November 20, 2013
Mario Casanova, Plaintiff,
Midtown West B LLC AND ROCKROSE DEVELOPMENT CORP., Defendants.
Attorneys for Plaintiff Devon Reiff, Esq. Sacks & Sacks, LLP
Attorneys for Defendants Leon R. Kowalski, Esq.
Jeffrey K. Oing, J.
On June 2, 2009, plaintiff Mario Casanova ("Casanova") commenced this action against defendants, Midtown West B LLC ("Midtown") and Rockrose Development Corp. ("Rockrose") (collectively referred to as "defendants") to recover for injuries he allegedly sustained while working at a Manhattan construction site located at 505 West 37th Street. In his complaint, he asserts claims for violations of Labor Law §§ 240, 241, and 200, and common law negligence.
Defendants move, pursuant to CPLR 3212, for an order granting them summary judgment dismissing the complaint.
Defendant Midtown owned the subject property where the accident occurred. On March 1, 2007, Midtown hired Rockrose GC MWB LLC to serve as general contractor in the construction of, among other projects, a building on the subject property consisting of apartments with ancillary retail/commercial space and amenities (General Contractor Agreement, Reiff Affirm., Ex. 3). Rockrose agreed to provide "construction administration and management services" (Id. at § 1.1) and "administer and supervise the Work and coordinate the Project on behalf of Owner during construction" (Id. at § 2.1). In addition, Rockrose undertook the obligation to "prepare and/or enter into agreements between itself and each subcontractor or vendor of material" and "supervise the furnishings of all labor and materials required by such agreements" (Id. at § 2.4).
Rockrose's Construction Superintendent at the site, Peter DePalma, testified at his Examination Before Trial ("EBT") that his duties were to "schedule, monitor and coordinate the daily activities of all on-site subcontractors" (DePalma 4/1/2011 EBT at pp. 6, 15). Throughout each day he would "walk through the [site], mak[ing] sure everybody was doing what they were supposed to be doing" (Id. at pp. 15-16). DePalma relied on Total Safety, Inc., a consultant hired by Rockrose for the project, to implement safety procedures created by the general contractor on the work site (Id. at pp. 33-34). In addition, DePalma had authority to stop or correct any unsafe working practices he saw or cordon off areas in which unsafe conditions, including unguarded holes, existed (Id. at pg. 16-17). He exercised this authority regularly (Id.). In daily conversations with the foremen, DePalma would discuss areas that needed to be cleaned because other trades were beginning work in that area (Id. at p. 25). DePalma also held a foremen's meeting once a week in which he noted what needed to be done in the following week and any safety issues that needed to be addressed (Id. at pp. 29-30).
Rockrose hired non-party Sorbara Construction as a subcontractor on the site (Id. at pp. 16-17). Sorbara employed Casanova as a cement and concrete laborer (Casanova 3/9/10 EBT at p. 22). Casanova had no interaction with anyone from Rockrose beyond exchanging greetings (Casanova 3/9/10 EBT at p. 39). No Rockrose employee gave Casanova any direction or instruction as to how to perform his work (Id.).
On February 24, 2009, Casanova sustained an injury while working in the northwest corner of the 30th floor of the building. At the time of his injury, Casanova was laying out "reshores" (Casanova 3/9/10 EBT at p. 46). Reshores are wooden 4x4s, approximately 9 feet long and 40-50 pounds, used to support concrete after it is poured (Id. at pp. 47-48, 54). While carrying two reshores on his right shoulder, Casanova "stepped on some debris" made up of cardboard boxes containing materials used by plumbers or electricians, as well as coffee cups, wires, and plastic bottles with his left leg (Id. at pp. 58-59, 65-66, 69). This debris obscured an uncovered 18-inch by 24-inch hole in the floor (Id. at pp. 69-70; DePalma 4/1/2011EBT at pp. 89, 108). He then fell into the hole up to his left knee (Casanova 3/9/10 at pp. 69-71). As he fell, the reshores pushed against Casanova's neck (Id. at p. 72), and he twisted his upper body to the left to push the reshores away from him, to the right (Id. at p. 71). As he twisted he "felt a pop" in his back and saw a mass the size of a baseball distended from his stomach (Id. at pp. 71, 79).
