Reyes v BRK Garage Co., LLC

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Reyes v BRK Garage Co., LLC 2020 NY Slip Op 32519(U) July 31, 2020 Supreme Court, New York County Docket Number: 154309/2019 Judge: Paul A. Goetz 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. INDEX NO. 154309/2016 [* 1] RECEIVED NYSCEF: 07/31/2020 NYSCEF DOC. NO. 185 SUPREME COURT OF THE S ATE OF NEW YORK COUNTY OF NEW YORK: P IRT 47 ----------------------------------------NELSON REYES, -----------------------------~--------x. Index No. 154309/2016 MOTION SEQUENCE #005 laintiff, -against- BRK GARAGE CO., LLC, 15TH ~TREET LESSEE, LLC, RCDOLNER, LLC, BAROCO CONTRACTING CORPORATION, and CONSOLI ATED EDISON COMPANY OF NEW YORK, INC., DECISION AND ORDER ON MOTION efendants. ------------------------------------------ -------------------------------------x CONSOLIDATED EDISON CO PANY OF NEW YORK, INC., hird-Paiiy Plaintiff, -againstMECC CONTRACTING INC., hird Party Defendant. ------------------------------------------1-------------------------------------x The following e-filed documents, listed y NYSCEF document number (Motion 005) 117-179 were read on this motion to/for SUMMARY JUDGMENT Goetz, J. This is an action to recover d ages for personal injuries allegedly sustained by a construction worker on August 27< 2 15 when, while working at a construction site located at 430 West 15th Street, New York, N w York (the Premises), he struck a live wire buried in the gro1md with a pickaxe, causing an e plosion and injuring him. In motion sequence number 05, plaintiff Nelson Reyes moves, pursuant to CPLR 3212, for summary judgment as to liability on his common-law negligence and Labor Law§§ 200 and 1 of 20 INDEX NO. 154309/2016 [* 2] RECEIVED NYSCEF: 07/31/2020 NYSCEF DOC. NO. 185 241 (6) claims as against defendant BRK Garage Co., LLC (BRK), 15th Street Lessee LLC (15th Street\RCDolner, LLC (RC olner) and B'!Toco Contracting Corporation (Baroco) (collectively, defendants). RCDolner cross-moves, pµr uant to CPLR 3212, for summary judgment dismissing the common-law negligence and Labor aw§ 200 claims as against it, and for summary judgment in its favor on its cross claim for contr ctual indemnification against Baroco. Third-Party ~efendant ~E. I~ Contracting Inc. (~ECC) cross~m.oves, purs.uant to C~LR 3212, for summary Judgment dism1ssmg the defendant/third-party plamtiff Consolidated Edison of New York's (Con Ed) third-partll complaint as against it. BACKGROUND On the day of the accident BRK was the owner of the Premises and 15th Street was the lessee of the Premises. 15th Street h' ed RCDolner to provide construction management services Project). RCDolner, in turn, hired aroco to perform sidewalk excavation and installation at the Project. Baroco subcontracted part fits work to non-party Fine Line Carpentry & Renovations, Inc. (Fine Line), plaintifrs employ r. Plaintiffs Deposition Testimony Plaintiff testified that on the ay of the accident, he was employed by Fine Line as a carpentry laborer. His work includr building "platf01ms" (plaintiff's tr at 25). Ilis supervisor was a man he checked in with in the morning, but he did not know the supervisor's name or who he worked for. He took his general irections from his coworker "Wilfredo" (id. at 38). Plaintiff was not provided with any safety eq ipment. He brought his own hard hat. 2 of 20 INDEX NO. 154309/2016 [* 3] RECEIVED NYSCEF: 07/31/2020 NYSCEF DOC. NO. 185 Plaintiff and Wilfredo were ' irected to begin work on the sidewalk outside the Premises. At that time, the sidewalk had been xcavated to a depth of approximately 15 inches. All the concrete had been removed and the urface was packed dirt. He did not notice any pipes, wires, or conduits in the dirt. In addition, ere were no warning markings spray painted on the dirt and ho one warned him that there might e live wires underground in his work area. He was familiar with warning markings - painted "r d triangle[ s ]" - but he did not see any (id at 97). Plaintiffs work primarily co sisted of measuring and cutting wooden stakes and installing wooden platform frames i the excavated portion of the sidewalk. To do this, he would take the stakes and hammer t em into place in the sidewalk depression. His coworkers would then lay planks and nail them into place in advance of pouring concrete. To install the stakes, plaintiff had to dig down app oximately eight inches into the dirt. Plaintiff testified that, on the day of the accident, the stake were not "going in the floor" easily (id. at 47). Wilfredo told plaintiff to get a pickaxe to dig pen holes in the dirt. 1 At the time of the accident, aintiff swung the pickaxe into the dirt, where it struck a buried cable (the Cable). The conta t instantly created a "ball of fire and <UI explosion" (id at 63). He and Wilfredo were thrown evera1 feet by ihe force of the explosion. Plaintiff briefly lost consciousness then remembered being taken by ambulance to the b.ospitl:ll. Deposition Testimony of Stephen eke/ (15th Street's Representative) Stephen Nuckel testified that he is an "independent owner's rep and construction consultant for real estate projects'; uckel tr at 9). At the time of the accident, he was employed by non-party Atlas Capital, thi;:: deve opment group for the Project. 