Sheldon v Weinstein Enters., Inc.

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Sheldon v Weinstein Enters., Inc. 2018 NY Slip Op 32459(U) September 28, 2018 Supreme Court, Kings County Docket Number: 504941/13 Judge: Debra Silber Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] KINGS COUNTY CLERK 10/01/2018 09:35 AM NYSCEF DOC. NO. 134 INDEX NO. 504941/2013 RECEIVED NYSCEF: 10/01/2018 At an !AS Term, Part 9 of the Supieme Court of the State of New York, held id and for the County of Kings, at the Courthquse, at Civic Center, Brooklyn, New York, on t)ie 28'h day of September, 2018. i PRE SENT: HON. DEBRA SILBER, Justice. i - - - - - - - - - - - - - - - - - - - - - - - - - [- - - - - - - - -X SERGY SHELDON, I I DECISIOI' I ORDER Plaintiff,! - against - Index No.1504941/13 Mot. Seq.!# 5 & 6 ' WEINSTEIN ENTERPRISES, INC., ! Defendant. _____ -- __ -- - - - - - - - -- - - - -- lI - - - -- - - - -X The following papers numbered I to!8 read herein: ! ! Papers Numbered Notice of Motion/Order to Show Cai!tse/ Petition/Cross Motion and I Affidavits (Affirmations) Annexed._,.!_ _ _ _ _ _ __ ! Opposing Affidavits (Affirmations)_!,___ _ _ _ _ _ __ 1-3 4~6 7 Reply Affidavits (Affirmations)_-+-------Defendant's 2017 Affirmation - - ' - - - - - - - - 8 Other P a p e r s · - - - - - - - - - + - - - - - - - - - i : Upon the foregoing papers, defendant Weinstein Enterprises, Inc. (defendant) moves, (Motion Seq.# 5) pursuant to CPLR ~212, for summary judgment dismissingtheicomplaint i : ofplaintiffSergy Sheldon (plaintiff). iP!aintiffmoves, pursuantto CPLR3212, for summary judgment on his Labor Law § 240 (I~ cause of action (Mot. Seq.# 6). 1 of 32 [*FILED: 2] KINGS COUNTY CLERK 10/01/2018 09:35 AM NYSCEF DOC. NO. 134 INDEX NO. 504941/2013 RECEIVED NYSCEF: 10/01/2018 i i The instant action arises out qf a June 25'", 2013 accident on the roof of\he second . i ' I ! i i i i ! : i i floor of a two-story conunercial builfing owned by defendant, located at 3017 J!Iempstead Turnpike in Levittown, New York ~the subject building), from which plaintiff sustained several injuries. At the time of the acfident, the first floor of the building was le4sed to Old Country Buffet and part of the secodd floor of the building was leased, or was 'soon to be !i .i I . leased, to a real estate company cal19.d Home Start Exit Realty (Home Start Reafty). i i i i ! : i i On the day of the accident, pl~intiffwas employed as an air-conditioningitechnician by a company called Pro Aire Designi(Pro Aire), owned by Steve Layton. At approximately 8:30 a.m., plaintiff was given a slip of paper at the Pro Aire office containing the;model ahd ! . i i serial number of an air conditioner afd the address of the subject building, ·where plaintiff i ; was to perform "[s]ervice, checkint on the AC unit" (the unit) with a co-'-'\orker also I . ' employed by Pro Aire, whom plaintijfhad met for the first time that day. i Plaintiff testified that this "s~rvice" and "checking" of the unit was I ' regularly scheduled maintenance Jith the commercial air-conditioning i I ! "part of the . un~t ' at 3017 < Hempstead Turnpike," but then stat~d that actually he did not know whether Prb Aire had I . ' a contract with the owners at 30171 Hempstead Turnpike to perform routine Ischeduled I I < I . maintenance; whether Pro Aire was! responsible_ for performing routine maint~nance on ' commercial air conditioning "units" ~t 3017 Hempstead Tumpilce, or whether Prp Aire had I I . I . < ever serviced the air-conditioning uni' at the subject building prior to the date of hi~ accident. His employer had sent him to check ·!what's wrong with the unit" because the niiw [lessee] i ' 2 :_ 2 of 32 [*FILED: 3] KINGS COUNTY CLERK 10/01/2018 09:35 AM NYSCEF DOC. NO. 134 INDEX NO. 504941/2013 RECEIVED NYSCEF: 10/01/2018 i i in the building reported that it had a j>roblein with its air conditioning, namely the unit was i ' running but was not cooling the pre~ises. i i Plaintiff was also told to cle.P, the coils inside the AC unit with a power washer, I : i i namely "to perform power wash coillcleanings, evaporate and condition" to the fondenser, and other work as well, albeit verbally. Mr. Layton told plaintiff to "check the colnpressor." I : i i Plaintiff understood that the air con~tioner, called a York unit, was not workin8; properly, thatthere was a problem with it, and tjiathe had to "first. .. find out what's the problem, and iI :' then ... fix it.'' 1 When asked how ~e was told that the unit was not working properly, he i . i said: "[t]hat's why we came, becauseiwe had complaints from the owners ... , th~t someone i ! i ' ' i . called Pro Aire saying there was a prfblem with the unit; and that the unit "''as rµtuling but it was not cooling the inside of the ptemises." ' i According to plaintiff, if a cof1mercial air-conditioning unit was used fr~quently in i the summer, its coils were supposeµ to be cleaned every two to three mont~s. It \vas I i i necessary to wash the coils of a comm~rcial air-conditioning unit "with some regul,arity," and l . i Pro Aire had contracts with customer4 to perform continued maintenance, such as: the power ' ' i washing of the coils. When commerdial air-conditioning units are serviced, checJcing an air I . i ! ' ' compressor is part of the regular ma~ntenance. Pro Aire had contracts with cu~tomers to i perform "continued maintenance," sJch as the power washing of the coils. 1. Plaintiff also testified that he "~as fixing" the unit, and that "[t]he problem w~ with the AC unit, it wasn't working properly. I ~ad to find out what is the problem with the un{t, not how the drainage should work." · 1 3 _J 3 of 32 [*FILED: 4] KINGS COUNTY CLERK 10/01/2018 09:35 AM NYSCEF DOC. NO. 134 INDEX NO. 504941/2013 RECEIVED NYSCEF: 10/01/2018 i i At about I 0:00 a.m. onthe day of the accident, plaintiff arrived at the building, spoke I ; to a woman working for the real esta!e company on the second floor, and asked )ier how to i i access the roof. She did not know hdw to access the second floor roof, and there seemed to I ; i i be no ·way to access it. Plaintiff and fis co-worker used a 20-foot ladder to acc~ss the first floor roof and then they placed the s~me ladder on the first floor roof to access the second i ! i : floor roof, which was approximately i.18 feet higher than the first floor roof. The!part of the i i second floor roof where the equipmeht was located was flat and was approxima(ely 20 feet i ! i : long by 20 feet wide. However, the u~it was installed close to the edge of the roof, not in the i center. There was a black circular dtainage pipe next to the unit to drain wateri The roof !I • near the unit was wet, with a lot of rater, more than would be expected to coµie from a i commercial air-conditioning unit. Ttjere was only enough space for plaintiff to pµt one foot i ' I . near the unit in order to stand and pefform his work, which was not enough spape to work i on the unit without falling off the bujlding. 2 I i In support of his motion and in ~pposition to those branches of defendant's· mbtion to dismiss plaintiff's Labor Law § § 24.0 (1 ~ and 200 causes of action, plaintiff relies on t~e affidavit of his expert, engineer Scott A. Silberman, P.E., who visited the site of the accident orl April 7, i 2016. Mr. Silberman states that his opi~ion (about the accident) is based upon his "understanding that the condition of the!roof and area surrounding the subject AC Unit at the time of my site visit fairly and accuratelf depicted the condition of the roof and area stjrrounding 2 the subject AC Unit at the time of Mr. S,heldon's accident (Plaintiffs Exh. 14, Affida"it of Scott A. Silberman, P.E., ,-i~ 19-20). He furth~r states that based upon his site visit, "the foll~wing conditions are noted: (a) the subject building is located west of a shorter building and ~he subject AC Unit is located on the east edge of t!