Cunniffe v Tischman Constr., Inc.

Annotate this Case
[*1] Cunniffe v Tischman Constr., Inc. 2019 NY Slip Op 50152(U) Decided on February 6, 2019 Supreme Court, Kings County Rivera, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 6, 2019
Supreme Court, Kings County

Stephen Cunniffe, Plaintiff,

against

Tischman Construction, Inc. and THE NEW SCHOOL, Defendants.



152/14



Attorney for Plaintiff

Brian J. Issac, Esq.

Pollack, Pollack, Isaac & DeCicco, LLP

225 Broadway, 3rd Floor

New York, New York 10007

(212) 283-8100

Attorney for Defendants

Blank Rome, LLP

The Chrysler Building

405 Lexington Avenue

New York, New York 10174

(212) 885-5000
Francois A. Rivera, J.

Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion of plaintiff Stephen Cunniffe filed on August 20, 2018, under motion sequence three, for an order granting summary judgment in his favor as follows: (1) on the issue of liability pursuant to New York Labor Law §§ 240 (1) and 241(6); and (2) on the issue of liability against defendant Tischman Construction, Inc. pursuant to New York Labor Law § 200.

Notice of Motion

Affirmation in Support

Exhibits A-G

Notice of Cross Motion

Affirmation in Opposition/Support of Cross Motion

Exhibit A-F

Affirmation in Opposition and Reply

Affirmation in Reply to Plaintiff's Opposition

Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of cross motion of defendants Tischman Construction, Inc. and The New School filed on October 1, 2018, under motion sequence four, for an order pursuant to CPLR 3212 granting summary judgment to defendants dismissing Cunniffe's complaint. This cross motion also serves as opposition to the plaintiff's motion.

Notice of Cross Motion

Affirmation in Opposition/Support of Cross Motion

Exhibit A-F

Notice of Motion

Affirmation in Support

Exhibits A-G

Affirmation in Opposition and Reply

Affirmation in Reply to Plaintiff's Opposition



BACKGROUND

On January 7, 2014, Steven Cunniffe (hereinafter plaintiff) commenced the instant action to recover damages for personal injuries by filing a summons and verified complaint with the Kings County Clerk's Office (hereinafter KCCO). On or about January 28, 2014, defendants Tischman Construction, Inc. (hereinafter Tischman) and The New School (hereinafter TNS, and collectively as defendants) joined issue by service of their answer. On June 19, 2018, plaintiff filed the note of issue.

The plaintiff's verified complaint, the verified bill of particulars, and deposition transcript allege the following salient facts. On March 17, 2011, Cunniffe was employed as a dock builder foreman working at a construction site located at 65 Fifth Avenue, New York, New York (hereinafter subject premises). The subject premise is owned by TNS. TNS hired Tischman as the general contractor or construction manager. On the date of the accident, plaintiff was employed by Urban Foundation, a subcontractor.

The plaintiff alleges that on the date of the accident, he was assigned to work as a foreman at the subject premises in order to jack piles[FN1] . Plaintiff had approached a building that was inside a large excavation area. The building had a portion that was scooped out. Cunniffe alleges that he was inspecting a bracket in an underpinning pit that appeared to be out of line with the foundation of the building. He alleges that when he stepped down onto what appeared to be a stable floor of concrete he fell through water that was approximately eight feet deep and sustained injuries. Cunniffe alleges that the defendants violated New York Labor Law §§§ 200, 240 (1) and 241 (6) including various New York Industrial Code provisions.



[*2]MOTION PAPERS

Plaintiff's motion papers consist of a notice of motion, an affirmation of counsel, and seven annexed exhibits labeled A through G. Exhibit A is a copy of plaintiff's summons and verified complaint. Exhibit B is a copy of defendants' answer. Exhibit C is a copy of plaintiff's verified bill of particulars. Exhibit D is copy of plaintiff's deposition testimony dated April 20, 2015. Exhibit E is the deposition testimony of Michael Danna, an non-party witness dated January 3, 2017. Exhibit F is the deposition testimony of Anson B. Orr dated August 23, 2017. Exhibit G is the deposition testimony of Peter Hardecker dated October 10, 2017.