15th Street was the "owner's entity for [the Project]" (id at 10). he Project consisted of the retrofitting of an old six-story garage into an eight-story office buil ing. RCDolner was the construction manager. Nuckel alsd 3 of 20 INDEX NO. 154309/2016 [* 4] RECEIVED NYSCEF: 07/31/2020 NYSCEF DOC. NO. 185 testified that RCDolner selected an directed the subcontractors at the Project, including Baroco. Baroco has been selected by RCDo er to perform the sidewalk demolition and reinstallation work at the Project. Nuckel was present at the ti e of the accident At that time, he was speaking to RCDolner's project manager, Brian Klodaski, with his back turned to plaintiff. He heard a loud noise and saw a flash of electricity and ran directly into the building for shelter in case the electrical arc continued. He later le ned that a worker with a pickaxe struck a "live conductor" (id. at 22) - i.e., the Cable. Nuckel testified that when rk included tearing up the street or sidewalk, a contractor would make a "One Call" to arrange a "mark-outs for utilities" for the street (id. at 50). Con Ed would then arrange for the mark-outlwhich would identify and mark- with chalk or paint-the underground utilities (power lines, g s lines, water lines) in the specified area. According to Nuckel, an owner would not make t e One Call or otherwise arrange for am.ark-out. That would be the responsibility of the contracto s. Nuckel did not know whether RCDolner or Baroco made the One Call. Deposition Testimony of Timothy Timothy O'Connell testified 'Connell (Baroco's Vice President) at on the day of the accident he was the vice president of Baroco, in charge of procurement an job oversite. According to O'Connell, Baroco's work entailed excavation and concrete ins allation work. Specifically, Baroco "had to remove and replace the sidewalk and curb in fro t ofthe property" (O'Connell tr at 12). Baroco used Fine Line to sup ly its labor. There was no written contract between them, but all Fine Line employees at the Pr ject were directed and supervised by Baroco's supervisor. Fine Line's laborers were l!.Sed in all aspects of Baroco's work. They used "a compressor and a 4 of 20 INDEX NO. 154309/2016 [* 5] RECEIVED NYSCEF: 07/31/2020 NYSCEF DOC. NO. 185 small excavator to take out the bulk of the concrete then they follow-up with hand tools" to build a trench to lay new curbing and sid walks (id. at 18). Generally, they would work two feet below the top of the sidewalk. O'Connell did not witness t e accident. He learned of it from Baroco's project manager, Peter Majewski, shortly after the ac ident happened. According to O'Connell, someone contacted Con Ed to review the site after the accident. O'Connell testified that he learned from Majewski that a Con Ed "represent tive" told him that the Cable "wasn't shown on his drawings" (id. at 27). After the accident, OSHA is ued Baroco a violation for the failure to make a One Call for a mark-out. O'Connell acknowledged that Baroco should have made a One Call for a second mark-out, but it did not do so (id. a~l69). Deposition Testimony of Peter Mat wski r/Jaroco 's Project Manager) Peter Majewski testified thaJ he was Baroco's project manager for the Project. Baroco was hired by RCDolner to perform ~oncrete and masonry installation. His duties included overseeing Baroco's work at the Pr ·ect, ordering materials and filling out paperwork. He visited the Property two to three ti s per week. Majewski testified that prior to demolition of the sidewalk, another contractor, MECC, had made a One-Call for a mark-ou of the street outside of the Premises (the MECC Mark-Out). According to Majewski, the sidewal was included within the scope of the MECC Mark-Out Majewski did not make a 0 e Call for a mark-out on behalf of Baroco prior to the start of its work. Majewski explained that, n his opinion, a mark-out was not necessary in the first place. He did obtain photographs o the Mark-Out from RCDolner in order to have an idea of where underground utility equipme t, if any, was located. .s 5 of 20 INDEX NO. 154309/2016 [* 6] RECEIVED NYSCEF: 07/31/2020 NYSCEF DOC. NO. 185 Majewski also testified that alGng a One Call and scheduling a mark-out was ''never in [Baroco's] scope of work" because 'the GC is doing th<:lf' (id. at 35). Further, Majewski testified, "utilities usually are requir d to be