Rossi v 140 W. JV Mgr. LLCAnnotate this Case
Decided on January 30, 2018
Supreme Court, New York County
Robert Rossi, Plaintiff,
140 West JV Manager LLC, J.T. MAGEN & COMPANY INC., VANQUISH CONTRACTING CORP. and 140 WEST STREET (NY), LLC, Defendants.
140 WEST JV MANAGER LLC and 140 WEST STREET (NY), LLC,Third-Party Plaintiffs,
H & L ELECTRIC, INC.,Third-Party Defendant.
J.T. MAGEN & COMPANY INC., Second Third-Party Plaintiff,
H & L ELECTRIC, INC., Second Third-Party Defendant.
Plaintiff: Robert Rossi
ZAREMBA BROWN PLLC
40 Wall Street, 27th Floor
New York, NY 10005
By: JOHN D. ZAREMBA
Defendant/ Third-Party Plaintiff: 140 WEST JV MANAGER LLC
Litchfield Cavo LLP
420 Lexington Avenue, 4th Floor
New York, NY 10170
By: MATTHEW S. ZRYB
Defendant/ Second Third-Party Plaintiff: J.T. MAGEN & COMPANY INC.
FABIANI COHEN & HALL, LLP
570 Lexington Avenue, 4th Floor
New York, NY 10022
By: THOMAS JAMES HALL
Defendant: VANQUISH CONTRACTING CORP.
FURMAN KORNFELD & BRENNAN, LLP
570 Taxter Road, 5th Floor
Elmsford, NY 10523
By: PETER C. LUCAS
Defendant/ Third-Party Plaintiff: 140 West Street (NY), LLC
O'Connor Redd LLP
PO Box 1000
242 King Street
Port Chester, NY 10573
By: JOSEPH T. REDD
Third-Party Defendant/ Second Third-Party Defendant: H & L ELECTRIC, INC.
Kaufman Borgeest & Ryan LLP
200 Summit Lake Drive
Valhalla, NY 10595
By: EILEEN R FULLERTON
Robert R. Reed, J.
This is an action to recover damages for personal injuries allegedly sustained by a construction worker on November 25, 2014, when he tripped and fell on debris at a construction site within the building located at 140 West Street, New York, New York (the Premises).
Plaintiff Robert Rossi (plaintiff) moves, pursuant to CPLR 3212, for summary judgment in his favor as to liability on the common-law negligence and Labor Law §§ 200, 240 (1) and 241 (6) claims as against defendant/third-party plaintiff 140 West JV Manager LLC (140 JVM), defendant/second third-party plaintiff J.T. Magen & Company, Inc. (JT Magen), defendant Vanquish Contracting Corp (Vanquish), and defendant/third-party plaintiff 140 West Street (NY), LLC (140 West) (collectively, defendants). Third-party defendant/second third-party [*2]defendant H & L Electric, Inc. (H & L) is not the subject of the present motion before the court.
On the day of the accident, 140 West was the owner of that part of the Premises where the accident occurred. 140 West hired JT Magen to serve as the construction manager for the pre-construction phase of a construction project at the Premises, which entailed the conversion of parts of the Premises into commercial and residential units (the Project). 140 West also hired Vanquish to serve as the demolition contractor on the Project. JT Magen hired plaintiff's employer, H & L, to perform electrical work at the Project. The specific role of 140 JVM at the Project cannot be ascertained from the record.
Plaintiff's Deposition Testimony
Plaintiff testified that, on the day of the accident, he was employed by H & L as an apprentice electrician. His work on the Project included helping H & L mechanics with their work, including fetching tools and equipment, and assisting with electrical installation. His foreman on the day of the accident was Steve Ghotti, and his mechanic was Doug Bradley. Both were H & L employees. Plaintiff stated that only H & L employees directed his work, and H & L provided him with his safety gear.
The Project entailed retrofitting an office building into residential and commercial units. At the time of plaintiff's accident, H & L was tasked with disconnecting electric cables at the Premises. This work took place on several floors of the Premises, including the A level basement (the Basement).
Plaintiff testified that, on the day of the accident, he and Bradley were assigned by Ghotti to pull wires and install new electrical conduits in the Basement. Plaintiff described the Basement as a large square with "numerous hallways" lit by fluorescent bulbs (plaintiff's tr at 64). However, "[c]ertain hallways were lit and then some hallways were not as lit" (id.).
