Silverio v Howard Beach Apts., LLC

[*1] Silverio v Howard Beach Apts., LLC 2018 NY Slip Op 50527(U) Decided on March 23, 2018 Supreme Court, Bronx County Gonzalez, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 23, 2018
Supreme Court, Bronx County

Carmelo Silverio, Plaintiff,

against

Howard Beach Apartments, LLC, Howard Beach Housing Development Fund Corporation, Monadnock Construction, Inc., Medco Plumbing, Inc., Spieler & Ricca Electrical Co., Inc., and Broadway Wallboard, Inc., D/B/A Crown Partition, Defendants.



21047/13E



Attorney for Plaintiff:

John J. Nonnenmacher, Esq.

Bader Yakaitis & Nonnemacher, LLP

212-465-1110

Attorney for Defendants:

Kathleen M. Mulholland, Esq.

Camacho Mauro Mulholland, LLP

212-947-4999
Lizbeth Gonzalez, J.

Plaintiff Carmelo Silverio alleges that due to defendants' negligence, he wore stilts while performing sanding work, stepped into coiled wire, fell and sustained serious injury. The accident occurred on 2/22/13 during the course of a construction project at 155-55 Cross Bay Boulevard in Queens County. Plaintiff maintains that defendants [FN1] violated Labor Law §§ 240, 240(1) and 241(6) and are also liable on grounds of common law negligence.

Defendants Howard Beach Apartments, LLC; Howard Beach Housing Development Fund Corporation; Monadnock Construction, Inc.; and Spieler & Ricca Electrical Co., Inc. move pursuant to CPLR 3212 for an order granting summary judgment and dismissing the complaint. Plaintiff maintains that his accident is elevation-related and cross-moves for summary judgment pursuant to Labor Law §§ 240 and 241(6).

The following facts are not in dispute. Defendants Howard Beach Apartments, LLC and Howard Beach Housing Development Fund Corporation ("Howard Beach") owned the subject premises. Defendant Monadnock Construction, Inc. was Howard Beach's general contractor for the project. Monadnock hired defendant Spieler & Ricca Electrical Co., Inc. to perform the [*2]electrical work and non-party Medco Plumbing to install the plumbing at the site. Plaintiff's employer, Curtis Partition Corp., was responsible for sanding and taping the walls and ceilings. Spieler & Ricca installed the cable in which plaintiff's left stilt became entangled.

SUMMARY JUDGMENT

In accordance with CPLR 3212, summary judgment is warranted where a movant shows through admissible evidence that the opposing party has no defense to the cause of action or that the cause of action has no merit (Martin v Briggs, 235 AD2d 192 [1st Dept 1997]); there must be no doubt about the existence of a triable issue of fact since summary judgment deprives the litigant of his or her day in court (Molina v Phoenix Sound, Inc., 297 AD2d 595, 596 [1st Dept 2002]; see Morris v Lenox Hill Hosp., 232 AD2d 184, 185 [1st Dept 1996], affd 90 NY2d 953 [1997]). When such a motion is made by defendants, the facts must be viewed in the light most favorable to the plaintiff, and every available inference must be drawn in the plaintiffs' favor (De Lourdes Torres v Jones, 26 NY3d 742, 763 [2016]).

PLAINTIFF'S LABOR LAW § 200 CLAIM

Plaintiff Silverio asserts a common-law negligence claim pursuant to Labor Law § 200. The statute codifies the common-law duty imposed on an owner or contractor to provide workers with a safe place to work. It is well settled that where the alleged defect or dangerous condition arises from a contractor's methods and the owner exercises no supervisory control over the operation, no liability attaches to the owner under the common law or under Labor Law § 200 (Lombardi v Stout, 80 NY2d 290 [1992]). Summary judgment is thus available where there is no evidence that a defendant created the condition that caused the workplace accident (Vera v Low Income Marketing Corp., 145 AD3d 509 [1st Dept 2016]).

The fact that a defendant was not plaintiff's employer and did not supervise his work does not, however, automatically preclude a finding of liability (Urbina v 26 Court Street Associates, LLC, 12 AD3d 225 [1st Dept 2004]). An implicit precondition to this duty "is that the party charged with that responsibility have the authority to control the activity bringing about the injury" (Comes v NYS Elec & Gas Corp., 82 NY2d 876 [1993]; Russin v Louis N. Picciano & Son, 54 NY2d 311 [1981]). The relevant facts are more fully set forth below.