\e subject roof; (b) the lower roof (first floor root) is approximately 16 feet 6 inches (16 1-6 11 ) ~elow the roof where Mr. Sheldon was perfoniiing his work on the AC Unit; and (c) the area v.(here Mr. Sheldon was standing can be seen inifue picture" annexed to his affidavit as Exh,bit B (id at ,-i 21). He also states that "[a]longithe perimeter of the roof, there is a raised at}d irregular surface (curb) which is also pitched at a · (continued... ) ' 4 4 of 32 [*FILED: 5] KINGS COUNTY CLERK 10/01/2018 09:35 AM INDEX NO. 504941/2013 NYSCEF DOC. NO. 134 RECEIVED NYSCEF: 10/01/2018 i i Plaintiff "checked on the unit I -. from [the] inside" by turning on the therlnostat and ' checking the filters, because "the ' ! . i i unft \Vas first on and then off and on again." ~n order to check the thennostat in the second fl~or office, plaintiff had to use the ladder to go from the ' . ! I . . ! second floor roof to the first floor ropf, and then to the ground floor, which mafe him and i i i ! his co-worker "exhausted before (th~y] had even started." Having checked the thermostat, i i plaintiff knew "that something was tong with the unit." Plaintiff and his co-l>}orker then i i turned off the unit and power-washrd the condensing coil and the operating coil with a power-washing machine. i ' Ii i Plaintiff then turned on the w?it and began checking the compressors to isee if they i i ! ! i i I , i ! were running properly. In order to perfonn this task, plaintiff had to access the u11it from the space between the unit and the edge ofthe roof because the compressors were loc~ted behind i i i i the first cover on the left side of !he unit, which was between the unit and the edge (Plaintiff's Exh. 8 [Defendant's Exhl BJ; photographs, depicting that from the front of the ' ' ! unit to the extended "vent" in the bac~ of the unit there was only room for one o~plaintiff's i. i ! feet between the side of the unit and ljhe edge of the roof). It was not possible to access that ' ' ' portion of the unit from the front of the unit. i 2 I . ( ••• continued) different grade and different directions"i(td. at~ 22); that "[t]he portion of the roof befWeen the side of the AC Unit and the irregularly ~haped edging is only about 18 inches (18") (id; at ir 23); and that "[t]he outside edge of the roof· ~ts elf is 41 inches (41 11 ) away from the side of the AC Unit (id. at if 24, citing his Exhibit C "f1r additional measurements" and his Exhibit D;"to show that the slope closest to the AC Unit is 49.7%"). 5 5 of 32 [*FILED: 6] KINGS COUNTY CLERK 10/01/2018 09:35 AM NYSCEF DOC. NO. 134 INDEX NO. 504941/2013 RECEIVED NYSCEF: 10/01/2018 i For approximately one hour, plaintiff had to remain in a crouched posi\ion in this ! ' i f i small space between the unit and the dge of the roof in order td access the comp*ssors. For .i . i this work, plaintiff was wearing glo~es, and he was holding a gauge in his right hand to i i i : i . check the pressure on the two co1nprfssors by switching the gauge from one cotjlpressor to the other. To perform this task, plaitltiff's co-worker turned the unit off, and th~n plaintiff i ! i : switched the gauge to the other compressor, whereupon his co-worker turned the unit back i 1. i on. The compressors showed "[ sJome ridiculous stuff, not right stuff, not what the i ! i : compressor is." According to plaintjff, he was "supposed to show that is why i1 took me a .i . lot of time to figure out what's ii go~ng • on. It actually was t\vo compressors,r so I ¥.'as i ! I switching from one· compressor to a1other one." i : Sometime between I :00 p.m. bnd 2:00 p.m., plaintiff's knee had becomeitired from . ' i I crouching, so he attempted to stand l(p. At that point, one of his feet slipped a little and he I . . i lost his balance. According to plaind,ff, he did not know why he slipped. He testified: "My i ' i knee was really tired and I don'tkno,Y-I tried-probably I tried to make one of my leg [sic] i. i i how to say feel free, but maybe it ct1ctn't did [sic] the right move and it slipped. I can't I . describe whatever- it all happened i4 one second. So, I just slipped one leg andithen I lost Ii the balance." After a break at his EI)T, plaintiff then testified that he "slip[ped] on water ' . i when [he was] attempiing to get up i* the seconds before the accident," and thatihe "didn't i. i slip at all because [his] legs were tir~d." ' 6 6 of 32 [*FILED: 7] KINGS COUNTY CLERK 10/01/2018 09:35 AM NYSCEF DOC. NO. 134 INDEX NO. 504941/2013 RECEIVED NYSCEF: 10/01/2018 I Ii .; i ' In any event, after plaintiffs right foot slipped, he lost his balance, and fell ~ackward. Aware that he could fall from the toof, plaintiff threw out his left hand to i \ry to grab ! something. 3 The pinky finger, ring fipger and middle finger of his left hand, whi~h still had i ' I , ' the glove on it, made contact with t~e blades of the unit. Plaintiff then jumpe~ to the left i i side, and tried to "pull [himself] froij1 falling" - i.e. to avoid falling, to get away from the I : i i edge, and to find a safe position whertthere was more room. As a result, plaintif~s left knee hitthe comer of the air conditioner. Ji'!aintiffwas bleeding from his left hand. Hb managed I : to climb down the ladder to the firs1 floor of the building with the assistance Iof his coworker, was treated by EMT worker~,' and was taken to the hospital. I Defendant's witness, Mr. Sail Cappuzzo, testified that he was Ii emplo~ed as the ! corporate treasurer for defendant. J:tefendant owns and operates mostly comrrlercial real I , f estate in the New York inetropolitan rea. As corporate treasurer, Mr. Cappuzzq maintains i ! ' . the books and records of defendant, c9Ilects rent from defendant's tenants, pays e~penses on i defendant's properties, and inaintai*s contact with all of defendant's tenants; I-1e also 1. i ! performs physical 'inspections of the properties having problems anQ tries to res9lve them. In June of2013, defendant owhed the property located at 3017 Hempstea~Tumpike. I , ' . At that time, the first floor was renteµ to Old Country Buffet. A real estate office, named Home Start Exit Realty, moved into ~portion of the second floor at around that Itime. Mr. Cappuzzo did not know if the real 3 At that moment, he was still I .' est~te : office had moved in by June 2013 but also testified ' . ho~ding the gauge in his right hand. 7 7 of 32 [*FILED: 8] KINGS COUNTY CLERK 10/01/2018 09:35 AM NYSCEF DOC. NO. 134 INDEX NO. 504941/2013 RECEIVED NYSCEF: 10/01/2018 i i I : I I , that Old Country Buffet and Home S1*rt Realty were subject to commercial lease ~greements as ofJune of2013. The rest of the setond floor was empty but defendant was try\ng to lease it. The building has multiple ro<!>fs. The front side of the building has a p~aked roof which is pitched; the back portion of1he building has a flat roof, which is located above the I : second floor real estate tenant. In Ife 2013, there was a rooftop HVAC air-cqnditioning i unit on the flat portion of the se4ond floor roof, which provided both hdat and air I conditioning to the entire second flofr. i i i i In June 2013, defendant was "~rying to getthe unit serviced" in anticipatiotl ofthe real i ! estate tenant inoving into the premisrs. On June 25, 2013, the date of plaintiff':s accident, i defendant was paying the bills for Prp Aire: i "in anticipation of ExitlHome Start Real Estate [sic] leasing the premises from us. W~ wanted to make sure that the unit was operational and we ser\'iced it in the beginning of the lease ... There had been a pre\[ious tenant in the space who was also responsible to maintairt and service the unit. We had no idea if it had been done right, as the landlord ... we want to make sure that we are givingl our tenant an operational unit. We are telling them that the~ are responsible to maintain it going forward so Weinstein :tnterprises paid for that initial service." lso I , i . Initial service really meant "initial qaintenance." Once Ho1ne Start Realty moyed in, Mr. i Cappuzzo was clear that the responsiJbiiity for the care and maintenance of the un~t would be I . i ! i : the tenant's. According to Mr. Capnuzzo, he had "no "idea" what "was involved in that i maintenance" but also testified that •fthe service company comes in and they chbge belts, I . 