After working in the Basement for approximately fifteen minutes, Bradley asked plaintiff to retrieve an 8-foot A-frame ladder from H & L's storage shanty in the loading dock. Plaintiff obtained the ladder, and brought it down to the Basement through the freight elevator, the only elevator he was allowed to use when he was carrying equipment. To return to his work area, plaintiff had to walk down a different hallway than the one that he had used earlier in the day (the Hallway). While there was some light in the Hallway, it was, overall, "very dark" (id. at 86).
Plaintiff described his accident as follows:"I proceeded to another hallway that led to where our work station was across. When I entered to the right, I initially seen that there was a large object in the beginning of [the Hallway]. I stepped to my left to avoid it. The room was very dark. As I was passing through [the Hallway] I noticed there was a large amount of debris to the right of me. As I was proceeding I remember seeing Dougie on top of the 6-foot ladder and the next thing you know I remember being tripped and going down onto the floor."
(id. at 85).
After he fell, plaintiff saw that he had tripped over a steel elevator cable that was lying on the ground. The cable was part of a debris pile that partially obstructed the entrance to the Hallway, and that consisted of pieces of "black metal . . . piled up on top of each other" to a height of three feet, which were hard to see because the Hallway was dark (id. at 94).
Deposition Testimony of Joseph Hennessy (JT Magen's Project Manager)
Joseph Hennessy testified that, on the day of the accident, he was JT Magen's project manager. JT Magen was hired by an entity that Hennessy knew as "140 West Street" to serve as the construction manager for the preconstruction phase of the Project (Hennessy tr at 16). He was unsure of whether this entity was 140 West or 140 JVM.[FN1] Hennessy's duties on the Project included reviewing construction drawings, reviewing bids and awarding contracts to subcontractors, and setting schedules. Hennessy testified that JT Magen hired H & L, the electrical contractor, and 140 West hired Vanquish, the demolition contractor.
Hennessy explained that JT Magen was responsible for cleaning up the areas where its subcontractors worked. However, it was not responsible for cleaning up those areas being worked by the subcontractors that 140 West hired, such as Vanquish. In addition, JT Magen did not coordinate with Vanquish or have the authority to stop its work in the event that it observed an unsafe condition.
At his deposition, Hennessy reviewed a photograph of the accident location, which was taken shortly after the accident. He testified that the photograph depicted the "D-elevator bank" at the Premises (Hennessy tr at 49). He also noted that the photograph depicted debris that "came from the elevator shafts" (id. at 50). Hennessy maintained that this debris was generated by Vanquish, who was "responsible for taking out" the elevator shafts (id. at 51). Hennessy further testified that, had he seen the debris as shown in the photograph, he would have contacted 140 West to "inform them that their contractor is causing a hazard" (id. at 52).
Deposition Testimony of Anthony Ranieri (H & L's Superintendent)
Anthony Ranieri testified that, on the day of plaintiff's accident, he was H & L's superintendent at the Project. As such, he was responsible for assigning men to the Project and designating a foreman. H & L was hired by JT Magen to install electrical wire at the Project. At the time of the accident, the Project was in the preconstruction phase. H & L's duties at this time included rerouting power in the building and running temporary power to areas where other trades would need it.
Ranieri learned of plaintiff's accident from his foreman. When he viewed the accident location on either the day of, or the day after, the accident, he observed debris in the Hallway, [*3]including the elevator cable that plaintiff tripped over. In addition, Ranieri testified that the elevator cable, and the other debris in the Hallway, would have been created and removed by the demolition company responsible for demolishing the elevators. He was aware of only one demolition company at the Project, Vanquish.
With respect to the light level in the Hallway, Ranieri noted that there was enough light in the Hallway so that "you could see," but it was only bright directly underneath the fluorescent light fixtures (Ranieri tr at 37).
Deposition Testimony of Carlo Bordone (Vanquish's Owner)
Carlo Bordone testified that, on the day of the accident, he was an owner of Vanquish, a construction demolition and cleanup company. Bordone was the senior Vanquish employee at the Project, and he was always present when Vanquish performed its work at the Premises.
During his deposition, Bordone acknowledged the existence of a contract wherein 140 West hired Vanquish to perform demolition work at the Project, including demolishing the elevator shafts and removing certain elevator components in the Basement where the accident occurred.
Bordone explained that Vanquish provided its workers with mini-containers for debris collection and removal. When these containers were full, Vanquish brought the mini-containers to a large 20-yard container for removal from the Premises. Vanquish was also responsible for making sure that the areas where it worked were kept orderly and free of tripping hazards. Specifically, Bordone testified that "we would broom clean [those areas]. We would push everything and make a walkway — safe walkway so it was not a tripping hazard" (Bordone tr at 43).