PLAINTIFF'S LABOR LAW § 240(1) CLAIM

In support of their motion for summary judgment to dismiss plaintiff's Labor Law § 240(1) claim, defendants proffer plaintiff's deposition transcript and bill of particulars and the deposition transcripts of Louis Schwartz, the Monadnock superintendent for the Howard Beach Apartment construction project; Vincent Pontrello, Spieler & Ricca's foreman on the date of the accident; and Alex Yelizarov, Monadnock Construction's senior project manager. Defendants maintain that plaintiff's accident is not elevation-related.

In support of his cross-motion for summary judgment pursuant to Labor Law § 240(1), plaintiff proffers photographs, his deposition transcript and the Accident Investigation Report prepared by Louis Schwartz, the Monadnock project superintendent. His report describes the accident as follows:

Carmelo was taping the community room 1st floor and got his foot of stilt caught in a coiled up coaxial loop (for future use) and fell forward.

At deposition, plaintiff testified that he worked for Curtis Partition as one of five or six tapers at the construction site; he joined the union in 2007, worked 35 hours weekly and previously worked at other sites as a taper, using stilts. On the day of the accident he reported to Nicky, his supervisor, who also worked for Curtis as a taper. Leonardo, a co-worker and taper, [*3]worked with him in a room. They sealed seams on the drywall by applying compound, sanding and taping, although not necessarily in this order. Plaintiff performed sanding work that day. Plaintiff's supervisor ordered him to use the stilts, which he used almost every day on this job and at other jobs too.

Q. Can you tell me how your accident occurred?A. Well, I was on the stilts, right, and I was working on the ceiling, to the ceiling, yes, and one of the stilts, the left one, it got entwined with the cables, yes, and that's when I fell to the right side.

Labor Law § 240(1) was enacted to "minimize injuries to employees by placing ultimate responsibility for safety practices on owners and contractors, rather than on the workers, who as a practical matter lack the means of protecting themselves from accidents" (Martinez v City of New York, 93 NY2d 322 [1999]; see Vera v Low Income Marketing Corp., 145 AD3d 509 [1st Dept 2016]). The "extraordinary protections" of Section 240(1) however apply only to a narrow class of dangers — the special hazards presenting "elevation-related risks" — and not to an ordinary tripping or slipping hazard (Nicometi v Vineyards of Fredonia, LLC, 25 NY3d 90, 97 [2015]).

In Melber v 6333 Main Street, Inc., 91 NY2d 759 (1998), the plaintiff carpenter utilized 42-inch stilts while installing metal studs in the top of a drywall and was injured when he tripped over electrical conduit protruding from the unfinished floor. The Court of Appeals determined that although conduit protruding from an unfinished floor was a workplace hazard against which employees should be protected, the "protective equipment envisioned by the statute is simply not designed to avert the hazard plaintiff encountered here" (Melber v 6333 Main Street, 91 NY2d 763). Had the stilts failed, a different case would have been presented. The Court noted that the stilts had performed the function that Labor Law § 240 (1) required of them, allowing plaintiff to safely complete his work at a height.

By contrast, in Matos v Garden State Brick Face of Middle Village, Inc., 272 AD2d 70 (1st Dept 2000), where the plaintiff carpenter was injured when he fell from 3'-5' stilts while finishing a ceiling, Labor Law § 240(1) was deemed applicable because "the accident was plainly attributable to the failure to afford plaintiff proper safety equipment, i.e., a ladder or scaffold, for the performance of the ceiling work."

In Nicometi v Vineyards of Fredonia, LLC, 25 NY3d 90 (2015), plaintiff construction worker was installing insulation in the ceilings of a newly constructed apartment building development. To complete his task, plaintiff wore stilts that elevated him above the concrete floor so he could reach the 9-10' high ceiling. According to plaintiff, the accident occurred when he stepped forward on stilts while swinging a hammer tacker above his head and slipped on a thin patch of ice. The Court held that plaintiff's accident was not the result of an elevation-related risk "but, rather, was the result of an ordinary construction site danger — the presence of ice — which is not the type of injury covered by the statute" (Nicometi v Vineyards of Fredonia, LLC, 25 NY3d 96).

Here, plaintiff taper's accident was plainly caused by a separate hazard — the presence of coiled wire — that is unrelated to any elevation risk.

