DeMercurio v 605 W. 42nd Owner LLC

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DeMercurio v 605 W. 42nd Owner LLC 2018 NY Slip Op 34149(U) August 8, 2018 Supreme Court, New York County Docket Number: Index No. 150167/2016 Judge: Robert D. Kalish 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] FILED: COUNTY CLERK 08/13/2018 04:37 PM NEW 09:44 AM) FILED NEW YORK YORK COUNTY CLERK 08/13/2018 44 : 09: AM| NYSCEF DOC. DOC. NO. NO. 32 31 NYSCEF 31 DOC. NO. INDEX INDEX NO. NO. 150167/2016 INDEX NO. 150167/2016 RECEIVED NYSCEF: RECEIVED NYSCEF: 08/13 2018 NYSCEF: 08/13/2018 08/13,2018 NEW YORK SUPREME COURT COURT OF OF THE THE STATE STATE OF OF NEW YORK SUPREME NEW YORK COUNTY COUNTY NEW YORK PART PART HON. ROBERT DAVID KALISH DAVID KALISH HON. ROBERT PRESENT: PRESENT: l IAS 29EFM IAS MOTION MOTION 29EFM Justice Justice -------------------------------------------------------------------------------X -------------------------------------------X PAUL DEMERCURIO, PAUL DEMERCURIO, 150167/2016 150167/2016 INDEX INDEX NO. NO. 07/24/2018 07/24/2018 MOTION MOTION DATE DATE Plaintiff, Plaintiff, 001 001 MOTION MOTION SEQ. NO. SEQ. NO. -- V -- 605 WEST WEST 42ND 42ND OWNER OWNER LLC,TISHMAN LLC,TISHMAN CONSTRUCTION CONSTRUCTION 605 CORPORATION OF OF NEW YORK CORPORATION NEW YORK I DECISION AND AND ORDER ORDER DECISION Defendant. Defendant. I I ---------------------------- -----------------------------------------------------X ---------------------------------------------------X The following following e-filed e-filed documents, documents, listed listed by by NYSCEF document number number (Motion (Motion 001) 001) 16, 20, document NYSCEF The 18, 19, 19, 20, 16, 17, 17, 18, 21, 22, 23, 24,25, 26, 27, 28,29 29 21, 22, 23, 24, 25, 26, 27, 28, SUMMARY JUDGMENT(AFTER JUDGMENT(AFTER JOINDER JOINDER SUMMARY were read on this this motion to/for motion to/for were read on . I Motion decided decided per per the the annexed annexed memorandum memorandum of of decision decision and and order. order. Motion i I i I I I I l I t t• August August D D t / 2018 , 2018 E CHECK ONE: ONE: CHECK E X X DISPOSED CASE CASE DISPOSED GRANTED GRANTED . • NON-FINAL DISPOSITION DISPOSITION NON-FINAL DENIED DENIED APPLICATION: APPLICATION: ORDER SETTLE ORDER SETTLE APPROPRIATE: CHECK IF IF APPROPRIATE: CHECK TRANSFER/REASSIGN INCLUDES TRANSFER/REASSIGN INCLUDES OWNER LLC LLC 605 WEST 42ND 42ND OWNER 150167/2016 DEMERCURIO, 150167/2016 PAUL vs. vs. 605.WEST DEMERCURIO, PAUL MotionNo. Motion No. 001 of 12 2 15 1 of 12 , OBII'PL+-I5'. PART . GRANTED IN PART ORDER SUBMIT ORDER SUBMIT FIDUCIARY APPOINTMENT APPOINTMENT FIDUCIARY • • ~ASH OTHER .OTHER REFERENCE REFERENCE of 1 Page 1 of Page t I [*[!FILED: 2] FILED : NEW NEW YORK COUNTY CLERK NEW YORK YORK COUNTY CLERK CLERK 08/13/2018 08/13/2018 04:37 09:44 AMI FILED: COUNTY PM 44 08/13/2018 09: AM| NYSCEF NYSCEF DOC. DOC. NO. NO. 32 31 DOC. 31 NO. NYSCEF INDEX INDEX INDEX NO. NO. 150167/2016 150167/2016 NO. 150167/2016 RECEIVED RECEIVED NYSCEF: 08/1 RECEIVED NYSCEF: NYSCEF: 08/13/2018 08/1~/2018 /2018 I ' SUPREME COURT COURT OF OF THE THE STATE ST ATE OF OF NEW NEW YORK YORK SUPREME NEW YORK: COUNTY OF YORK: I.A.S. PART 29 COUNTY OF NEW I.A.S. PART 29 --------------------------------------------------------------- ---------------x -------------------------------------------------------------------------------x PAUL-DeMERCURIO, PAUL-DeMERCURIO, I Plaintiff, Plaintiff, Index No. No. Index 150167/2016 150167/2016 r -- against against -- t I I OWNER LLC and and TJSHMAN OWNER LLC TISHMAN CONSTRUCTION CORPORATION CORPORATION OF OF NEW NEW YORK, YORK, CONSTRUCTION 605 WEST 42ND 42ND 605 WEST I Defendants. Defendants. I I -------------------------------------------------------------------------------x -------------------------------------------------------------------------------x KALISH, J.: J.: KALISH, for This is to damages for personal injuries injuries allegedly sustained by a an action action to recover recover personal sustained This is an damages allegedly by journeyman electrician electrician on on September 29, 2015, 2015, when when he he slipped slipped on on brown brown paper paper that that had had been been journeyman September 29, of under construction at West 42nd Street, New York, York, New New placed on on the floor of an under construction 605 West 42nd New placed the floor an apartment apartment at 605 Street, York (the (the Premises). Premises). York Owner Defendants 605 605 West West 42nd 42nd Street Owner LLC LLC (605 (605 West) West) and and Tishman Tishman Street Defendants Construction Corporation ofNew (Tishman, and, together with with 605 West, defendants) move, New York 605 West, Construction Corporation of York and, together (Tishman, move, defendants) pursuant to to CPLR CPLR 3212, 3212, for for summary summary judgment judgment dismissing dismissing the the complaint. complaint. For For the the reasons reasons stated stated pursuant herein, the motion is granted. the motion is granted. herein, BACKGROUND BACKGROUND of the the Premises Premises where the accident accident occurred. occurred. 605 West is, and and was, was, the the owner owner of 605 where West the is, Prior to Prior to the the 1 accident, 605 605 West West retained retained Tishman Tishman to to construct construct aa 63-story 63-story apartment apartment building building at at the the Premises Premises accident, (the Project). Project). (the plaintiffs employer, employer, nonparty nonparty Spieler Tishman, as as general general contractor, contractor, then then hired hired plaintiff's Spieler Tishman, & & for the Ricca as the subcontractor Electric Ricca Electric Co., as the electrical electrical subcontractor for the Project. Project. Co., _.,,...