Bordone was shown a photograph depicting the accident area, and confirmed that the debris in the photograph was created by Vanquish during its elevator demolition work. The photograph specifically showed the cable that plaintiff had tripped over. Bordone explained that Vanquish would not have left the cable over which plaintiff tripped on the ground, because Vanquish's standard procedure was to "roll [the cable] up into a container" (id. at 101). That said, Bordone did not have any personal knowledge of the subject hazardous condition in the Hallway at the time of the accident.
Deposition Testimony of Joseph Hamilton (140 West's Consultant)
Joseph Hamilton testified that he was hired by 140 West, through his consulting company, Construction Grade Incorporated, to provide construction consulting and supervision services at the Project. Hamilton testified that 140 West had an ownership interest in parts of the Premises, including certain general common elements in the Basement, such as the elevator banks and the surrounding hallways where the accident occurred.
Contracts and Agreements
The 140 West/JT Magen Agreement
140 West and JT Magen entered into an agreement entitled "Standard Basis of [*4]Compensation and Agreement," dated March 1, 2014 (the 140 West/JT Magen Agreement), wherein JT Magen agreed to "act as [140 West's] Construction Manager for preconstruction" at the Project (notice of motion, exhibit I). The scope of JT Magen's services included providing cost and estimates for project and design parameters, consulting with the architect, reviewing designs, providing timeframes for construction and procurement issues, as well as other preliminary issues.
Pursuant to schedule C of the 140 West/JT Magen Agreement, JT Magen had the authority to enter into agreements with subcontractors with respect to "(1) Hoists, (2) Elevators, (3) Pump relocations, (4) New storefronts, lobby, sales office and model rooms" (id., schedule C). Also, JT Magen was to perform construction management services, such as general supervision and monitoring, for those subcontractors.
The 140 West/Vanquish Agreement
140 West and Vanquish entered into an "Owner — Contractor Agreement," dated June 9, 2014 (the 140 West/Vanquish Agreement), wherein Vanquish agreed to provide demolition services at the Premises, including elevator demolition (notice of motion, exhibit J). The 140 West/Vanquish Agreement names 140 West as the Owner in reference to the Property (id. at 1). In addition, the 140 West/Vanquish Agreement required Vanquish to procure "permits . . . as required for completion of the Work" (id., ¶ 1.2).
"[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Failure to make such prima facie showing requires denial of the motion, regardless of the sufficiency of the opposing papers" (Alvarez v Prospect Hosp., 68 NY2d 320, 324  [internal citations omitted]). Once prima facie entitlement has been established, in order to defeat the motion, the opposing party must "'assemble, lay bare, and reveal his [or her] proofs in order to show his [or her] defenses are real and capable of being established on trial . . . and it is insufficient to merely set forth averments of factual or legal conclusions'" (Genger v Genger, 123 AD3d 445, 447 [1st Dept 2014], quoting Schiraldi v U.S. Min. Prods., 194 AD2d 482, 483 [1st Dept 1993]). If there is any doubt as to the existence of a triable fact, the motion for summary judgment must be denied (Rotuba Extruders v Ceppos, 46 NY2d 223, 231 ).
The Labor Law § 241 (6) Claim Against Defendants
Plaintiff moves for summary judgment in his favor on his Labor Law § 241 (6) claim as against all defendants. Labor Law § 241 (6) provides, in pertinent part, as follows:"All contractors and owners and their agents, . . . when constructing or demolishing buildings or doing any excavating in connection therewith, shall comply with the following requirements:* * *(6) All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, [and] equipped . . . as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places."
Labor Law § 241(6) imposes a nondelegable duty of reasonable care upon owners and contractors "'to provide reasonable and adequate protection and safety' to persons employed in, or lawfully frequenting, all areas in which construction, excavation or demolition work is being performed" (Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 348 ; see also Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501—502 ). Importantly, to sustain a Labor Law § 241 (6) claim, it must be shown that the defendant violated a specific, "concrete" implementing regulation of the Industrial Code, rather than a provision containing only generalized requirements for worker safety (Ross, 81 NY2d at 505). Such violation must be a proximate cause of the plaintiff's injuries (Annicaro v Corporate Suites, Inc., 98 AD3d 542, 544 [2d Dept 2012]).
Initially, 140 West and 140 JVM argue that plaintiff has failed to establish that either of them was the owner of the Premises, and therefore, there remains a question of fact as to whether 140 West or 140 JVM are proper Labor Law defendants.
