Riccio v Skanska USA, Inc.

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[*1] Riccio v Skanska USA, Inc. 2018 NY Slip Op 50708(U) Decided on May 18, 2018 Supreme Court, New York County St. George, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 18, 2018
Supreme Court, New York County

Jeff Riccio and Tina Riccio, Plaintiff,

against

Skanska USA, Inc., Defendant.



103459/2011



S. Wade Turnbull, Esq.

Sacks and Sacks, LLP

150 Broadway — 4th Floor

New York, New York, 10038

Allison A. Snyder

Fabiani, Cohen & Hall, LLP

570 Lexington Avenue, 4th Floor

New York, New York 10022
Carmen Victoria St. George, J.

This is one of three Labor Law actions involving distinct injuries plaintiff Jeff Riccio[FN1] allegedly sustained while he worked on a project for which defendant Skanska USA, Inc. was the general contractor. Motion sequence number 005 in Riccio v Skanska USA, Inc. (St. George, J., index No. 115587/2010), in which defendants sought partial summary judgment was resolved by a stipulation of the parties which dismissed plaintiff's Labor Law 200 and 240 (1) only. The Court is issuing a separate decision resolving motion sequence number 005 in Riccio v Skanska USA, Inc. (St. George, J., index No. 105111/2011), which also is before the Court.

In this action, both plaintiff and defendant moved for affirmative relief. Motion sequence number 006 in this action, which sought dismissal of plaintiff's Labor Law § 240 (1) claim, was also granted by stipulation, leaving plaintiff's Labor Law §§ 241 (6) and 200 claims and his common law negligence claims in the action. Currently, plaintiff moves for partial summary judgment under Labor Law § 241 (6). Defendant opposes the motion. For the reasons below, the Court grants the motion.

Certain facts are not in dispute. Plaintiff fell on a patch of ice on a Q-deck[FN2] when he exited an Alimak elevator which ran along the outside of the building and entered at the fifth floor, sustaining injuries. On the date of the accident, December 16, 2010,[FN3] plaintiff, an ornamental steelworker, was the foreman of a four-person crew which was erecting a steel staircase between the fifth floor and the roof. The accident occurred at around 8:30 in the morning, which was around 90 minutes into the workday. According to plaintiff, the ice was nearly invisible on the metal surface.

As stated, plaintiff's motion is for partial summary judgment under Labor Law § 241 (6). Under that provision,

All areas in which construction . . . work is being performed shall be so constructed . . ., equipped, guarded, arranged, operated and onducted as to provide reasonable and adequate protection and safety to the persons employed therein. . . . 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.

This provision "imposes a nondelegable duty on owners and contractors to comply with the Commissioner of Labor's regulations" (Morton v State of New York, 15 NY3d 50, 55 [1st Dept 2010]). Section 241 (6) "manifests the legislative intent to place the ultimate responsibility for safety practices at building construction jobs . . . ." (Rizzuto v L.A. Wenger Contracting Co., 91 NY2d 343, 348 [1998] [citation and internal quotation marks omitted]). Because vicariously liability exists under this statute, if the plaintiff's claim is viable there is no need to show the defendants supervised or controlled the worksite (Morton, 15 NY3d at 55).

Unlike a Labor Law § 240 (1) claim, a Labor Law § 241 (6) claim relies on a regulatory rather than a statutory violation. As the Court of Appeals has stated, there is a

clear distinction between a violation of an administrative regulation promulgated pursuant to statute, and a violation of an explicit provision of a statute proper: while the latter gives rise to absolute liability without regard to whether the failure to observe special statutory precautions was caused by the fault or negligence of any particular individual, the [violation of an administrative regulation" is simply some evidence of negligence which the jury could take into consideration with all the other evidence bearing on that subject

(Rizzuto, 91 NY2d 343, [italics in original] [citation and internal quotation marks omitted]). Therefore, the existence "of a violation of a regulation does not necessarily establish a right to summary judgment" ([Copp v City of Elmira, 31 AD3d 899, 900 [3rd Dept 2006]). A defendant "may raise any valid defense" that is supported by "evidentiary proof sufficient to present and raise a triable issue of fact" in response to the plaintiff's prima facie case (Catarino v State, 55 AD3d 467, 468 [1st Dept 2008]). If a defendant does not raise a triable issue in response to the plaintiff's showing, on the other hand, summary judgment is appropriate (e.g., Tounkara v Fernicola, 80 AD3d 470 [1st Dept 2011] [summary judgment granted where the plaintiff submitted uncontroverted evidence that he was not provided with an adequate safety device and was not told which devices he needed to use for the job]).

Here, plaintiff asserts that summary judgment on the issue of liability is proper under [*2]Labor Law § 241 (6) based on defendant's violation of 12 NYCRR § 23-1.7 (d). This provision requires employer to keep floors, passageways, walkways, scaffolds, platforms and other elevated working surfaces from becoming slippery, and states that ice, among other things "which may cause slippery footing shall be removed, sanded, or covered to provide safe footing." This provision is sufficiently specific to support a claim under Labor Law § 241 (6) (Rizzuto, 91 NY2d at 350-51; see Velasquez v 795 Columbus LLC, 103 AD3d 541, 541 [1st Dept 2013]). Plaintiff states that because he slipped on ice which had not been cleared from the Q-deck ninety minutes after work had commenced, he is entitled to judgment on liability as a matter of law.