-·- Plaintiffs Deposition Deposition Testimony Testimony Plaintiff's Plaintiff Paul Paul DeMercurio DeMercurio testified testified that, that, on on the the day day ofof the the accident, accident, he he was was assigned assigned toto Plaintiff troubleshoot and repair repair electrical at the the Premises. identify, troubleshoot and nonfunctioning electrical systems at Plaintiff stated systems Premises. Plaintiff stated identify, nonfunctioning that the accident accident occurred while he was was an electrical electrical that the occurred while he repairing an circuit, or line, in or BX BX cable cable in a a circuit, line, repairing I I of 12 of 12 15 23 of [*[[FILED: 3] FILED : NEW NEW YORK COUNTY NEW YORK YORK COUNTY COUNTY CLERK 08/13/2018 09:44 AM) CLERK FILED: CLERK 08/13/2018 04:37 08/13/2018 4 4 PM 09: AM| NYSCEF DOC. DOC. NO. 31 NYSCEF 31 DOC. NO. NO. 32 NYSCEF INDEX INDEX INDEX NO. NO. 150167/2016 150167/2016 NO. 150167/2016 RECEIVED RECEIVED NYSCEF: 08/13 RECEIVED NYSCEF: NYSCEF: 08/13/2018 08/13r2018 2018 II seventh-floor apartment apartment at at the the Premises. Premises. seventh-floor ran underneath The electrical electrical line line.ran undemeat~ the the living living room room floor floor The electrical to at Plaintiff explained that, to to test test the the electrical line, he he first first window. Plaintiff explained of a window. at the the base base of to two two outlets outlets line, that, had to to remove remove aa base base mullion mullion that that had had been been installed installed over over the the window window frame. frame. had He He described described the the groove" in" to a "long that groove" base mullion as as aa decorative covering made from from aluminum that "just snaps in" to made aluminum "just snaps decorative base mullion "long covering tr at 77-78). over the window frame frame (plaintiffs tr at 77-78). the window (plaintiff's over Plaintiff testified testified that that he he had had removed removed base base Plaintiff mullions installed in other other apartments apartments at at the the Premises Premises by "screwdrivers, pry bars, bars, [and] installed in mullions "screwdrivers, by using pry [and] using whatever [he] could use use to to try try and and pop pop them them whatever could [he] off' off' (id. at 80-81 He described described the the pry pry bar bar that that he he 80-81). ). He (id. at used as as aa 12-inch to 18-inch I 8-inch long long flat flat metal metal bar bar with with aa hook at one one end. end. hook at used 12-inch to Plaintiff explained explained that that the the floors floors inin the the apartment apartment were were covered covered inm ·'brown standard "brown Plaintiff standard protective protective paper" at 99). 99). He He testified that laborers laborers laid laid paper paper over over the the finished finished floors floors inin each each paper" (id. testified that (id. at paper apartment as protective covering. They removed removed the the paper once the the apartment was apartment as a temporary protective covering. apartment once was They temporary painted. painted. Although or yellow yellow masking masking tape tape to to secure secure the the paper paper to to the the Although the the laborers laborers used used either either blue blue or up" up" (id. I 00, 184). I 84 ). In In floor, the paper in the accident occurred was "kind ''kind of where torn at 100, the paper in the area where the accident occurred was of torn (id. at the area floor, addition. several several sections sections were were no no longer longer taped taped to to the the floor. floor. addition, Plaintiff Plaintiff testified testified that, that, as as he he slid slid the the hook hook end end of of the the pry pry bar bar underneath underneath the the base mullion, mullion, he he fell fell back back when when "the paper went went out out from underneath [him] on the base "the paper from on underneath the [him] floor" floor" (id. at (id. at 98). 98). I Plaintiff Plaintiff noted noted that that he he saw saw fine fine green green dust dust on on top top ofof and and underneath underneath the the paper paper atat the the accident accident location. location. He described described the green He the green dust product that laborers sprinkled on on the the ground dust as as a cleaning product that laborers sprinkled ground cleaning in high-dust high-dust areas so that construction so that construction dust did not rise did not rise into into the the air. in areas dust Although plaintiff maintained air. Although plaintiff maintained never that he he never saw laborers laborers the cleaning on the the floor agent floor of the that saw sprinkling the agent on of where the the apartme~t apartment where the sprinkling cleaning accident he saw saw the the cleaning agent accident occurred, he agent everywhere at everywhere at the the Premises. Premises. occurred, cleaning 2 2 of 12 of 12 15 34 of I r Plaintiff stated stated that that the accident occurred occurred as he tried tried to remove a base base mullion in Plaintiff the accident as he to remove mullion in the the living living room room with with aa pry pry bar. bar. I lI [*[FILED: 4] NEW 09: 44 44 AM| AM) FILED: COUNTY CLERK 08/13/2018 04:37 PM FILED NEW YORK YORK COUNTY CLERK 08/13/2018 : 09: NYSCEF DOC. DOC. NO. NO. 32 31 NYSCEF 31 DOC. NO. INDEX INDEX NO. 150167/2016 INDEX NO. No. 150167/2016 150167/2016 RECEIVED NYSCEF: 08/13/2018 NYSCEF: 08/13V2018 RECEIVED NYSCEF: 08/131,/2018 I At his his deposition, deposition, plaintiff plaintiff was was shown shov-m aa color color photograph photograph of of the the accident accident location location that that he he At had taken taken on on the the day day of of the the accident. accident. had Plaintiff testified testified that that the the photograph photograph depicted depicted an an exposed exposed Plaintiff I area of of the the wood wood floor floor and and torn tom paper. paper. Plaintiff Plaintiff also also testified testified that that did did not not see see any any green green dust dust on on the the area floor in in the the photograph. photograph. floor However, plaintiff plaintiff maintained maintained that that the the colors colors in in the the photograph photograph were were However, distorted and and concluded concluded that that the the "distortion [could] hide the the green green "distortion hide distorted [could] dust" (id. at 