8 8 of 32 [*FILED: 9] KINGS COUNTY CLERK 10/01/2018 09:35 AM NYSCEF DOC. NO. 134 INDEX NO. 504941/2013 RECEIVED NYSCEF: 10/01/2018 they adjust things, they change fillers, they have to make sure it's runnin~ I ! i i to peak performance," and they "perform so11e type of special service to clean [the coils]! so [the air conditioner] performs better." As qf June 25, 2013, there had not been any <lomplaints regarding the unit, he stated. I . i ! Mr. Cappuzzo did not know if'1Je air-conditioning unit leaked. He was fainiliar with I ; i i the second floor flat portion of the roof because he had visited that area. \\1hen asked whether he was familiar with the drai)lage [of the unit], he replied that he was fainiliar with i ' I , it "by looking out the window on tfe back of the space," but (contradicting pis earlier i i i ! answer) he had never "been out on th~ roof itself," although the window in the back kitchen i ! area "oft'ered a view of [the subjecfJ air-conditioning unit." He had never ~een water i i ' ' collecting under the unit. When ask~d how frequently he looked out that window in June i 2013, he replied: "!fl happened to glance out the window." He was at the prerriises of the i second floor tenant every three to fou~ months but did not know if he looked out tl)e window i ' i i atthe unit when there. In June of201~, he said he was atthe subject building, me,aning "the I . entire premises" once a month. Mr. Cappuzzo did not know Jhat repairs had been done to the second t1qor portion I . i ! ' ' of the roof where the unit was locatediin the two years before June 2013. Defendant and Mr. i Cappuzzo were never notified that th~re was a maintenance issue on the second !)oar of the I , i ! ' ' roof that housed the unit; prior to Ji;me 2013, Mr. Cappuzzo did not know wl)en the air i conditioner was last serviced; and he thought the air conditioner was working, btit then said I . 9 9 of 32 [*FILED: 10] KINGS COUNTY CLERK 10/01/2018 09:35 AM NYSCEF DOC. NO. 134 INDEX NO. 504941/2013 RECEIVED NYSCEF: 10/01/2018 i i "I don't know." Defendant wanted lo give the new tenant "a good operationaliunit," and I ; defendant and Mr. Cappuzzo did not row ifthe unit was operational, but "want[ ~d] to make i sure that th[ ere] is service before v.je give them to our tenants." Mr. Cappu~zo did not ' ! i : i i observe the servicing, was not advis,d what was going to be done, did not get any "specific indications as to what was going to be done," and except for calling Pro Aire !md asking i ' I . i i them to service the unit, he and defefdant had no involvement with it. Pro Air~ "check[s] the unit and make[s] sure it's workiPg and service[s] the unit if it needs any kervicing." i ' I . i i Defendant did not request that Pro 4ire power wash the unit or clean the coils. I"Pro Aire I i ... would tell us what the unit needs,!we are not experts in HVAC service." Mr.! Cappuzzo I ; i . i ! had a general idea that defendant as*ed Pro Aire to service the unit and make Sure it was i . operational. The second floor roof is approrimately 30-35 feet high, and in June 2013 fu1d before then, there were no railings around ihe unit. No nets or safety devices were p'rovided in I , i ' i. i • connection with the servicing of the t)nit. The distance from the unit to the edge 'Qfthe roof ! was three to four feet as depicted in la photograph of that area (plaintiffs motion, Exh. 8, I . i i photographs). Mr. Cappuzzo had nev~r seen "water forming" in that area prior to !une 2013. Ii ! Prior to June 2013, Mr. Capp~zzo did not receive any complaints nor waS there any I . litigation about the second floor rootlthat housed the HVAC unit. No one fromlWeinstein I . i ! Enterprises supervised or inspected tl?e work that was done by Pro Aire. Before June 2013, I . the second floor roofing area had nevbr been inspected; the unit would be service4 yearly by I . 10 10 of 32 [*FILED: 11] KINGS COUNTY CLERK 10/01/2018 09:35 AM NYSCEF DOC. NO. 134 INDEX NO. 504941/2013 RECEIVED NYSCEF: 10/01/2018 i i I ; the previous tenant, but Mr. Cappuzz4 did not know how frequently that previous~enant had serviced the unit; and Mr. Cappuzzo ras not aware of any problems with the unit when the i previous tenant occupied that space. I I ! i i I ; A quote for the work perfon1ed by Pro Aire reflected the work Pro Aire actually perfonned, namely "power wash anq coil cleaning" which was recommended b~ Pro Aire and needed to be done to service the rnit. The quote also states "Homestart Realty Unit #3 i Oil Burner Repairs NC 6634" (Plair\tiffs Exh. 9). iI . i i On or about August 20, 20131, plaintiff commenced the instant action s~unding in i . common-law negligence against Rock Ridge Farm LLC, seeking damages for t~e personal i ! i . injuries he sustained on June 25, 2013 at the subject building. On or about Nqvember 7, i 2013, plaintiff served a supplementa\ summons and amended complaint adding;Weinstein i Enterprises, Inc. as a defendant. or ' or about December 2, 2013, defendant !Weinstein i interposed its answer, generally denY:ing the allegations of the complaint. I i On or about January 28, i 201~, t ' the action was discontinued without pr,ejudice as - i ! against Rock Ridge Fann LLC. Or\ January 30, 2014, plaintiff served a verified bill of I . i particulars in response to defendant ~einsteinis demand. On January 31, 2011, plaintiff ii ! served combined demands on defenqant Weinstein, to which plaintiff had not received a I . response as of the date of his motionl On February 26, 2014 and April 17, 2014, plaintiff I . i ! I . served supplemental verified bills of particulars. On or about May 29, 2014, ;defendant Weinstein served its response to a pteliminary conference order stating that it was !not aware I . 11 11 of 32 [*FILED: 12] KINGS COUNTY CLERK 10/01/2018 09:35 AM NYSCEF DOC. NO. 134 INDEX NO. 504941/2013 RECEIVED NYSCEF: 10/01/2018 i of any witnesses to the accident andlthat it did not have an accident report. O~ August 6, . I ; 2014, plaintiff appeared for his deposttion. On August 19, 2015, Mr. Sal Cappuzzp appeared i for a deposition on behalf of defendaiit Weinstein. On September 28, 2015, plaintiff served . i ' I ' i i a demand on defendant Weinstein for the lease for the second floor of the subjept building in effect at or near the date of the a~cident. On or about November 10, 2015,i defendant . i ! i : Weinstein produced a copy of a five-~_ear lease for a portion of the second floor of):he subject i building for its tenant non-party Hon\ie Start Realty, dated February 1, 2013. !I • By order dated March 17, 20li6, plaintiffs motion to extend his time to fjle his note i ' i ! i ' of issue and to amend the caption to !reflect the discontinuation of the action against Rock Ridge Fann LLC was granted. On lfay 13, 2016, plaintiff served a supplemenial verified i bill of particulars. On October 4, 20 (6, the parties signed a stipulation permitti~g plaintiff I . . to withdraw the note ofissue and to file amended pleadings. On or about Novemher 2, 2016, i plaintiff filed and served a second sµpplemental summons and second amended verified I ' i I complaint against defendant Weinst~in alleging comtnon-law negligence and violations of 1. i Labor Law§§ 240 (1), 241 (6) and ~00. Plaintiff also asserted a separate cause of action i alleging violations of the New Yor~ Industrial Code 12 NYCRR 23 et seq. O~ or about Ii December 8, 2016, defendant interpqsed its answer to the second amended complaint. I Between November 9, 2017! and May 12, 2017, plaintiff served ambnded and 1. Thf new note of issue was filed on May 13, 2Ql 7. On or i supplemental bills of particulars. 