David Tracthman, Plaintiff, v. The City of New York, Defendant. (2024)

Recitation as per CPLR §§ 2219(a) and/or 3212(b) of papers considered on review of this motion:

NYSCEF Doc. #s 36-60, 71-74 by Defendant

NYSCEF Doc. #s 61-67 by Plaintiff

Upon the foregoing cited papers and after oral argument on February 7, 2024, pursuant to CPLR § 3212, Defendant's Motion for Summary Judgement (Motion Sequence #1) is GRANTED in part and DENIED in part. Plaintiff's Cross-Motion for Summary Judgment (Motion Sequence #2) is DENIED.

BACKGROUND

This personal injury action arose from an August 17, 2018 workplace accident. At the time Plaintiff was employed by EJ Electric Installation Company ("EJ"), a contractor hired by the City to install LED lighting underneath the elevated tracks located at Broadway and Myrtle Avenue in Brooklyn.¹ Plaintiff alleges that while performing work suspended in an aerial bucket underneath the elevated subway tracks the aerial basket was struck by a private sanitation vehicle owned by #1 Waste Recycler and operated by Mohammed Husam.² Plaintiff alleges that the accident resulted in his hand being crushed causing severe damage requiring surgical intervention resulting in partial amputation.³

Plaintiff initially filed this action on June 10, 2019 against #1 Waste and Recycler, Inc., Mohammed Husam, New York City Transit Authority, Metropolitan Transportation Authority and MTA Capital Construction Company. On August 16, 2022 a stipulation was filed discontinuing the action against #1 Waste and Recycler, Inc. and Mohammed Husam.⁴ On June 7, 2023 a stipulation of discontinuance was filed discontinuing the action against New York City Transit Authority, Metropolitan Transportation Authority and MTA Capital Construction Company.⁵

Defendant now moves for summary judgment, asserting that Plaintiff does not have any cognizable claims under Labor Law §§ 200, 240(1) or 241(6). Plaintiff opposed and cross-moved for summary judgement contending entitlement to judgment as a matter of law because had it not been for the unsafe work conditions at the City-owned worksite, he would not have been injured.

DISCUSSION

Plaintiff is not covered by the provisions of Labor Law § 200.

On a motion for summary judgement, the moving party has the burden to make a prima facie showing of entitlement to judgment as a matter of law and tender sufficient evidence to demonstrate the absence of any material issues of fact. Voss v. Netherlands Ins. Co., 22 NY3d 728 (2014) (citing Alvarez v Prospect Hosp., 68 N.Y.2.d 320 [1986]). If a moving party fails to meet their burden, summary judgment must be denied "regardless of the sufficiency of the opposing papers." Id. (citing Vega v. Restani Constr. Corp., 18 NY3d 499 [2012]). Summary judgment is a "drastic remedy" that should not be granted where there is any doubt about the existence of triable fact or an arguable issue. Marino v. Jamison, 189 AD3d 1021 (2d Dept. 2020).

For Labor Law § 200 to apply, a plaintiff must show that the owner of a property or the general contractor working at a property supervised said property or had actual or constructive notice of an unsafe condition. McLeod v Corp. of Presiding Bishop of Church of Jesus Christ of Latter Day Sts., 41 AD3d 796 (2d Dept 2007). Here, Defendant established its prima facie entitlement to summary judgment with regards to Labor Law § 200 as it did not have authority to supervise or control the work Plaintiff performed while installing lighting at the worksite where the accident occurred. Wayne Archibald, the Chief of Maintenance for the City's Department of Transportation testified that Defendant did not direct or control the means and methods of the work.⁶ In addition, he testified that Defendant did not plan where EJ would station their equipment or workers or how work was to be performed by EJ.⁷ Defendant did not directly supervise the Plaintiff who was employed by EJ, nor did it perform any other supervisory tasks. Consequently, Plaintiff's Labor Law § 200 claim is dismissed.

Defendants did not Violate Labor Law § 240(1).