186). dust" (id. at 186). Plaintiff identified identified Tishman Tishman as as the the general general contractor contractor on on the the Project. Project. Plaintiff He testified testified that that he he He I never dealt dealt with with anyone anyone from from either either Tishman Tishman or or 605 605 West. West. never Deposition Testimony of Mic/tael Michael Tereskiewicz Tereskiewicz (Tis/tman's (Tisltman Deposition Testimony of Michael Michael Tereskiewicz Tereskiewicz testified testified superintendent in in charge charge on on the the Project. Project. superintendent touch another another trade's trade's work. work. touch that that he he was was 's Second Second Superintendent) Superintendent) employed employed by by Tishman Tishman as as the the second second Tereskiewicz stated stated that that each each trade trade was was directed directed not not to to Tereskiewicz As such, such, when when an an electrician electrician peeded access to to electrical electrical wiring wiring that that access needed As placed under under aa base base mullion, mullion, the the window window contractor contractor would would have have been been called called to to remove remove had been been placed had the base base mullion. mullion. the I I II .I Tereskiewicz was was not not aware aware that that plaintiff plaintiff had had attempted attempted to to remove remove the the subject subject Tereskiewicz base mullion mullion before before the the accident. accident. base Tereskiewicz testified testified that that Broad Broad Construction Construction (Broad) (Broad) provided provided laborers laborers for for the the Project, Project, Tereskiewicz were supervised supervised by by Broad's Broad's foremen. foremen. and that that the the laborers laborers were and Tereskiewicz explained explained that that once once Tereskiewicz nonparty National National Flooring Flooring finished finished installing installing the the wood wood floors, floors, Broad's Broad's laborers laborers taped taped protective protective nonparty I paper over over the the finished finished floors floors "[ s ]o that that they they didn't didn't get get paper "[s]o scratched" scratched" (Tereskiewicz (Tereskiewicz trtr at at 42). 42). The The protective paper, paper, which which was was taped taped at at the the seams seams onto onto the the floor, floor, was was removed removed "once paint was was protective "once paint done" done" (id. at (id. at 44). 44). Broad's Broad's foremen foremen were were responsible responsible for for walking walking the the Premises Premises daily daily to to ensure ensure that that the the l protective paper coverings were in place. place. Tereskiewicz noted protective paper coverings were in Tereskiewicz noted that of that it it was was the the obligation obligation of each each foreman trade's to advise advise Tishman if any protective paper needed to be be repaired trade's foreman to Tishman if paper needed to or He repaired or replaced. replaced. He any protective stated that "[if] happened to the the protection protection . . . [he stated that something happened to ... send from Broad] [he would] send a a [laborer [laborer from "[ifJ something would] Broad] it" there to fix fix it" (id. (id. at at 45). up to 45). up there o3f 15 12 5 4 of oj 12 I [*[FILED: 5] FILED: COUNTY CLERK 08/13/2018 04:37 PM NEW 09: 44 44 AM| AM) FILED NEW YORK YORK COUNTY CLERK 08/13/2018 : 09: NYSCEF DOC. DOC. NO. NO. 32 31 NYSCEF 31 DOC. NO. INDEX INDEX NO. NO. 150167/2016 INDEX NO. 150167/2016 I RECEIVED NYSCEF: 08/13/2018 NYSCEF: 08/131/2018 RECEIVED NYSCEF: 08/13 2018 dust green Tereskiewicz also testified that that the the laborers laborers spread spread green dust over over the the floor floor keep keep other other dust dust also testified Tereskiewicz generated during during the the construction construction work work from from rising rising into into the the air air as as they they swept. swept. generated Tereskiewicz Tereskiewicz I maintained that that the the green green dust dust had had no no effect effect on on traction, traction, nor nor did did itit make make the the floor floor more more slippery. slippery. maintained DISCUSSION DISCUSSION I "must make It isis well well settled settled that that the the movant movant on on aa summary summary judgment judgment motion motion "must make aa prima prirna facie facie It t showing of of entitlement entitlement to to judgment judgment as as aa matter matter of of law, law, tendering tendering sufficient sufficient evidence evidence to to eliminate eliminate showing I case" 64 Univ. Med. any material material issues issues of of fact fact from from the the case" (Winegi·ad ( Wine grad vv New New York York Univ. Med. Ctr., 64 NY2d NY2d 851, 851, Ctr., any (see Zuckerman The motion motion must must be be supported supported by by evidence evidence in in admissible admissible form form (see Zuckerman vv 853 1985]). The 853 [[1985]). City of New New York, 49 NY2d NY2d 557, 557, 562 562 [[1980]) 1980]) and and the the pleadings pleadings and and other other proof proof such such as as affidavits, affidavits, 49 York, of City "facts must depositions and and written written admissions admissions (see CPLR 3212). 3212). The The "facts must be be viewed viewed in in the the light light most most (see CPLR depositions favorable to to the the non-moving non-moving favorable party" Constr. 