Defendants' cross motion papers consist of a notice a cross motion, an affirmation of counsel and six annexed exhibits labeled A through F. Exhibit A is a copy plaintiff's summons and verified complaint. Exhibit A is a duplicate of plaintiff's exhibit A. Exhibit B is a copy of defendants' answer. Exhibit B is a duplicate of plaintiff's exhibit B. Exhibit C includes copies of plaintiff's verified bill of particulars, supplemental verified bill of particulars, second supplemental verified bill of particulars, third supplemental verified bill of particulars and fourth supplemental verified bill of particulars. Exhibit D is a copy of plaintiff's deposition testimony dated April 20, 2015. Exhibit E is the deposition testimony of Michael Danna, a non-party witness dated January 3, 2017. Exhibit E is a duplicate of plaintiff's exhibit E. Exhibit F is the deposition testimony of Anson B. Orr dated August 23, 2017. Exhibit F is a duplicate of plaintiff's exhibit F.



LAW AND APPLICATION

It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists (Alvarez v Prospect Hospital, 68 NY2d 320 [1986]). The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of material facts (Guiffirda v Citibank, 100 NY2d 72 [2003]).

A failure to make that showing requires the denial of the summary judgment motion, regardless of the adequacy of the opposing papers (Ayotte v Gervasio, 81 NY2d 1062 [1993]). If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact (Alvarez, 68 NY2d at 324).

A party opposing a motion for summary judgment is obligated "to lay bare his proofs" to sufficiently demonstrate, with admissible evidence, that a triable issue of fact will exist (Friends of Animals, Inc. v Associated Fur Manufacturers, Inc., 46 NY2d 1065 [1979]). A genuine issue of fact may not be demonstrated by using mere conclusions, expressions of hope or unsubstantiated allegations or assertions (Amatulli v Delhi Constr. Corp., 77 NY2d 525 [1991]).

"Pursuant to CPLR 3212 (b) a court will grant a motion for summary judgment upon a determination that the movant's papers justify holding, as a matter of law, "that there is no defense to the cause of action or that the cause of action or defense has no merit." Further, all of the evidence must be viewed in the light most favorable to the opponent of the motion (Marine Midland Bank v Dino & Artie's Automatic Transmission Co., 168 AD2d 610 [2nd Dept 1990])" (People ex rel. Spitzer v Grasso, 50 AD3d 535, 544 [1st Dept 2008]).

In the instant motion, Cunniffe seeks summary judgment pursuant to CPLR 3212 on the grounds that the defendants' violated the Labor Law §§ 240 (1) and 241 (6). He also seeks summary judgment against Tischman for violating Labor Law § 200.



Labor Law § 240 (1)

Labor Law § 240 (1) imposes a nondelegable duty and absolute liability upon owners, [*3]general contractors, and their agents to provide safety devices necessary for workers subjected to elevation-related risks in circumstances specified by the statute (Rapalo v MJRB Kings Highway Realty, LLC, 163 AD3d 1023 [2nd Dept 2018], citing Barreto v Metropolitan Transp. Auth., 25 NY3d 426, 433 [2015]). Furthermore, liability is imposed regardless of whether they supervise or control the work (Id.) A plaintiff must make a prima facie showing that he or she was injured "in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure," as well as, acts ancillary to those activities (Garbett v Wappingers Cent. School Dist., 160 AD3d 812, 814 [2nd Dept 2018], quoting Goodwin v Dix Hills Jewish Center, 144 AD3d 744, 745-746 [2nd Dept 2016]); see also Labor Law § 240 [1]). To prevail on a cause of action under Labor Law § 240 (1), a plaintiff must establish that the defendant violated its duty and that the violation proximately caused the plaintiff's injuries (Id.). Plaintiff must demonstrate that the injury is "the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential" (Runner v New York Stock Exch., Inc., 13 NY3d 599, 603 [2009]).

The purpose of Labor Law § 240 (1) is the protection of workers from injury and the statute is to be construed liberally as may be for the accomplishment of that purpose (see Rapalo, 163 AD3d 1023). "The single decisive question in determining whether Labor Law § 240 (1) is applicable is whether the plaintiff's injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential" (Jones v City of New York, 166 AD3d 739, 740 [2nd Dept 2018] quoting Escobar v Safi, 150 AD3d 1081, 1083 [2nd Dept 2017]).

In the instant action, plaintiff submitted evidence that on the morning of March 17, 2011 the Urban Foundation site supervisor, his employer, assigned him to the subject premises as a dock builder foreman in order to jack piles.

Dock workers build a wooden box called an approach box inside the pit wherein the piles are jacked. He was directed towards an underpinning pit, which was in a scooped out area, part of a larger excavation project underneath a building. Upon inspecting the pit he noticed that a bracket, which connects the approach box to the building, was crooked and attempted to fix it but could not do so without descending further into the pit. Plaintiff averred that the lower surface of the pit appeared to be a concrete flat surface as it was dark. However, it was actually an area filled with water and a gray chemical known as bentonite[FN2] that gave the appearance of solid concrete. He stepped down and was fully submerged in water and twisted inside a 4 foot by 4 foot box with a depth of eight feet. Plaintiff contends that a safety device such as a guardrail would have prevented his injuries.