Notably, the definition of "owner" under Labor Law § 241 "has not been limited to the titleholder. The term has been held to encompass a person who has an interest in the property and who fulfilled the role of owner by contracting to have work performed for his benefit" (Copertino v Ward, 100 AD2d 565, 566 [2d Dept 1984]; Kane v Coundorous, 293 AD2d 309, 311 [1st Dept 2002]).
Here, plaintiff has not established, as a matter of law, that 140 JVM was an owner of the Premises. To that effect, the record does not contain sufficient evidence to establish that 140 JVM had an ownership interest in the property, or that it contracted to have work performed therein for its own benefit. It should also be noted that plaintiff does not allege that 140 JVM is a general contractor or an agent of an owner or general contractor for the purposes of the Labor Law.
Thus, as it has not been shown to be a proper Labor Law defendant, plaintiff is not entitled to summary judgment in his favor on the Labor Law 241 § (6) claim as against 140 JVM.
That said, plaintiff has established that 140 West was an owner of the Premises for the purposes of the Labor Law. The 140 West/JT Magen Agreement expressly states that 140 West "holds legal title" to the Premises (notice of motion, exhibit I, Schedule C). In addition, 140 West is referred to as the "Owner" of the Premises in the 140 West/Vanquish agreement (notice of motion, exhibit J). Moreover, in both agreements, 140 West contracted for the performance of work at the premises for its own benefit. Therefore, 140 West may be liable for plaintiff's injuries under Labor Law § 241 (6).
Next, although JT Magen was not an owner or general contractor, it must be determined [*5]whether it can be considered an agent of the same, so as to be potentially liable under the statute."When the work giving rise to [the duty to conform to the requirements of Labor Law §§ 240 (1) and 241 (6)] has been delegated to a third party, that third party then obtains the concomitant authority to supervise and control that work and becomes a statutory 'agent' of the owner or general contractor. Only upon obtaining the authority to supervise and control does the third party fall within the class of those having nondelegable liability as an 'agent' under sections 240 and 241"
(Russin v Louis N. Picciano & Son, 54 NY2d 311, 318 ). Accordingly, for a party to be "vicariously liable as an agent of the property owner for injuries sustained under the statute," it must have "had the ability to control the activity which brought about the injury" (Walls v Turner Constr. Co., 4 NY3d 861, 863-864 ).
Here, the accident was caused when plaintiff tripped over debris that was created by Vanquish and was improperly removed.
Plaintiff argues that JT Magen was an agent, because, pursuant to the 140 West/JT Magen Agreement, JT Magen was responsible for complying with all applicable laws, rules, regulations and statutes, as well as for ensuring the general safety of the work site. As such, JT Magen was responsible for the safe removal of the debris in the Hallway where plaintiff was injured.
In opposition, JT Magen argues that, as the preconstruction phase construction manager, it did not control the activity which brought about plaintiff's injury, i.e., the demolition of the elevator shafts and the removal of the resulting debris, and, therefore, it is not a proper Labor Law defendant. It also argues that the 140 West/JT Magen Agreement did not require JT Magen to provide services with respect to the demolition work, and that JT Magen did not have the authority to control the area where Vanquish worked or kept its debris.
Here, the record is devoid of any evidence establishing that JT Magen had the ability to control or supervise the injury producing work, i.e., the demolition of the elevator shafts and the removal of the demolition debris. While plaintiff cites to several provisions of the 140 West/JT Magen Agreement, which purport to establish such control, a review of said provisions reveals only general requirements to comply with applicable laws. In addition, the provisions plaintiff cites to are limited to work undertaken pursuant to "schedule C" of the 140 West/JT Magen Agreement, which does not contemplate demolition work (notice of motion, exhibit I, schedules A, C).
Moreover, Hennessy's testimony establishes that, while JT Magen performed inspections of the work area, it did not have the authority to stop Vanquish's work if it observed Vanquish conducting a dangerous activity. Rather, all it could do was contact 140 West to inform them of the issue (see DaSilva v Haks Engrs., Architects & Land Surveyors, P.C., 125 AD3d 480, 481 [1st Dept 2015] [construction manager did not become a statutory agent under the Labor Law where the contract "did not confer upon the construction manager the right to exercise supervisory control over the individual contractors, nor were [the construction manager defendants] authorized to stop the work if their personnel observed an unsafe practice"]; see also Borbeck v Hercules Constr. Corp., 48 AD3d 498, 498 [2d Dept 2008] [construction manager did [*6]not have authority to control and supervise, and did not become a statutory agent, where it did not have "the authority to enforce the provisions of the contracts entered into by the owner with the project's prime contractors" nor "the authority to stop the work"]).