18 NY3d party" (Vega Restani Constr. Corp., 18 NY3d 499, 499, 503 503 [2012] vv Restani Corp., [2012] ( Vega I quotation marks marks and and citation citation omitted]). omitted]). Once Once the the movant movant meets meets its its burden, burden, itit isis incumbent incumbent [internal [internalquotation upon the the non-moving non-moving party party to to establish establish the the existence existence of of aa genuine genuine issue issue of of material material fact fact (id., citing upon (id., citing Alvarez vv Prospect Prospect Hosp., Hosp., 68 68 NY2d NY2d 320, 320, 324 324 [1986]). [1986]). Alvarez The "[f]ailure to The "[flailure to make make [a] prima facie facie [a] prima showing [[ofof entitlement entitlement to to summary summary judgment] judgment] requires requires aa denial denial of of the the motion, motion, regardless regardless of of the the showing suflh:iency of of the the opposing opposing sufficiency papers" [internal quotation papers" (( Vega, 18 NY3d at at 503 503 [internal quotation marks marks and and citation citation 18 NY3d Vega, I omitted, emphasis emphasis in in original]). original]). omitted, I The Labor Law Law§ 240 (1) ofAction Action Cause The Labor (1) Cause of § 240 I § Defendants move move for for summary summary judgment judgment dismissing dismissing the the Labor Labor Law Law § 240 240 (1) ( 1) cause cause of of Defendants I I action. action. Labor Law in pertinent 240 (I) pertinent part: Labor Law §§ 240 in part: provides, (1) provides, "All contractors and owners and their owners their . . in in the the erection, "All contractors and and agents ;. .. agents erection, or of demolition, repairing, altering, painting, cleaning or pointing of a a demolition, repairing, altering, painting, cleaning pointing or structure shall furnish or building or structure shall furnish or erect, or cause to be furnished or cause to be furnished erect, building or erected erected for the the performance performance of such such of labor, scaffolding, hoists, or for scaffolding, labor, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, stays, ladders, slings, hangers, blocks, braces, pulleys, irons, ropes, ot 12 6 15 5 of o'I 12 [*[FILED: 6] NEW 09: 44 44 AM| AM) FILED: COUNTY CLERK 08/13/2018 04:37 PM FILED NEW YORK YORK COUNTY CLERK 08/13/2018 : 09: DOC. NO. NO. 32 31 NYSCEF 31 NYSCEF DOC. DOC. NO. INDEX INDEX NO. 150167/2016 INDEX NO. No. 150167/2016 150167/2016 NYSCEF: 08/13/2018 08/13/2018 RECEIVED RECEIVED NYSCEF: NYSCEF: 08/13/2018 l l I and other other devices devices which which shall shall be be so so constructed, constructed, placed placed and and operated operated and employed." person so employed." as to give proper protection to a person so to a protection as to give proper It isis well well settled settled that that "Labor Law§§ 240 240 (1) (1) was was designed designed to to prevent prevent those those types types of of accidents accidents Law "Labor It or other other protective protective device device proved proved inadequate inadequate to to shield shield the the in which which the the scaffold, scaffold, hoist, hoist, stay, stay, ladder ladder or in to an an object application injured workerfrom harm direct!yflowingfrom rhe oftheforce ofgravity to object the application from gravity of the force from harm worker injured directly flowing or or person" person" (Ross Hydro-Efec. Co., 81 NY2d NY2d 494, 494, 501 50 I [1993] [ 1993];; see see also also Runner Runner vv Hydro-Elec. Curtis-Palmer vv Curtis-Pa/mer (Ross Co., 81 New York Stock Exch., Exch. Inc., Inc., 13 NY3d 599, 599, 603 603 [2009] [2009] [stating [stating that that "the "the purpose purpose of of the the strict strict 13 NY3d Stock York New I liability statute statute isis to to protect construction workers workers not not construction protect liability from from routine routine workplace workplace risks, risks, but but from from the the pronounced risks risks arising arising from from construction construction worksite worksite elevation elevation differentials"]). differentials"]). As As such, such, the the statute statute pronounced applies to to incidents incidents involving involving aa "falling applies "falling l object" object*' worker" vv City Harris worker" or or aa "falling object" [[Harris of New New York. York, of City "falling quotation 83 AD3d 104, I 08 [[IstI st Dept Dept 2011] 2011] [internal quotation marks marks omitted]). omitted]). [internal 108 83 AD3d 104, Labor Law Law 240 240 §§ (1) (I) also also "is to be be construed construed as as liberally liberally as as may may be be for for the the accomplishment accomplishment "is to Labor of the the purpose purpose for for which which itit was was thus thus of framed" framed'' (Zimmer County Performing Arts, Arts, 65 65 (Zimmer vv Chemung County Performing Chemung I I I quotation NY2d 513, 521 521 [[1985], 1985], rearg rearg denied denied 65 65 NY2d NY2d 1054 I 054 [[1985] 1985] [internal quotation marks marks and and citation citation [internal NY2d.513, omitted]). omitted]). Nevertheless, "not every worker worker who who falls falls at at aa construction construction site, site, and and not not every every object object "not Nevertheless, every that falls falls on on a worker, worker, gives gives rise rise to to the the extraordinary extraordinary protections protections of of Labor Labor Law Law§§ 240 240 that (1)" (Narducci (I)" (Narducci Bay Assoc., Assoc., 96 96 NY2d NY2d 259, 259, 267 267 [200 Therefore, to to prevail prevail on on aa Labor Labor Law Law §§ 240 240 Manhasset Bay [2001]).I]). Therefore, vv Manhasset (I) cause cause of of action, action, aa plaintiff plaintiff must must demonstrate demonstrate that that there there was was aa violation violation of of the the statute statute and and that that (1) of the the injury injury (see Blake vv Neighborhood Neighborhood Hous. Hous. Servs. Servs. of ofN. the violation violation was was aa proximate proximate cause cause of N.Y.Y (see Blake the City, I NY3d NY3d 280, 280, 287 287 [2003]). [2003]). 1 City, Once aa plaintiff plaintiff establishes establishes that that aa violation violation of of the the statute statute Once caused or her her injury, then an an owner owner or contractor contractor his or is subject subject to "'absolute "absolute proximately caused his then or is to liability'.' injury, proximately liability for the the Labor Labor Law § 240 240 (1) violation (see Wilinski 334 E. E. 92nd 92nd Hous. Fund for Law§ (see Wilinski vv 334 Hous. Dev. Dev. Fund Corp., 18 18 (1) violation Corp., NY3d 7 [2011], [201 l], quoting Misseritti IV Constr. Constr. 