12 12 of 32 [*FILED: 13] KINGS COUNTY CLERK 10/01/2018 09:35 AM NYSCEF DOC. NO. 134 INDEX NO. 504941/2013 RECEIVED NYSCEF: 10/01/2018 I. Ii i I : about June 6, 2017, defendant filed ~e instant motion for summary judgmenti Plaintiff subsequently filed his motion for sutnary judgment on July 10, 2017. Discussion Labor Law § 240(]) i i I : i i Plaintiff moves for summary jµdgment on his Labor Law § 240 (1) caus~ of action, arguing that he was engaged in the pr~tected activities of cleaning and repairing \he HVAC unit, that he was exposed to the elevalion-related risk of falling from the edge oflhe second I ; floor roof, that defendant failed to pjovide him with any safety devices to preve,nt his fall, ' cause of his injuries. and that this failure was the proxima~e I ! ! , Plaintiffs expert opines that [Plaintiff was engaged in -cleaning and repairing the ' § 240 (1), that plaintiff was exposed to tl\e gravitysubject unit for purposes of Labor L'IW i' ' related risk of falling from the rooftecause he was required to work in an 18-inch space i i between the unit and the unguarded '*1ge of the roof, that a guard rail, safety hari)ess or fall I . arrest system should have been provi4ed to plaintiff as per certain OSHA regulati\,ns and 12 ! , ' NYCRR § 23-5.1 (j) (1), and that pl~intiffs injuries were a direct result of the; effects of ' , ' gravity and the failure to provide him with safety devices in violation of the statute I . (Plaintiffs Exh. 14, Affidavit of Scott' A. Silberman, P.E., 'IJ'IJ 36-59, 61). ! In support of that branch of i~s' own motion to dismiss this cause of acti,on, and in I : opposition to plaintiff's motion, defe$.dant contends that the work performed by Plaintiff at i ' ' the time of the accident constituted rdutine maintenance ratherthan cleaning anal repairing, I . 13 13 of 32 [*FILED: 14] KINGS COUNTY CLERK 10/01/2018 09:35 AM NYSCEF DOC. NO. 134 INDEX NO. 504941/2013 RECEIVED NYSCEF: 10/01/2018 i i I ; i i i ' I . and that plaintiff therefore was not performing a covered activity at the time of th~ accident. Alternatively, defendant argnes that tfe statute is inapplicable because plaintiff ~id not fall from a height and was not hit by a falling object, but merely slipped and lost hi~ balance. "Labor Law § 240 (I) imposef a nondelegable duty upon owners and contractors to . i i provide safety devices necessary 4or workers subjected to elevation-relate~ risks in I ; i i I or. pointing i i circumstances specified by the statutf (Collymore v 1895 WWA, LLC, 113 AD3~ 720, 721 [2d Dept 2014]). In particular, "[t]~ recover, the plaintiffrnust have been engaged in a covered activity-' the erection, dem9lition, repairing, altering, painting, cleaning of a building or structure"' (id., qu~ting Labor Law § 240 (!)). "To establi~h liability i ' I . i i pursuant to Labor Law§ 240 (I), a p1aintiffmust demonstrate a violation of the ~tatute and that such violation was aproximate ca4se ofhis or her injuries't'(Marulanda v VanCe Assocs., i : LLC, 160 AD3d 711, 712 [2d Dept 2tl8) [internal citations and quotation markslomitted)). i "In determining whether a particular activity constitutes 'repairing,' courts ~re careful I • i i to distinguish between repairs and roptine maintenance, the latter falling ' outsid~ the scope i of section 240 (I)" (Ferrigno vJag~ab, Jaghab & Jaghab, P.C., 152 AD3d 650, 653 [2d I . Dept 2017)). In this regard, "courts ihave held that work constitutes routine m~intenance !i where the work involves 'replacing ¢omponents that require replacement in th¢ course of I ' i normal wear and tear'" (id., quoting ~sposito v NY City Indus. Dev. Agency, l l\IY3d 526, !i 528 [2003], citing Mammone v T.G.!Nickel & Assoc. LLC, 144 AD3d 761, 761 [2d Dept I ' i 2016] [replacement of filters on airl conditioners on roof of school which hrid stopped I . 14 14 of 32 [*FILED: 15] KINGS COUNTY CLERK 10/01/2018 09:35 AM NYSCEF DOC. NO. 134 INDEX NO. 504941/2013 RECEIVED NYSCEF: 10/01/2018 i working not repair under statute]).! Accordingly, the statute "does not coyer routine -i I . maintenance in a non-construction, ton-renovation context" (Riccio v NHT OW,ners, LLC, i i 51 AD3d 897, 899 [2d Dept 2008] [ibternal citations and quotation marks omitted]). "The i ' I . question of whether a particular acti1ity constitutes a 'repair' or 'routine maintenance' must i i i ' I . be determined on a case-by-case basi~" (id.). "The critical inquiry in detennining coverage under the statute is what type of work the plaintiff was performing at the timd of injury" i i i • (Panekv County ofAlbany, 99 NY2d ~52, 457 [2002] [internal citations and quot~tion marks omitted]). I i i "The determination ofwheth~r an activity may be considered 'cleaning"iwithin the i ' I . meaning of Labor Law § 240 (I), 1s opposed to routine maintenance, has b¢en held to i depend on four factors, considered a$ a whole" (Holguin v Barton, 160 AD3d 8 i 9, 820 [2d Dept 2018]). In particular, I . i bP "[a]n activity will not considered 'cleaning' under the statute (I) if it is 'routine,' that is, it is performed on a daily, weekly, or other relatively frequ~nt recurring basis as part of ordinary maintenance; (2) if it dpes not require specialized equipment or expertise, nor unusual Ideployment of labor; (3) if it involves insignificant elevationlrisks comparable to those encountered I during typical domestip or household cleaning, and ( 4) if it is unrelated to any ongtjing construction, renovation, painting, alteration, or repair prtjject" (id., citing Soto v J. Crew Inc., 21 NY3d 562, 568-569 [2p 13]). i ' "Whether the activity is 'cleaning'~~ an issue for the court to decide after revie~ing all of ' . the factors [and] [t ]he presence or abs~nce of any one is not necessarily dispositiv~ if, viewed 15 15 of 32 [*FILED: 16] KINGS COUNTY CLERK 10/01/2018 09:35 AM NYSCEF DOC. NO. 134 INDEX NO. 504941/2013 RECEIVED NYSCEF: 10/01/2018 i i I : in totality, the remaining consideratio'1s militate in favor of placing the task in on~ category or the other" (Soto, 21 NY3d at 568-T69). i i Plaintiff has made a prima /p,cie showing that he was engaged in cleaning and i ' repairing the air-conditioning unit w~en the accident occurred, as those terms ' ~e defined i i i : I . under Labor Law§ 240 (!). First, ~ith respect to repairing, plaintiff testified that he was assigned to perform "[s]ervice, checkfng on the AC unit," elabdrating that his employer had i i instructed him to check "what's wro~g with the unit" because the new "owner" (lessee] in i ' I . the building reported that it had a prtlem with its air conditioning because it wfs running i i I ; i i but not cooling; that he understood t~at the air conditioner was not working proPerly, that there was a problem with it, and thatlhe had to "first ... find out what's the prtjblem, and then . .. fix it"; and that he "was fixitjg" the unit, i.e., "[t]he problem was with the AC unit, I ! it wasn't working properly. I had to ynd out what is the problem with the unit." iAlthough i defendant's witness, Sal Capuzzo, test\ified that Pro Aire would change belts and filters, clean I i : coils, and make sure the unit was rum;1ing to peak performance, he also testified that he had 1. i no idea what was involved in the mait"itenance of the unit; that he did not tell Pro;Aire what I , ' . I . to do, except to service the unit; that h~ did not know if the unit was working; that!he did not Ii know when the unit was last service<lj; and most significantly that defendant hireµ Pro Aire ' to make sure the unit was operational~or the new tenant, Home Start Realty. Thu~, plaintiff Ii has made a prima facie showing tha\ he was sent to fix (i.e.) repair the unit and make it I . ' operational because it was malfunctiJning, i.e., because it was running but not cpoling. the I . 