Ahmad v 540 W. 26th St. Prop. Invs. IIA, LLC

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Ahmad v 540 W. 26th St. Prop. Invs. IIA, LLC 2020 NY Slip Op 31915(U) June 4, 2020 Supreme Court, Kings County Docket Number: 505130/17 Judge: Lawrence S. Knipel Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [* 1] INDEX NO. 505130/2017 NYSCEF DOC. NO. 217 RECEIVED NYSCEF: 06/16/2020 At an JAS Term, Part 57 ofthe Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at Civic Center, Brool(lyn, New York, on the 4th day of June, 2020. PRESENT: HON. LAWRENCE KNIPEL Justice. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X HUSSAIN AHMAD, Plai11tiffi Index No. 505130/17 - against 540 WEST 26"' STREET PROPERTY INVESTORS IlA, LLC, AND TRITON CONSTRUCTION COMPANY, LLC, Defendants. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X The following e-t1Ied papers read on this 1notion: Papers Numbered Notice of Motion/Order to Show Cause/ Petition/Cross Motion and Affidavits (Affirmations) Annexed_ _ _ _ _ _ _ __ Opposing Affidavits (Affinnations)_ _ _ _ _ _ __ Reply Affidavits (Affirmations)',.-c----------~Af1idavit (Affirmation) _ _ _ _ _ _ __ 110-135 137-164 167-184. 185-188 190-195 196-204 Upon the foregoing papers, plaintiff Hussain Ahmad (plaintifi) moves, pursuant to CPLR 3212, for an order granting partial su1nmary judgment as to liability on his Labor Law § 240 (1) claim against defendants 540 West 26'h Street Property Investors IIA, LLC (540 West) and Triton Construction Company, LLC (Triton). Defendants 540 West and Triton move, pursuant to CPLR 3212, for an order granting summary judgment dismissing plaintiffs cotnJ>laint in its entirety. 1 of 20 [* 2] INDEX NO. 505130/2017 NYSCEF DOC. NO. 217 RECEIVED NYSCEF: 06/16/2020 Factual Background This is an action to recover tnonetary damages for personal injuries allegedly sustained by the plaintiff on September 26, 2016, while at a construction site located at 540 West 26'h Street in New York City (hereinafter, the pre1nises). 540 West was the owner of the pre1nises, which was undergoing construction of a seven-story inixed-use facility witl1 co1n1nercial space and a school. 540 West hired Triton to act as the co11struction manager for tl1e project. Triton contracted with ACS-NY, LLC (ACS) (not a party herein) to perform superstructure concrete worl( on the jobsite. ACS, in turn, subco11tracte_d the rebar installation work to non-party 1"MG Contracting (TMG). Plaintiff was employed by TMG as a lather at the time of the accident. During his deposition, the plaintiff testified that he had worked for TMG for approxi111ately six to seven 1nontl1s before his accident occurred. His TMG fore111an was Fernando Apolinar (Fernando). Plaintiff worked with a crew of other TMG workers (approximately 8-10) under the supervision of Santo, who worl(ed underneath Fernando. Plaintiff testified tl1at this crew did re bar installation for floors, walls, stairways, bea1ns and colu111ns. He explained that when laying a deck, tl1e latl1erworkers installed the steel rebar, the carpenters put in the forms) and then the concrete would be poured. The for1ns would then be re111ovcd a day or two later. Plaintifitestified that he received l1is work assign1nents from either Santo or Fernando. On the day of the accident, the plaintiff was tasked with worki11g on the fourth floor to assist a co-worker who needed help laying and tying rebar. The deck for the fou1th floor was the ceiling of the third floor, which had been poured earlier. In order to access the floors, there was a 1nai11 staircase located in the middle ofthe building, and two construction ladders, one on the west side of the building and the other on the east side. Plaintiff testified that, on the day oftl1e accident, tl1e main staircase was cluttered with debris and garbage, a11d th.ere fore could not be used. As a result, plaintiff used tl1e west side ladder to access the fourth 2 2 of 20 [* 3] INDEX NO. 505130/2017 NYSCEF DOC. NO. 217 RECEIVED NYSCEF: 06/16/2020 floor where he was going to work. Tl1e vvest side ladder was firmly affixed to the second floor and to the deck of the third floor. At one point while he was working, the plaintiff descended the ladder fro1n the third floor to the second floor i11 order to retrieve spray paint fro1n the TMG toolbox. During his ascent back up the ladder, plaintiff suddenly felt something heavy hit him on his head, causing him to fall backwards off the ladder, landing on the second floor. The ladder did not 1nove, shift or otherwise fall. Plaintiff testified that he vvas struck· by a piece of' plywood. Although he did not see it fall, he recalled looking up after he fell and observed a piece of plywood wedged in between the steps, and that he heard somebody say "do not touch that, do not move that, leave it right there". Plaintiff described the plywood that hit him as measuring four feet by eight feet, which \Vas used as a form for the deck ce1nent work. Plaintiff estimated that the plywood weighed about 120 pounds, and that the distance between the two decks was about 25 feet. Plaintiff was wearing al1ard hat at the time of the accident. He further testified that prior to the accident, he did not see any ·caution tape in place at the top or between the second and third tloors, or on the subject west side ladder. Plaintiff claimed that the tape depicted in various: photograpl1s he was shown at his deposition was not there before his accident. According to plaintiff, workers ca1ne at1d put tape around the ladder and the area after he fell, not before. Plaintiff also testified that he never received any notice or warnings not to use the west side ladder between the third and second floor. Plaintiff subseque11tly co1n1nenced the within action on or about March 13, 2017 against defendants seeking to recover for personal injuries he allegedly sustained as a result of the incident. His complaint alleges violations of Labor Law §§ 240 (1), 241 (6), 200 and conunon-law negligence. Defendants interposed a11 answer generally denying tl1e allegations. The parties subsequently engaged in discovery~ and the plaintiff filed a 11ote of issue on or about December 1L2018. Pursuant to an order of this court, dated January 22, 2019, the time for all 3 3 of 20 [* 4] INDEX NO. 505130/2017 NYSCEF DOC. NO. 217 RECEIVED NYSCEF: 06/16/2020 parties to file summary judgment motions was extended to May 11, 2019. The following 1notio11s ensued and are ti111ely. Discussion 540 West and Triton (collectively, defendants) seek summary judgment dismissing plaintiffs entire co1nplaint as asserted against them, which is cotnprised of Labor Law§§ 240 (1),241 (6), 200 and common-law negligence claims. Plaintiff seeks partial summary judgment as to liability on his Labor Law § 240 (!) claim against both defendants. It is well settled that "the proponent of a sum1nary judgment motion inust ina1(e a pri1na facie showing 01· entitle1nent to judgment as a 1natter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact"' (Ayotte v Gervasio, 81 NY2d I 062, 1063 [1993], citing Alvarez v Prospect Hospital, 68 NY2d 320, 324 [ 1986]; Zapata v Buitriago, 107 AD3d 977 [2013]). Failure to make such a showing requires the denial of the motion, regardless of the sufficiency of the papers in opposition (see Alvarez v Prospect Hospital, 68 NY2d at324; see also, Smalls vAJl Jndustries. Jnc., 10 NY3d 733, 735 [2008]). Once a prima facie demonstratio11 has been made, the burden sl1ifts to the party opposing tl1e motion to produce evidentiary proof, in admissible fonn, sufficient to establish the existence of material issues of fact which require a trial of the action (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Labor Law§ 240 (1) claim In support of his motion for summary judgment on his Labor Law § 240 (I) claim, plaintiff argues that tl1e defendants 540 West, as the owner, and Triton, as its statut(_)ry agent, are liable for their failure to provide him \Vith adequate safety devices to prevent hi111 Jfom an elevated-related risk. Relying on his own deposition testimony, as well as- his sworn affidavit, which is sub1nitted herein, plaintiff contends that it is undisputed that he was v.rorking at an 4 4 of 20 [* 5] INDEX NO. 505130/2017 NYSCEF DOC. NO. 217 RECEIVED NYSCEF: 06/16/2020 elevated height when he was struck by a falling object, an unsecured piece of plywood, thereby causing l1i1n to fall and sustain various injuries. Plaintiff n1aintains that the plywood, \Vhicl1 was used as a for1n in the concrete work, was an object that required sec11ring ±Or the purpose of the undertaki11g. As such, he argues tl1at defbndants' failure to secure it in any inanner, a11d provide a suitable safety device to protect him from sucl1 falling objects constitutes a violation ofLabor Law § 240 ( 1), which was a proximate cause of his accident and injuries. Plaintiff further contends that his version of how the accident occurred is corroborated by the accident report of Triton, and its site safety director. In addition, plaintiff argues that the ladder from which he fell lacked guardrails and handrails to prevent him from falling after being struck by the plywood and, thus, was also a violation of section 240 ( 1). Plaintiff claims that he was never told that the west side ladder access poi11t was closed for use between the third and second floors due to ACS's stripping work taking place on the third tloor. He further contends that a review of photographic evidence tl1at was 1narked for identification at his deposition reveals that certain safety precautions, such as taping placed at the base ofthe ladder on the second floor to prevent usage, were put in place aft.er the accident occurred. Under these circu111stances, plaintiff1naintains that he is entitled to su1n1nary judg1nent in his favor since defendants failed to provide hi1n with adequate protectio11 to prevent hitn from the gravity-related risk. In opposition to plaintiffs 1notio11, and in support of their own inotion, defendants argue that the west side ladder from which the plaintiff fell provided proper protection in that there is n() evidence in the record that it shifted or collapsed while plaintiff was on it. More i1nportantly, defendants contend tl1at the ladder was located in an area wl1ich was designated a controlled access zone (CAZ), which 11ad been ba1Ticaded with yellow caution tape 011 its top and bottom to specifically prevent access and usage. Defendants further contend that, on tl1e 5 5 of 20 [* 6] INDEX NO. 505130/2017 NYSCEF DOC. NO. 217 RECEIVED NYSCEF: 06/16/2020 1norni11g of the accident date, the plaintiff was specifically warned and instructed by his supervisor, Ferhando, not tb use the west side ladder, but chose to disregard those