This hole was one of approximately ten duct openings Sorbara left in the floor, at Rockrose's instructions, for future electrical wiring and plumbing (DePalma 4/1/2011 EBT at pp. 89, 95, 108). Sorbara was responsible for covering each of these openings until the floor was "swept clean, " at which point the cover on the hole would be removed and reinstalled by the carpentry contractor (Id. at pg. 109). DePalma testified that one of the "common dangers" at construction sites was "coverings coming off or being removed and not being replaced properly" (Id. at pp. 17-18), and that covering and securing "pass-through" holes on the floors and in the shaft area of the site was frequently discussed in safety meetings (Id. at pp. 69-70).Had DePalma or an employee of Rockrose or Total Safety noticed an improperly covered hole they would have immediately directed Sorbara to fix it (Id. at p. 109).
Plaintiff opposes only that portion of defendants' motion that seeks dismissal of plaintiff's causes of action under Labor Law § 200 and common-law negligence, and Labor Law § 241 claim predicated upon violations of Industrial Code 12 NYCRR 23-1.7(b)(1), (b)(2), (e)(1), and (e)(2).
Accordingly, defendants' motion for summary judgment dismissing plaintiff's claims under section 240, OSHA Article 1926, and the other violations of the Industrial Code with respect to section 241 is granted without opposition, and those claims are dismissed.
In support of their motion, defendants point to a discrepancy in two separate accident reports wherein plaintiff allegedly stated that he sustained his injury when he was picking up wood, and not as testified in his EBT (Kowalski Affirm., ¶ 5). Other than pointing out such alleged discrepancy, defendants make no further argument about this issue. To the extent defendants are relying on this alleged discrepancy to support their motion for summary judgment dismissing the complaint, such reliance for the following reasons is misguided.
With respect to the "ACCIDENT REPORT" (Kowalski Affirm., Ex. D), which plaintiff signed, he testified that when he went back to work the day after the accident someone at the safety office had him sign a blank piece paper and that, although he described how the accident occurred, he was not given the opportunity to put down on that paper such description (Casanova 3/9/10 EBT at pp. 88-89). Indeed, plaintiff testified that he "had to go back to work because I was afraid I was going to lose my job" (Id. at p. 88). Concerning the other report, "Employer's Report of Work- Related Injury/Illness" (Kowalski Affirm., Ex. E), plaintiff testified that he did not recognize it (Casanova 3/9/10 EBT at p. 90). Indeed, a careful review of that document demonstrates that plaintiff did not prepare that document.
Defendants next argue that all claims against Rockrose Development Corp. should be dismissed because Rockrose GC MWB LLC was the general contractor for Midtown, and Rockrose GC MWB has no connection with Rockrose Development Corp, the defendant named herein.
Defendants argument is unavailing. To begin, reliance on DePalma's testimony is misplaced given that he is not a principal of either entity and has no personal knowledge of the entities' corporate relationship. In any event, DePalma gave the following testimony:
Q. Let me ask it this way: For the 17 years or so at the main office, has there been one name of this business as opposed to the various names of the LLCs created at each construction site?
Q. And do you remember, can you tell us what the name is?
A. Rockrose Development Corporation.
Q. Corp., okay, fine.
So does Rockrose Development Corporation set up a different limited liability corporation at every construction site it works at?
A.I don't know.
Q. At every construction site, does the LLC that you're working for always begin with the name Rockrose MWB?
Q. What is the one consistent name?
Q. Not Rockrose?
(DePalma 4/1/11 EBT at pp. 10-11).
Based on the foregoing, a triable issue of fact exists as to whether Rockrose Development Corporation has a corporate relationship with Rockrose MWB GC, LLC such that it may be held liable for plaintiff's injury. Accordingly, that branch of the motion for summary judgment dismissing the complaint against Rockrose Development Corporation is denied.
The proponent of a summary judgment motion must "make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" and the "[f]ailure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers" (Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 ).
I. Labor Law § 241
Section 241 provides that "[a]ll areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places." It also "imposes a non-delegable duty upon an owner or general contractor to respond in damages for injuries sustained due to another party's negligence in failing to conduct their construction, demolition or excavation operations so as to provide for the reasonable and adequate protection of the persons employed therein" (Rizzuto v. L.A. Wenger Contracting Co., Inc., 91 N.Y.2d 343, 350 ).