three feet down from the street level" and Baroco's work was "only nine inches down" M <j.t 36). Majewski then testified that, in his opinion, a mark-out was not necessary in the fi st place. Deposition Testimony of Anthony olce (RCDolner's Managing Partner) Anthony Dolce testified that on the day of the accident, he was the managing partner of RCDolner. RCDolner was hired by 15th Street to be the construction manager for all phases of the Project at the ~remises. RCDolTr.' in tum, hired Baroco: D~lce testified that RCDolner was tbe sole company m charge of sche~rlmg the trades, overseemg iob performance and the "delivery of goods and services" relJted to the Project (Dolce tr at 25-26)" Dolce knew of the accident ut was not present at the Premises on the day of the accident. He did not know any spec fies about the accident. Deposition Testimony of Roger Pa l (Con Ed's Construction Representative) Roger Paul testified that on re date of the accident he was an inspector and construction representative for Con Ed. His dutiel included confirming that contractors complied with Con Ed's specifications and completed tleir work accordingly. Part of his job included reviewing mark-outs for accuracy. Paul was assigned as Con-E~'s representative for the MECC Mark-Out- which involved the removal of the asphalt on the strdet adjacent to the Premises on or about August 12, 2015 over two weeks prior to the accident].. This excavation work - which primarily included the excavation of a portion of the park.ink lane, not the sidewalk, was performed by MECC. Paul did not work at the Project during Barne·· 's work. 6 of 20 INDEX NO. 154309/2016 [* 7] RECEIVED NYSCEF: 07/31/2020 NYSCEF DOC. NO. 185 Before it began its excavatio work, MECC made a One Call, which resulted in Con Ed sending Paul along with a mark-out rew to perform the MECC Mark-Out. Paul oversaw the mark-out process. Generally, prior to allowing xcavation work to commence at any project, Paul would teviewlhe underground utility sche1 atics, known as "service plates" (the Plates) and compare them with the mark-outs the mark-o t crew placeq on the street. He would then review both the Plates and the mark-outs with the ex avation contractor's foremen to explain the markings and warnings (Paul tr at 20). The contra tors would then perfonn their work. He followed this procedure with MECC. MECC's w rk was completed without incident on or about August 14, 2015 (13 days prior to the accident). At his deposition, Paul revie ed several documents, including the One Call for the MECC ~ark-Out request, date~ Aulust 12, 201~. He noted that it ~alled for a mark-~ut of "[b]oth sides of the street and s1dew!k for the width of the block" (zd at 35). He testified that.he did not recall any discrepancy betwe n the Plates and the mark-outs placed on the street outside the Premises. Paul did not work at the Proj ct during Baroco's work. Deposition Testimony of James Mc utchen (Con Ed's First Responder) James McCutchen testified at he was the Con Ed emergency department first responder who reported to the Premises after pl intiffs accident. McCutchen did not actually inspect the accident site, his coworker did. At the deposition, McCutche was provided several photographs of the accident location. According to McCutchen, based on e photographs, plaintiff "hit the seven-wire main" power line, also known as a "secondary ma· "(Mccutchen tr at 10). This secondary main was encased 7 of 20 INDEX NO. 154309/2016 [* 8] RECEIVED NYSCEF: 07/31/2020 NYSCEF DOC. NO. 185 in a lead and rubber sheathing and h d been further encased in either a fiber or concrete duct. Mccutchen testified that the wire Ii ely had been in the ground "at leas~ 50" years prior to the accident, based on how it looked an' the materials surrounding it (id. at 27-28). McCutchen also testified tha the Plates he reviewed indicated that there were power lines near the area where work was perfo med, including a "seven wire main" - the type of wire that plaintiff struck. (id.at 36). He was able to state with certainty the exact location of that seven wire main, or whether the seven wir main he saw in the Plates was, in fact, the Cable that plaintiff struck. DISCUSSION "[T]he proponent of a summ judgment motion must make a prima. facie showing of entitlement to judgment as a matter lf law, tendering sufficient evidence to demonstrate the absence of any material issues of fat. Failure to make such prima facie showing requires denial of the motion, regardless of the suffi iency of the opposing papers" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986] [internal itations omitted}; see also Pullman v Silverman, 28 NY3d 160, 1062 [2016]). Once prirna faci entitlement has been established, in order to defeat the motion, the opposing party must ""a semble, lay bare, and reveal his [or her] proofs in order to show his [or her] defenses are real d capable of being established on trial ... and it is insufficient to merely set forth ave ents of factual or legal conclusions"' (Genger v Genger, 123 AD3d 445, 447 [1st Dept 2014], quoting Schiraldi v U.S. Min. Prods., 194 AD2d 482, 483 [1st Dept 1993 ]). If there is any dou t as to the existence of a triable fact, the motion for sununary judgment must be denied ( 'Brien v. PortAuth. ofN Y and NJ, 29 NY3d 27, 37 [2017], citing Sillman v. Twentieth Oentury-Fox Film Corp., 3 NY2d 395, 404 [1957]). 