instructions. Defendants, therefore, argue that the plaintiff was a recalcitrant worker and is precluded fro111 recoveri11gpursuant to Labor Law§ 240 (1) because his actions were the sole proximate cause of the accident. In support of this contentio11, defendants submit tl1e affidavit of Jero1ne S1niley, who was employed by ACS as a laborer/stripper from 2015 to 2017 (Zunno Affirmation, exhibit HJ. Smiley affirms that he was assigned to work at the subject work site, and that he created tl1e CAZ the morning of the accident (7:00 a.m.) by affixing yellow caution tape in an approximate 20 foot by 20 foot area around the west side ladder on the fourth, third and second floors of the building. He states that he positioned the tape at approximately 3 Y, feet in height above the floor slab and that a second tape was placed approxi1nately 1 Yz feet above the wood constructed platforrn. He avers that all taping was in place before the accident. Additionally, def'endants sub1nit the affidavit of Fernando, a TMG fore1nan who supervised the plaintiff at the work site (id., exhibit J). Fernando avers that on the morning of the accident, he personally told his crew, including the plaintiff, that the west side ladder was closed from the second floor to the third floor, and that he directed them to use the two other access points, either the center staircase or the east side ladder. Fernando further avers that before the accident occurred_, he observed tl1at the caution tape was in place at the top of the west side ladder fro1n the third floor to tl1e second floor, and further Observed tl1at tl1ere was also a four-by-eight foot piece of plywood at the top of the ladder. He also noticed that ACS worlcers were preparing to strip the for1ns in the area above the west side ladder (exh J). Defendants also submit an affidavit by Michael Florio, a Concrete Safety Manager e111ployed by Structure Compliance Group (not a party herein) who vvas onsiteon the day of the accident (id., exhibit K). Florio avers that on the morning of the day of the accident, before 6 6 of 20 [* 7] INDEX NO. 505130/2017 NYSCEF DOC. NO. 217 RECEIVED NYSCEF: 06/16/2020 work co1nmenced, he infor1ned everyone by radio trans1nissio11 that the west side ladder fro111 the second to the tl1ird floors had been placed under a CAZ warning because strippi11g activity above the third floor was going to take place. He furthers avers t11at CAZ safety issues were covered in the required OSI-IA ten-hour construction course the vvorkers were required to tal(e. Florio also claims tl1at he observed that caution tape was in place on the third floor surrounding the two-by-four guardrail protection to the west side ladder, and that there was caution tape at t11e bottom of the ladder around the shoring posts that were approximately five ft::et away frorn the base oftI1e ladder on the second floor. Florio clai111s that the bottom and top areas of the ladder were entirely and properly taped off. He did not witness the plaintiff's accident, but arrived on the scene about five ininutes after it occurred. When he got there, he saw the plaintiff on the floor, and noticed that the yellow caution tape was still in place just as it was when he went on his site walk that morning. Defendants submit an affidavit by Kevin Kelly, an employee of Total Safety Consultants (not a party herein), who worked at the site (id., exhibit I). Kelly avers he was onsite the day of the accident. He did not witness the plaintiff's accident, but heard it happen and responded to tl1e sce11e approxi111ately 15 seconds after it occurred. Kelly claims that he observed a fourby-eight foot section of plywood stuck in position in the guard rail of the opening above the west side ladder on the third floor. He did not see anything on the ground around the plaintiff I-le also observed that there 'vas yellow cautio11 tape present on the top of the west side ladder on the third floor and at the base of the ladder on the second floor, which was still in position. Kelly avers that this taping completely blocked access to the west side ladder. Kelly additionally avers that there were two ·additional points of access between the third and second floors, the center core tetnporary ladder and the east side ladder. 7 7 of 20 [* 8] INDEX NO. 505130/2017 NYSCEF DOC. NO. 217 RECEIVED NYSCEF: 06/16/2020 Defendants additionally point to the deposition testimony ofTriton' s Job Superintendent, Ramkaveshwar Ra1nnarase, who was assigned to worl( at the job site at the time .of the accident. Ramnarase testified that on the morning of the accident, he conducted a daily walkthrough of all the floors, and observed that the third floor had been cordoned off. He claimed that the area of the accide11t, as \Yell as tl1e west side ladder, was taped off with caution tape, with signage ttp stating that stripping was to co1n1nence. He further testified that this taping was in place prior to the piaintiff's accident. According to Ra1nnarase, Triton's responsibilities on the site included ensurin·g that the various trades perfor1ned tl1eir work in compliance with the drawings and building specifications in a safe inanner. I-le further testified that ACS was responsible for the means and nlethods of how it performed its stripping work at the site. While Triton had the authority to stop any unsafe work that it observed, he clai1ned it