To prevail on a cause of action under section 241, a plaintiff must "establish a violation of an implementing regulation which sets forth a specific standard of conduct" (Ortega v. Everest Realty LLC, 84 A.D.3d 542, 544 [1st Dept 2011] [internal citations omitted]). This violation must also be the proximate cause of the plaintiff's injury (Rizzuto, 91 N.Y.2d at 351). The "interpretation of an Industrial Code regulation and determination as to whether a particular condition is within the scope of the regulation present questions of law for the court" (Messina v. City of New York, 300 A.D.2d 121, 123 [1st Dept 2002]).The remaining Industrial Code regulations that plaintiff asserts defendants violated are 12 NYCRR § 23-1.7(b), "Falling Hazards", (1), "Hazardous openings" and (2), "Bridge or highway overpass construction", and 12 NYCRR § 23-1.7(e), "Tripping and other hazards", (1) "Passageways", and (2), "Working areas".
Section 23-1.7(b)(1) provides, in relevant part, that "[e]very hazardous opening into which a person may step or fall shall be guarded by a substantial cover fastened in place or by a safety railing constructed and installed in compliance with this Part." This section's language is sufficiently specific to support a section 241 claim (Alonzo v. Safe Harbors of the Hudson Hous. Dev. Fund Co., Inc., 104 A.D.3d 446, 450 [1st Dept 2013]). Further, the First Department has held that the partially covered 18—inch hole in the floor into which plaintiff's left leg fell qualified as a "hazardous opening" (Keegan v. Swissotel New York, Inc., 262 A.D.2d 111 [1st Dept 1999]). Keegan is virtually indistinguishable from the facts herein. Accordingly, that branch of defendants' motion for summary judgment dismissing plaintiff's Labor Law § 241 claim predicated on 12 NYCRR § 23-1.7(b)(1) is denied.
Plaintiff cannot assert a section 241 claim based a violation of section 23-1.7(b)(2). That section requires that "[a]pproved safety belts [are] provided for and used by persons employed at elevations greater than 30 feet above land or water during bridge or highway overpass construction or at any elevation during structural or construction work performed over highways or railroads open to public traffic." The injury here occurred on the construction site for a residential building rather than a bridge or highway overpass. Accordingly, that branch of defendants' motion for summary judgment dismissing plaintiff's Labor Law § 241 claim predicated on 12 NYCRR § 23-1.7(b)(2) is granted, and it is hereby dismissed.
Plaintiff also alleges violation of sections 23-1.7(e)(1) and (2), both of which are sufficiently specific to support a section 241 claim (Smith v. McClier Corp., 22 A.D.3d 369, 370 [1st Dept 2005]). Section 23-1.7(e)(1) deals with tripping hazards in passageways and, as a result, does not apply to the facts of this case, given that plaintiff was in an open "work area" at the time of the accident rather than a passageway (O'Sullivan v. IDI Const. Co., Inc., 28 A.D.3d 225 [1st Dept 2006]; see, Purcell v. Metlife Inc., 108 A.D.3d 431, 432 [1st Dept 2013]; Burkoski v. Structure Tone, Inc., 40 A.D.3d 378, 382 [1st Dept 2007]). Accordingly, that branch of defendants' motion for summary judgment dismissing plaintiff's Labor Law § 241 claim predicated on a violation of Industrial Code 12 NYCRR § 23-1.7(e)(1) is granted, and it is hereby dismissed.
Industrial Code 12 NYCRR § 23-1.7(e)(2) covers tripping hazards in work areas. It requires that "floors or other work areas be kept free from the accumulation of dirt and debris, as well as from scattered tools, materials and sharp projections." The First Department has limited this section's reach to instances where a plaintiff trips over debris or steps on sharp projections (Cappabianca v. Skanska USA Bldg. Inc., 99 A.D.3d 139, 147 [1st Dept 2012]; Singh v. Young Manor, Inc., 23 A.D.3d 249, 66 [1st Dept 2005]).