Thus, as he has failed to establish that JT Magen was an agent for the purposes of Labor Law § 241 (6), plaintiff is not entitled to summary judgment in his favor as to liability on his Labor Law § 241 (6) claim as against it.
As to Vanquish, it is uncontested that Vanquish had the authority to supervise and control the demolition of the elevator shaft and removal of the resulting debris. Accordingly, Vanquish may be liable for plaintiff's injuries under Labor Law § 241 (6).
Therefore, in the remainder of this decision, the Labor Law § 241 (6) claim will be addressed only in regard to 140 West and Vanquish.
The Industrial Code Provisions
Plaintiff moves for summary judgment in his favor as to liability on the Labor Law § 241 (6) claim against 140 West and Vanquish. Specifically, plaintiff alleges violations of Industrial Code sections 23-1.7 (e) (1) and (2) (tripping hazards in "passageways" and "working areas"), 23-2.1 (a) (1) ("Maintenance and housekeeping — storage of material or equipment"), 23-1.30 ("Illumination"), 23-3.3 (e) ("Methods of operation"), 23-3.3 (f) ("Access to floors") and 23-3.3 (k) (1) (ii) and (2) ("Storage of materials" "General" and "Cellars").
Initially, sections 23-3.3 (f) and 23-3.3 (k) (2) are inapplicable to the facts herein, as they govern protection from falling objects, and plaintiff was not injured by a falling object. Thus, plaintiff is not entitled to summary judgment in his favor on those parts of the Labor Law § 241 (6) claim predicated on alleged violations of these provisions.
Industrial Code 12 NYCRR 23-1.7 (e) (1) and (2)
Industrial Code 12 NYCRR 23-1.7 (e) (1) and (2) provide, in pertinent part:"(e) Tripping and other hazards.(1) Passageways. All passageways shall be kept free from . . . debris and from any other obstructions or conditions which could cause tripping.* * *(2) Working Areas. The parts of floors, platforms and similar areas where persons work or pass shall be kept free from accumulations of dirt and debris and from scattered tools and materials and from sharp projections insofar as may be consistent with the work being performed."
Sections 23-1.7 (e) (1) and (2) are sufficiently specific to sustain a claim under Labor Law § 241 (6) (Boss v Integral Constr. Corp., 249 AD2d 214, 215 [1st Dept 1998]).
Here, plaintiff was injured when he tripped on debris while walking in the Hallway. [*7]Therefore, sections 23-1.7 (e) (1) and (2), which govern tripping hazards, apply to the facts of this case.
140 West and Vanquish argue that plaintiff is not entitled to summary judgment on the section 23-1.7 (e) (1) claim, because a question of fact exists as to whether the Hallway was a lobby, which falls outside the scope of section 23-1.7 (e) (1), rather than a passageway (see Rajkumar v Budd Contr. Corp., 77 AD3d 595, 595 [1st Dept 2010] [a lobby area, described as a "big open space" was not a passageway for the purposes of 23-1.7 (e) (1)]).
Importantly, "passageway" is not defined in the Industrial Code. Therefore, the court relies on the ordinary definition of the word in interpreting the statute. The Oxford English Dictionary defines "passageway" as "[a] long, narrow way, typically having walls [on] either side, that allows access . . . to different rooms within a building" (Oxford English Dictionary, https://en.oxforddictionaries.com/definition/passageway [last accessed on January 23, 2018]).
In support of the argument that the Hallway was not a passageway, 140 West and Vanquish rely on an unsworn and unauthenticated handwritten statement by Bradley, plaintiff's coworker, wherein he described the accident location as a "lobby area" (Vanquish affirmation in opposition, exhibit O), and Ranieri's testimony that the area was a "common area" (Ranieri tr at 54). However, this evidence is unpersuasive in light of the clear photographic evidence to the contrary (see Vanquish affirmation in opposition, exhibit B). The photographs depict the accident area as a long concrete service hallway with walls on either side. The ends of the hallway provide access to different areas of the Premises. In addition, the photographs show a large pile of debris alongside one of the walls, which serves to narrow the walking path within the hallway significantly. Accordingly, the Hallway is a passageway as contemplated by section 23-1.7 (e) (1), and not a "big open space," such as a lobby (see e.g. Lois v. Flintlock Constr. Servs. LLC, 137 AD3d 446, 447 [1st Dept 2016] [a two-to-three-foot space between debris piles was a passageway]).