neither directed nor controlled the work of ACS or plaintiff's employer, TMG. -oefe11dants argue tl1at the foregoi11g eviden_ce establishes that the accident occurred in a caution-taped-otICAZ area, and that tl1e plaintiff was specifically instructed not to enter said area or use the west side ladder. Defendants, tl1erefore, contend that plaintiff's actions in entering the CAZ area, a11d in disregarding his supervisor's instructions, which were given that 1norning_. was the sole proxi1nate cause of his accident and resulting injuries. De-fendants further argue that the plywood that hit plaintiff was not being hoisted or secured at the time of the accident; nor did it require securing for the purpose of the undertaking. In this regard, defendants contend that the for1ns were in the process ofb·ei11g stripJJed/removed, and therefore did not need securing. Under these circu1nstances, defendants inaintain that the plaintiffs Labor Law§ 240 (1) claim should be dismissed. In response, plaintiff 1naintains that the area was not cordoned off or taped at the time of his accident, and that any evidence to the contrary was placed there after his accident 8 8 of 20 [* 9] INDEX NO. 505130/2017 NYSCEF DOC. NO. 217 RECEIVED NYSCEF: 06/16/2020 occurred, not before. In a "Further Affidavit," sttb1nitted herein, plaintiff avers that on the day of tl1e accident, he was not given a two-way radio, and further denies that he received any verbal instructions not to use the west side ladder dtte to ACS's ongoi_ng stripping work. Plaintiff also affirms that various photographs (Schaktman Affirmation, exh 8, 9, 10), which sl1ow no cat1tion taping in place, are accurate depictions of the area before his accident occurred. In addition, plaintiff reiterates his argument that the plywood form was an object that required securing for the purpose of the undertaking, and therefore the defendants were required, pursuant to Labor Law § 240 (1), to provide him with adequate safety devices to protect him from the potential falling object. In support, the plaintiff submits an expert affidavit by Joseph C. Cannizzo, a professional engineer, who opines, to a reasonable degree of engineering certainty, that the plywood form should have been adequately secured before and/or during the stripping process, and that defendants' failure to secure it \-Vas the proxi1nate cause of plaintiffs accident. In this regard, he opines that the defendants should have provided safety devices such as jacks, scissor lifts, scaftblding, netting, ropes, and/or other devices to protect the plaintiff from being struck by the falling form. Labor Lav.,r § 240 (I) i1nposes upon owners, general contractors, and their age11ts a nondelegable duty to provide safety devices necessary to protect workers fi:o1n risk_s inherent in elevated work sites (see Escobar v Safi, 150 AD3d 1081, 1082 [2017]). To prevail on a motion for summary judgment in a Labor Law§ 240 (I) "falling object" case, the plaintiff must demonstrate that at the time tl1e Object fell, it eitl1er was being hoisted or secured, or required securing for the purposes of the undertaking (see Fabrizi v I 095 Ave. of the Ams., l.L. C., 22 NY3d 658, 662-663 [2014 ]; Passos v Noble Constr. Grp., LLC, 169 AD3d 706, 707 [2019]; Romero v 2200 N Steel, LLC, 148 AD3d 1066, I 067 [2017]). Labor Law § 240 (l) does not 9 9 of 20 [* 10] INDEX NO. 505130/2017 NYSCEF DOC. NO. 217 RECEIVED NYSCEF: 06/16/2020 automatically apply simply because an object fell and injured a worker; a plaintiff 1nust sl1ow that the object fell because of the absence or inadequacy of a safety device of the kind enumerated in the statute (see Fabrizi v 1095 Ave. ofthe Ams., L.L.C., 22 NY3d at 663). Where the hoisting or securing ofa device of the kind enu1nerated in the statute would 11ot_have be-en necessary or even expected, Labor Law§ 240 (1) does not apply (see Romero v 2200 N Steel, LLC, 148 AD3d at 1067, citing Narducci v Manhasset Bay Assoc., 96 NY2d 259[2001]). Moreover, "[t]o impose liability pursuant to Labor Law § 240 (I), there must be a violation of the statute a11d that violatio111nust be a proximate cause of the plai11tiffs injuries" (Tama v Gargiulo Bros., Inc., 61 AD3d 958, 960 [2009 ]; see Blake v Neighborhood Haus. Servs. ofN. Y. City, l NY3d 280, 287 [2003]; Godoy v Neighborhood P'ship Haus. Dev. Fund Co., 104 AD3d 646, 647 [2013]). "Where there is no statutory violation, or where the plaintiff is the sole proximate cause of his or her own injuries, there can be no recovery UI1der Labor Law§ 240 (!)" (Treu v Cappelletti, 71 AD3d 994, 997 [2010]). The Second Department case, Godoy v Neighborhood P'ship Haus. Dev. Fund Co. (I 04 AD3d 646)i is particularly instructive here. In Godoy, the plaintiff, a de1nolition worker, was working on the first floor of a building picking up debris that had fallen as a result of prior demolition worl( that occurred on the second floor. At tl1e sa1ne time, de1nolition of the basement floor was taJ(ing place. Wl1ile plaintiff was in the process of picl(ing up debris, the floor beneath her collapsed, causing her to fall to the base1nent floor below. Plai11tiff subsequently commenced an action alleging, among other claims, Labor Law § 240 (l ). In denying both plaintiffs and defendants' respective motions for summary judgment on the Labor Law § 240 (I) claim, the Second Department held that a