Q. You see an electrical cable coming from the wall in that photograph, correct?A. Yes.Q. Do you know if that is the cable into which your stilts stepped before your accident occurred?A. Was something like that, but I cannot tell you exactly if it is this one exactly.

=========================== Q. Is that generally the way the cable was looped?A. Yes, exactly.Q. Is it also the same way that the cable came through the wall?A. Yes.

Plaintiff argues that Labor Law § 240(1) is applicable because stilts were not the appropriate device for the type or work that he was undertaking, given the height of this particular ceiling. Plaintiff's testimony establishes, however, that it was the coiled wire - not a deficiency or inadequacy of the stilts — that caused his fall. The coiled wire that caused plaintiff to fall is indistinguishable from ice or electrical conduit, none of which are hazards that call for elevation-related protected devices. Plaintiff's accident was a trip-and-fall. This prong of defendants' motion for summary judgment is accordingly granted.

PLAINTIFF'S LABOR LAW § 241(6) CLAIM

Plaintiff testified that he and his co-worker Leonardo were tasked with sanding drywall on the day of the accident. Leonardo worked on a scaffold capable of fitting two persons. Plaintiff did not tell his supervisor that he wanted to use scaffolding and not stilts as directed. To the extent that "the law recognizes the realities of construction and demolition work," there is no requirement that a worker demand an adequate safety device by challenging his or her supervisor's instructions" (DeRose v Bloomingdale's Inc., 120 AD3d 41 [1st Dept 2014]). Plaintiff maintains that a scaffold should have been used because the ceiling was 11'-12' high.

Labor Law § 241(6) requires owners and contractors to "provide reasonable and adequate protection and safety" for workers and comply with the specific safety rules and regulations promulgated by the Commissioner of Labor (Ross v Curtis-Palmer Hydro-Elec Co., 81 NY2d 494 [1993]). The statute states:

§241(6). All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places. The commissioner may make rules to carry into effect the provisions of this subdivision, and the owners and contractors and their agents for such work...shall comply therewith.

Because Section 241(6) relies on specific Code 23 work area safety standards, the violation of a specific code must be established in order to prevail on a Labor Law § 241(6) cause of action (Ross v Curtis-Palmer Hydro-Elec Co., 81 NY2d 502). Here, plaintiff references 12 NYCRR 23-1.7(e), 23-5.22 and 23-5.22(e) and proffers the affidavit of William Marletta, Ph.D., CSP, who avers that he is a self-employed safety consultant with a doctorate from New York University in Occupational Safety and Health.

Dr. Marletta opines that by requiring plaintiff to use stilts for sanding, defendants violated Industrial Code § 23-5.22(a)(1) which states: "Stilts shall be used only for the work of taping joints in wallboard used for wall and ceiling construction, commonly known as "dry wall" construction. The use of stilts for any other purpose is prohibited." Here, plaintiff used stilts while sanding.

Dr. Marletta maintains that defendants failed to provide a scaffold in violation of Industrial Code § 23-5.22(a)(1) which provides:

Whenever stilts are used, scaffolds commonly used and appropriate for wall board [*4]construction and which are in compliance with this part shall be provided at all times such work is being performed. Such scaffolds shall be readily available for any person performing such work who may elect to use such scaffold.

Plaintiff testified that the scaffold used by Leonardo could accommodate two workers.

Dr. Marletta maintains that plaintiff was forced by his supervisor to use stilts that elevated his feet more than 24 inches above the floor in violation of Industrial Code § 23-5.22(e). Plaintiff testified, however, that the stilts were 4' long and elevated his feet 1'4" from the floor — less than 24 inches - when affixed to his ankles and knees with straps and belts. Plaintiff testified that he used stilts "almost every day" at other jobs and at the Howard Beach site, allowing him to reach the ceiling.

Defendants proffer the deposition transcript of Alex Yelizaroz, who testified that he is Monadnock's senior project manager. He has a bachelor's degree in construction management and a ten-hour OSHA card. Mr. Yelizarov testified that Monadnock is a general contractor that does not perform trades; it subcontracts its work and coordinates the payment breakdown, requisition payments, materials and other "paperwork of the trades." The Howard Beach project involved the conversion of a four-story hospital into affordable senior housing units. Monadnock had three employees at the site who did clean-up plus one labor foreman and a superintendent named Louis Schwartz, who coordinated the trades and made sure construction "gets done." Mr. Yelizarov visited the site once a week to handle requisitions and sometimes to "take a look what state the trades were in prior to approving payments."