8 of 20 INDEX NO. 154309/2016 [* 9] RECEIVED NYSCEF: 07/31/2020 NYSCEF DOC. NO. 185 Procedural Issues The Timeliness o the Cross Motion ary judgment in his favor on his Labor Law §§ 200 and 241 (6) claims against defendants. CDolner's cross motion seeks summary judgment dismissing the claims addressed in aintiff s motion, as well as summary judgment in its favor on its cross claim for contractual in emnification against Baroco. MECC's cross motion seeks summary judgment dismissing Con d's third-party complaint as against it. MECC's cross motion and t e part of RCDolner's cross motion seeking summary judgment in its favor on its contract al indemnification claim against Baroco, are untimely. This part's rules require all motions for s mmary judgment to be filed within 60 days of the filing of the note of issue. 1 The note of issue in this acti n was filed on August 8, 2019 (NYSCEF Doc. No. 117). Therefore, the deadline for filing a ti ely motion was October 7, 2019. RCDolner's cross motion was filed on October 18, 201 . MECC's cross motion was filed on October 23, 2019. 2 A cross motion is "merely a otion by any party against the party who made the original motion, made returnable at the same time as the original motion" (Kershaw v Hosp. for Special Surgery, 114 AD3d 75, 87 [1st Dept 013] [internal quotation marks and citation omitted]). Furthermore: 1 Explicitly this part's rules require t at: "All summary judgment motions must be made no later than 60 days after filing the Note of ssue - there are no exceptions without leave of Court. ... Absent good cause for late filing, a 1 te motion will be denied, even if your adversary does not object." 2 While the parties stipulated to exte d the time to file opposition and reply papers to October 24, 2019 with respect to plaintiffs timel motion (filed on August 27, 2019), the parties did not seek to extend the time to file motions or ross motions. 9 of 20 INDEX NO. 154309/2016 [* 10] RECEIVED NYSCEF: 07/31/2020 NYSCEF DOC. NO. 185 "[A] cross motion is 1 improper vehicle for seeking relief from a nonmoving party .... Allowing movants to file untimely, mislabeled "cross m tions" without good cause shown for the delay, affords them a unfair and improper advantage. Were the motions properly lab led they would not be judicially considered without an explanati n for the delay" (id. at 88). In short, an untimely cross otion for summary judgment made after the expiration of the motion filing deadline may be consi erect only (1) where there is "a satisfactory explanation for the untimeliness" (Brill v City of Ne York, 2 NY3d 648, 652 [2Cl04]), or (2) where a timely motion for summary judgment was ade seeking relief nearly identical to that sought by the cross motion (see Altschuler v Gra atan Mgt., Inc., 27 AD3d 304 [1st Dept 2006]). Here, the part ofRCDolner' cross motion seeking dismissal of plaintiffs Labor Law claims is timely, because it seeks ne ly identical relief to plaintiffs motion. However, the part of hs cross motion seeking summary; judgment in its favor on its cross claim for contractual indemnification against non-rnovant Baroco does not seek nearly identical relief to plaintiffs i;notion, and RCDolner does not exp ain the delay in filing its motion as against Baroco. Accordingly, that part of RCDolner' cross motion must be denied. Likewise, MECC's cross mo ion does not seek relief that is nearly identical to the relief sought in plaintiffs motion. Rather, it seeks to dismiss non-rnovant Con Ed's third-party action against it, and MECC does not give reason for its late filing. Accordingly, MECC's cross motion must also be denied. The Labor Law§ 241 (6) Claim Plaintiff moves for summary 'udgment in his favor as to liability on the Labor Law§ 241 (6) claim. Labor Law§ 241 (6) provide , in pertinent part~ 10 of 20 ~s follows: INDEX NO. 154309/2016 [* 11] RECEIVED NYSCEF: 07/31/2020 NYSCEF DOC. NO. 185 "All contractors and wners and their agents, ... when constructing or demolishing buil ings or doing any excavating in connection therewith, shall com~ly with the following requirements: .I (6) ** * All areas in whith construction, excavation or demolition work is being perfi, rmed shall be so constructed, shored, [and] equipped . . . as to provide