86 NY2d NY2d NY3d 1, Misseritti vv Mark Mark JV Co., 86 487,490 [1995], rearg 490 1, 7 Co., 487, quoting [1995], rearg denied 87 NY2d NY2d 969 [1996]). [1996]). denied 87 969 5 I of 12 76 of 15 12 [*[FILED: 7] FILED: COUNTY CLERK 08/13/2018 04:37 PM NEW 09:44 AM) FILED NEW YORK YORK COUNTY CLERK 08/13/2018 44 : 09: AM| DOC. NO. NO. 32 31 NYSCEF 31 NYSCEF DOC. DOC. NO. INDEX NO. INDEX NO. 150167/2016 INDEX NO. 150167/2016 RECEIVED RECEIVED NYSCEF: NYSCEF: 08/13/2018 08/1312018 NYSCEF: 08/13 2018 II II Here, defendants defendants have have established established that that Labor Labor Law Law §§ 240 240 (1) (I) does does not not apply apply to to the the facts facts of of Here, vv Antonio this case case because because the the accident accident did did not not involve involve an an elevation-related elevation-related risk risk (see Antonio (see German German this Dev., LLC, LLC, 128 AD3d 579, 579, 579 579 [[IstI st Dept Dept 2015), 2015), nor nor did did itit involve involve "the direct consequence consequence of of the the "the direct 128 AD3d Dev., of the the force force of of gravity gravity to to an an object object or or application of application person" vv State person" (Ciasques State of of New New York, 15 NY3d (Gasques 15 NY3d York, 869, Moreover, plaintiff plaintiff did did not not address address this this cause cause of of action action inin his his opposition. opposition. [2010]).0]). Moreover, 870 [201 869, 870 § As such, such, the the Labor Labor Law Law § 240 240 (1) ( 1) cause cause of of action action isis dismissed dismissed as as against against defendants. defendants. As The Labor Law Law§ 241(6) Cause of Action Action The Labor Cause of § 241(6) summary judgment judgment dismissing dismissing the the Labor Labor Law Law §§ 241 241 (6) (6) cause cause of of Defendants move move for for summary Defendants action. action. Labor Law Law §§ 241 241 (6) (6) reads, reads, inin relevant relevant part, part, that: that: Labor "All contractors and and owners owners and and their their agents agents ... when constructing constructing "All . . . when contractors or demolishing demolishing buildings buildings or or doing doing any any excavating excavating inin connection connection or therewith, shall shall comply comply with with the the following following requirements: requirements: therewith, *** All "(6) All areas areas inin which which construction, construction, excavation excavation or or demolition demolition work work "(6) is being being performed performed shall shall be be so so constructed, constructed, shored, shored, equipped, equipped, is guarded, arranged, arranged, operated operated and and conducted conducted as as toto provide provide reasonable reasonable guarded, and adequate adequate protection protection and and safety safety to to the the persons persons employed employed therein therein and or lawfully lawfully frequenting frequenting such such places." places.'' or I I The The statute statute imposes imposes aa duty duty upon upon reasonable reasonable and and adequate adequate protection protection and and owners, owners, contractors and and contractors their agents agents their "to 'provide "to 'provide safety' safety' for for workers workers and and to to comply comply with with the the specific specific safety safety rules rules and and regulations regulations promulgated promulgated by by the the Commissioner Commissioner of of the the Department Department of of Labor" Labor" (Ross vv (Ross Curtis-Palmer Hydro-Elec. 81 Curtis-Palmer Hydro-Elec. Co., 81 NY2d NY2d 494, 494, 501-502 501-502 [[1993]). 1993 ]). "The duty to to comply comply with with the the "The Co., duty Commissioner's which are set out in Commissioner's safety rules, which are set out in the Industrial Code (12 NYCRR), is the Industrial Code (12 rules, is safety NYCRR), nondelegable" (Misicki 12 NY3d NY3d nondelegable" (Misicki vv Caradonna, 12 511, 515 In "[t]he [Industrial 515 [2009]). [2009]). In addition, Caradonna, "[t]he 511, [Industrial addition, provision relied upon a plaintiff plaintiff must mandate Code] provision relied upon by must mandate compliance with concrete specifications Code] compliance with concrete by a specifications principles" and not not simply declare general standards or reiterate and declare general safety standards or common-law principles" (id., citing reiterate simply common-law safety (id., citing 6 6 of 12 8 15 7 of 12 1 [*[FILED: 8] FILED: COUNTY CLERK 08/13/2018 04:37 PM NEW 09:44 AM) FILED NEW YORK YORK COUNTY CLERK 08/13/2018 44 : 09: AM| NYSCEF DOC. DOC. NO. NO. 32 31 NYSCEF 31 DOC. NO. INDEX NO. INDEX NO. 150167/2016 INDEX NO. 150167/2016 RECEIVED NYSCEF: RECEIVED NYSCEF: 08/13/2018 08/13~2018 NYSCEF: 08/13/2018 I Ross, 81 81 NY2d NY2d at at 504-505). 504-505). Therefore, Therefore, in in order order to to prevail prevail on on aa Labor Labor Law Law § 241 (6) (6) cause cause of of § 241 Ross, action, "a "a plaintiff plaintiff must must establish establish aa violation violation of of an an implementing implementing regulation regulation which which sets sets forth forth aa action, specific standard standard of of specific I conduct" conduct" (see (see Ortega Ortega vv Everest Everest Realty Realty LLC, LLC, 84 84 AD3d AD3d 542, 542, 544 544 [1st [1st Dept Dept Constr.. .. (see Egan 2011l]),]), and and that that the the violation violation was was aa proximate proximate cause cause of of the the injury injury (see Egan vv Monadnock Monadnock Constr 201 [2008]). Inc., 43 43 AD3d AD3d 692, 692, 694 694 [[IstI st Dept Dept 2007], 2007], lvIv denied denied 10 IO NY3d NY3d 706 706 [2008]). Inc., have have occurred occurred The The injury injury also also must must "in an area area inin which which construction, construction, excavation excavation or or demolition demolition work work isis being being "in an performed" [internal [1st Dept performed'' [Rhodes-Evans [Rhodes-Evans vv 111 I 11 Chelsea LLC, 44 44 AD3d AD3d 430, 430, 433 433 [1st Dept 2007] 2007] [internal Chelsea LLC, quotation marks marks omitted]). omitted]). quotation I ! Although plaintiff plaintiff alleges alleges violations violations of of Industrial Industrial Code Code sections sections 23-1.7 