In his verified complaint, plaintiff alleges that he was "caused to trip and/or slip on dirt, debris and other refuse at the jobsite, causing him to fall into an unguarded opening" (Verified Complaint, ¶ 9). At his EBT, however, plaintiff testifies that cardboard boxes and loose electrical cords, coffee cups and plastic bottles obscured his view of the hole, causing him to step into it (Casanova 3/9/10 EBT at pp. 68-69). Under these circumstances, a factual issue exists as to whether plaintiff fell into the hole because he tripped on debris or because the debris hid the hole from him. Accordingly, that branch of defendants' motion for summary judgment dismissing that part of plaintiff's Labor Law § 241 claim predicated on a violation of Industrial Code 12 NYCRR § 23-1.7(e)(2) is denied.
II. Labor Law § 200 and common law negligence
Section 200 "codifies an owner's or general contractor's common-law duty of care to provide construction site workers with a safe place to work" (Cappabianca, 99 A.D.3d at 143-44 [citations omitted]). The "duty to provide a safe place to work is not breached, " however, when a worker's injury "arises out of a defect in the subcontractor's... tools and methods, or through negligent acts of the subcontractor occurring as a detail of the work" (Persichilli v. Triborough Bridge & Tunnel Auth., 16 N.Y.2d 136, 145 ). Thus, personal injury claims under section 200 "fall into two broad categories: those arising from an alleged defect or dangerous condition existing on the premises and those arising from the manner in which the work was performed" (Cappabianca, 99 A.D.3d at 143-44). Where the injury in question is caused by an existing defect or dangerous condition on the work site, "liability attaches if the owner or general contractor created the condition or had actual or constructive notice of it" (Id.). By contrast, where a construction accident arises from the "means and methods" of the subcontractor's work, liability under section 200 will only be imposed where owner or general contractor "exercised control or supervision over the work and had actual or constructive notice of the purportedly unsafe condition" (Alonzo, 104 A.D.3d at 449 [citations omitted] [emphasis added]).
Here, plaintiff's injury was not caused by an existing dangerous condition or defect (Mendoza v. Highpoint Associates, IX, LLC, 83 A.D.3d 1, 9-10 [1st Dept 2011] ["compromised" roof, which collapsed while the plaintiff was inspecting it, was an existing dangerous premises condition]). Rather, the facts herein are analogous to those in Alonzo v. Safe Harbors, supra, in which the plaintiff, a carpenter's assistant working on the conversion of a hotel into a residential apartment building, commenced an action against the general contractor for injuries sustained when he stepped on a section of plywood that flipped up, exposing the hole it was meant to cover, causing plaintiff to fall through the hole to the story below (Alonzo, 104 A.D.3d at 446). The First Department held that the improperly attached plywood was part of the "means and methods of the work" on the construction site rather than a "dangerous condition" (Id. at 449).
Similarly, in Dalanna v. City of New York, 308 A.D.2d 400 [1st Dept 2003], plaintiff, a plumber, tripped over a protruding bolt that plaintiff's employer had failed to cut down to make it level with the surrounding surface after being instructed to do so. The First Department held that this protruding bolt was created "by the manner in which plaintiff's employer performed its work" and, as a result, the general contractor and property owner were not liable for plaintiff's injury (Id.).
Here, neither the unsecured hole into which plaintiff stepped into nor the debris surrounding it were the result of any existing inherent structural defect in the building itself, but directly resulted from the construction work being performed on the building. Therefore, plaintiff's injury stemmed from the manner and means of the work performed on the construction site. The question that remains is whether defendants exercised supervisory control over the injury-producing work, and had actual or constructive notice of the condition.
As to notice, a defendant has constructive notice of an unsafe condition when "the condition is visible, apparent, and exists for a sufficient length of time prior to the happening of an accident to permit the defendant to discover and remedy it" (Lopez v. Dagan, 98 A.D.3d 436, 438-39 [1st Dept 2012]). This notice must call attention to the specific defect or [unsafe] condition and its specific location, sufficient for corrective action to be taken" (Mitchell v. New York Univ., 12 A.D.3d 200, 201 [1st Dept 2004][emphasis added]). General notice of a potential dangerous condition is insufficient for a plaintiff to establish actual or constructive notice (Id. at 201 [general contractor did not have constructive notice of muddy ground that led to plaintiff's fall when general contractor's superintendent only had general awareness that muddy ground was a possible result of the subcontractor's work]). Nonetheless, evidence demonstrating that a potential danger was discussed at safety meetings run by a general contractor is sufficient to create an issue of fact as to whether the requisite notice of the dangerous condition existed (Sosa v. 46th St. Dev. LLC, 101 A.D.3d 490, 493-494 [1st Dept 2012] [issue of fact as to whether defendant general contractor had the requisite notice of danger created by exposed electrical wire when there was a history of contractors activating electricity on site without permission and this potential danger was discussed at safety meetings run by general contractor]).