TNS does not dispute that it owns the subject premises. Tischman does not dispute that it was hired by TNS as a construction manager. Tischman contends, however, that Labor Law 240 (1) does not apply to it because it is not an owner, general contractor or agent of either. Although a construction manager is generally not considered a contractor responsible for the safety of the workers at a construction site, "it may nonetheless become responsible if it has been delegated the authority and duties of a general contractor, or if it functions as an agent of the owner of the premises" (Giannas v 100 3rd Ave. Corp., 166 AD3d 853 [2nd Dept 2018] quoting Rodriguez v JMB Architecture, LLC, 82 AD3d 949, 950 [2nd Dept 2011]).

Plaintiff submitted the deposition testimony of Peter Hardecker, Tischman's Vice [*4]President and Project Superindent (hereinafter Hardecker), and Anson B. Orr, a Site Safety Manager consulting for Tischman (hereinafter Orr) to establish, among other things, that Tischman was a general contractor. Both Hardecker and Orr acknowledged that Tischman was an agent of the owner responsible for enforcing safety, coordinating subcontractors and supervising the project. Their testimony established that Tischman was a general contractor within the intendment of Labor Law § 240 (1).

Hardecker and Orr also acknowledged that a depth of more than 4 feet required the use of a safety devices such as, guardrails, among other things. Orr and Hardecker also conceded that before the plaintiff's accident they were aware that water filling the underpinning pits on the construction site was a recurring issue.

In sum, Cunniffe established that he was engaged in construction work at the subject premise; that he was working above an eight foot hole obscured by murky water and betonite, and that he fell down the hole due to the failure to provide him with an adequate safety device such as a guard rail. He also established that TNS was the owner of the site and that Tischman was the general contractor. Accordingly, Cunniffe made a prima facie entitlement to judgment as a matter of law on the issue of liability pursuant to Labor Law § 240 (1) as against TNS and Tischman (Poulin v Ultimate Homes, Inc., 166 AD3d 667, 669 [2nd Dept 2018]).

In opposition, the defendants contend that plaintiff's action of intentionally stepping into the underpinning pit was the sole proximate cause of his accident. Where an accident is caused by a violation of the scaffold law, the plaintiff's own negligence will not furnish a defense. However, where a plaintiff's own actions are the sole proximate cause of the accident, there can be no liability (Barreto, 25 NY3d at 433 [2015]; citing, Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35, 39 [2004]). The defendants, however, submitted no evidence to establish that the plaintiff was not supposed to be in the very location that the accident occurred. There was no evidence that he was told not to go to that area or that the area was in a location outside of duties.

In fact, defendants' submissions supported the plaintiff's contention that at the time and location of his accident he was engaged in the activities expected of a dock builder foreman for the project.

The defendants also make conclusory and unsubstantiated allegations that the underpinning pit was only a depth of 4 feet which would not require guardrails. However, the contention was supported by the deposition testimony of individuals who neither witnessed the accident nor could attest to the actual depth of the hole on the accident date. Therefore, defendants have failed to raise a triable issue of fact to overcome the plaintiff's prima facie showing of defendants' liability pursuant to Labor Law § 240 (1).



Labor Law § 241 (6)

Section 241 (6) of the Labor Law 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 (Mitchell v Caton on the Park, LLC, 167 AD3d 865 [2nd Dept 2018] citing Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 348 [1998]). Owners and contractors are required to comply with specific safety rules and regulations promulgated by the Commissioner of the Department of Labor (Mitchell, 167 AD3d 865 citing Ross v Curtis—Palmer Hydro—Elec. Co., 81 NY2d 502, 505 [1993]).

To prevail on a cause of action alleging a violation of Labor Law § 241 (6) a plaintiff must establish the violation of an Industrial Code provision that sets forth specific, applicable [*5]safety standards, and that his or her injuries were proximately caused by such Industrial Code violation as opposed to a general reiteration of common-law principles (Moscati v Consol. Edison Co. of New York, Inc., — NYS3d&mdash, 2019 NY Slip Op 00112 [2nd Dept 2019] citing Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 878 [1993]).