16 16 of 32 [*FILED: 17] KINGS COUNTY CLERK 10/01/2018 09:35 AM NYSCEF DOC. NO. 134 INDEX NO. 504941/2013 RECEIVED NYSCEF: 10/01/2018 i i I : i i premises on the second floor (cf Az~d v 270 5th Realty Corp., 46 AD3d 728, 73iO [2d Dept 2007], iv denied I 0 NY3d 706 [2CYO~J [plaintiff not engaged in repair because tje "was not retained to repair the gutter pipe bec4use it was inoperable, but because an animiil had used i : I . the holes in the pipe, which had deveioped in the conrse of nonnal wear and tear, fo enter the i i building"], citing among otherdecisipns,Kirkv Outokumpu Am. Brass, Inc., 33AD3d1136, i ' I . 1138 [3d Dept 2006] [internal citatipns and quotation marks omitted] ["In the :absence of i i !I . proof that the machine or object b~ing worked upon was inoperable or not *'1nctioning properly Supreme Court properly co1cluded that the work perfonned by plaintiff was in the i i natnre ofroutine maintenance"]; Paplipietro v Rock-Time, Inc., 265 AD2d 174, I 14 [Isl Dept I : i i i ' I . 1999], quoting Craftv Clark TradinglCorp., 257 AD2d 886, 887 [3dDept 1999] G"Plaintiffs replacement of the roller guards o~ the elevator counterweights cannot be viewed as a 'repair' since plaintiff presented to evidence that the elevator was 'inoperable or i malfunctioning prior to the commenqement of the work"']; Craft, 257 AD2d at 887 [worker I . was performing repairs as opposed Ito routine maintenance of malfunctioning: ice cream 1. i freezer in supermarket where he waslcalled at 3:00 a.m., v.,ras told that the ice cream freezer I . i case was malfunctioning and that so~eone was needed immediately to repair th'.e' problem, Ii and thus efforts were in furtherance of his investigationregardingthe cause of an undisputed I . i malfunction - issue of repair as oJposed to routine maintenance was dependent upon I "whether the item being worked bn . was inoperable or malfunctioning pt;ior to the commencement of the work"]). 17 i - 17 of 32 [*FILED: 18] KINGS COUNTY CLERK 10/01/2018 09:35 AM NYSCEF DOC. NO. 134 INDEX NO. 504941/2013 RECEIVED NYSCEF: 10/01/2018 i i i i i i Stated otherwise, the testing pl~intiffwas perfonning to detennine why th~ unit was not functioning constituted "the first stp[s] in effectuating repairs to the [unit]," al)d thus the provisions of Labor Law § 240 (I) arelapplicable (De Jesus v Metro-N CommuteiiR.R., 159 . i ' I ! i i i : I . i i AD3d 951, 952 [2d Dept 2018] [Althfugh 'tree cutting and removal, in and of t~emselves, are not activities subject to Labor L~w § 240 (!)' ... where, as here, the plaintiffs tree removal work constituted the first ste~ in effectuating repairs to the catenary wire1 [situated above the railroad tracks]," and it ~s "undisputed that the catenacy wires co~ld not be i ' I . repaired and train service restored wi,out first removing the tree,'-' "the provision~ of Labor i Law§ 240(1) [were] applicable"]). I I ! i i Plaintiff has also made a primavacie showing that he was engaged in cleaning as that term is defined by the statute. First, p)aintifftestified that he power-washed the cpils of the iI . unit for two hours (Soto, 21 NY3d atl568-569) in an attempt to find out why the unit was i malfunctioning, not while he was perfprming a routine task done on a daily, weekly, or other I . i ! frequently recurring basis (id.). As no\ed above, plaintiff first checked the thermo$tat, found ! I . . that the unit was "first on then off an:d on again," and then proceeded to check the filters, I • ' perform the power washing, and the~ progressed to checking the compres;ors.! Notably, !i plaintiff testified that he understood tl}at the air conditioner was not working properly when I • ' he arrived atthe scene, stating: "ljustldidn't figure out what was the problem,] dtdn 't make I . i it" (emphasis added); that he was c!iecking the compressors to see if they were running I • ' properly, switching from one compre~sor to another; and that: "I'm supposed to!show that I 18 18 of 32 [*FILED: 19] KINGS COUNTY CLERK 10/01/2018 09:35 AM NYSCEF DOC. NO. 134 INDEX NO. 504941/2013 RECEIVED NYSCEF: 10/01/2018 I is why it took me a lot of time to fig\lre out what's going on." Second, plainti~fused his specialized expertise as an I air-condi~ioning ! technician to perform his work, !s well as i i specialized equipment, including a ga(lge, to ascertain why the unit was malfunctioning. In I : i i this regard, plaintiff testified that he h,d previously worke.d as·an air-conditioning \echnician for a company in California for sevenlto eight years, which was more residentialiin nature; i . I ' . and that while initially a beginner witf commercial units at Pro Aire, he was trai*ed on the i i job with a senior technician, and had {vorked on 50 commercial air-conditioning µnits with i ' I . Pro Aire before the accident occurred.I Third, plaintiff was subject to a significant ~levationi i related risk because he was required td work on the narrow edge of the roof which Was 35-40 i I I . feet high (id.). Finally, cleaning the c4ils was related to plaintiffs attempts to repair the unit, I which was interrupted by his acciden\ (id.). I In its motion, defendant arg$es that Mr. Cappuzzo's deposition testi¢ony and I affidavit establish that Pro Aire was retained on the day of the accident solely tp conduct I ' I i ! routine maintenance on the unit. As a~ initial 1natter, defendant does not cite any <;leposition !I testimony of Mr. Cappuzzo. As for ~is affidavit, dated one year after Mr. Capi}uzzo was I , deposed, Mr. Cappuzzo avers, in pertjnent part, that Pro Aire was called to cond~ct routine I maintenance on the unit; that after Pto Aire conducted a routine maintenance cilll, it also i : I "reconunended a .power wash of coilk, part of the periodic maintenance on suci, a unit to I . optimize performance"; that Pro Aire "\Vas not retained to conduct any repairs on th\' unit; that I . I had Pro Aire recommended a repair, i\ was required to obtain his approval before~and; that 19 19 of 32 [*FILED: 20] KINGS COUNTY CLERK 10/01/2018 09:35 AM NYSCEF DOC. NO. 134 INDEX NO. 504941/2013 RECEIVED NYSCEF: 10/01/2018 i . Pro Aire did not recommend any rei\airs to the unit in June 2013, and did not i,equest any i : I • authority, verbal or written, to make1any such repairs; and that defendant did nqt have any i problems with the unit before it call~d Pro Aire, nor since that time. !I • i . However, as plaintiff argues, Mr. Cappuzzo's affidavit contradicts his !deposition testimony that he did not tell Pro Aire what to do, except to service the unit; that!he was not i : I • advised what was going to be done, tpat he did not give any "specific indication$ as to what i . was going to be done," except for cafling Pro Aire and asking them to service t!Je unit, and i . I • i . that he and defendant had no involv,ment with it (Pro Aire "check[s] the unit a~d make[s] sure it's working and service[s] the J,nit if it needs any servicing"; "Pro Aire .. .\would tell I . us what the unit needs, we are not eferts in HV AC service"). i . Moreover, a quote for the work performed by Pro Aire indicates that Pro Aire would i : I • i . I : perform "power wash and coil clea1ing" and also states: "Homestart Realty Unit #3 Oil Burner Repairs A/C 6634" (Plaintiff$ Exh. 9). Accordingly, the court finds thatt~e affidavit i was specifically tailored ''to raise a tr1iable issue of fact, and merely raised a feigned factual i. i . I . issue which [is] insufficient to def~at the [plaintiffs] motion for summary judgment" ' (LaRosa v Internap Network Servs. !Corp., 83 AD3d 905, 909 [2d Dept 20UJ [internal ! i . citations and quotation marks omitte4JJ. "Moreover, the affidavit was designed to avoid the I . consequences of [the defendant1s] ' de~osition testi1nony" (id.). Ii Defendant's counsel also argues in defendant's motion and in coun~el's 2017 affirmation that plaintiff admitted th~/ his work was part ofroutine maintenance because he I . 