions and foreign substances and the arguments are interchangeable. In any event, defendant argues there is no actual evidence that the floor was slippery; was the cause of the ladder's collapse; or even if true, construction dust is not the equivalent of a foreign substance. Plaintiff argues that there is evidence from Mr. Miner and Mr. McElligott that the floor was slippery and that foreign substance includes anything other than debris from the work being performed. In view of this court's determination hereinabove [*7]that plaintiff's incorrect use of the A-frame ladder was the sole proximate cause, the court finds the condition of the floor to be irrelevant. In view of the foregoing, the court finds § 23-1.7 (e) (2) is inapplicable to the facts of this case and does not support plaintiff's Labor Law § 241 (6) cause of action.

C.Industrial Code § 23-1.21 (b) (3) (i)

Next, Industrial Code § 23-1.21 (b) (3) (i) [Ladders and Ladderways] states:

(b) General requirements for ladders.

(3)Maintenance and replacement. All ladders shall be maintained in good condition. A ladder shall not be used if any of the following conditions exist:

(i)If it has a broken member or part.

This provision is specific enough to support a Labor Law § 241 (6) cause of action.

(Kozlowski v Ripin, 60 AD3d 638, 639 [2nd Dept 2009]). With respect to applicability, however, the court finds the evidence does not establish the existence of a "broken member or part". The court finds § 23-1.21 (b) (3) (i) is inapplicable to the facts of this case and does not support plaintiff's Labor Law § 241 (6) cause of action.

D.Industrial Code § 23-1.21 (b) (4) (ii)

Next, plaintiff cites Industrial Code § 23-1.21 (b) (4) (ii) [Ladders and Ladderways] which states:

(4)Installation and Use

(ii)All ladder footings shall be firm. Slippery surfaces and insecure objects such as bricks and boxes shall not be used as ladder footings.

Plaintiff claims "[t]he floor in the bathroom beneath the ladder was polished concrete and, at the time of my accident, it was somewhat dusty" (Plaintiff's Affidavit, ¶ 11). The court finds there is no proof that any object was used to secure this ladder or that the floor was dusty at this particular location. The court finds § 23-1.21 (b) (4) (ii) is inapplicable to the facts of this case and does not support plaintiff's Labor Law § 241 (6) cause of action.

E.Industrial Code § 23-1.21 (b) (4) (iv)

Next, during oral argument, plaintiff also mentioned Industrial Code § 23-1.21 [Ladders and Ladderways] which is cited in plaintiff's cross-motion to amend, which states as follows:

(iv) When work is being performed from ladder rungs between six and 10 feet above the ladder footing, a leaning ladder shall be held in place by a person stationed at the foot of such ladder unless the upper end of such ladder is secured against side slip by its position or by mechanical means. When work is being performed from rungs higher than 10 feet above the ladder footing, mechanical means for securing the upper end of such ladder against side slip are [*8]required and the lower end of such ladder shall be held in place by a person unless such lower end is tied to a secure anchorage or safety feet are used.

While this provision is specific enough to support a Labor Law § 241 (6) cause of action

(Deshields v Carey, 69 AD3d 1191, 1194 [3rd Dept 2010]), it does not apply to the facts of this case. None of plaintiff's submissions offer any analysis of this provision. In any event, the work here was not being performed from the ladder rungs. The court finds § 23-1.21 (b) (4) (iv) is inapplicable to the facts of this case and does not support plaintiff's Labor Law § 241 (6) cause of action.

F.Industrial Code § 23-1.21 (e) (2)

12 NYCCR Part 23-1.21 (e) (2) states as follows:

(e)Stepladders.

(2)Bracing. Such bracing as may be necessary for rigidity shall be provided for every stepladder. When in use every stepladder shall be opened to its full position and the spreader shall be locked.