In those instances when Labor Law § 241 (6) applies, the duty to comply with the Commissioner's safety rules, which are set out in the Industrial Code (12 NYCRR), is nondelegable (Misicki v Caradonna, 12 NY3d 511, 515 [2009]). A breach of a duty imposed by a rule in the Code is merely some evidence for the fact finder to consider on the question of a defendant's negligence (Id.). Labor Law § 241 (6) is, in a sense, a hybrid, since it reiterates the general common-law standard of care and then contemplates the establishment of specific detailed rules through the Labor Commissioner's rule-making authority (Crichigno v Pac. Park 550 Vanderbilt, LLC, 56 Misc 3d 1217(A) [Sup Ct 2017] citing Ross, 81 NY2d at 494).



In the instant matter the plaintiff asserts that Industrial Code sections were violated 12 NYCRR 23-1.7(b)(1)(i),(ii),(iii) and 12NYCRR 23-1.30.

Section 23-1.7 (b) (1) which concerns hazardous openings provides as follows:

(i) Every hazardous opening into which a person may step or fall shall be guarded by a substantial cover fastened in place or by a safety railing constructed and installed in compliance with this Part (rule).(ii) Where free access into such an opening is required by work in progress, a barrier or safety railing constructed and installed in compliance with this Part (rule) shall guard such opening and the means of free access to the opening shall be a substantial gate. Such gate shall swing in a direction away from the opening and shall be kept latched except for entry and exit.(iii) Where employees are required to work close to the edge of such an opening, such employees shall be protected as follows: (a) Two-inch planking, full size, or material of equivalent strength installed not more than one floor or 15 feet, whichever is less, beneath the opening; or (b) An approved life net installed not more than five feet beneath the opening; or (c) An approved safety belt with attached lifeline which is properly secured to a substantial fixed anchorage.

Section 23-1.30 regarding illumination provides as follows:

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.

Applying the analysis under Labor Law § 241 (6), these sections of the Industrial Code are concrete and sufficiently specific to support a cause of action (see Scarso v M.G. Gen. Const. Corp., 16 AD3d 660, 661 [2nd Dept 2005]); see also Herman v St. John's Episcopal Hosp., 242 AD2d 316, 317 [2nd Dept 1997]). Cunniffe contends that he fell into a hazardous opening within the meaning of Industrial Code 23-1.7 (b) (1) and that the defendants departure from the standards of the code caused his injury.

Plaintiff's testimony about the manner of his fall satisfies the issue of whether the opening was big enough to be considered a hazardous opening. The "hazardous openings" provision does not apply to openings that are too small for a worker to completely fall through (see Johnson v Lend Lease Constr. LMB, Inc., 164 AD3d 1222, 1223 [2nd Dept 2018] wherein [*6]the Appellate Division notes that the industrial code provision on hazardous openings does not apply to openings that are too small for a worker to fall through ; see also Vitale v Astoria Energy II, LLC,138 AD3d 981 [2nd Dept 2016]). However, plaintiff also annexes the testimony of Orr and Hardecker who create a triable issue as to whether defendants use of ramps and planking, among other things, complied with this provision.

Cunniffe also contends that the defendants violated Industrial Code 23-1.30 due to a failure to provide adequate illumination in the underpinning pit where plaintiff was assigned to work on the day of the accident. Plaintiff's own motion contains conflicting testimony regarding the sufficiency of sunlight at the time of his accident. Accordingly, plaintiff has failed to meet his prima facie burden of entitlement to summary judgment pursuant to Labor Law § 241 (6). This branch of plaintiff's summary judgment motion is denied, regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).



Labor Law § 200

Labor Law § 200 is merely a codification of the common law duty placed upon owners and contractors to provide employees with a safe place to work (Poulin, 166 AD3d at 667). "Cases involving Labor Law § 200 fall into two broad categories: namely, those where workers are injured as a result of dangerous or defective premises conditions at a work site, and those involving the manner in which the work is performed" (Ortega v Puccia, 57 AD3d 54, 61 [2nd Dept 2008]). "These two categories should be viewed in the disjunctive" (Id.).

Claims arising out of an alleged dangerous premises condition require a plaintiff to establish that a property owner or general contractor has control over the work site and either created the dangerous condition causing an injury, or failed to remedy the dangerous or defective condition while having actual or constructive notice of it (Mitchell, 167 AD3d 865 citing Abelleira v City of New York, 120 AD3d 1163, 1164 [2nd Dept 2014]). Whereas, a claim that arises out of alleged defects or dangers in the methods or materials of the work, recovery against the owner or general contractor cannot be had under Labor Law § 200 unless it is shown that the party to be charged had the authority to supervise or control the performance of the work (Ortega, 57 AD3d at 61-62).