20 20 of 32 [*FILED: 21] KINGS COUNTY CLERK 10/01/2018 09:35 AM NYSCEF DOC. NO. 134 INDEX NO. 504941/2013 RECEIVED NYSCEF: 10/01/2018 i i testified that his assignment was to service and check on the unit, and also admitjed that at i ' I . the time of the accident he was checkiFg on the compressors, which was part oft\1e routine i i service on commercial air-conditioning units. Although p'laintifftestified that thisi"service" i ' I . and "checking" of the nnit was "p"t of the regularly scheduled maintenancei with the i i commercial air-conditioning unit atl 3017 Hempstead Turnpike," he then te~tified, as i ' I . defendant's attorney concedes in his rfply affirmation, that he did not know if Prq Aire had i i a contract with the owners at 3017 frempstead Turnpike to perform routine ~cheduled i ' I . i i maintenance or if it was responsible rqr performing routine maintenance on any co'mmercial I I air-conditioning units at 3017 Hempst\oad Turnpike. Further, defendant concedes:that it did I . I , not in fact have a maintenance contrac~ for the unit. Moreover, although defendantl s counsel i posits in his 2017 affirmation that plaibtiffs actual testimony demonstrates that plaintiff did i ' I . not know what the arrangements wer1 for Pro Aire, even defendant concedes tha! plaintiff i "was talking generally [about] what u$ually happens." Further, while defendantis counsel ' I . i ' argues in his 2017 affirmation that pl4intiff did not testify that he was told that there was a Ii problem with the nnit or that he had . tq repair anything, plaintiff repeatedly testified that he i' '' I was there to fix the unit because it we$ running but not cooling. Ii In addition, Mr. Cappuzzo tqstified that he did not know if power waShing and I ' i cleaning had not been done regularit, stating that he had no idea whether the! unit was Ii functional or when it was last servicedt Moreover, with respect to the compressor~, plaintiff I . only testified that usually if acommerdial air-conditioning unit was used a lot in th~ summer, I . 21 21 of 32 [*FILED: 22] KINGS COUNTY CLERK 10/01/2018 09:35 AM NYSCEF DOC. NO. 134 INDEX NO. 504941/2013 RECEIVED NYSCEF: 10/01/2018 i i i : I . its coils were supposed to be cleaned ~very two to three months; and that when commercial air-conditioning units are serviced, fhecking an air compressor is part of the regular i i maintenance. In any event, plaintiff e4lained that in this instance, the compressor~ were not i ' I . i i working properly. Thus, while some 1ftasks plaintiff performed, when viewed in!isolation; might be considered routine maintenrnhce, the testimony of plaintiff, as well as the testimony i ; I . of Mr. Cappuzzo, establishes that "thf overall scope of the entire job which [plaihtiffl was i engaged to perform" constituted a repair (Fox v H&M Hennes & Mauritz, L.P., 83 AD3d !I . 889, 890 [2d Dept 2011 ]). Accordinfly, plaintiff has made a primo facie showijig that he i was engaged in cleaning and repairinglas those terms are defined rmder Labor Lawi§ 240 (I), which defendant has failed to rebut. I I : i Further, it is undisputed that th~air-conditioning unit, which was installed oh the roof, ' ' i ' i was a s.tructure for purposes of Labor ~aw § 240 (I) (Sprague v Peckham Materials Corp., I 240 AD2d 392, 393 [2d Dept 1997]).i ' i In addition, plaintiff was subJe4t to an elevation-related risk because he wa~ required Ii to work in a narrow space between th~ side of the HVAC unit and the unprotected edge .ot' ' ' i the second floor roof, and he was injJred when he. tried to prevent himself from falling off Ii the roof(Striegel v Hillcrest Heighlf Dev. Corp., 100 NY2d 974, 978 [2003} [plaintiff ' . subject to elevation-related risk when[he sustained injuries from sliding from fro~t-covered I . i roof to eaves, despite not falling to gnj>rmd]; Ienco v RFD Second Ave., LLC, 41 AD3d 537, ' ' 539 [2d Dept 2007], quoting Ortiz v 'furner Constr. Co., 28 AD3d 627, 628 [2d Qept2006] I . 22 22 of 32 [*FILED: 23] KINGS COUNTY CLERK 10/01/2018 09:35 AM NYSCEF DOC. NO. 134 INDEX NO. 504941/2013 RECEIVED NYSCEF: 10/01/2018 I ['"it is of no consequence that plaint\ff allegedly sustained injuries as he preven\ed himself i ' I I from falling further"']; Reavely v Yorkers Raceway Programs, Inc., 88 AD3d 5~1, 563 [!st I Dept 2011] [statute applicable wher~ plaintiff did not actually sustain his injurif by falling i I into the trench, but rather by attemptfng to prevent himself from falling]). I i !mct did not . I I Defendant argues that becaus~ plaintiff merely slipped or lost his balance fall at or from an elevated work surf,ce, Labor Law § 240 (I) does not apply. Hqwever, the I evidence demonstrates otherwise. Iritmediately before the accident, plaintiff attempted to i ' I I stand up in the narrow space betweet the unit and the unprotected edge of the roof, that he I slipped, that he lost his balance, and \hat he sustained injuries to his fingers and knee while I . attempting to prevent himself from 'llihg off the roof. I In sum, plaintiff has made a p,Y,ma facie showing tl1at he was engaged in cl~aning and I . repairing as those terms are defined rnder Labor Law§ 240 (I), that he was subject to an I elevation-related risk while working!on the roof, that he was not provided withfany safety I . i ' devices, and that defendant's failure lo provide plaintiff any safety devices was a; proximate I cause of his injuries, which defen~ant has failed to rebut. Thus, plaintiff's lnotion for I . sunnnary judgment on his Labor La"f § 240 (I) cause of action is granted, and the branch of ! I defendant's mOtion to dismiss this czl,use of action is denied. 4 i I 4 l . To the extent plaintiff relies up~n OSHA regulations to establish his § 240 (!)cause of action, "OSHA governs employee/empl~yer relationships, and thus OSHA regulations'. do not impose a specific statutory duty on part~es other than a plaintiffs employer" ( Gallaghe'r v 109-02 Dev., LLC, 137 AD3d 1073, 1075 [2d qept 2016]). It is undisputed that defendant is not plaintiffs employer. , 23 23 of 32 [*FILED: 24] KINGS COUNTY CLERK 10/01/2018 09:35 AM NYSCEF DOC. NO. 134 INDEX NO. 504941/2013 RECEIVED NYSCEF: 10/01/2018 I Labor Law§ 241(6) i Ii : i ' ! Defendant moves to dismiss plaintiffs Labor Law § 241 (6) cause of actio)l, arguing i that plaintiff was not involved in con~truction, excavation or demolition, and alrematively that the violations alleged by plaindff are not applicable to the accident and/br are not . I : i i sufficiently specific to support a§ 241(6) claim. Plaintiff does not oppose this1branch of ' ' I ! defendant's motion. As none of the Inrustrial Code sections cited by plaintiff are dpplicable, i this branch of defendant's motion is $ranted. I ! "Labor Law § 241 (6) impose, a nondelegable duty of reasonable care uppn owners i and contractors to provide reasonaple and adequate protection and safety !):> persons i employed in, or lawfully frequentitg, all areas in which construction, exc~vation or i i demolition work is being performed'( (De Jesus, 159 AD3d at 953 [internal ci(ation and i ' i internal quotation marks omitted]). 11 this regard, "[t]he courts have generally h~ld that the i scope of Labor Law§ 241(6) is govf:rned by 12 NYCRR 23-1.4 (b) (13), whiCh defines i ' i construction work expansively" (id.I [internal citations and quotation marks 'omitted]). I. . i "Under that regulation, construction Work consists of '[a]ll work ot'the types pe{formed in i : i - I . the construction_, erection, alteration, ~epair, maintenance, painting or moving o~buildings or other structures"' (id., quoting 12 NYCRR23-l.4 [b] [13]). i i Here, inasmuch as plaintiffwab engaged in activities that were ancillary to' the repair I , of the unit, namely testing the unit to d~tennine why it was malfunctioning so he c9uld repair i 24 24 of 32 [*FILED: 25] KINGS COUNTY CLERK 10/01/2018 09:35 AM NYSCEF DOC. NO. 134 INDEX NO. 504941/2013 RECEIVED NYSCEF: 10/01/2018 i it, the provisions of Labor Law§ 2411(6) are applicable to this case (De Jesus, 15,9 AD3d at 953). 