23-1.7 (d), (d), 23-1.7 23-1.7 (e), (e), and and Although 2323- 3.3 3.3 (c) (c) inin his his bill bill of of particulars, particulars, he he addressed addressed only only section section 23-1.7 23-1.7 (d) (d) in in his his opposition. opposition. f I Therefore, Therefore, plaintiff has has plaintiff abandoned abandoned his his reliance on on reliance the other other the Industrial Industrial Code Code provisions provisions as as I Labor Law Law 241 241 §§ (6) (6) cause cause of of action action (see Perez vv Folio Folio House, House, Inc., Inc., 123 AD3d predicates for for the the Labor predicates (see Perez 123 AD3d 519, 520 520 [[1st I st Dept Dept 2014]; 2014]; Rodriguez Rodriguez v Dormitory Dormitory Auth. Auth. of of the the State State of of N.Y., NY, 104 AD3d 529, 529, 530530104 AD3d 519, 531 vv One 531 [[1st I st Dept Dept 2013]; 20 I 3]; Cardenas State St., St., LLC, LLC, 68 68 AD3d AD3d 436 436 [[1st I st Dept Dept 2009]). 2009]). In Tn any any event, event, Cardenas One State I those plaintiff did did not not testify testify that that he he tripped, tripped, nor nor did did the the work work involve involve those sections sections are are inapplicable inapplicable as as plaintiff I any demolition demolition by by hand. hand. any As As such, such, defendants defendants are are entitled entitled to to summary summary judgment judgment dismissing dismissing those those parts parts of of the the Labor Labor Law Law § 241 (6) ( 6) cause cause of of action action predicated predicated on on those those abandoned abandoned provisions. provisions. § 241 I I Industrial Code 12 NYCRR NYCRR §§ 23-1.7(d) 23-l.7(d) Code 12 Industrial 1 Section 23-1.7 Section 23-1.7 (d) (d) (Protection (Protection from from slipping slipping hazards) hazards) states: states: "Employers shall not suffer suffer or permit permit "Employers shall not or any to employee to use use a a floor, any employee floor, platform or other passageway, walkway, scaffold, platform or elevated working other elevated passageway, walkway, scaffold, working surface which is in in a a slippery condition. surface which is condition. Ice, water, grease grease slippery Ice, snow, snow, water, and other foreign substance and any foreign substance which may cause slippery footing which cause any other may slippery footing footing." shall be removed, sanded or covered shall be sanded or to safe covered to provide provide safe footing." . removed, I I i c,t 9f 12 9 15 8 of 12 [*[FILED· 9] 9 : 44 /13/2018 0 FILED: NEW YORK YORK COUNTY COUNTY CLERK CLERK 08 08/13/2018 04:37 PM AM| NEW YORK COUNTY CLERK 08/13/2018 09:44 AMII NEW FILED : NYSCEF DOC. DOC. NO. NO. 31 32 31 NYSCEF NO. NYSCEF DOC. 150167/2016 INDEX NO. INDEX INDEX NO. NO. 150167/2016 150167/2016 08/13/2018 RECEIVED NYSCEF: RECEIVED RECEIVED NYSCEF: NYSCEF: 08/13V2018 08/13/2018 II 1 I Section 23-1.7 (d) (d) isis sufficiently sufficiently specific specific to to serve serve as as aa predicate predicate for for aa Labor Labor Law Law§§ 241 241 (6) (6) Section 23-1.7 Wenger Contr. of action action (see Rizzuto vv L.A. L.A. Wenger Contr. Co., 91 NY2d NY2d 343, 343, 351 351 [[1998]). 1998]). cause of (see Rizzuto cause Co., 91 ' of this case because the the brown brown paper paper · Here, section 23-1. 7 ((d)d) isis inapplicable to the facts of this case because inapplicable to the facts 23-1.7 section Here, that plaintiff plaintiff slipped slipped on on was was not not aa "foreign "foreign that substance" substance" for for purposes purposes of of this this provision, provision, but, but, rather, rather. itit protect the was integral integral to to the the ongoing ongoing work work at at the the time time of of the the accident accident inin that that itit was was necessary necessary to to protect the was wood floor floor during during construction. construction. AA substance substance that that isis deemed deemed integral integral to to the the work work does does not not constitute constitute wood substance" WFP One v WFP Liberty Plaza Plaza Co., LLC, a "foreign substance" under section 23-1.7 (d) section [see Galazka Galazka One Liberty under 23-1.7 "foreign Co., LLC, (d) [see Iv 55 AD3d AD3d 789, 2008], lv denied denied 12 709 [2009] [[collecting collecting cases]). cases]). 12 NY3d NY3d 709 55 Dept 790 [2d [2d Dept 789, 790 2008], [2009] Bryant Park Park LLC LLC (2012 For example, in with similar facts, in Stier vv One similar in Stier One Bryant (2012 For case with in a case facts, example, NY NY Slip Slip Op 32535[U], *3 Ct, NY NY County County 2012], 2012), affd a.ffd 113 551 Dept 2014]), 2014]), the the plaintiff 113 AD3d AD3d 551 [1st [1st Dept plaintiff *3 [Sup 32535[U], Ct, Op [Sup slipped on on an an unsecured unsecured piece piece of of Masonite Masonite that that had had been been placed placed over over aa vinyl vinyl laminate laminate floor floor to to slipped protect itit "from foot and and wheel wheel traffic traffic during during the the construction construction protect "from foot process." process." The The Court Court determined determined that the the masonite masonite was was "not a slipping hazard contemplated contemplated by by 12 12 that "not a hazard slipping NYC RR NYCRR 23-1. 7 23-1.7 [[d]" d]" because because itit vv C:hen, not a foreign substance was a foreign substance (Saer, I113I 3 AD3d AD3d at at 552, 552, citing citing Croussett I 02 AD3d AD3d 448, 448, 448 448 Croussett was not 102 Chen, (Stier, I [1st Dept 2013]). 