reasonable and adequate protection an safety to the persons employed therein or lawfully freq11enting 'uch place,_" Labor Law§ 241(6) impose1 a duty upon owners, contractors and their agents "to 'provide re.,onable and adequate prection and safety' for workers and to con>ply with the specific safety rules and regulations romulgated by the Commissioner of the Department of Labor" (Ross v Curtis-Palmer Hydr -Elec. Co., 81NY2d494, 501-502 [1993]). "The duty to comply with the Commissioner's s ety rules, which are set out in the Industrial Code (12 NYCRR), is nondelegable" (Misicki v Caradonna, 12 NY3d 511, 515 [2009]). In addition, " [tJhe [Industrial Code] provision re ied upon by [a] plaintiff must mandate compliance with concrete specifications and not simp y declare general safety standards or reiterate common-law principles" (id, citing Ross, 81 NY2 at 504-505). Therefore, in order to prevail on a Labor Law § 241 (6) claim, "a plaintiff must est blish a violation of an implementing regulation which sets forth a specific standard of conduct" (see Ortega v Everest Realty LLC, 84 AD3d 542, 544 [1st Dept 201 I]), and that the violation as a proximate cause of the injury (see Egan v Monadnock Constr., Inc., 43 AD3d 692) 694 [1st Dept 2007], lv denied 10 NY3d 706 [2008]). Initially, BRK, as the owner fthe Premises may be liable to plaintiff under Labor Law§ 241 (6). However~ it must be deten ined whether 15th Street (the self-described lessee of the Premises) was, effectively, an owner for the purposes of Labor Law Labor Law§ 241 (6), and therefore, liable for plaintiffs injuri . 11 of 2 O INDEX NO. 154309/2016 [* 12] RECEIVED NYSCEF: 07/31/2020 NYSCEF DOC. NO. 185 Notably, the definition of "o ner" under Labor Law§§ 240 and 241 "has not been limited to the titleholder. The term as been held to encompass a person who has an interest in the property and who fulfilled the r e of owner by contracting to have work performed for his benefit" (Kane v Coundorous,, 293 D2d 309, 311 [1st Dept 2002]; Copertino v Ward, 100 AD2d 565, 566 [2d Dept 1984]). Here, while plaintiff asserts at 15th Street is an owner of the Premises, he provides no evidence supporting this claim that s a matter oflaw 15th Street (a) had an interest in the Premises and (b) contracted to have ork performed for its own benefit. Therefore, plaintiff has failed to establish his prima facie en itlement to summary judgment because he has not established that 15th Street is an ow er for purposes of the Labor Law. Accordingly, plaintiff is not ntitled to summary judgment in his favor on his Labor Law § 241 (6) claim as against 15th Stre Next, it must be determined hether RCDolner (the construction manager) and Baroco (the sidewalk subcontractor), may b vicariously liable for plaintiff's injuries under Labor Law§ 241 (6) as agents of the owner. Although sections 24 and 241 now make nondeiegable the duty of an owner or general c ntractor to conform to the requirement of those sections, the duties themselves may in fact be delegated. When the work givin rise to these duties has been delegated to a third party, that third arty then obtains the concomitant authority to supervise and contrtol that work and becomes a statutory 'agent' ofthf owner or general contractor. Only upon obtaining the authoritf to supervise and control does the third party fall within the class o those having nondelegable liability as an 'agent' under secti ns 240 and 241. (Russin v Louis N Picciano & Son, 4 NY2d 311, 318 [1981] [internal citations omitted]). To hold a subcontractor liable as a statu ory agent, "the subcontractor must have been 'delegated the supervision and control either ov r the specific work area involved or the work which [gave] 12 of 20 INDEX NO. 154309/2016 [* 13] RECEIVED NYSCEF: 07/31/2020 NYSCEF DOC. NO. 185 rise to the injury'" (Nascimento v B idgehampton Constr. Corp., 86 AD3d 189, 193 (1st Dept 2011 ), quoting Headen v Progressive Painting Corp., 160 AD2d 319, 320 [1st Dept 1990]). RCDolner argues that it was construction manager, and not a general contractor. However, there remains a question ffact as to RCDolner's status on the Project, as no party provides a copy of RCDolner's con· act with 15th Street. Such contract would set out RCDolner's specific duties and resp nsibilities. Therefore, whether RCDolner's responsibilities encompassed those of a general con actor or whether it had the authority to act as an agent of the owner is unclear. Accordingly, plaintiff is not ntitled to summary judgment in his favot on his Labor Law § 241 (6) claim as against RCDolne . Next, it is undisputed that B oco was the contractor directly responsible for plaintiffs work and had the authority to direct d control the injury producing work - i.e. confirming and ensuring that the area where plaintif was digging did not contain an underground electrical cable. Therefore, Baroco was an ag nt for purposes of Labor Law§ 241 (6). Plaintiff moves for summary 'udgment in his favor as to liability with respect to a violation oflndustrial Code section 3-1.13 (b) (4). 