Here, Rockrose's Construction Superintendent, Peter DePalma, testified that he frequently emphasized the importance of keeping all holes on the construction site covered during meetings with the various foremen on the job. While a party can demonstrate a lack of actual or constructive notice by showing that the area in which the unsafe condition existed was monitored on a regular basis (Massey v. Newburgh W. Realty, Inc., 84 A.D.3d 564 [1st Dept 2011]), defendants have proffered no evidence to establish how frequently the 30th floor was inspected or the last time it was inspected prior to plaintiff's injury. Under these circumstances, factual issues exist as to whether the debris and uncovered hole existed for a period of sufficient length that defendants had actual or constructive notice of its existence. This finding does not end the inquiry. Although a factual issue exists concerning notice, the remaining issue is whether defendants exercised sufficient supervisory control over plaintiff to be subject to liability either under section 200 or the common law negligence theory.
Here, neither Midtown nor Rockrose supervised plaintiff. Midtown contracted with Rockrose to coordinate and supervise the overall construction of the building on its behalf (General Contractor Agreement at p. 2, Reiff Aff. in Opp., Ex. 3). Furthermore, plaintiff testified that no Rockrose employee ever supervised him, and that he never spoke with any Rockrose employee beyond exchanging greetings (Casanova 3/9/10 EBT at p. 39).
The fact that Rockrose had DePalma, the Construction Superintendent, on site does not, standing alone, raise a factual issue as to supervision. Here, DePalma's duties on the construction site included conducting daily walk-throughs, cordoning off unsafe conditions, and discussing repeatedly with subcontractors the importance of covering holes on the work site are insufficient to establish supervisory control over plaintiff. In Singh v. Black Diamonds LLC, 24 A.D.3d 138 [1st Dept 2005]), the First Department affirmed Supreme Court's dismissal of plaintiff's common-law negligence and Labor Law § 200 claims for injuries sustained from a fall through an opening in the roof. In so affirming, the First Department reasoned that even though the general contractor's project superintendent had "discussed covering the subject hole in the roof [through which the plaintiff later fell]" and "inspected the plywood in question after it had been nailed down over the hole" such acts demonstrated only general supervision and coordination of the work site and was insufficient to trigger liability (Id. at 140 [emphasis added]).
Indeed, nothing in the record demonstrates that DePalma ever discussed covering the subject hole in question, let alone that DePalma personally inspected it. As such, DePalma's general emphasis on keeping holes covered is merely general supervision and coordination and does not establish supervision over plaintiff. Thus, for section 200 and common law negligence purposes, defendants did not exercise supervision over plaintiff so as to subject them to liability under either theory of recovery. Accordingly, defendants' motion for summary judgment dismissing plaintiff's Labor Law § 200 claim and common law negligence claim is granted, and they are hereby dismissed.
Accordingly, it is
ORDERED that branch of defendants' motion for summary judgment dismissing plaintiff's cause of action pursuant to Labor Law § 240 is granted without opposition, and it is hereby dismissed; and it is further
ORDERED that branch of defendants' motion for summary judgment dismissing plaintiff's cause of action pursuant to OSHA Article 1926 is granted without opposition; and it is further
ORDERED that branch of defendants' motion for summary judgment dismissing plaintiff's cause of action pursuant to Labor Law § 200 and common law negligence is granted, and it is hereby dismissed; and it is further
ORDERED that branch of defendants' motion for summary judgment dismissing plaintiff's cause of action pursuant to Labor Law § 241 based on 23-1.7(b)(2) and (e)(1) is granted, and it is dismissed; and it is further
ORDERED that branch of defendants' motion for summary judgment dismissing plaintiff's cause of action pursuant to Labor Law § 241 based on 23-1.7(b)(1) and (e)(2) is denied; and it is further
ORDERED that branch of defendants' motion for summary judgment dismissing the complaint against Rockrose Development Corporation is denied; and it is further
ORDERED that counsel shall call the Clerk of Part 48 at 646—386—3265 to schedule a status conference.