BRAULIO OCASIO. Plaintiff,
QUEENS FRESH MEADOWS LLC, FM INVESTORS, L.P. and GARDEN STATE MANAGEMENT CO., L.P., Defendants. Index No. 116602/08
DORIS LING-COHAN, JSC
This matter arises in connection with the injury of the plaintiff, Braulio Ocasio (Ocasio), at the premises known as 67-06 186th Lane, Fresh Meadows, New York (the Building). According to the complaint, the defendants Queens Fresh Meadows LLC, FM Investors, L.P., and Garden State Management Co., L.P. (collectively, herein, the Owners) owned, managed, and controlled the Building. Ocasio claims that his injuries, occurring at elevation, are the result of Owners' negligence (first cause of action), and calls for the application of the Labor Law of the State of New York, § 200 et. seq, particularly, §§ 200, 240 (1), 241 (6), and 242-a (second cause of action).
On August 12, 2008, Ocasio was working for non-party McFar Contractors (McFar), replacing the roofs of the buildings located in a Queens Fresh Meadows Apartments Complex that includes the Building. Ocasiso was tasked, on that day, to remove granular pebbles from the roof of the Building. He and several of his co-workers were directed, by McFar, to empty wheelbarrows filled with these granular pebbles into a vertical chute running along the side of the Building, which emptied into a dumpster located on the ground below.
The Building roof had a ledge of approximately three and one-half feet high running around it. McFar constructed and erected a ramp (the Ramp) to assist in raising the wheelbarrows to the level of the ledge, so that the granular pebbles could be deposited in the chute. According to undisputed allegations of the complaint, plaintiffs deposition testimony and supporting affidavit, the Ramp was eighteen to twenty feet long, consisted of two and one-half eight foot long pieces of plywood running together end to end, and attached to each other by two-by-fours nailed into the plywood, with no supports or handrails.
It is also uncontested that on the day in question, the roof had considerable standing water on it. There was approximately two to three inches of standing water on that portion of the roof where the bottom of the Ramp was located. The entire Ramp apparently became wet and slippery because the workers were forced to push the wheelbarrows through the standing water at the bottom of the Ramp.
Ocasio's accident allegedly occurred as he was pushing a wheelbarrow filled with 250-300 lbs. of granular pebbles up the Ramp. He had almost gotten to the top of the Ramp, and was preparing to empty the granular pebbles into the chute, when the weight of the wheelbarrow started to slide back, pushing him down the Ramp. As Ocasio pushed back against the wheelbarrow he suddenly felt a "pop" in the back of his left leg and pain in his leg. Ocasio stopped sliding back near the bottom of the Ramp. To recover for his injury, Ocasio now brings this action for negligence (first cause of action), and violations of New York State Labor Law (second cause of action). Owners move for summary judgment dismissing the complaint, and Ocasio cross-moves for summary judgment as to liability only.
Labor Law § 241(6) Claim (under Second Ca use of A ction)
Ocasio alleges a violation of Labor Law § 241(6), based upon the Industrial Code (for Protection in Construction, Demolition and Excavation Operations) of the State of New York(hereinafter, the Industrial Code) under § 23-1.22 (b) (3), which governs structural runways, ramps, and platforms. It is uncontested, and Owners admit, that the Ramp did not meet the standards set forth in that section, and that Ocasio injured himself sliding down the Ramp. See Doty v Eastman Kodak Co., 229 A.D.2d 961, 962 (4th Dept), h dismissed in part, denied in part 89 N.Y.2d 855 (1996) (implying that sliding down a ramp would implicate Labor Law 241 ).
Labor Law 241 (6) obliges owners and contractors (and their agents) to operate and conduct construction sites so "as to provide reasonable and adequate protection and safety to the persons employed therein ...." The standards for "reasonable and adequate protection" are generally drawn from the rules promulgated by the Commissioner of the Department of Labor, i.e. the Industrial Code. Ross v Curtis-Palmer Hydro-Electric Co., SI N.Y.2d 494, 501-502 (1993); see also Long v Forest-Fehlhaber, 55 N.Y.2d 154, 160 (1982)..
Despite this, Owners argue that they are not liable for Ocasio's accident because they did not "direct, control or supervise the work being done at the work site, and did not provide any materials, tools or safety devices used at the work site." Reply Aff, ¶ 36. Relying on Morris v Pavarini Constr. (9 N.Y.3d 47 , citing Allen, 44 N.Y.2d at 297), Owners rightly maintain that a non-delegable duty will only be enforced "where the regulation in question contains a 'specific, positive command."' However, here, there is, indeed, a 'specific, positive command' offered in Industrial Code § 23-1.22 (b) (3). Notably, the section does not use terms such as 'adequate, ' 'effective, ' 'proper, ' merely to incorporate an ordinary tort duty of care (see Ross, 81 N.Y.2d at 502, 503-04), or to flatly reiterate common-law standards (Long v Forest-Fehlhaber, 55 N.Y.2d 154, 160 ); rather, the section offers specific measures, materials, and methods for construction of the subject safety device. See generally Buckley v Columbia Grammar and Preparatory, AA A.D.3d 263, 271 (1st Dept 2007), lv denied 10 N.Y.3d 710 (2008).
Finally, the purpose of Labor Law § 241 (6) is to "compel owners and general contractors to become more concerned with the safety practices of subcontractors, because they would be exposed to liability without regard to control over the work" Monroe v City of New York, 67 A.D.2d 89, 105 (2nd Dept 1979) (emphasis added), see also Rizzuto v LA. Wenger Contr. Co., 91 N.Y.2d 343, 352 (1998). Therefore, Owners' argument that they did not control the Building, and are, therefore, not subject to liability, is without merit. As it is undisputed by Owners that the Ramp did not meet the standards set forth in the Industrial Code, Owners are subject to liability under Labor Law § 241 (6) as a matter of law. Thus, Ocasio's cross-motion for summary judgment as to liability under Labor Law § 241 (6) is granted, and Owners' motion for summary judgment dismissing this portion of the complaint is denied.
Labor Law§240 (1) Claim (under Second Cause of Action)
Owners' motion for summary judgment dismissing the claim under Labor Law § 240 (1) is denied and Ocasio's cross-motion for summary judgment as to liability under §240(1) is granted, as detailed below. Section 240 (1) of the Labor Law provides that "[a]ll contractors and owners and their agents" must furnish adequate ladders and similar safety devices to protect employees engaged in certain types of construction work. The purpose of Labor Law § 240 (1) is to "impose a 'flat and unvarying' duty upon the owner and contractor despite any contributing culpability on the part of the worker." Bland v Manocherian, 66 N.Y.2d 452, 461 (1985), citing Zimmer v Chemung County Performing Arts, 65 N.Y.2d 513, 521 (1985). As such, § 240 (1) imposes absolute liability for any breach of the statutory duties contained therein which proximately causes injury to a worker involving extraordinary elevation risks. Rocovich v Consolidated Edison Co., 78 N.Y.2d 509, 513 (1991). It is well settled that § 240 (1) "is to be construed as liberally as may be for the accomplishment of the purpose for which it was thus framed." Blake v Neighborhood Horn. Servs. of New York City, 1 N.Y.3d 280, 292 (2003); Runner v. New York Stock Exchange, 13 N.Y.3d 599 (2009); Harris v. City of New York, 83 A.D.3d 104, 108 (1st Dept 2011).
Owners argue that they are not liable under § 240 (1) because: (i) Ocasio did not fall from an elevated worksite; (ii) the Ramp in this matter neither broke nor shifted; and (iii) Owners did not have any authority at the work ...