12 NYCRR 23-1.13 (b) (4) provides the following: "Protection of emplo ees. No employer shall suffer or permit an employee to work in ~~ch proximity to any part of an electric power circuit that he ray contact such circuit in the course of his work unless the empl<fyee is protected against electric shock by deenergizing the circuit and grounding it or by guarding such circuit by effective intlation or other means. In work areas where the exact locations of nderground electric power lines are unknown, persons usi 1g jack hammers, bars or other hand tools which may contact su h power lines shall be provided with insulated protective g oves, body aprons and footwear." 13 13 of 2 O INDEX NO. 154309/2016 [* 14] RECEIVED NYSCEF: 07/31/2020 NYSCEF DOC. NO. 185 . . Section 23-1.13 (b) (4) is surciently specific to support a Labor Law§ 241 (6) claim (see Snowden v New York City Tr.1uth., 248 AD2d 235, 236 [1st Dept 1998] ["Plaintiff has a viable claim under Labor Law § 24.11 (6) based on a violation of 12 NYCRR 23-1.13 (b) (4)"]). Here, it is undisputed that pllintiff was using a hand tool to dig in the ground when he struck a live underground electric p .wer line. It is also uncontested that Baroco did not ascertain whether there was art underground e ectric power line in plaintiffs work area. Therefore, the exact location of any such power 1in s was urtknown. Pursuant to section 23-1.13 (b) (4 ), plaintiff should have been provided ith protective wear to mitigate the risk of injury in exactly this situation (see Addonisio v City New York, 112 AD3d 554, 556 [1st Dept 2013]). The record establishes that p aintiff w?S not provided any insulated protective wear while performing his work. Therefore, In ustrial Code section 23-1.13 (b) (4) was violated. Such violation - i.e. the failure to provide insulated protective gear to mitigate the risk of unknown electrical hazards - was a proximate cause of plaintiffs electrical-discharge related injuries. That plaintiffsuffered burns y the resulting explosion caused by striking the buried live Cable - rather than (or in addition to being electrocuted - is not a defense to a violation of this section (Snowden, 248 AD2d at 236 ["We reject ... [the] argument that section 23-1.13 (b) (4) is inapplicable because plaintiff sufferr burns and not an electric shock"]). BRK' s argument that a question of fact remains as to prox ·mate causation is unpersuasive as BRK offers no specifics or analysis to support its position. B roco's argument that its violation was, essentially, a de minimis technical violation that coul not amount to a proximate cause df plaintiffs accident misconstrues its obligations pursuan to section 23-1.13 (b) ( 4) and is also unsupported by any specific references to the record. 14 of 20 INDEX NO. 154309/2016 [* 15] RECEIVED NYSCEF: 07/31/2020 NYSCEF DOC. NO. 185 Accordingly, plaintiff is enti led to summary judgment on his Labor Law§ 241 (6) claim, based on a violation oflndustrial C de section 23-1.13 (b) (4) as aga,inst BRK and Baroco only, and RCDoirter is not entitled to sum ary judgment dismissing this claim as against it. The Common-Law Negligence and Labor Law§ 200 Claims Plaintiff moves for summary judgment in his favor as to liability on the common-law negligence and Labor Law§ 200 cl ·ms as against Baroco and RC Dolner. RCDolner crossmoves for swnmary judgment dismi sing this claim. Initially, while plaintiff requ sts relief on the common-law negligence and Labor Law § 200 claims against BRK and 15th St eet, he raises no arguments and provides no rationale for liability as to those defendants. Ace rdingly, plaintiff is not entitled to summary judgment in his favor as to BRK or 15th Street. Labor Law § 200 "is a codifi ation of the common-law duty imposed upon an owner or general contractor to provide canst ction site workers with a safe place to work" (Singh v Black Diamonds LLC, 24 AD3d 138, 139 llst Dept 2005], citing Comes v New York State Elec. & Gas abor Law§ 200 (1) states, in pertinent part, as follows: Corp., 82 NY2d 876, 877 [1993]). "All places to which this chapter applies shall be so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequrte protection to the lives, health and safety of all persons employedl therein or lawfully frequenting such places. All machinery, equippient, and devices in such places shall be so placed, operated, guaitded, and lighted as to provide reasonable and adequate protection td all such persons." 