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Espinosa v. Azure Holdings II

December 4, 2008

LUIS ESPINOSA, PLAINTIFF-APPELLANT,
v.
AZURE HOLDINGS II, LP, ET AL., DEFENDANTS, PYGROS CONSTRUCTION, ET AL., DEFENDANTS-RESPONDENTS. [AND A THIRD-PARTY ACTION]



Plaintiff appeals from an order of the Supreme Court, Bronx County (Nelson S. Roman, J.), entered October 5, 2006, which, insofar as appealed from, denied his cross motion for partial summary judgment as to liability on his cause of action under Labor Law § 240(1), granted defendants' motion and cross motions for summary judgment dismissing the complaint and all cross claims, and dismissed the third-party complaint.

The opinion of the court was delivered by: Friedman, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Jonathan Lippman, P.J., David Friedman, James M. Catterson, Karla Moskowitz, JJ.

29562/02, 83599/03

Plaintiff, a worker on a gut rehabilitation project, was injured when the sidewalk on which he was standing collapsed due to the failure of the cellar vault below it. On this appeal, plaintiff argues that he should have been granted summary judgment as to liability on his Labor Law § 240(1) cause of action based on this incident, while defendants argue that the IAS court correctly granted them summary judgment dismissing that claim. Also at issue on this appeal is the IAS court's grant of summary judgment dismissing plaintiff's causes of action under Labor Law § 241(6), Labor Law § 200, and common-law negligence.

Consistent with this Court's recent decision in Jones v 414 Equities LLC (__ AD3d __, 2008 NY Slip Op 08197 [2008]), we hold that neither side is entitled to summary judgment on the § 240(1) claim, as the record gives rise to a triable issue as to whether the failure of the cellar vault beneath the sidewalk-a completed, permanent building structure-was reasonably foreseeable. We also hold that summary disposition of the § 200 and common-law negligence claims was inappropriate, as the record does not establish as a matter of law that defendants either had or did not have notice of the risk of the cellar vault's collapse. We affirm, however, the dismissal of plaintiff's claim under Labor Law § 241(6).

On the day of the accident, plaintiff, an employee of the project's demolition sub-subcontractor, third-party defendant Avian Construction Corp., was instructed to straighten out the metal debris containers that were placed on the concrete sidewalk outside the building referred to in the record as "building number two" (hereinafter, building no. 2). As plaintiff stepped onto the sidewalk, it collapsed beneath him into building no. 2's cellar vault. Demetre Beryeles, a principal of the project's subcontractor, defendant Pyrgos Construction Corp. (which hired Avian, plaintiff's employer), testified that a post-accident inspection revealed that there had been a failure of the horizontal steel support beam that held up the sidewalk slab situated over the cellar vault. According to Beryeles, the steel support apparently had been weakened by corrosion.

The evidence shows that no pre-accident signs of a dangerous condition were visible on the surface of the portion of the sidewalk that collapsed. Plaintiff testified that he never noticed any "holes or cracks" in the cement of that area of the sidewalk, although he walked over it about 20 times. Beryeles testified, without contradiction, that "the concrete on the top of the vault looked not really bad," and that he received "the impression that that sidewalk was good" from the fact that the City of New York had installed a sidewalk bridge there a "few years earlier." Beryeles further testified that, in building no. 2, neither the horizontal steel support for the sidewalk (which collapsed) nor the ceiling of the cellar vault was inspected before the accident occurred. Neither was there any testimony that any pre-accident circumstances or complaints gave an indication of unsoundness in the horizontal steel support in the cellar vault of building no. 2 or any of the other four buildings involved in the project.

As to the general condition of the five buildings, it is undisputed that they were all in advanced stages of internal disrepair and were undergoing a gut rehabilitation. John J. Frezza, a principal of the general contractor, defendant and third-party plaintiff Strategic Construction Corp. (which hired Pyrgos), testified that he inspected the buildings before work began, and saw that "[t]hey were in a pretty bad state of disrepair, they were unoccupiable." With regard to building no. 2 in particular, Frezza testified that the building was in a state of "interior collapse," meaning that the interior floor beams, the "core" of the building, had fallen through. According to Frezza, "you could look [into the building] through the first floor window and see the sky."

After discovery, defendants moved and cross-moved for summary judgment dismissing the complaint and all cross claims, and plaintiff cross-moved for partial summary judgment as to liability on his cause of action under Labor Law § 240(1). The IAS court denied plaintiff's cross motion and granted defendants' motion and cross motions, resulting in dismissal of the complaint. This appeal by plaintiff ensued.

Turning first to the causes of action under Labor Law § 200 and common-law negligence, we conclude that building no. 2 had reached such an extreme stage of obvious deterioration-essentially, it was no more than a shell around a collapsed interior-that a jury could rationally find that defendants (all of which knew of the interior collapse) had constructive notice of the possibility of the unsoundness of any structural element of the building, including the horizontal steel support in the cellar vault ceiling. Under these circumstances, such constructive notice could rationally be found to exist even in the absence of any observable sign that the sidewalk and its underlying support were unsound. Still, because the sidewalk (which, as indicated, was in good condition) and its underlying support were not part of the building's interior, we cannot say that the record establishes as a matter of law that defendants had constructive notice of the dangerous condition that resulted in the accident. Hence, the question of constructive notice should be resolved by a trier of fact. Given the existence of a triable issue as to constructive notice of the dangerous condition that caused the accident, it follows that neither side was entitled to summary judgment on the causes of action under Labor Law § 200 and common law negligence.*fn1

As to the cause of action under Labor Law § 240(1), that statute does not create an exception to the fundamental principle of tort law that "a defendant is liable only for the'normal and foreseeable consequences' of its acts" (Buckley v Columbia Grammar & Preparatory, 44 AD3d 263, 267 [2007], lv denied 10 NY3d 710 [2008], quoting Gordon v Eastern Ry. Supply, 82 NY2d 555, 562 [1993]). Accordingly, "the determination of the type of protective device required for a particular job [and thus whether § 240(1) is implicated] turns on the foreseeable risks of harm presented by the nature of the work being performed" (Buckley, 44 AD3d at 268).

Consistent with the principle that liability under Labor Law § 240(1) arises only where "the risk of injury from an elevation-related hazard was foreseeable" (Shipkoski v Watch Case Factory Assoc., 292 AD2d 587, 588 [2002]), this Court recently held, in Jones v 414 Equities LLC (supra), that, to prevail on a § 240(1) claim based on an injury resulting from the failure of a completed and permanent building structure (in that case, the collapse of a floor), the plaintiff must show that the failure of the structure in question "was a foreseeable risk of the task he was performing" (2008 NY Slip Op 08197, *12) creating a need for protective devices of the kind enumerated in the statute. As noted in Jones, there is prior case law to that effect (see Balladares v Southgate Owners Corp., 40 AD3d 667, 669-670 [2007] [§ 240(1) claim based on collapse of basement floor dismissed]; Shipkoski, 292 AD2d at 589 [plaintiff denied summary judgment on § 240(1) claim arising from collapse of third floor of vacant building]). These decisions are consistent with the ...


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