Mr. Yelizarov acknowledged that the contract between Monadnock and non-party Broadway Wallboard Crown Partition was for carpentry work, including taping. Monadnock hired Crown Partition to perform layout, framing and carpentry at the site. Crown subcontracted Curtis Partition — plaintiff's employer - to do the taping. Mr. Yelizarov was aware that stilts were used at the job site but knew nothing of their supervision; fall protection was subcontracted to the individual contractor. But if "all of a sudden there's a hole in the parking lot, (Monadnock) would put protection around it." To his knowledge, stilts could be used for taping ceilings or "up high on the wall." When Mr. Schwartz called to inform him about plaintiff's accident in the Community Room, Mr. Yelizarov said in sum and substance:

My response was you got to check the condition of the remaining and see how often this condition occurs. And do a correction action, meet with electrician to do corrective action, and correct the conditions so nobody else trip on the electrical wire.

At a deposition taken on 6/23/14, Louis Schwartz testified that he is Monadnock Construction's project superintendent. He has a degree in civil engineering, a Site Safety Manager's License, a Fire Safety License and a OSHA 10-hour card. Mr. Schwartz described Monadnock's business as "construction managers, general contractors, or owner builders." The Howard Beach project, for which Monadnock hired 15-20 subcontractors, aimed at renovating a vacant building into senior citizen apartments. Monadnock coordinated all phases of construction including "internal and partial external." He was the only person at the site who was employed solely by Monadnock. Mr. Schwartz testified that as the project director, he "direct(ed) the means and method of the work" performed by the employees of subcontractors at the site. He further explained:

I would schedule sub-contractors (sic) work when they come one site. I walk the job and see if it conforms to the blueprint and see if they're doing the correct work for their particular trade as per the documents I have on the drawings.

Curtis Partition is a taping company that taped "any drywall where (Monadnock) needed a finished surface to tape the walls, finish them. Ready for paint." Mr. Schwartz spoke with the taper foreman from Curtis "to let him know what area we need(ed) (to) complete for the next trade to proceed." Mr. Schwartz testified that each trade was responsible for its own safety. In order for Curtis employees to perform their taping work, they used scaffolding, stilts or ladders to reach the necessary height. Curtis tapers were working on the entire first floor on the date of the accident, where the ceiling was approximately 8'-9' high.[FN2] Nick, the Curtis taper foreman, called from the site to say that one of his men "got hurt" in the community room. Mr. Schwartz was unable to understand the plaintiff when he arrived at the site.

At deposition, Mr. Schwartz was shown various photographs; he testified that Exhibit R that depicted "a low voltage cable coming out of a outlet box in the wall." He did not know where the wire in Exhibit R was related to the wire shown in Exhibit K.

Q. Referring your attention to the photograph that's been marked Exhibit B, marked on May 6, 2014. What was the purpose of this wire?A. It was a low voltage wire and it was to be used at a later date by - - which I believe would be the telephone company.Q. At any time before Mr. Silverio's accident, did you ever see the wire located in the place that is shown in this photograph, Defendant's Exhibit B, did you ever see it located there in that formation?A. I do not recall seeing it like that.

================================= Q. Who placed it there?A. Spieler & Ricca Electrical Contractor.

================================= Q. Were they working on the job site on the day of Mr. Silverio's accident?A. Yes, they were.

================================= Q. Did at any time before Mr. Silverio's accident, did you ever advise anyone to tape the wire that was involved in his accident to the wall?A. No, I did not.

At deposition, Vincent Pontrello testified that he is employed by Spieler & Ricca as an electrical foreman. He holds two college degrees and OSHA 10, OSHA 30, Scaffold and Lockout Tag Out (electrical safety) certifications. Spieler & Ricca provided electrical labor — ten employees — to "build out" the "electrical aspects" of the Howard Beach job. Mr. Pontrello worked at the site on a daily basis for approximately one year. Mr. Schwartz and he spoke daily about different parts of the job. Mr. Schwartz, was in charge of "everything" because he was in charge of the job for Monadnock.