1 Claims brought under this se tion "fall into two broad categories: those arising from an alleged defect or dangerous conditio existing on the premises and those arising from the manner in which the work was performed" ( appabianca v Skanska USA Bldg. Inc., 99 AD3d 139, 143144 [lstDept2012]). !fthe accident arises out of a dangerous premises condition, liability may :15. 15 of 20 INDEX NO. 154309/2016 [* 16] RECEIVED NYSCEF: 07/31/2020 NYSCEF DOC. NO. 185 be imposed if defendant created the condition or failed to remedy a condition of which it had actual or constructive notice (see U ndoza v Highpoint Assoc., IX LLC, 83 AD3d 1, 9 [1st Dept 2011]). "Where the injury was caus d by the manner and means of the work, including the equipment used, the owner or gener c9ntractor is liable if it actually exercised supervisory control over the injury producing w rk" (Cappabianca, 99 AD3d at 144). Thus, even though a defendant may possess the authority to stop the construction work for safety reasons or exercise general supervisory control over the work site, such authority is insufficient to establish the degree of supervision and control ne essary to impose liability (see Villanueva v I I 4 Fifth Ave. Assoc. LLC, 162 AD3d 404, 407 [ls Dept 2018] [finding a defendants' stop work authority insufficient to establish that the defe dant actually "exercised any control over the manner and means of plaintiffs work"]; Hughes v Tishman Constr. Corp., 40 AD3d 305, 306 [1st Dept 2007] [concluding that overseeing job site activities and monitoring project milestones insufficient evidence of the requisite degree of supervision and control necessary to impose liability under common-law neglige ce or Labor Law § 200]). Here, plaintiff alleges that he was injured when his pickaxe ,struck the buried live Cable. Therefore, his accident was caused h a dangerous condition on the Premises (the buried live electrical wire). The next question t at must be resolved is whether RCDolner and/or Baroco created or had ·actual or constructive otice of the Cable. With respect to RCDolner, t re is no evidence that it created the hazardous condition (i.e. that it installed the Cable). Bee use no party provided RCDolner's contract with 15th Street the question of whether RCDolner h d or should have had notice of the Cable cannot be resolved. As noted above, the scope of RCDolner's responsibilities at the Project, and whether it encompassed such specific duties as btaining mark-outs or otherwise identifying underground 16 of 20 INDEX NO. 154309/2016 [* 17] RECEIVED NYSCEF: 07/31/2020 NYSCEF DOC. NO. 185 hazards such that it would be liable or plaintiff's injuries under the common law or Labor Law § 200 is unknown on this record. Plai tiffs argument that RCDolner was, in fact, a statutory excavator (pursuant to 16 NYCRR 53-1.2) 3 and, therefore, required to obtain a mark-out (which might have provided notice f the Cable) itself, is conclusory, unsupported by evidence and, therefore, unpersuasive. Accor ingly, neither plaintiff nor RCDolner are entitled to summary judgment with respect to aintiff s Labor Law § 200 claim. As to Baroco, there is no evi · ence that it created the hazardous condition (i.e. installed th.e subject Cable). There is also no vidence that it had actual notice of the Cable, as the Cable was entirely buried beneath the grou d. Therefore, the question remains whether Baroco had, or should have had, constructive notice of the Cable's existence. Plaintiff argues that Baroco, an excavator, was required to obtain a mark-out for the work area in advance of plaintiff sta ing his work. 4 According to plaintiff, such a mark-out would have shown the existence oft e Cable - thus making plaintiff aware of the hazard and 3 16 NYCRR 753-1.2 which governsi the "protection of underground facilities" sets forth the definition of an ''excavator" as follows: e~gaged "Any person who is in a trade or business which includes the carrying out of ex_pavation or demolition; provided, however, that an individual em~loyed by an excavator and having no supervisory authority [other than the routine direction of employees over an excavation or demolition, shall not be deemed an excavator for the pu ose of this Part. The act of any employee or agent of any excavato acting within the scope of his or her official duties or employment shall be deemed to be the act of such excavator." Plaintiff fails to establish, through te timony or evidence that RCDolner was, in fact, engaged in 1 a trade or business that included exc vation. It is undisputed, however, that Baroco was an excavator. 