triable issue of fact existed as to whether plaintiff's actions were the sole proximate cause of her alleged injuries (id. at 64 7-48). Jn so holding, the court noted that the third-party defendant had submitted an affidavit by an etnployee supervisor \Vl10 clai1ned that the area wl1ere tl1e plaintiff' f'ell had been cordoned off due to the floor's instability, and that he had specifically told the plaintiff several times not to 10 10 of 20 [* 11] INDEX NO. 505130/2017 NYSCEF DOC. NO. 217 RECEIVED NYSCEF: 06/16/2020 enter the restricted area, tl1e last of whicl1 was just 30 1ninutes before the accident. The court further noted that plaintiffs deposition testimony denying that the area was cordoned off, or that she received a11y \varnings of sa1ne, raised issues of fact, thereby precluding su1111nary judgment (id. at 64 7). Here, as in Godoy, there is evidence that the area in question was a designated CAZ, or was othenvise cordoned off by caution tape in order to prevent entry into that location and usage oftl1e west side ladder. Moreover, there is evidence in the record that, on the 1noming_ of the accident, plaintiffs supervisor, Fernando, personally told plaintiff that the west side ladder was closed off from the third to the second floors because of ACS' s stripping work, and that he was not to enter that area or use tl1e ladder. During his deposition, the plaintiff denied that there was any caution tape, or that the west side ladder had been closed off. He further denied receiving any instructions not to enter the area that morning. U11derthese circumstances, the court finds that issues of fact exist as to whether the plaintiffs actions were the sole proximate cause of his accident, thereby precluding an award of su1nmary judgtnent in any parties' favor (see Godoy, 104 AD3d at 647; John v Klewin Bldg. Co., Inc., 94 AD3d 1502, 1503 (2012] [summary judgment on Labor Law§ 240 (1) denied where triable issues of fact existed wl1etl1er, before the accident and 011 the date thereof, plaintiffwas specifically irrstructed to work only on the flat portion of roof rather than the sloped portion from which he fell]; Serrano v Popovic, 91 AD3d 626, 627-628 (2012]). Indeed, where there are conflicting versions, as here, the trier of fact could dra\\1 conflicting inferences as to l1ow the accident actually occurred (see Godoy, 104 AD3d at 648; John v Klewin Bldg. Co., Inc., 94 AD3d at 1503-1504; see also Delahaye v Saint Anns School, 40 AD3d 679, 680 (2007]; Becovic v Scoria & Diana Assoc., Inc., 12 AD3d 388 (2004]; Reborchickv Broadway Mall Props., Inc., I 0 AD3d 713 [2004 ]). Moreover, resolution of the resulting credibility issues would be inappropriate on a motion for smmnary judgment (see Miraglia v H & L Holding Corp., 306 AD2d 58 [2003]). Accordingly, plaintiffs motion for summary judgment on the issue of 11 11 of 20 [* 12] INDEX NO. 505130/2017 NYSCEF DOC. NO. 217 RECEIVED NYSCEF: 06/16/2020 liability on his Labor Law§ 240 (1) claim is denied, and that branch of defendants' motion seeking to dis1niss said claim is also denied. Labor Law§ 241 (6) Claim Defendants seek summary judgment dismissing plaintiffs Labor Law§ 241 (6) claim as against them. Labor Law § 241 (6) imposes a nondelegable duty on owners and contractors to provide reasonable and adequate protection and safety for workers witho.utregard to direction and control (see Romero v J & S Simcha, Inc., 39 AD3d 83 8 [2007]). In order to prevail under this section ofthe Labor Law, a plaintiff must establish that specific safety rules and regulations of the Industrial Code pro1nulgated by t11e Co1n1nissioner of the Departme11t of Labor were violated (see Ross v Curtis-Palmer Hydro-Elec. Co., 81NY2d494 [1993]; Ares v State ofNew York, 80 NY2d 959 [1992]). The rule or regulation alleged to have been breached must be a specific, positive co1n1nand and be applicable to tl1e facts of the case (see Kwang Ho Ki111 v D & W Shin Realty Corp., 4 7 AD3d 616, 619 [2008]; Jicheng Liu v Sanford Tower Condominium, Inc., 35 AD3d 378, 379 [2006]). Here, in his bill of pm1iculars, the plaintiff alleges that defendants violated Industrial Code 12 NYCRR 23-1. 7 (a) ( 1), 23-1.7 (a) (2), 23-1. 7 (c) (I), 23- l.8 ( c) (1 ), 23-1.16 (b), 231.16 (c), 23-1.16 ( d), 23-1.21 (a), 23-l .21(b) (3 ), 23-1.21 (b) (4) (iv), 23-1.21 (b) (5), 23-2.2 (a), 23-2.2 (b), 23-2.2 (d), 23-2.7 (a) and 23-2.7(b). Plaintiff also alleges violations of various OSHA regulations. In support of their inotion, defendants argue that the above-referenced Code sections are either not applicable to the facts herein, or are not sufficiently specific, and in any event, were not a proximate ca11se oftl1e plaintif.f s accident. In opposition to defendants' motion, however, the plaintiff only relies upon the alleged violations of sections 23-1. 7 (a) ( 1), 23-1. 7 (a) (2), 23-2.2 (a), 23-2.2 (b ), and 23-2. 