Mr. Pontrello testified that Mr. Schwartz did not control the method or the manner of the work performed by Spieler & Ricca or where work would be performed on a given day. Mr. Pontrello was the foreman for Spieler & Ricca and he held safety meetings each week at the site. Spieler & Ricca was tasked with wiring the community room on the first floor according to the blueprints and installed the coaxial television cable there. Mr. Pontrello was called to the scene of the accident by Mr. Schwartz where he saw the cable — which was "coming out of the [*5]wall from the box that we installed" - on the floor after the plaintiff fell. Mr. Pontrello testified that his workers taped the cable outside of the box.

Q. Can you describe the position that it was in the last time that you saw it before Mr. Silverio's accident?A. It was exiting the box in the wall and it was rolled up into a 8 inch circle and taped 18 inches off the floor.Q. When you saw 18 inches off the floor, does that mean it was taped to the wall?A. No. The box is 18 inches off the floor.Q. And when you say the box, what do you mean?A. The box in the wall that will hold the device that the co-axle cable will attach to.

========================== Q. So it was taped outside of the box?A. Yes.Q. And who taped the cable to the wall outside of the box?A. One of my workers

========================== Q. With respect specifically to the taping of the cable at the location of the junction box, was the purpose of that also to make the job site safe?A. No. It's not to make it safe. It's to protect my wires and keep the job neat. If that rolls over to safety, so be it.

CONCLUSION

Labor Law § 200 codifies the common-law duty imposed on an owner or contractor to provide workers with a safe place to work. An implicit precondition "is that the party charged with that responsibility have the authority to control the activity bringing about the injury" (Comes v NYS Elec & Gas Corp., 82 NY2d 876); Russin v Louis N. Picciano & Son, 54 NY2d 311 [1981]). The fact that a defendant was not the plaintiff's employer and did not supervise his work does not preclude a finding of liability (Urbina v 26 Court Street Associates, LLC, 12 AD3d 225). Plaintiff, while sanding drywall wearing stilts, tripped over coiled cable taped by Spieler & Ricca's worker 18 inches off the floor in the Community Room. Mr. Pontrello, Spieler & Ricca's electrical foreman, testified that the cable was taped by his workers to the junction box to protect the wires and keep the job neat and "If it rolls over to safety, so be it."

Labor Law § 240(1) is inapplicable since it applies to elevation-related risks. Plaintiff experienced a trip-and-fall event.

Spieler & Ricca's electrical foreman testified that Monadnock did not control the method or the manner of the work performed by Spieler & Ricca or where work would be performed on a given day. His deposition testimony conclusively establishes that neither defendants Howard Beach Apartments, LLC nor Howard Beach Housing Development Fund Corporation in their capacity as owners, nor Monadnock Construction, Inc. in its capacity as general contractor, exercised supervisory control over Spieler & Ricca's electrical work at the site. Spieler & Ricca moreover conducted its own safety meetings each week. Questions of fact exist as to whether defendants violated Labor Law § 241(6) and the cited Industrial Code sections governing the use of stilts and, if so, whether such violations were the proximate cause of plaintiff's accident. Plaintiff's Labor Law § 200 claim against Spieler & Ricca on common-law negligence grounds also raises an issue of triable fact.

The court accordingly grants and denies the defendants' motion and plaintiff's cross-motion in part as follows:

1. Defendants' motion for summary judgment to dismiss plaintiff's Labor Law § 200 claim against defendants Howard Beach Apartments, LLC; Howard Beach Housing Development Fund Corporation; and Monadnock Construction, Inc., is GRANTED.

2. Defendants' motion for summary judgment to dismiss plaintiff's Labor Law § 200 claim against defendant Spieler & Ricca is DENIED.

3. Defendants' motion for summary judgment to dismiss plaintiff's Labor Law § 240(1) claim against all defendants is GRANTED.

4. Plaintiff's cross-motion for summary judgment on liability grounds pursuant to Labor Law § 240 is DENIED.

5. Defendants' motion for summary judgment to dismiss plaintiff's Labor Law § 241(6) claim is DENIED.

6. Plaintiff's motion for summary judgment pursuant to Labor Law § 241(6) is DENIED.

A copy of this Decision and Order with Notice of Entry shall be served within 30 days.

Dated: March 23, 2018

Hon. Lizbeth González, J.S.C. Footnotes

Footnote 1:The court is informed that defendants Medco Plumbing and Broadway Wallboard, Inc. d/b/a Crown Partition, Inc. are no longer parties to this action.

Footnote 2:Plaintiff testified that the ceiling was 11'-12' high.