In addition, 140 West and Vanquish argue that section 23-1.7 (e) (2) does not apply to the facts of this case, because the area where plaintiff tripped was not a working area. However, Vanquish admits, in its affirmation in opposition, that the Hallway was "an active work area" (Vanquish's affirmation in opposition, ¶ 78). Accordingly, the Hallway was a work area, as contemplated by section 23-1.7 (e) (2).
Next, Vanquish argues that plaintiff is not entitled to summary judgment on the section 23-1.7 (e) (1) and (2) claims because the debris that he tripped over was integral to the work being performed by Vanquish in the accident area at the time of the accident (Tucker v Tishman Constr. Corp. of NY, 36 AD3d 417, 417 [1st Dept 2007] [rebar that plaintiff tripped over was "not debris", but rather, "an integral part of the work being performed"]; Salinas v Barney Skanska Constr. Co., 2 AD3d 619, 622 [2d Dept 2003] [section 1.7 (e) (2) inapplicable where plaintiff "tripped over demolition debris created by him and his coworkers, which was an integral part of the work being performed"]).
However, the issue is not whether the debris was integral to Vanquish's own work, but whether the debris was "an integral part of the work being performed by the plaintiff at the time of the accident" (Tighe v Hennegan Constr. Co., Inc., 48 AD3d 201, 202 [1st Dept 2008] [*8][explaining that readily observable demolition debris that accumulated as a result of demolition "was not inherent in the work being performed by plaintiff, an electrician, at the time of the accident"]). Here, plaintiff testified that he and H & L did not create, and had no responsibility for, the subject debris, while Hennessy, Ranieri and Bordone testified that the debris in the Hallway was generated by Vanquish. In opposition, Vanquish does not produce any evidence that would establish that the debris was integral to plaintiff's work as an electrician. Accordingly, Vanquish has not raised a triable issue of fact with respect to this issue.
Next, to the extent that 140 West and Vanquish argue that sections 23-1.7 (e) (1) and (2) cannot apply to plaintiff because he was not at his actual work site, such argument is unpersuasive. Responsibility under Labor Law § 241(6) "'extends not only to the point where the . . . work was actually being conducted, but to the entire site, including passageways utilized in the provision and storage of tools, in order to insure the safety of laborers going to and from the points of actual work'" (Smith v McClier Corp., 22 AD3d 369, 370-71 [1st Dept 2005], quoting Sergio v Benjolo N.V., 168 AD2d 235, 236 [1st Dept 1990]).
Finally, 140 West and Vanquish argue that summary judgment cannot be granted in plaintiff's favor with respect to his Labor Law § 241 (6) claim based on violations of Industrial Code sections 23-1.7 (e) (1) and (2), because material questions of fact exist as to whether plaintiff was comparatively negligent in causing the accident. However, "whether or not plaintiff was himself negligent may require an apportionment of liability but does not absolve defendants of their own liability under § 241 (6)" (Keegan v Swissotel NY, 262 AD2d 111, 114 [1st Dept 1999]; see also Owen v Schulmann Constr. Corp., 26 AD3d 362, 363 [2d Dept 2006]).
The court has considered 140 West and Vanquish's remaining arguments with respect to these industrial code provisions, and finds them to be without merit.
Thus, plaintiff is entitled to summary judgment in his favor as to liability on his Labor Law § 241 (6) claim predicated on alleged violations of section 23-1.7 (e) (1) and (2) as against 140 West and Vanquish.
Industrial Code 12 NYCRR 23-2.1 (a) (1)
Industrial Code 12 NYCRR 23-2.1 (a) (1) provides the following:"(a) Storage of material or equipmentAll building materials shall be stored in a safe and orderly manner. Material piles shall be stable under all conditions and so located that they do not obstruct any passageway, walkway, stairway or other thoroughfare."
Initially, section 23-2.1 (a) (1) is sufficiently specific to sustain a claim under Labor Law § 241 (6) (Scannell v Mt. Sinai Med. Ctr., 256 AD2d 214, 214 [1st Dept 1998]).
Here, section 2.1 (a) does not apply to the facts of this case, because plaintiff tripped over debris, and not over material being stored. Plaintiff testified that the cable he tripped over was part of a debris pile. In addition, Hennessy, Ranieri and Bordone all testified that the object plaintiff tripped over was demolition debris. Hennessy also testified that, had he seen the debris, he would have contacted 140 West to have it removed.