4 16 NYCRR 753-3.3 provides, ins , that an excavation may C01lllll.ence only after a one-call is made and any utilities are marked- ut. 17 of 20 INDEX NO. 154309/2016 [* 18] RECEIVED NYSCEF: 07/31/2020 NYSCEF DOC. NO. 185 allowing him to avoid it - and Baro o's failure to obtain the mark-out was negligent. In support oft~is argu~ent, plaintiff relies o~ lcCutchen's tes.timo~y that relevant Con Ed's Plates.fo~ the Project depicted a "secondary mam'l cable that was identical to the type of Cable that plamtiff struck (McCutchen tr at 36). There re, plaintiff has submitted sufficient evidence to establish that Baroco should have known oft e Cable, had it made a One Call for a mark-out, as it was required to do. Notably, Baroco rec ived an OSHA violation for failing to obtain a mark-out prior to its work (O'Connell tr at 55 . In opposition, Baroco argues that its failure to make a One Call and obtain its own markout cannot be a proximate cause of laintiffs injuries because the MECC Mark-Out-which Baroco had photographs of - purpo edly did not show the existence of the Cable. The failure to identify the Cable in the MECC Mank-Out, Baroco claims, means that any subsequent request for a mark-out would have also failed t identify the Cable's existence in plaintiff's work area. Therefore, it argues, even if it had de a One Call for a mark-out, it would not have had notice of the Cable. However, Baroco does note tablish that the ma,rk-out that it was required to obtain wotild not have shown the Cable. B oco provides no testimony or expert analysis of the Plates that would establish, as a matter of 1 w, that the Cable was not denoted on the Plates. Rather, to establish the purported non-existenc of the Cable on the Plates, Baro co relies solely on O'Connell's hearsay testimony that e "was told by [Majewski] that" a Con Ed representative "told [Majewski] that he had no kno ledge of the [Cable]" (O'Connell tr at 27). Such testimony, without more, is insuffici nt to raise a question of fact as to whether the Cable would have appeared in a mark-out, had Ba oco requested one (Narvaez v NYRAC, 290 AD2d 400, 400401 [lstDept 2002] ["While hearsay evidence may be utilized in opposition to a motion for l8. 18 of 20 INDEX NO. 154309/2016 [* 19] RECEIVED NYSCEF: 07/31/2020 NYSCEF DOC. NO. 185 summary judgment, such evidence i insufficient to warrant denial of summary judgment where r it is the only evidence upon which t e opposition to swnmary judgment is predicated"]). Further, Majewski's testimony that did not believe that a mark-out was ncce"ary is belied by the facts of the case and the pertine t requirements governing the obtaining of mark-outs. Accordingly, plaintiff is enti led to summary judgment in his favor on his Labor Law§ 200 claim as against Baroco. Common-Law Claim or Ne li ence Per Se Plaintiff argut;:s that he.is ent tled to summary judgment on his conunon-law claims against RCDolner and Baroco based on a negligence per se theory for violating various "relevant provisions of the NYS Industrial Co e" (plaintiffs affirmation in support, r 56). Plaintiff supplies no case law where a violati n of the Industrial Code was found to establish negligence per se. In fact, it has been held that violation of the Industrial Code does "not impos[e] per se liability ... [but] may be considered in evaluating negligence" (Keegan v Swissotel NY, 262 AD2d 111, 113 [1st Dept 1999], lv. ismissed 94 NY2d 858 [1999]). Finally, the court declines plr.ntiffs request to issue a finding, pursuaµt to CPLR 3212 (g), that plaintiff, in fact, was not nelligent in any way with respect to his accident Such an issue goes to a comparative weighin of the evidence and is properly within the purview of the Jury. The parties remaining argmn nts have been considered and they are unpersuasive. CO CLUSION AND ORDER For the foregoing reasons, it· hereby ORDERED that the part of p aintiffNelson Reyes's motion, pursuant to CPLR 3212, for sununary judgment as to liability in is favor on the Labor Law§ 241 (6) claim is granted as 19 of 20 [* 20] INDEX NO. 154309/2016 NYSCEF DOC. NO. 185 RECEIVED NYSCEF: 07/31/2020 against defendants BRK Garage Co LLC and Baroco Contracting Corporation (Baroco); and the part of his motion for summary jud ment as to liability in his favQY on the common-law negligence and Labor Law§ 200 is ranted as against Baroco, only; and the remainder of the motion is denied; and it is further ORDERED that the part of efendant RCDolner LLC's cross motion for summary judgment dismissing the cornmon-1 w negligence and Labor Law§ 200 claim as against it is denied; and the remainder of the cro s-motion seeking contractual indenmification from Baroco is denied as U1.1timely; and it is forth r ORDERED that third-party efendant MECC Contracting Inc.' s cross motion for SU1IJJJJ.ary judgment dismissing the t ird-party complaint is denied as untimely. ----p-~ DATE CHECK ONE: GRANTED APPLICATION: CHECK IF APPROPRIATE: l ASE DISPO ED ODENIED ETTLE ORD R X NON-FINAL DISPOSITION x GRANTED JN PART Do TH ER SUBMIT ORDER INCLUDES T ANSFER/REASSIGN 20 of 20 FIDUCIARY APPOINTMENT QEFERENCE

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