In opposition, defendant sets forth three essential arguments. First, it states that 12 NYCRR § 23-1.7 (d) does not apply where, as here, plaintiff did not slip in a passageway or walkway but in an open area. Defendant relies on Buckley v Columbia Grammar and Preparatory (44 AD3d 263, 271 [1st Dept 2007], lv denied, 10 NY3d 710 [2008]), in which the First Department discussed the applicability of 12 NYCRR 23-1.7 (a) (1), relating to overhead hazards, for the proposition that the Industrial Code violation must be a proximate cause of the plaintiff's injury. The Court concludes that, as plaintiff asserts, this argument is unavailing. Although courts are not entirely consistent on this issue, there is sufficient First Department law which applies 12 NYCRR § 23-1.7 (d) to incidents which occur in open areas of a floor to apply it in this situation (e.g., Velasquez, 103 AD3d at 541-42, Booth v Seven World Trade Co., L.P., 82 AD3d 499, 501 [1st Dept 2011]; Temes v Columbus Center LLC, 48 AD3d 281, 281 [1st Dept 2008]). Thus, this prong of defendant's argument fails.

Second, defendant contends that there are issues of fact as to whether defendant is chargeable with notice of the condition and whether plaintiff's employer was responsible for removing the ice. According to defendants, this precludes the granting of summary judgment. The Court disagrees. Plaintiff has submitted evidence, including his deposition testimony, that constructive notice existed within the chain of command. Plaintiff testified that the ice patch on which he slipped was a few feet long and that there was another sheet of ice on top of the deck. Moreover, it is undisputed that he slipped on the ice and that this is what resulted in his injuries. In addition, plaintiff points to the deposition testimony of William Fulton, a superintendent for defendant who worked at the same job site as plaintiff. Fulton testified that there were snow conditions at various times during the winter. Ryan Mullin, another ironworker at the project, testified that he knew plaintiff had slipped on ice because when he "went down to see if he was all right," he "noticed there was ice right there. We were looking around and there was more ice. Some was built up in the trough on {sic}, and on top of the corrugated" (id. at p 57, ll 4-10). The existence of buildup indicates that the ice on the Q-deck was not new. Mullin further indicated that he did not notice the ice until he looked at it after the accident, stating, "You really have to look for ice on corrugated decking. It's not just like there is ice there, walk around it, it blends in" (id. at p 57, ll 11-14). He also commented that it was an unusually cold day and that on unusually cold days defendant told them not to work. These uncontradicted statements further demonstrate that there was a failure to take sufficient precautions against a risk of ice and snow due to the weather (see Serrano v Consolidated Edison Co. of NY Inc., 146 AD3d 405 [1st Dept 2017]).

Defendant correctly notes that in many cases issues regarding Labor Law § 241 (6) violations, questions regarding notice preclude an award of summary judgment. As the First Department stated in Booth, "evidence that plaintiff slipped on . . . ice raises a triable issue as to [*3]whether 'someone within the chain of the construction project was negligent in not exercising reasonable care, or acting within a reasonable time, to prevent or remediate the hazard" (82 AD3d at 501 [citing Rizzuto, 91 NY2d at 351]). Similarly, in Temes, the First Department also found that "the evidence that plaintiff slipped on a patch of ice obscured by construction obstructed by debris raises a triable issue as to whether someone within the chain of the construction project was negligent in not exercising reasonable care, or acting within a reasonable time, to prevent or remediate the hazard" (48 AD3d at 281 [citation and internal quotation marks omitted]). What defendant fails to point out is that its argument is entirely based on abstractions — that is, defendant provides statements about the guiding legal principles but no concrete facts and evidence sufficient to refute plaintiff's prima facie case. As this argument is not supported by "evidentiary proof sufficient to present and raise a triable issue of fact," defendant has not satisfied its burden (Catarino v State, 55 AD3d 467, 468 [1st Dept 2008]). Accordingly, summary judgment is appropriate (e.g., Tounkara v Fernicola, 80 AD3d 470 [1st Dept 2011]

As to defendant's third contention, that summary judgment must be denied where there are issues of comparative fault, the Court notes that, as plaintiff contends, comparative fault does not obviate defendant's liability under the statute (Rodgriguez v City of New York, — NY3d — , 2018 NY Slip Op 02287 [2018] [further noting that burden to show absence of negligence is not on the plaintiff]). Instead, "the amount of damages otherwise recoverable shall be diminished in the proportion which the culpable conduct attributable to the claimant . . . bears to the culpable conduct which caused the damages" (id. at *5 [quoting CPLR § 1411]). In addition, defendant's argument that that it may not have been chargeable with responsibility to remove ice from the workspace fails because its duty under Labor Law § 241 (6) is nondelegable (see Morton, 15 NY3d at 55).

For the reasons above, it is

ORDERED that the motion is granted and plaintiff is awarded judgment on the issue of liability under Labor Law § 241 (6).



Dated: May 18, 2018

CARMEN VICTORIA ST. GEORGE, J.S.C. Footnotes

Footnote 1: Plaintiff's wife Tina Riccio has also asserted claims but these are not relevant to the current motion.

Footnote 2: Q-deck refers to the corrugated metal deck which served as a floor during the construction process.

Footnote 3: The complaint sets forth the accident date as December 20, 2010.