1 · i With respectto the Industrial c)ode violations alleged by plaintiff, defendant correctly i : I . asserts that 12 NYCRR 23-1.5 (c) (2} is not sufficiently specific to support a Labor Law I i . § 241 (6) cause of action (Vernieriv E,mpireRealty Co., 219 AD2d593 [2d Dept !995]), and i ; I ' is also inapplicable to the facts ofthi~ case because plaintiff's accident did not ibvolve any I , i load-carrying equipment. Next, altho~gh sufficiently specific (Tuapante v LG-39, LLC, 151 i AD3d 999, 1000 [2d Dept 2017]), 'l I ' ' NYCRR 23-1.5 (c) (3), "which require[s] !employers i to provide equipment and.power tools that are in good repair, [it has] no application here, i ' I ' I . I : since there is no allegation that [plai1tift] was using a tool that was defective oriin need of repair" (McKee v Great At/. & Pac. Tea Co., 73 AD3d 872, 875 [2d Dept 20 I 0]).1 As for 12 NYCRR 23-1.5 Gl (I), the Industrial pode does not contain a regnlation with thi~ number.' i With respect to 12 NYCRR 23-1.7 (q), that regulation states: I "(d) Slipping hazards. ~mp layers shall not suffer or permit any employee to use a ~oor, passageway, walkway, scaffold, i i 'Plaintiff was apparently relyingiupon § 23-5.1 G) (!)but transposed the 5 and the 1. This regulation states: "Safety railings. {l) The open sides of all scaffold platfonns, eXcept those platforms listed in the exception below,.!shall be provided with safety railings construci_ed and installed in compliance with this Part (ri?Je)." However, since plaintiff was not provid~d with a scaffold, this regulation is inapplicable (rsee e.g. Varona v Brooks Shopping Ctrs. LLC,i 151 AD3d 459, 460 [!st Dept 2017]) ["As p\aintiff did not fall from the scaffold, a missing rail, in violation of 12 NYCRR 23-5.IG)(l), w~s not a proximate cause of his injuries"]; cf Mutadir v and (d) 80-90 Maiden Lane Del LLC, 110 AD34 641, 643 [!st Dept 2013] ["section 23-5.l are inapplicable because plaintiff was n~t working on a scaffold at the time of his acci4ent"]). Moreover, neither plaintiff nor his expetft provides any authority for the expert's claim~hat the roof is the functional equivalent of a scaiffo1d. (cJ 25 25 of 32 [*FILED: 26] KINGS COUNTY CLERK 10/01/2018 09:35 AM NYSCEF DOC. NO. 134 INDEX NO. 504941/2013 RECEIVED NYSCEF: 10/01/2018 i platform or other elevat~d working surface which is in a slippery condition. Ice, sno\v,I water, grease and any other foreign substance which may c·u~e slippery f~oting shall be removed, sanded or covered to prf>v1de safe footing." I ' . I i ' . I i Defendant argues that this regulation idoes not apply because water was an integfal part of plaintiffs work, as plaintiff testified ~at prior to his accident, he spent two hoJrs power'i . washing the coils of the HVAC unit. i In any event, defendant contends that it did not have notice of any such condition on the rbof because plaintiff did not recall what ilie• weather i I i • i I i conditions were on the day of the acci~ent, did not know if the roof was wetbecaJse of rain or something else, and did not know iow long the roof had been wet. . ' . I i Contrary to defendant's latteriargument, its failure to have actual or copstructive notice of the water condition is not Ii a requirement under this statute (WrightJn v ZHN . Contracting Corp., 32 AD3d 1019, ! ~021 . [2d Dept 2006], quoting Rizzuto v L.A. Wenger I i [1998~ ["(s)ince an owner or general contractor's vicarious 1 Contr. Co., 91NY2d343, 352 i . ! .' liability under section 241 (6) is not dependent on its personal capacity to prevent or cure a I ' I : I . dangerous condition, the absence of a~ual or constructive notice sufficient to prev~nt or cure [is] irrelevant to the imposition ofLabbr Law§ 241 (6) liability"]). However, I . I def~ndant has ' : made a prima facie showing that this tegulation is inapplicable because water ne~ the unit I . was an integral part ofplaintifrs wor~ inasmuch as plaintiff testified that he spent ~wo hours I - before the accident power washing ttje coils in the unit (Stafford v Viacom, Inc.,'32 AD3d I . 388, 390 [2d Dept 2006]). 26 26 of 32 [*FILED: 27] KINGS COUNTY CLERK 10/01/2018 09:35 AM NYSCEF DOC. NO. 134 INDEX NO. 504941/2013 RECEIVED NYSCEF: 10/01/2018 i . I ; i . i ' I • As for 12 NYCRR23-l .8 (c) ('.j), which requires employees working in wet1conditions to be provided with proper footwearj defendant's argument that it did not have riotice that ! . plaintiffv.lould be working in "wet f~oting," is not a requirement of this regulati'.on. In any event, this regulation is not applicabre because there is no claim and no eviden;ce that the i accident occurred due to the lack of i>roper footwear. !I. ' Lastly, 12 NYCRR 23-5.1 (c) r2) states that"[e]very scaffold shall be proyided with i . i : I • i ' i : I • i . i . I • i . I . adequate horizontal and diagonal br~cing to prevent any lateral move1nent." befendant correctly argues that, inasmuch as thete was no scaffold in use at the time of the acfident, this - regulation is inapplicable (cf C/avij~ v Universal Baptist Church, 76 AD3d 990, 991 [2d Dept 2010] [regulation which sets stfdards for safety belts not applicable because plaintiff was not provided with any safety belt~]; Masullo v 1199 Haus. Corp., 63 AD3d 43;0, 433 [!st Dept 2009] ["to the exte.nt plaintiffs tllege violation oflndustrial Code sections pertaining to scaffolds, no liability exists becau~e the gravamen of their claim is that no safety device i ' was provided, not that an inadequa\e scaffold provided by either defendant jed to this t . accident"]). Labor Law § 200 i Defendant also moves to dis\niss plaintiffs Labor Law § 200 and common-law I . i negligence claims, arguing that wate} on an outdoor surface is not a dangerous .condition. I . i Alternatively, defendant maintains th'.at it did not create the water con9ition or h~ve notice i ' i of it, that it did not supervise or coAtrol plaintiffs work, that if there were aJy risks in I' .. 27 27 of 32 [*FILED: 28] KINGS COUNTY CLERK 10/01/2018 09:35 AM NYSCEF DOC. NO. 134 INDEX NO. 504941/2013 RECEIVED NYSCEF: 10/01/2018 i i working on the wet roof, plaintiffwa~ the sole proximate cause of his accident b~cause the ' ' I ! water was readily observable, and plattiffvoluntarily assumed the alleged risk ojthe water condition. In opposition, plaintiff I argu~s that he fell due a different dangerous! premises i i condition, one which defendanthadnqtice of, namely the narrow one foot wide area in which I , I . i i he was required to work at the edge of~e second floor roof, and that it is therefore!irrelevant that defendant did not supervise his tork. Moreover, relying primarily on Urbqn v No. 5 I . I . Times Sq, Dev. Corp, (62 AD3d 553 [llst Dept 2009], plaintiff asserts that a duty jo provide i i a safe place to work encompasses thelduty to make reasonable inspections to detect unsafe I I I . i i conditions, and that constructive notife of a defect is imputed to an owner, like ~efendant, which has failed to do so. Plaintiff aI;so argues that constructive notice may be iiitputed to I : defendant as an out-of-possession lantlord since the subject lease reserves defendant's right i to enter the premises for the purposes \>finspection, maintenance or repair. Finally, plaintiff I ; contends that an open and obvious cofdition does not preclude a finding ofliability against i defendant for failure to maintain its ~roperty in a safe condition. Plaintiff's exp:ert opines I , that defendant violated Labor Law§ :JOO because defendant required plaintiff to work in an !i inherently dangerous place, namely wlthin close proximity to the edge of a ro_of, v,i:here there i ' was a fall hazard of more than 16 ~et, of which defendant was aware, and "Which \Vas I , i discoverable upon reasonable insp~ction (Plaintiffs Exh. 14, Affidavit of; Scott A. i i Silberman, P.E., ~~ 31-35). 