Thus, as plaintiff did not trip over material being stored, plaintiff is not entitled to summary judgment in his favor as to liability on his Labor Law § 241 (6) claim predicated on an alleged violation of Industrial Code section 23-2.1 (a) (1).
Industrial Code 12 NYCR 23-1.30
Industrial Code 12 NYCRR 23-1.30 provides the following:"Illumination sufficient for safe working conditions shall be provided wherever persons are required to work or pass in construction, demolition and excavation operations, but in no case shall such illumination be less than 10 foot candles in any area where persons are required to work nor less than five foot candles in any passageway, stairway, landing or similar area where persons are required to pass."
Initially, section 23-1.30 is sufficiently specific to sustain a claim under Labor Law § 241 (6) (Murphy v Columbia Univ., 4 AD3d 200, 202 [1st Dept 2004]).
Here, a question of fact remains as to whether section 23-1.30 applies to the facts of this case, because plaintiff has not established whether the level of illumination in the Hallway fell below the minimum illumination required in this provision. Specifically, plaintiff relies solely on his own testimony, that the Hallway was "very dark" (plaintiff's tr at 86). This testimony, by itself, is "insufficient to create an inference that the amount of lighting fell below the specific statutory standard" (Cahill v Triborough Bridge & Tunnel Auth., 31 AD3d 347, 349 [1st Dept 2006] ["conclusory and nonspecific assertions of two witnesses stating that the area was 'dark' or 'a little dark'" did not establish a violation of section 23-1.30).
Thus, plaintiff is not entitled to summary judgment in his favor on that part of his Labor Law section 241 (6) claim predicated on an alleged violation of Industrial Code section 23-1.30.
Industrial Code 12 NYCRR 23-3.3 (e)
Industrial Code 12 NYCRR 23-3.3 governs "demolition by hand." It provides, as follows:"(e)Methods of operation. Where the demolition of any building or other structure is being performed by hand, debris, bricks and any other materials shall be removed as follows:(1) By means of chutes constructed and installed in compliance with this Part (rule);(2) By means of buckets or hoists; or(3) Through openings in the floors of the building or other structure in compliance with this section."
Initially, section 23-3.3 (e) is sufficiently specific to sustain a claim under Labor Law § 241 (6) (see Freitas v New York City Tr. Auth., 249 AD2d 184, 185 [1st Dept 1998]).
Importantly, section 23-3.3 (e) applies only to debris being removed from a height, and [*9]not debris that is already present on the ground (id. at 185 ["this rule obviously applies to debris being removed from a height to the ground and does not apply . . . where debris on the ground was being collected. In such circumstances, a 'bucket,' a 'hoist' or 'chute' would simply be inappropriate for the removal of debris . . ."]).
Here, plaintiff was not injured by debris being removed from a height but, rather, he tripped over debris on the ground. Nor has plaintiff alleged that the debris that he tripped over had been removed by any of the methods covered by this provision. Therefore, section 23-3.3 (e) is inapplicable to the facts of this case.
Thus, plaintiff is not entitled to summary judgment in his favor on the part of the Labor Law section 241 (6) claim predicated on an alleged violation of section 23-3.3 (e).
Industrial Code 12 NYCRR 23-3.3 (k) (1) (ii)
Industrial Code 12 NYCRR 23-3.3 (k) (1) (ii) is sufficiently specific to sustain a claim under Labor Law § 241 (6) (Randazzo v Consolidated Edison Co. of NY, 271 AD2d 667, 668 [2d Dept 2000]). Section 23-3.3 (k) (1) (ii) governs the "[s]torage of materials" and provides:"Storage areas shall not interfere with access to any stairway or passageway used by any person as a means of ingress or egress. Suitable barricades shall be provided to prevent stored materials from sliding or rebounding into any area where any person is located or passing. All materials shall be safely piled in such locations as will not interfere with any work operations nor present any hazard to any person employed at or frequenting the demolition site."
Section 23-3.3 (k) (1) (ii), which applies to the storage of materials, does not apply to the facts of this case. As discussed previously, plaintiff did not trip on stored materials, but, rather, he tripped on debris.
Thus, plaintiff is not entitled to summary judgment in his favor on that part of the Labor Law section 241 (6) claim predicated on an alleged violation of section 23-3.3 (k) (1) (ii).
