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Gerrish v. 56 Leonard LLC

Supreme Court of New York, First Department

February 16, 2017

Robert Gerrish, Plaintiff-Appellant,
56 Leonard LLC, et al., Defendants-Respondents, Collavino Structures, LLC, Defendant.

          Sacks and Sacks, LLP, New York (Scott N. Singer of counsel), for appellant.

          Ropers, Majeski, Kohn & Bentley, P.C., New York (Kirsten L. Molloy of counsel), for respondents.

          Sweeny, J.P., Acosta, Feinman, Kapnick, Webber, JJ.

         Order, Supreme Court, New York County (Barbara Jaffe, J.), entered April 28, 2015, which, insofar as appealed from as limited by the briefs, granted the motion of defendants 56 Leonard LLC (56 Leonard) and Lend Lease (US) Construction LMB Inc. (Lend Lease) to dismiss plaintiff's Labor Law § 241(6) claim as against them, reversed, on the law and the facts, without costs, and the motion denied. [1]

         Plaintiff, Robert Gerrish, sustained injuries when, while working as an ironworker, he tripped and fell on debris at a work site. At the time of the accident, he was working at a yard in the Bronx, where he was bending and cutting steel rebar to be used for the construction of a new building located at 56 Leonard

         Street in downtown Manhattan. 56 Leonard was the property owner and Lend Lease was the construction manager. Lend Lease, "[a]cting solely as agent for [56 Leonard], " subcontracted with defendant Collavino Structures, LLC (Collavino) as the superstructure concrete contractor pursuant to a Trade Contract dated February 13, 2012. Collavino in turn subcontracted with plaintiff's employer, nonparty Navillus Tile, Inc. (Navillus), to "receive, bend and install all rebar required for said project." The Collavino/Navillus subcontract further provided that "Collavino will provide all trucking for bent rebar from Bronx yard to the site." It also incorporated by reference numerous other contracts involving defendants, but which are not part of the record and, therefore, are not currently before this Court. The Trade Contract provided, inter alia, in Schedule 3 - "Temporary Facilities" - that

"[a]ll temporary Project site facilities and storage, sheds, shanties, material storage rooms, field offices, power, hoists, scaffolding, cold weather protection, etc. (Temporary Facilities') required in performing the Work shall be furnished by Contractor [Collavino]. Contractor agrees to furnish, at Contractor's expense, sufficient Temporary Facilities for the efficient performance of the Work. Contractor agrees to place its Temporary Facilities in locations designated by Owner or Construction Manager. When it becomes necessary, in the opinion of the Construction Manager, for Contractor to provide Temporary Facilities, Contractor will do so in an expeditious manner and at no additional cost...." (emphasis added)

         Thereafter, Collavino leased a portion of a work site in the Bronx (Bronx Yard) from nonparty Harlem River Yard Ventures, Inc. (Harlem River). Pursuant to that Temporary License, the only work Collavino was to carry out at the yard was in connection with "a construction site in Manhattan." Collavino could not perform any other type of work at the Bronx Yard without first obtaining prior written approval from Harlem River. Plaintiff's employer was not a party to the Temporary License or the Trade Contract.

         Plaintiff commenced this action against defendants, alleging, inter alia, a violation of Labor Law § 241(6).

         Labor Law § 241(6) provides, in relevant part, that

"[a]ll contractors and owners and their agents, ... when constructing or demolishing buildings or doing any excavating in connection therewith, shall comply with the following requirements:...

         "6. All 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."

         56 Leonard and Lend Lease moved to dismiss the complaint against them pursuant to CPLR 3211(a)(1) and (7), arguing that Labor Law § 241(6) did not apply because, at the time of his accident, plaintiff was fabricating "steel rebars at an off-site temporary project facility in the Bronx... for a construction project located at 56 Leonard Street in Manhattan, " and, therefore, this did not constitute work at a construction site, as required by the statute. The motion court agreed, citing Flores v ERC Holding LLC (87 A.D.3d 419');">87 A.D.3d 419 [1st Dept 2011]). We disagree and reverse, finding that Flores is distinguishable [2]. In Flores, the plaintiff was injured while working at " his employer's Bronx facility " (emphasis added), which was leased by his employer for the "storage of its equipment and materials" (87 A.D.3d at 420). Thus, neither the property owner defendant, nor the general contractor defendant in Flores was involved with the Bronx facility.

         The Flores Court, relying on Adams v Pfizer, Inc. (239 A.D.2d 291');">239 A.D.2d 291 [1st Dept 2002], lv denied99 N.Y.2d 511');">99 N.Y.2d 511');">99 N.Y.2d 511');">99 N.Y.2d 511 [2003]), looked to factors such as physical proximity and common ownership and operation of the off-site premises in determining whether the plaintiff was working in a construction area within the meaning of Labor Law § 241(6) (87 A.D.3d at 421). However, the facts in Adams are distinguishable. In Adams, the plaintiff was injured on his employer's premises while working on a mock-up design being constructed by his employer in connection with renovations to be completed at the defendant Pfizer's premises (id. at 292). The Adams case does not stand for the proposition that a construction area within the meaning of Labor Law § 241(6) must be within a certain mileage of, or proximity to, the actual building site. Nor does it support the proposition that the property owner and/or construction manager must have ownership of, or operate the additional off-site facility, in order to bring it within the purview of the statute. Rather, Adams simply stands for the proposition that an ...

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