By his motion papers, Cunniffe limited his Labor Law § 200 claims to an alleged dangerous condition at the work site. He did not allege that his accident occurred as a result of the manner in which the work was performed. Regardless of the category of injury alleged under Labor Law § 200 both require that the plaintiff demonstrate that the defendant bears the responsibility for the manner in which the work is performed (see Poulin. 166 AD3d 667).

"A defendant has the authority to supervise or control the work for purposes of Labor Law § 200 when that defendant bears the responsibility for the manner in which the work is performed" (Id.). Notwithstanding, a general contractor's right to generally supervise the work, to stop work if a safety violation is noted, or to ensure compliance with safety regulations and contract specifications is insufficient to impose liability under Labor Law § 200 or for common-law negligence (Sanchez v Metro Builders Corp., 136 AD3d 783, 787 [2nd Dept 2016]).

Plaintiff established that Tischman is a general contract for the purposes of Labor Law §§ 240 (1) and 241(6) by demonstrating that it was responsible for enforcing safety, coordinating subcontractors and supervising the project (see Giannas, 166 AD3d 853). However, Tischman's role as general contractor, standing alone, does not impute liability under Labor Law § 200. Plaintiff did not establish that Tischman bore the responsibility for the manner in which the work was performed (see Poulin, 166 AD3d 667). Consequently, Cunniffe was unable to establish, prima facie, that Tischman violated Labor Law § 200. Therefore, the burden did not shift to [*7]defendants' regardless of the sufficiency of their opposition (see Winegrad, 64 NY2d at 853).



Defendants' Cross Motion for Summary Judgment

Defendants cross move for an order pursuant to CPLR 3212 granting summary judgment in its favor dismissing plaintiff's complaint in its entirety. Pursuant to the Uniform Civil Term Rules of the Supreme Court, Kings County, a motion for summary judgment must be made no later than 60 days after the filing of the note of issue, unless leave of the court is obtained on good cause shown (see Goldin v New York and Presbyt. Hosp., 112 AD3d 578, 579 [2nd Dept 2013], citing Kings County Supreme Court Uniform Civil Term Rules, Part C, Rule 6). In the instant matter, the note of issue was filed on June 19, 2018 and the defendants' motion was filed on October 1, 2018, over thirty days late. Defendants' affirmation did not seek leave to make a late summary judgment motion or demonstrate good cause for the delay (see CPLR 3212 [a]; Ade v City of New York, 164 AD3d 1198, 1200-01 [2nd Dept 2018], citing Courtview Owners Corp. v Courtview Holding B.V., 113 AD3d 722, 723 [2nd Dept 2014]). In the absence of a showing of good cause for the delay in filing a motion for summary judgment, the court has no discretion to entertain even a meritorious, non-prejudicial motion for summary judgment (see Bivona v Bob's Discount Furniture of NY, LLC, 90 AD3d 796 [2nd Dept 2011]; see Brill v City of New York, 2 NY3d 648, 652 [2004]). Plaintiff's opposition to the instant motion contends that it should be denied as untimely. In their reply, the defendants fail to address the delay in making the motion. Accordingly, defendants motion is denied as they have failed to demonstrate good cause for their delay in making their motion (see Ade, 164 AD3d at 1200-01; CPLR 3212 [a]).



CONCLUSION

Plaintiff Steven Cunniffe's motion for an order granting summary judgment in his favor on the issue of liability pursuant to New York Labor Law § 240 (1) against defendants The New School and Tischman Construction, LLC is granted.

Plaintiff Steven Cunniffe's motion for an order granting summary judgment in his favor on the issue of liability pursuant to New York Labor Law § 241 (6) against defendants The New School and Tischman Construction, LLC is denied.

Plaintiff Steven Cunniffe's motion for an order granting summary judgment in his favor on the issue of liability pursuant to New York Labor Law § 200 against defendant Tischman Construction, LLC is denied.

Defendants Tischman Construction, Inc. and The New School's joint motion for an order pursuant to CPLR 3212 granting summary judgment to defendants dismissing Cunniffe's complaint is denied.

The foregoing constitutes the decision and order of this Court.



Enter:

J.S.C. Footnotes

Footnote 1:A jack pile refers to a pile (usually sections of pipe spliced together) which is forced into the ground to a bearing stratum, jacking it against a building or structure above; used primarily for underpinning. Plaintiff's deposition transcript describes jacking pile as using a hydraulic jack to push a pile into the ground.

Footnote 2: Merriam Webster's dictionary defines bentonite as an absorptive and colloidal clay used especially as a sealing agent.