Labor Law § 240(1) mandates that "[a]ll contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed". For § 240(1) to apply, Plaintiff must demonstrate he was engaged in protected work and that Defendant exposed him to an elevation height risk without implementing additional safeguards meant to prevent workplace injury.

Plaintiff in this case failed to demonstrate he was engaged in protected work and as a result was exposed to an elevation height risk. Plaintiff was in an elevated bucket, but the accident was unrelated to the height of the equipment. The bucket was struck by a vehicle traveling on the roadway underneath the bucket. Plaintiff's injuries were not caused by the lack of implementation of additional safeguards. Therefore, this branch of Plaintiff's summary judgment motion is denied and Plaintiff's Labor Law § 240(1) claim is dismissed.

Plaintiff's § 241(6) claim is not dismissed.

Labor Law § 241(6) requires 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." "Labor Law § 241(6) imposes a nondelegable duty of reasonable care upon owners and contractors to provide reasonable and adequate protection and safety to persons employed in, or lawfully frequenting, all areas in which construction, excavation or demolition work is being performed." Sheldon v Weinstein Enters., Inc., 2018 NY Slip Op 32459[U] Sup. Ct, Kings County (2018) citing De Jesus v Metro-North Commuter R.R., 159 AD3d 951 (2d Dept. 2018). Additionally, "Liability under Labor Law § 241(6) is not limited to accidents on a building construction site. To define what constitutes construction work within the meaning of the statute reference must be made to the regulations contained in the Industrial Code, which includes "work of the types performed in the construction, erection, alteration, repair, maintenance, painting or moving of buildings or other structures" in the definition of construction work. Washington-Tatum v City of NY, 205 AD3d 976 (2d Dept 2022) citing 12 NYCRR 23-1.4(b)(13). To establish liability pursuant to Labor Law § 241(6), a "plaintiff must establish the violation of an Industrial Code provision which sets forth specific safety standards" as opposed to "general safety standards". Aragona v State of NY, 147 AD3d 808 (2d Dept 2017); Chuqui v Cong. Ahavas Tzookah V'Chesed, Inc., 226 AD3d 960 (2d Dept 2024); Wittenberg v Long Is. Power Auth., 225 AD3d 730 (2d Dept 2024). In addition to the requirement that Plaintiff plead and prove a violation of a concrete specific section of the Industrial Code, Plaintiff must also establish that such a violation was the proximate cause of the plaintiff's accident. Aragona v State of NY, 147 AD3d 808 (2d Dept 2017).

Defendant asserts that Labor Law § 241(6) is inapplicable because Plaintiff was not performing construction, demolition or excavation within the meaning of the statute but was altering the existing structure by installing LED lights to replace the lighting that was previously in place. The Court disagrees. Labor Law § 241(6) is applicable here. Installation of the LED lights falls within the purview of alteration, since the goal of the work was to change the type of lighting that was in use underneath the elevated train tracks. Fonck v City of NY, 198 AD3d 874 (2d Dept 2021). Defendant further argues Plaintiff failed to demonstrate a violation of an Industrial Code required to sustain a claim as mandated by Labor Law § 241(6). Plaintiff counters that Defendant violated the safety standards set forth in Industrial Code § 23-1.29. Whether there was a violation of an Industrial Code, is an issue to be determined at trial. Neither party demonstrated entitlement to judgment as a matter of law with regards to Plaintiff's Labor Law § 241(6) claim.

All other relief not expressly addressed herein is denied.

Date: December 27, 2024

Brooklyn, New York

Hon. Patria Frias-Colón, J.S.C.

FOOTNOTES

1.   NYSCEF Doc. #1 at pg 5 ¶24.

2.   NYSCEF Doc. #1 at pg. 8 ¶¶ 36-37.

3.   NYSCEF Doc. # 63 at pg. 3 ¶ 10.

4.   NYSCEF Doc. # 26.

5.   NYSCEF Doc. # 33.

6.   NYSCEF Doc. #74 at pg. 57 ¶¶ 2-4.

7.    Id. at pg. 57 ¶ 24- pg. 58 ¶ 7.

Patria Frias-Colón, J.