28 28 of 32 [*FILED: 29] KINGS COUNTY CLERK 10/01/2018 09:35 AM NYSCEF DOC. NO. 134 INDEX NO. 504941/2013 RECEIVED NYSCEF: 10/01/2018 I . "Labor Law§ 200 is a codifiqation of the common-law duty of property 0wners and general contractors to provide iI wor~ers i ! with a safe place to work" (Grasso v!NJ'. State i : i i Thruway Auth., 159 AD3d674, 678 [~018], quoting Chowdhuryv Rodriguez, 57v\D3d121, 127 [2d Dept .2008]). "Thus, liabrlity under this statute is governed by c~mmon-law I . i . I • I . negligence principles" (id., citing C~owdhury at 128). Specifically, "[!]here ar~ two broacl categories of actions thatimplicatethf provisions ofLabor Law§ 200" (id [internal citations and quotation marks omitted]). "Ttje first involves worker injuries arising ou~ of alleged I . I • dangerous or defective conditions.of1he premises where the work is performed" <rd.). In this i : iI ! I . regard, "[f]or liability to be imposed ~n the property owner, there must be eviden~e showing i that the property owner either creater a dangerous or defective condition, or ha:d actual or constructive notice ofit withoutreme~ying it\vithin a reasonable time" (id. [interrial citations 1 and quotation marks omitted]). i I The second category involves Plaims arising out of the means or methods o;fthe work, . I . where "•recovery against the owner o~ general contractor cannot be had . .. unless,it is shown 1. I . I ' that the party to be charged had the ajithority to supervise or control the performance of the I work"' (Rodriguez v Mendlovits, 15Gi AD3d 566, 569 [2d Dept 2017], quoting' Ortega v I . I Puccia, 57 AD3d 54, 58 [2008]). Fin4lly, "[a]n out-of-possession landlord gener~lly will not i ' be responsible for injuries occurring ~nits premises unless the landlord has a du"tY imposed I , I ' by statute or assumed by contract or1a course of conduct" (Quituizaca v Tucchit:trone, 115 I AD3d 924, 925 [2d Dept 2014] [intebal citations and quotation marks omitted]~. 29 29 of 32 [*FILED: 30] KINGS COUNTY CLERK 10/01/2018 09:35 AM NYSCEF DOC. NO. 134 INDEX NO. 504941/2013 RECEIVED NYSCEF: 10/01/2018 i ' As plaintiff argues, it is not n4cessary to show defendant's supervision and control ' ' i ' i : over his work because he alleges that ~is injuries arose from the condition of the ~ork place created by or known to defendant, na"1ely installing the HV AC unit so close to the edge of i ' I ; i ' i ' I ; the roofthat in order to service the unif, plaintiffwas required to work in a very natrow space at the edge of the roof. In any ev+nt, inasmuch as defendant analyzes the ~angerous condition as water near the unit, it 'as failed to address - let alone make a pdma facie i ' sho"W·ing- that it did not create the prediises condition alleged by plaintiff, the locaiion of the i . I ; HVAC unit only one foot from the fdge of the second floor roof. Nor does defendant i ' mention whether or not it had actual Qr constructive notice of that particular condition, but I : . the location of the unit was, as testififd by Mr. Cappuzzo, visible from the win~ow in the I kitchen on the second floor. . Even assuming defendant had !I !' i ' I : rade a prirna facie sho,ving that it did not Create the condition or have notice of it, the evid~nce demonstrates that Mr. Cappazzo testifTed that he had, in fact, visited the second floor ~at portion of the roof, albeit he then testified that he 1. i ' had not, but he nevertheless conceded ~hat he was familiar with the drainage of tho;:-: unit "by i ' looking out ofthe window on the back bf the space," and that the window in the badk kitchen Ii area of the second floor premises "o!fered a view of [the subject] air-conditioning unit." ' While he then testified that he was at 4ie premises of the second floor tenant every three to Ii ' four months, but did not know if he )ooked out the window at the unit when there, his !' ' ' t.estimony is sufficient to raise a triabld issue of fact as to whether he was aware o~ and thus I 30 30 of 32 [*FILED: 31] KINGS COUNTY CLERK 10/01/2018 09:35 AM NYSCEF DOC. NO. 134 INDEX NO. 504941/2013 RECEIVED NYSCEF: 10/01/2018 II I , had actual notice of the location ofthf HVAC unit only one foot from the edge of1the second ' ' i ' i : floor roof. Moreover, as plaintiff trgues, Mr. Cappuzzo was a~are that there were no railings on the roof, that the roof w*s approximately 30 feet high, and that there were no . I . safety nets or safety devices on the rtof. ' Further, as plaintiff argues, d~fendant assnmed a duty to keep the roof sa(e by virtue ' i ' I ; of its lease with the second floor ten~!, Home Start Realty. In particular, the lease provides ' that "Owner shall maintain in good Working order and repair the exterior and th~ structural ' i ' I portions of the building ... " (Mairite~ance ; and Repairs, 1] 4); that Owner or Owner's agent ' shall have the right ... to enter the d~mised premises in an emergency at any tiihe, and, at ' i : i ' other reasonable ti1nes, to examine t~e same and to make such repairs, replaceillents, and improvements as Owner may deeml necessary and reasonably desirable to the demised i - ' ' premises or to .any other portion oJt the building or which Owner may elect t6 perform I . i ; I . (Access to Premises, 1] 13); and that w\hile the tenant was responsible to maintain t,heHVAC unit, defendant retained the right to mdintain and repair the roof itself("Tenant's repairs shall I . ' roof repairs [were caused by the tenant] [Repairs exclude repairs to the roof except if s4ch I : I' • and Maintenance, Rider~ 45]). ThusJthe evidence clearly demonstrates that defdndant had ' a duty to keep the roof safe, and that a J:riable issue of fact exists as to whether it vi9lated this i . duty. Finally, contrary to defendant's!claim, given that plaintiff was not provided with any 1. 31 31 of 32 [*FILED: 32] KINGS COUNTY CLERK 10/01/2018 09:35 AM NYSCEF DOC. NO. 134 INDEX NO. 504941/2013 RECEIVED NYSCEF: 10/01/2018 I . safety devices, defendant has failed t4 make a prima facie showing that plaintiff "fas the sole proximate cause of the accident. 5 I I i' . Conclusion i' The plaintiff's motion for surtunary judgment on his Labor Law§ 240 (i) claim is I , i i i ' granted. The branch of defendant's n\'otion to dismiss plaintiff's Labor Law§ 24/ (6) cause of action is granted, and the other br1nches of its motion are denied. i This constitutes the decision a\fid order of the court. I ENTER, do Hon. Debra Silber, J.S.C. Hon. Debra Silber JootlOl'I Supreme Court 5 To the extent defendant relies uPon the water near the unit as the dangerous coPdition, arguing that it was open and obvious, it Y.,-ould not bar a finding of liability against def~ndant as a property owner, but would go to the issu,6 of comparative negligence (Cupo v KarfunkJl, I AD3d 48, 49 [2d Dept 2003]). Also, the doctripe of assumption of the risk does not exculpat~ a landowner for liability for ordinary negli[gence in maintaining its premises (Sykes v C'ty; o,fErie, 94 NY2d 912, 913 [2000]). Plaintiffs r~liance upon Urban (62 AD3d 553) to demonstrate that a duty to provide a safe place to work enc~mpasses the duty to make reasonable inspecti9ns to detect unsafe conditions has not been fo~lowed ·by the Appellate Division, Second Depclrtment. Rather, the Second n·epartment holds th<i,t "[a]n out-of-possession landlord generally Will not be responsible for injuries occurring on its ~remises unless the landlord has a duty impose~ by statute or assumed by contract or a coursf of conduct" (Quituizaca, 115 AD3d at 925 [i:ntemal citations and quotation marks omitted] [~upra]). ' ' . 32 32 of 32

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