The Common-Law Negligence and Labor Law § 200 Claims Against All Defendants
Plaintiff moves for summary judgment in his favor as to liability on his common-law negligence and Labor Law § 200 claims against defendants. Labor Law § 200 "is a codification of the common-law duty imposed upon an owner or general contractor to provide construction site workers with a safe place to work" (Singh v Black Diamonds LLC, 24 AD3d 138, 139 [1st Dept 2005], citing Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 877 ). Labor Law § 200 (1) states, in pertinent part, as follows:"All places to which this chapter applies shall be so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein or lawfully frequenting such places. All machinery, equipment, and devices in such places shall be so placed, operated, guarded, and lighted as to provide reasonable and adequate protection to all such [*10]persons."
There are two distinct standards applicable to section 200 cases, depending on the kind of situation involved: (1) when the accident is the result of the means and methods used by a contractor to do its work, and (2) when the accident is the result of a dangerous condition that is inherent in the premises (see McLeod v Corporation of Presiding Bishop of Church of Jesus Christ of Latter Day Sts., 41 AD3d 796, 797-798 [2d Dept 2007]; see also Griffin v New York City Tr. Auth., 16 AD3d 202, 202 [1st Dept 2005]).
"Where a plaintiff's claims implicate the means and methods of the work, an owner or a contractor will not be held liable under Labor Law § 200 unless it had the authority to supervise or control the performance of the work" (LaRosa v Internap Network Servs. Corp., 83 AD3d 905, 909 [2d Dept 2011]). Specifically, "liability can only be imposed against a party who exercises actual supervision of the injury-producing work" (Naughton v City of New York, 94 AD3d 1, 11 [1st Dept 2012]).
However, where an injury stems from a dangerous condition on the premises, an owner may be liable in common-law negligence and under Labor Law § 200 "'when the owner created the dangerous condition causing an injury or when the owner failed to remedy a dangerous or defective condition of which he or she had actual or constructive notice'" (Mendoza v Highpoint Assoc., IX, LLC, 83 AD3d 1, 9 [1st Dept 2011], quoting Chowdhury v Rodriguez, 57 AD3d 121, 128 [2d Dept 2008]).
Here, the accident was caused due to the improper removal of demolition debris in the Hallway. Accordingly, the accident was caused due to the means and methods of the work.
As to 140 West and 140 JVM, a review of the evidence in the record reveals that they did not supervise or control the performance of the injury producing work, i.e., the demolition and improper removal of debris in the Hallway. Moreover, there is no evidence in the record that they supervised plaintiff or his work, as plaintiff testified that he received his supervision solely from H & L. Accordingly, plaintiff is not entitled to summary judgment in his favor as to liability on the common-law negligence and Labor Law § 200 claims as against 140 West and 140 JVM.
As to JT Magen, while plaintiff argues that JT Magen had general supervisory control over the Project, such general supervisory control is insufficient to impute liability under section 200, as even where a defendant "had the authority to review onsite safety, . . . [such] responsibilities do not rise to the level of supervision or control necessary to hold the [defendant] liable for plaintiff's injuries under Labor Law § 200" (Bisram v Long Is. Jewish Hosp., 116 AD3d 475, 476 [1st Dept 2014]). Accordingly, plaintiff is not entitled to summary judgment in his favor as to liability on the common-law negligence and Labor Law § 200 claims as against JT Magen.
Finally, as to Vanquish, it should be noted that, in his moving papers, plaintiff does not address Vanquish's liability under the common-law or Labor Law § 200. Therefore, plaintiff has failed to establish his entitlement to judgment as a matter of law with respect to those claims as [*11]to Vanquish.
Thus, plaintiff is not entitled to summary judgment in his favor as to liability on the common-law negligence and Labor Law § 200 claims as against defendants.
The court has considered the parties' remaining arguments and finds them to be without merit.
CONCLUSION AND ORDER
For the foregoing reasons, it is hereby
ORDERED that the part of plaintiff Robert Rossi's motion, pursuant to CPLR 3212, for summary judgment in his favor is granted solely as to liability on that part of the Labor Law § 241 (6) claim premised on alleged violations of Industrial Code 12 NYCRR 23-1.7 (e) (1) and (2) as against defendants 140 West Street (NY), LLC and Vanquish Contracting Corp., and the motion is otherwise denied; and it is further
ORDERED that counsel are directed to appear for a preliminary conference in Room 581, 111 Centre Street, on March 8, 2018, at 11:00a.m.
Dated: January 30, 2018
Footnote 1:An agreement between 140 West and JT Magen, discussed infra, establishes that 140 West hired JT Magen (notice of motion, exhibit I). Accordingly, the "140 West Street" entity that Hennessy discusses is, in fact, 140 West, and will be referred to accordingly, hereinafter.