7 (e), the last of which he raises for the first time. With the exceptio11 of' these code provisions referenced in plaintif.fs opposition, the re1naining Industrial Code provisions set forth in plaintifrs bill of particulars are hereby dee1ned abandoned by the plaintiff (see Pita v Roosevelt Union Free Sch. Dist., 156 AD3d 833, 835 12 12 of 20 [* 13] INDEX NO. 505130/2017 NYSCEF DOC. NO. 217 RECEIVED NYSCEF: 06/16/2020 [2017] [court held plaintiff abandoned his reliance on certain provisions of the Industrial Code where he failed to address-those provisions in l1is opposition to the defendants' inotion, and in his brief on appeal]; Palomeque v Capital Improvement Servs., LLC, 145 AD3d 912, 914 [2016]; Harsch v City 0(New York, 78 AD3d 781, 783 [2010]; Cardenas v One State St., LLC, 68 AD3d 436, 438 [2009]). As an initial 1natter, the court notes that OSHA violations cannot support a Labor Law § 241 (6) cause of action (see Marl v Lira Engrs., Inc., 159 AD3d 688, 689 [2018]). Turning to section 23-1. 7 (a) (1), that provision, entitled "Overhead hazards," states that: Every place where persons are required to work or pass that is normally exposed to falling material or objects shall be provided with suitable overhead protection. Such overhead protection shall consist of tightly laid sound planks at least two inches thick full size, tightly laid three-quarter inch exterior grade plywood or other material of equivalent strength. Such overhead protection shall be provided with a supporting structure capable of supporting a loading of 100 pounds per square foot (12 NYCRR 23-1.7 [a] (I] [emphasis added]). This provision has been held to be sufficiently specific to serve as a predicate for a Labor 1.-aw § 241 (6) claim (see Clarke v Morgan Contracting Corp., 60 AD3d 523, 524 [2009]; Zervos v City ofNew York, 8 AD3d 477, 480 [2004]; Murtha v Integral Constr. Corp., 253 AD2d 637, 639 [1998]). Defondants maintain that, before stripping work commenced on the third floor, a CAZ was establisl1ed witl1 yellow caution tape, in order to prevent anyone fro1n entering into the area below wl1ere such work was occurring. Tl1ey contend tl1e caution tape was sufficient to comply with the mandate of section 23-l. 7 (a)(!). Further, in light of the stripping work, defendants argue that a physical overhead ba11·ier, such as a sidewall( bridge or its equivalent, would not have been practical. Defendants additionally contend that the CAZ had war11ings i11 place, as well as verbal and inunediate instructions for the plaintiff not to use the west side ladder tl1atmorning. Defendants further conte11d that ACS workers were the only ones required to work in the area who were potentially exposed to falling debris, but other trades, including 13 13 of 20 [* 14] INDEX NO. 505130/2017 NYSCEF DOC. NO. 217 RECEIVED NYSCEF: 06/16/2020 plaintiff and his TMG co- e111ployees, were not required to \vork in such area. Defendants co11tend tl1is is why caution tape was used to create a CAZ, tl1ereby cornplying with section 231. 7 (a) (1). Defendants, therefore, argue that the plaintiff was not supposed to be in the area where the plywood fell. and thus he was notnonnally exposed to the hazards of falling material. Plaintiff, on the other hand, disputes that the area was designated a CAZ, or was otherv..'ise cordoned off vvith caution tape. He further disputes tl1at he received verbal instructions to not enter the area or use t11e west side ladder, and clai1ns that he used it as a means of getting to I1is fourth floor vvork location that day. He further contends that issues ot· fact exist as to whether ACS was supposed to be performing stripping work on the third floor in tl1e area of the accident, especially since such work \Vas not listed on Triton's daily logs for that day. Based upon a review of the parties' sub1nissions, the court finds that triable issues of fact exists as to whether the plaintiff was required "to work or pass" in the subject area, and if so,, whether it was "normally exposed to falling objects" within the meaning of section 23-1.7 (a) (1). Thus, that branch of defendants' motion seeking to dismiss plaintiffs Labor Law§ 241 (6) claim insofar as it is predicated on section 23-1. 7 (a) (l) is denied. As to section 23-1.7 (a) (2), which is sufficiently specific to support a Labor Law§ 241 (6) claim (see Vatavuk v Genting New York, LLC, 142 AD3d 989, 990 [2016]), this provision requires "barricades, fencing or the equivalent" to cordon off areas for the safety of those not required to work: or pass within the sectioned-off area. Based upon a revie\V of the record, issues of fact exist as to whether the defendants co1nplied with this provision as plaintiff claims tl1at there were no tape or any warni11gs in place. Plaintiff also alleges that defendants violated section 23-2.2 (a), entitled "Concrete Wbrk," which states that "[f]orms, shores and reshores shall be structurally safe and shall be properly braced or tied together so as to maintain position and shape" ( 12 NYCRR 23-2.2[a]). Initially, the court notes that this provision is sufficiently specific to support a Labor Law§ 241 14 14 of 20 [* 15] INDEX NO. 505130/2017 NYSCEF DOC. NO. 217 RECEIVED NYSCEF: 06/16/2020 (6) claim (see Ross v DD I Ith Ave., LLC, 109 AD3d 604, 606 [2013]; Zervos v City of New York, 8 AD3d 477, 480 [2004]). Defendants argue that this provision is not applicable because the ·for111s·at issue were in the process of being stripped and, therefore, the very nature of such work required that the forms no longer 1nai11tain their position a11d shape since they were being taken down. Defendants contend this is wl1y a CAZ was created in tl1e subject area. Defendants, however, l1ave failed to proffer an expert opinio11 as to whether the forms must be secured during the stripping process. As such, defendants have failed to meet their burden in