2013)). The The masonite was placed on floor as a protective protective covering [1st Dept on the masonite was intentionally placed the floor as a intentionally covering NY (Stier, NY Slip Op 32535[U] 32535[U] at at *3) and, therefore, therefore, was was integral to the the work work (see Lopez vv Edge Edge integral to (see Lopez (Stier, *3) and, Slip Op 11211, LLC, 150 AD3d 1214, 1215 [2d 2017) [stating that the the "protective rosin paper paper upon upon 150 AD3d [2d Dept Dept 1215 that 11211, "protective rosin LLC, 1214, 2017] [stating which of the the tile tile which the the plaintiff plaintiff slipped was an an integral integral part part of slipped was work" work" and and therefore therefore did did not not constitute constitute aa foreign foreign substance] substance];; Thomas Sachs Headquarters. Headquarters, LLC, LLC, 109 AD3d 421, 421, 422 422 [1st Dept Thomas vv Goldman Goldman Sachs 109 AD3d [1st Dept that "the "the 2012] [finding that protective covering [over which plaintiff tripped] tripped] had had been been purposefully purposefully protective [over which plaintiff 2012] [finding covering installed on the the floor floor as an an integral integral of the part of the renovation renovation installed on as part project"]; vv Budd Contr. Corp., Rajkumar Budd Contr. ; Rafkumar project"] Corp., 77 AD3d AD3d 596 (Ist Dept that the 77 595, 596 [1st Dept 2010] [stating that the "brown construction paper that was. 595, "brown construction paper that was . 2010] [stating laid over over installed floors to protect protect purposefully laid newly installed floors to them . .. an part them . . constituted constituted an integral integral part of purposefully of the the newly floor work"]). floor work"]). of 12 10 15 9 of 12 88 I [*[FILED: 10] FILED: COUNTY CLERK 08/13/2018 04:37 PM NEW 09:44 AM) FILED NEW YORK YORK COUNTY CLERK 08/13/2018 44 : 09: AM| I NYSCEF DOC. DOC. NO. NO. 32 31 NYSCEF 31 DOC. NO. INDEX NO. INDEX NO. 150167/2016 INDEX NO. 150167/2016 RECEIVED NYSCEF: RECEIVED NYSCEF: 08/13 2018 NYSCEF: 08/13/2018 08/13r2018 It should should also also be be noted noted that that plaintiff plaintiff also also attributes attributes the the accident, accident, inin part, part, to to the the presence presence of of It the green green cleaning cleaning agent agent underneath underneath the the protective protective paper. paper. To To that that effect, effect, he he argues argues that that the the cleaning cleaning the agent caused caused the the protective protective paper paper on on which which he he was was standing standing to to slip. slip. agent However, as as with with the the brown brown However, protective paper, paper, the the presence presence of of the the cleaning cleaning agent agent on on the the floor floor was was also also intentional intentional and and integral integral protective performed on on the the Project. Project. Both Both plaintiff plaintiff and and Tereskiewicz Tereskiewicz testified testified that that laborers laborers to the the work work being being performed to on the agent on to dust from rising purposefully spread spread the the cleaning agent the floor floor construction to keep dust and and debris from debris purposefully cleaning keep construction rising I into the the air. air. into As As such, such, defendants defendants are are entitled entitled to to dismissal dismissal of of that that part part of of the the Labor Labor Law Law§§ 241 241 (6) (6) cause cause of of action action predicated predicated on on an an alleged alleged violation violation of of Industrial Industrial Code Code section section 23-1.7 23-1. 7 (d). (d). The Common-Law Common-Law The Negligence and and Labor Labor Law Law§ 200 Causes ofAction Action Negligence Causes § 200 of Defendants Defendants also also move move for for summary summary judgment judgment dismissing dismissing the the common-law common-law negligence negligence and and Labor Labor Law Law §§ 200 200 causes causes of of action. action. Labor Labor Law Law §§ 200 200 (1) ( 1) provides, provides, inin relevant relevant part: part: "All chapter applies applies shall shall be be so so constructed, constructed. "All places to to which which this this chapter places equipped, arranged, operated and conducted as to provide provide operated to and conducted as equipped, arranged, reasonable reasonable and and adequate adequate protection protection to to the the lives, lives. health health and and safety safety of of all all persons persons employed employed therein therein or or lawfully lawfully frequenting frequenting such such places. places. All All machinery, machinery, equipment, equipment, and and devices devices inin such such places places shall shall be be so so placed, operated, operated, guarded, guarded, and and lighted lighted as as to to provide provide reasonable reasonable and and placed, adequate adequate protection protection to to all al I such such persons." persons." I !. I I The The statute statute codifies codifies the the common-law common-law duty duty that that an an owner owner or or general general contractor contractor provide provide construction construction workers workers with with aa safe safe worksite worksite (see New York State Elec. Elec. && Gas Cmp., 82 (see Comes vv New Comes York State Gas 82 Corp., I NY2d 877 [ [1993]). NY2d 876. 877 1993 ]). 876, Causes Causes of of action action brought brought under under Labor Labor Law Law §§ 200 200 "fall into two two broad broad "fall into categories: those from an alleged alleged defect or dangerous categories: those arising from an defect or condition existing on dangerous condition on the arising the premises premises existing performed" and those those from the manner manner in which which the work work and arising from the in the was vv Skanska Skanska· was performed" (see (see Cappabianca arising Cappabianca USA Bldg. 99 AD3d AD3d 143-144 [1st Dept Dept USA Bldg. Inc., Inc., 99 139, (1st 2012]). If arises out 2012]). If the the accident 139, 143-144 accident arises out ofa of a dangerous dangerous be imposed imposed if the the defendant condition, defendant if created the or to aa condition, liability may be created the condition liability condition may or failed failed to remedy remedy 9 9 of 12 11 15 10 of 10 12 [*!FILED. 11] 09:44 FILED: NEW YORK YORK COUNTY COUNTY CLERK CLERK 08 08/13/2018 04:37 PM NEW COUNTY CLERK 08/13/2018 09: 44 AMJI 2018 13 YORK NEW FILED: 150167/2016 INDEX INDEX NO. NO. 150167 150167/2016 2016 1 INDEX NO. 08/13|/2018 RECEIVED RECEIVED NYSCEF: RECEIVED NYSCEF: NYSCEF: 08/13V2018 08/13/2018 NYSCEF DOC. NO. 31 NYSCEF DOC. DOC. NO. NO. 31 32 NYSCEF constructive notice (see Mendoza condition of which it had actual or notice (see Mendoza vv Highpoint Highpoint Assoc., Assoc. IX, IX, LLC, LLC, actual or constructive it had condition of which 83 AD3d AD3d 1, 1, 99 [1st [ I st Dept Dept 2011]). 