The Third Department has stated "[w]e are of the view that 12 NYCRR 23-1.21 (e) (2) merely recites a general safety standard regarding the bracing of ladders and, therefore, is insufficient to sustain a cause of action under Labor Law § 241 (6)" (Spenard v Gregware Gen. Contr., 248 AD2d 868, 871 [3rd Dept 1998]). Plaintiff argues that Spenard is applicable to the first sentence, but not the second sentence, of this subdivision (Plaintiff's Memorandum of Law, p 9 n 2). The court finds no basis on which to find such a distinction in Spenard. That said, even if the provision were deemed specific, it is not applicable to the case at bar because plaintiff was not using the ladder open and locked as envisioned by the provision itself. In view of the foregoing, the court finds § 23-1.21 (e) (2) is not sufficiently specific and, in the alternative, is inapplicable to the facts of this case and may not support plaintiff's Labor Law § 241(6) cause of action.

G.Industrial Code § 23-1.21 (e) (3)

During oral argument, plaintiff mentioned an intent to rely on 12 NYCCR Part 23-1.21 (e) (3) which is mentioned in the cross-motion to amend and which states as follows:

(3)Stepladder footing. Standing stepladders shall be used only on firm, level footings. When work is being performed from a step of a stepladder 10 feet or more above the footing, such stepladder shall be steadied by a person stationed at the foot of the stepladder or such stepladder shall be secured against sway by mechanical means.

(Emphasis added). [*9]

Initially, the court notes that this provision has been deemed sufficiently specific (Losurdo v Skyline Assoc., 24 AD3d 1235, 1237 [4th Dept 2005]). That said, however, by plaintiff's own submission he was approximately five feet above the ground (on the third or fourth rung from the top of the ladder) when the ladder slipped straight out from the wall (Plaintiff's Affidavit, ¶ 13). Thus, plaintiff was well below the ten foot threshold contained in this provision to trigger the need for the stepladder to be steadied by a person or secured by mechanical means. Moreover, none of plaintiff's submissions offer any factual analysis of this provision. Accordingly, the court finds Industrial Code § 23-1.21 (e) (3) inapplicable to the facts of this case.

In view of the forgoing, defendant's cross-motion for summary judgment dismissing plaintiff's Labor Law § 241 (6) cause of action will be granted in its entirety.[FN3] Parenthetically, to the extent that the court had not specifically addressed any other Industrial Code provision cited by plaintiff at some juncture throughout these proceedings, the court finds such provisions are either general provisions and/or do not apply to the facts of this case.

CONCLUSION

For the reasons stated:

I.Plaintiff's cross-motion to amend his complaint and bill of particulars to cite additional provisions of the Industrial Code in support of his Labor Law § 241 (6) cause of action is GRANTED; and

II.Defendant's cross-motion to amend its answer to include the affirmative defenses that plaintiff's actions were the sole proximate cause of the accident and/or that plaintiff's actions were that of a recalcitrant worker is GRANTED;

III.Plaintiff's motion for partial summary judgment on the:

A.Labor Law § 240 (1) cause of action is DENIED; and

B.Labor Law § 241 (6) causes of action is DENIED; and

IV.Defendant's cross-motion for summary judgment dismissing plaintiff's complaint as to the:

A.Negligence and Labor Law § 200 causes of action is GRANTED;

B.Labor Law § 240 (1) is GRANTED;

C.Labor Law § 241 (6) cause of action is GRANTED;

The foregoing constitutes an order of the court.

It is so ordered. [*10]

Dated:March 15, 2013

Binghamton, New York

s/ Ferris D. Lebous

Hon. Ferris D. Lebous

Justice, Supreme Court Footnotes

Footnote 1:Plaintiff avers that "[w]hile Evans Mechanical ladders were available on the day in question, there were none located in the vicinity of the bathroom in which I was working. Instead, I chose to use this ladder because it was readily available and appeared sufficient for the task and the short time I would be using it" (Plaintiff's Affidavit, ¶ 17).

Footnote 2:The court also finds plaintiff's arguments that the ladder was improperly placed because defendant "left it leaning against the wall" is to no avail. Taken to its logical conclusion, plaintiff would require every piece of equipment locked away to avoid use in an improper manner.

Footnote 3:The court also rejects plaintiff's attempts to rely upon OSHA regulations in support of his Labor Law § 241 (6) cause of action (Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 351 n 1 [1998]).