establishing that section23-2.2 (a) is not applicable herein(see Ross v DD 11th Ave., LLC, 109 AD.3d at606 ["In the absence of any expert opinion addressing the issue ofwhether 12 NYCRR23-2.2 (a) applies where the forrns arc in the process of being stripped, the defendants, as the propo11ents of the motion, did not establish their pri1na facie entitle111ent to judgment as a 1natter of law dis1nissing the Labor Law § 241 ( 6) cause of action to the extent that it was premised upon an alleged violation of 12 NYCRR 23-2.2 (a)"]). Next, section 23-2.2 (b), entitled "Inspection," states that "[d]esignated persons shall co11tinuously inspect tl1e_stability of all for1ns_, shores andreshores including all braces and other supports during the placing of' concrete. Anyu11safe condition shall be remedied i1nmediately." (12 NYCRR 23-2.2 [b]). The com1 finds that defendants have likewise failed to make a prima facie sho\ving that this section is not applicable, or that they made the necessary inspections as to the stability of the forms. Lastly, the court will consider plaintiffs belated allegation that defendants violated section 23-2. 7 (e) since it involved no new factual allegations~ raised no new theories of liability, and caused no prejudice to the defendants (see Ross v DD I Ith Ave., LLC, 109 AD3d at 606; Kelleir v Supreme Indus. Park, 293 AD2d at 513-514 [2002]). Section 23-2.7 (e), entitled "Stairway Require1nents During the Construction of Buildings," states as follows: 15 15 of 20 [* 16] INDEX NO. 505130/2017 NYSCEF DOC. NO. 217 RECEIVED NYSCEF: 06/16/2020 (e) Protective railings. The stairwells of temporary wooden stairways and of pennanent stairways where enclosures or guard rails have not been erected shall be provided with a safety railing constrncted and installed in compliance with this Part (rule) on every open. side. Every stai1way and landi11g shall be provided with l1andrails not less than 30 inches nor more than 40 inches in heigl1t, 1neasured vertically fro1n the nose of the tread to the top oftl1e rail. Plaintii1'alleges that there were no guardrails or handrails on the west side ladder for hi111 to grab onto and stop himself from falling after being hit by the plywood. Defendants' expert, Mr. Lorenz, opines that this provision, \Vhich pertains to "stairways," is not applicable herein since the \Vest side ladder from which the plaintiff fell was not a "stairway" and, thus, protective railings were not required under these circu1nstances. Tl1is court agrees. A review of the record evidence (parties' deposition testimony including plaintiff, as well as photographic evidence) overwhel111ingly establishes that plaintiffs accident involved a co11struction ladder, not a temporary staircase \Vithin the1neaning of section 23-2.7 (e). Therefore, this provision cannot provide a basis for plaintiffs§ 241 (6) claim. Additionally, the court notes that issues of fact, as discussed in relation to plaintiffs Labor Law § 240 (I) claim, preclude granting defendants summary judgement dismissing his Labor Law § 241 (6) claim on the ground that his actions in entering the cordoned off area and using the west side ladder, despite instructions not to, were the sole proximate cause of his accident. Labor Law§ 200/Commo11-law Negligence Claims Defendants also seek su1n1nary judgtnent dismissing plaintiffs Labor Law § 200 and co1nmo11-law i1egligence clai1ns as against them. Labor Law§ 200 codifies the co1n1non-law dtrt)' placed upon owners and contractors to provide employees with a safe place to work (see Yong Ju Kim v Herbert Constr. Co., 275 AD2d 709 [2000]). Where a plaintiffs. injuries stern from a dangerous condition on the premises, a [defendant] may be liable under Labor Law§ 200 if it "'either created the dangerous condition that caused the accident or had actual or 16 16 of 20 [* 17] INDEX NO. 505130/2017 NYSCEF DOC. NO. 217 RECEIVED NYSCEF: 06/16/2020 constructive notice of the dangerous condition'" (Rojas v Schwartz, 74 AD3d 1046, 1047 (2010], quoting Ortega v Puccia, 57 AD3d 54, 61 [2008]; see Banscher v Actus Lend Lease, LLC, 132 AD3d 707, 709 (2015]). However, "[w]here ... a claim arises out of the means and 1nethods of the worl(, a [defendant] may be held liable for co1111uon-law negligence or a violation of Labor Law § 200 only ifhe or she had 'the authority to supervise or control the performance of the work"' (Forssell v Lerner, 101 AD3d 807, 808 [2012], quoting Ortega v Puccia, 57 AD:ld at 61). "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" (Ortega v Puccia, 57 AD3d at 62). "(T]he right to generally supervise the worlc, stop the contractor's work if a safety violation is noted, or to ensure co1npliance with safety regulations and contract speciticati(lns is insu11icient to impose liability under Labor Law § 200 or for co1n1non-Iaw negligence" (Austin v Consolidated Edison, Inc., 79 AD3d 682, 684 [201 OJ [internal quotation marks omitted]; see Gonzalez v Perkan Concrete Corp., 110 AD3d 955, 959 (2013]; Allan v DHL Express [USA], inc., 99 AD3d 828, 832 (2012]; Harrison v State a/New York, 88 AD3d 951, 954 (2011]; Cambizaca v New York City Tr. Auth., 57 AD3d 701, 702 [2008];Peayv New York City School Constr. Auth., 35 AD3d 566, 567 [2006]). The court finds that plaintiff's Labor Law § 200 and common-law negligence claims should be dis1nissed as against 540 West as it is undisputed