WALKER v. [And Other Actions]. (2004)

Orders, Supreme Court, New York County (Leland DeGrasse, J.), entered on or about July 30, 2003 and November 6, 2003, which, inter alia, granted the motion of defendant Weintraub & diDomenico for summary judgment dismissing the complaint as against it, denied plaintiff leave to amend his bill of particulars to assert specific Industrial Code violations in support of his Labor Law § 241(6) claim, and granted the cross motion of defendants Metro-North Commuter Railroad and Crow Construction Company for summary judgment insofar as to dismiss plaintiff's Labor Law § 241(6) claims, unanimously modified, on the law and the facts, to grant plaintiff leave to amend his bill of particulars to assert specific violations of the Industrial Code in support of his Labor Law § 241(6) claim and to deny the cross motion of Metro-North and Crow for summary judgment dismissing plaintiff's Labor Law § 241(6) claims as against them and to reinstate those claims, and otherwise affirmed, without costs.

The motion court granted summary judgment in Metro-North and Crow's favor, as unopposed, having rejected as untimely a “Second Cross Motion” submitted by plaintiff to, inter alia, obtain leave to amend his bill of particulars and oppose the cross motion of Metro-North and Crow. By order entered on or about November 6, 2003, the court denied plaintiff's motion to renew or reargue and adhered to its prior determination.

 The failure to comply with CPLR 2215 or 2214 may be excused in the absence of prejudice (see Dinnocenzo v. Jordache Enters., Inc., 213 A.D.2d 219, 624 N.Y.S.2d 6 [1995];  Flannery v. Goldsmith, 268 A.D.2d 267, 701 N.Y.S.2d 46 [2000] ).   Here, the parties presented multiple summary judgment motions to the court.   In plaintiff's first cross motion for partial summary judgment against defendant architects diDomenico & Partners s/h/a Weintraub & diDomenico (diDomenico), he submitted an affirmation of counsel which identified violations of 12 NYCRR § 23-1.7(e) and 12 NYCRR § 23-1.13.   In support of the alleged violation of 12 NYCRR § 23-1.7(e), counsel referred to a prior affidavit of its engineering expert that described the provision, but mistakenly identified it as 22 NYCRR § 23-1.7(e).   While Metro-North and Crow complain that these submissions were addressed to diDomenico alone, they too were served with the cross motion, at which time they had yet to serve their cross motion.   The underlying facts relating to the manner in which plaintiff was injured were the same for all defendants, and thus, Metro-North and Crow should not have been surprised when plaintiff attempted to assert the foregoing violations of specific Industrial Code provisions in opposition to Metro-North and Crow's own cross motion for summary judgment.   Plaintiff's counsel evidently acted in good faith in submitting his second cross motion, and the papers should have been considered in opposition to the Metro-North/Crow cross motion.

 To state a claim under Labor Law § 241(6), a plaintiff must identify a specific Industrial Code provision mandating compliance with concrete specifications (see Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 505, 601 N.Y.S.2d 49, 618 N.E.2d 82 [1993] ).   Contrary to plaintiff's contention, the failure to identify a qualifying section in the complaint or bill or particulars may serve as a basis for summary dismissal of a § 241(6) claim (see e.g. Reilly v. Newireen Assocs., 303 A.D.2d 214, 756 N.Y.S.2d 192 [2003], lv. denied 100 N.Y.2d 508, 764 N.Y.S.2d 235, 795 N.E.2d 1244 [2003] ).   However, this failure is not necessarily fatal to a § 241(6) claim and, in the absence of unfair surprise or prejudice, may be rectified by amendment, even where a note of issue has been filed (see e.g. Padilla v. Frances Schervier Hous. Dev. Fund Corp., 303 A.D.2d 194, 758 N.Y.S.2d 3 [2003];  Adams v. Santa Fe Constr. Corp., 288 A.D.2d 11, 732 N.Y.S.2d 11 [2001];  Noetzell v. Park Ave. Hall Hous. Dev. Fund Corp., 271 A.D.2d 231, 705 N.Y.S.2d 577 [2000] ).   Here, it is plain that the amendment sought by plaintiff would have entailed no cognizable prejudice and should have been granted.   Accordingly, Metro-North and Crow's cross motion predicated on plaintiff's failure to allege a specific Industrial Code violation should have been denied (see Latino v. Nolan & Taylor-Howe Funeral Home, Inc., 300 A.D.2d 631, 754 N.Y.S.2d 289 [2002] ).

 The motion court's grant of summary judgment dismissing all claims against diDomenico must be affirmed.   Notwithstanding any obligation undertaken by diDomenico, the project architect, to assure compliance with its construction plans and specifications, liability for plaintiff's injury may not be imposed on it, since there is no evidence that it committed an affirmative act of negligence and there is no clear contractual provision creating an obligation explicitly running to and for the benefit of workers such as plaintiff (see Hernandez v. Yonkers Contr. Co., 306 A.D.2d 379, 760 N.Y.S.2d 865 [2003];  Giordano v. Seeyle, Stevenson & Knight, Inc., 216 A.D.2d 439, 628 N.Y.S.2d 373 [1995];  Bernal v. Pinkerton's, Inc., 52 A.D.2d 760, 382 N.Y.S.2d 769 [1976], affd. 41 N.Y.2d 938, 394 N.Y.S.2d 638, 363 N.E.2d 362 [1977] ).   Nor may Labor Law § 241(6) or § 200 serve as a basis for imposing liability against a project architect as an “agent” of the owner unless the project architect controls and supervises the work or has the authority to direct the construction procedures or safety measures employed at the site (see Carter v. Vollmer Assocs., 196 A.D.2d 754, 602 N.Y.S.2d 48 [1993];  Davis v. Lenox School, 151 A.D.2d 230, 541 N.Y.S.2d 814 [1989] ).   Here, the record furnished no ground to believe that these conditions of liability might be established as against diDomenico.