2011 83 ]). IfIf the the accident accident results results from from the the means means and and methods methods ofof the the work, work, (see defendant supervised supervised or or controlled controlled the the injury-producing injury-producing work work (see liability may may be be imposed imposed only only ifif defendant liability I 144). Cappabianca, 99 AD3d AD3d at at 144). 99 Cappabianca, As discussed discussed previously, previously, plaintiff plaintiff slipped slipped on on brown brown paper paper that that had had been been laid laid purposefully purposefully As the green on floor where the occurred. In addition, as as with with the the brown paper, the green occurred. In addition, brown accident on top where the accident the floor of the paper, top of I from over floor construction dust into cleaning agent was intentionally intentionally spread spread over the floor to keep keep construction dust from rising into the was to agent rising cleaning the air. air. the performed manner its work Consequently, the the condition condition arose arose from from the the manner in which which Broad performed its work in Broad Consequently, (see Villanueva Fifth Ave. Ave. Assoc. Assoc. LLC, LLC, 162 AD3d 404, 404, 406 406 [1st (1st Dept Dept 2018] 2018] [stating that 162 AD3d that (see vv 114 114 Fifth Villanueva [stating . created by by the the manner manner inin which which the the work work isis performed, performed, the the ·'[ w ]here aa defect defect isis not not inherent inherent but but isis created "[w]here of action action under Labor Law Law §§ 200 200 isis one one for for means means and and methods methods and and not not one one for for aa dangerous dangerous cause of under Labor cause I Schwind vv Mel on the condition existing on the premises"] premises"];; Schwind Mel Lany Lany Constr. Mgt. Corp., 95 AD3d 1196, Constr. 95 AD3d condition Mgt. Corp., 1196, existing 1198 [2d Dept 2012], Iv 19 NY3d NY3d 1020 l 020 [2012]), rather than than a dangerous condition 1198 [2d Dept lv dismissed dismissed rather 19 condition dangerous 2012), [2012]), (see Dalanna Dalanna vv City of New New York, 308 AD2d AD2d 400, 400, 400 400 [[1st I st Dept Dept 2003]). 2003]). 308 York, of City inherent inherent to to the the property property (see I Here, defendants defendants have have established established that that they they did did not not supervise supervise or or control control the the work work that that Here, caused the the accident, accident, i.e., i.e., the the placement placement of of either either the the brown brown paper paper or or the the cleaning cleaning agent agent on on the the floor floor caused of the the of apartment. apartment. In In fact, Tereskiewicz testified that Broad's Broad's two two foremen foremen were were directly directly Tereskiewicz testified that fact, for supervising responsible the laborers responsible for the who placed the paper on the floor and for removing laborers who placed the brown brown paper on the floor and for removing supervising the green the green cleaning agent. agent. cleaning Tereskiewicz's testimony testimony also shows that that Tishman Tishman exercised only Tereskiewicz's also shows exercised only I (see Villanueva, 162 162 Villanueva, general general supervision supervision over over the the work, work, which which isis insufficient insufficient to to impose impose liability liability (see AD3d at 406, Hughes Tishman Constr. 40 AD3d AD3d AD3d at Hughes vv Tishman Constr. Corp., 40 305, 306-307 [1st 2007]). 306-307 [1st Dept Dept 406, citing 2007]). Corp., citing 305, As such, defendants are entitled to dismissal entitled of the dismissal As defendants are to of negligence and Labor the common-law common-law such, negligence and Labor Law 200 causes causes of action action against Law § of against them. them. § 200 10 12 of 15 12 11 of 11 of 12 [*[FILED: 12] NEW 09: 44 44 AM| AM) FILED: COUNTY CLERK 08/13/2018 04:37 PM FILED NEW YORK YORK COUNTY CLERK 08/13/2018 : 09: NYSCEF DOC. NYSCEF 31 DOC. NO. NO. 32 31 DOC. NO. INDEX INDEX NO. 150167/2016 150167 INDEX NO. No. 150167/2016 / 2 0 16 RECEIVED NYSCEF: RECEIVED NYSCEF: 08/13/2018 08/13v2018 NYSCEF: 08/13/2018 I II d The court court has has reviewed reviewed plaintiff's plaintiffs remaining remaining contentions contentions on on this this issue issue and and finds finds them them to to be be The unavailing. unavailing. CONCLUSION CONCLUSION Accordingly, itit isis Accordingly, ORDERED that that the the motion motion by by defendants defendants 605 605 West West 42nd 42nd Owner Owner LLC LLC and and Tishman Tishman ORDERED Construction Construction Corporation Corporation of of New New York York pursuant pursuant to to CPLR CPLR 3212 3212 for for summary summary judgment judgment dismissing dismissing I the complaint complaint against against them them isis granted, granted, and and the the complaint complaint isis dismissed dismissed with with costs costs and and disbursements disbursements the to to said said defendants defendants as as taxed taxed by by the the Clerk Clerk upon upon the the submission submission of of an an appropriate appropriate bill bill of of costs; costs: and and itit is further further is ORDERED ORDERED that that movants movants shall, shall, within within 20 20 days days of of the the date date of of the the decision decision and and order order on on this this copy of of this this order order with with notice notice of of entry entry upon upon plaintiff plaintiff Paul Paul DeMercurio De Mercurio and and upon upon motion, serve serve aa copy motion, the Clerk, Clerk, who who isis directed directed to to enter enter judgment judgment accordingly. accordingly. the Dated: Dated: Wi / ENTER: ENTER: L~ HON:r.ROBERT D. KALISH HON.h6BERT D. KALISH J.S.C, .J J.S.C, 12 of of 12 13 15 12 12 II 11 ,

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