tl1at it neither directed nor controlled plaintiffs work at the site, nor any of the work perfor1ned by the subcontractors. Additionally, there is no evidence in the record tl1at 540 West created or had any 11otice of any alleged dangerous condition (see Mitchell v Caton on the Park, LLC, 167 AD3d 865, 867 (2018]; Marquez v L & M Dev. Partners, inc., 141 AD3d 694, 699 (2016]). As to Triton, it has sub1nitted sufficient evide11ce de1nonstratit1g, prima t'aCie, tl1at it had no authority to supervise or control the performance of the plaintiffs work or the work of his e1nployer, TMG, or its sub-subcontractor, ACS, at the site. Tl1e record evidence clearly 17 17 of 20 [* 18] INDEX NO. 505130/2017 NYSCEF DOC. NO. 217 RECEIVED NYSCEF: 06/16/2020 establishes that the work perfonned on the date of the accident was under the supervision and control ofTMG and ACS. Additionally, it is clear that only TMG employees exercised direct supervisory control over the 1netl1od and i11anner of plaintiffs worl(. Plaintiff testified that l1e received his instructions fro1n either Santo or Fernando, who are both TMG e1nployees (Plaintiff tr at 50-51, 53-54, 85-86). Triton has also demonstrated that it did not create or have notice of the allegedly dangerous condition (see Marquez, 141 AD3d at 699; Yong Ju Kim v Herbert Constr. Co., 275 AD2d 709, 712 (2000]). In opposition, the plaintiff fails to raise a triable issue of fact. Contrary to plaintiffs assertion, Triton's general supervision over the construction project, which involved task_ scheduling, daily vvalktl1roughs and coordiI1ation of work, and inspecting worl< to ensure cotnp1iance with contract plans and specitlcations, is inst1fficient to trigger liability pursua11t to Labor Law§ 200 and co1nmon-lawnegligence (see Vasiliades v Lefirer McGoverri & Bovis, 3 AD3d 400, 401--402 (2004]; Reilly v Newireen Associates, 303 AD2d 214, 218-221 [2003] Iv denied 100 NY2d 508 [2003]; Loiacono v Lehrer McGovern Bovis, Inc., 270 AD2d 464 [2000]). Additionally, plaintiff's argument that Triton is liable porsuant to Labor Law§ 200 and com1non-law negligence because it was contractually delegated the authority to supervise and control the work site is also -unavailing. In this regard, plaintiff points to a provision i11 the contract betvveen 540 West and Triton, wl1ich states "the Contractor [Triton]"shall sttpervise and direct tl1e work" and "shall be solely responsible for, and have control over, construction means, methods, techniques .... " Where, as here, Trito11did11ot actually direct and control the worl( at issue, this c_ontractual provision does not render it liable pursuant to Labor law § 200 and common-law negligence (see McCarthy v Turner Constr., Inc., 17 NY3d 369, 377-378 [2011] [Court specifically held that in the related context of common-law indemnification, the inere authority to supervise in insufficient to impose liability; instead actual supervision is required], affg 72 AD3d 539 (2010], affg 24 Misc.3d 1245[A] [Sup Ct, N.Y. County 2009] 18 18 of 20 [* 19] INDEX NO. 505130/2017 NYSCEF DOC. NO. 217 RECEIVED NYSCEF: 06/16/2020 [containing the sa1ne contractual provision]; see LaRosa v Internap Networ!c Servs. Corp., 83 AD3d 905, 909 [2011] ["If the challenged means and methods of the work are those of a subcontractor, and the owner or contractor exercises no supervisory control over the vvork, no liability attaches under Labor Law § 200 or the common law"]). Thus, in the absence of any evidence sl10,ving that Triton actually exercised control or supervision over the day-to-day work of plaintiff or the work performed at the ti1ne of the accident, it inay not be held liable under Labor Law§ 200 or common-law negligence (see LaRosa, 83 AD3d at 909; Peay v New York City School Const. Authority, 35 AD3d 566, 567 [2006]). Accordingly, that branch of defendants' motion seelcing to dis1niss plai11tiffs's Labor Law § 200 and co1n1non-law 11egligence claims is granted. Conc/11sion Based upon the tOregoing, it is hereby: ORDERED that plaintiff's motion for partial snmmary judgment as to liability on his Labor Law § 240 ( 1) claim is denied; and it is further ORDERED that branch of defendants' motion seelcing su1n1nary judgment dis1nissing plaintiff's Labor Law§ 240 (1) claim as against them is denied; and it is further ORDERED that branch of defendants' motion seeking to dismiss plaintiff's Labor Law § 200 and co1n111on-law negligence clai1ns as against them is granted, and said claims are hereby dis1nissed; and it is further ORDERED that branch of defendants' motion seeking to dismiss that portion of plaintiff's Labor Law§ 241 (6) claim that is predicated upon 12 NYCRR 23-1.7 (c) (l), 23-l.8 (c) (!), 23-l.16 (b), 23-1.16 (c), 23-1.16 (d), 23-1.21 (a), 23-1.2l(b) (3), 23-1.21 (b) (4) (iv), 23-1.21 (b) (5), 23-2.2 (d), 23~2. 7 (a), 23-2.7 (b) and 23-2. 7 (e) is granted; and it is further 19 19 of 20 [* 20] INDEX NO. 505130/2017 NYSCEF DOC. NO. 217 RECEIVED NYSCEF: 06/16/2020 ORDERED that branch of defendants' motion seeking to dismiss that portion of plaintiffs Labor Law § 241 (6) claim that is predicated upon the claimed violations of 12 NYCRR 23-1.7 (a) (I), 23-1.7 (a) (2), 23-2.2 (a) and 23-2.2 (b) is denied. The foregoing constitutes the decision ancl order of the court. Justice Lawrence Knipe! 20 20 of 20

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