MITCHELL v. CITY OF NEW YORK (2025)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals, and the defendants cross-appeal, from an order of the Supreme Court, Queens County (Tracy Catapano–Fox, J.), dated May 13, 2022.  The order, insofar as appealed from, granted those branches of the defendants' motion which were for summary judgment dismissing the causes of action alleging violations of Labor Law §§ 200 and 241(6) and denied those branches of the plaintiff's cross-motion which were for summary judgment on the issue of liability on the causes of action alleging violations of Labor Law §§ 200, 240(1), and 241(6).  The order, insofar as cross-appealed from, denied that branch of the defendants' motion which was for summary judgment dismissing the cause of action alleging a violation of Labor Law § 240(1).

ORDERED that the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.

The plaintiff was employed as a dock builder for a project in Flushing Bay, near the World's Fair Marina, which was owned and operated by the defendants, and was tasked with removing old floating dock sections, referred to as “finger piers,” to allow for dredging in a marina.  The finger piers were approximately 30 feet long and 4 feet wide, and they floated on the water on large plastic pontoons.  The finger piers were not attached to the floor bed beneath but were attached at one end to a floating dock and the other end to a piling.  The finger piers extended from the dock at a perpendicular angle, and the dock and the finger piers were level with one another, approximately 11/212 to 2 feet above the surface of the water.  The plaintiff allegedly was injured when he lost his balance after placing his knee on an unsecured finger pier while reaching for a second finger pier.  The plaintiff commenced this action to recover damages for personal injuries, asserting, inter alia, causes of action alleging violations of Labor Law §§ 200, 240(1), and 241(6).

The defendants moved, among other things for summary judgment dismissing the causes of action alleging violations of Labor Law §§ 200, 240(1), and 241(6).  The plaintiff cross-moved, inter alia, for summary judgment on the issue of liability on those causes of action.  By order dated May 13, 2022, the Supreme Court, among other things, denied those branches of the plaintiff's cross-motion and that branch of the defendants' motion which was for summary judgment dismissing the cause of action alleging a violation of Labor Law § 240(1).  The court granted those branches of the defendants' motion which were for summary judgment dismissing the causes of action alleging violations of Labor Law §§ 200 and 241(6).  The plaintiff appeals, and the defendants cross-appeal.

“Labor Law § 200 is a codification of the common-law duty of an owner or general contractor to provide workers with a safe place to work” (Freyberg v. Adelphi Univ., 221 A.D.3d 658, 659, 199 N.Y.S.3d 158 [internal quotation marks omitted];  see Khan v. Khan, 197 A.D.3d 1165, 1167, 153 N.Y.S.3d 529;  Ortega v. Puccia, 57 A.D.3d 54, 61, 866 N.Y.S.2d 323).  “Where, as here, the allegations involve a dangerous or defective condition on the premises where the work was performed, a property owner will be held liable if it either created a dangerous or defective condition, or had actual or constructive notice of it” (Lupo v. Caruso, 237 A.D.3d 923, 923, 232 N.Y.S.3d 535 [internal quotation marks omitted];  see Ramos v. Kent & Wythe Owners, LLC, 236 A.D.3d 693, 697, 229 N.Y.S.3d 462).  However, “ ‘[w]here the condition at issue is both open and obvious and not inherently dangerous, a defendant is not liable under either a theory of common law negligence or Labor Law § 200’ ” (Ramos v. Kent & Wythe Owners, LLC, 236 A.D.3d at 697, 229 N.Y.S.3d 462, quoting Sanchez v. BBL Constr. Servs., LLC, 202 A.D.3d 847, 849–850, 162 N.Y.S.3d 156).

Here, the defendants met their burden of demonstrating, prima facie, that they did not create the allegedly dangerous condition and that it was open and obvious and not inherently dangerous.  In support of their motion, the defendants submitted, inter alia, transcripts of the plaintiff's deposition testimony and hearing pursuant to General Municipal Law § 50–h and an affidavit of a project manager, which demonstrated that the defendants did not create the allegedly dangerous condition and that the allegedly dangerous condition was open and obvious and not inherently dangerous (see Calle v. City of New York, 212 A.D.3d 763, 765, 183 N.Y.S.3d 425;  Sanchez v. BBL Constr. Servs., LLC, 202 A.D.3d at 850, 162 N.Y.S.3d 156).  In opposition, the plaintiff failed to raise a triable issue of fact (see Khan v. Khan, 197 A.D.3d at 1168, 153 N.Y.S.3d 529).  Accordingly, the Supreme Court properly granted that branch of the defendants' motion which was for summary judgment dismissing the cause of action alleging a violation of Labor Law § 200.  For the same reasons, the court properly denied that branch of the plaintiff's cross-motion which was for summary judgment on the issue of liability on that cause of action (see Lupo v. Caruso, 237 A.D.3d at 924, 232 N.Y.S.3d 535;  Ramos v. Kent & Wythe Owners, LLC, 236 A.D.3d at 697, 229 N.Y.S.3d 462).

Labor Law § 241(6) requires owners to “provide reasonable and adequate protection and safety for workers and to comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor” (Ross v. Curtis–Palmer Hydro–Elec. Co., 81 N.Y.2d 494, 501–502, 601 N.Y.S.2d 49, 618 N.E.2d 82 [internal quotation marks omitted];  see Fuentes v. 257 Toppings Path, LLC, 225 A.D.3d 746, 749, 207 N.Y.S.3d 582).  “In order to establish liability under Labor Law § 241(6), a plaintiff must ‘establish the violation of an Industrial Code provision which sets forth specific safety standards,’ and which ‘is applicable under the circumstances of the case’ ” (Laliashvili v. Kadmia Tenth Ave. SPE, LLC, 221 A.D.3d 988, 991, 200 N.Y.S.3d 430, quoting Aragona v. State of New York, 147 A.D.3d 808, 809, 47 N.Y.S.3d 115).

Here, “both the hazardous opening contemplated by 12 NYCRR 23–1.7(b)(1) and the safety conditions mandated therein are clearly inapplicable on the facts presented” (Dooley v. Peerless Importers, Inc., 42 A.D.3d 199, 206, 837 N.Y.S.2d 720;  see Freyberg v. Adelphi Univ., 221 A.D.3d at 659, 199 N.Y.S.3d 158).  Further, the other Industrial Code provisions relied on by the plaintiff, 12 NYCRR 23–1.15, 23–5.1(b), (c), and (j), and 23–1.22(c), are inapplicable (see Davila v. City of New York, 232 A.D.3d 580, 583, 222 N.Y.S.3d 482;  Torres v. Accumanage, LLC, 210 A.D.3d 718, 723, 177 N.Y.S.3d 644;  Torres v. New York City Hous. Auth., 199 A.D.3d 852, 854, 157 N.Y.S.3d 522;  Dooley v. Peerless Importers, Inc., 42 A.D.3d at 206, 837 N.Y.S.2d 720).  Accordingly, the Supreme Court properly granted that branch of the defendants' motion which was for summary judgment dismissing the cause of action alleging a violation of Labor Law § 241(6), and properly denied that branch of the plaintiff's cross-motion which was for summary judgment on the issue of liability on that cause of action.

Labor Law § 240(1) generally requires that owners and general contractors involved in construction or demolition must provide to employees “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” (see Ramos v. Kent & Wythe Owners, LLC, 236 A.D.3d at 695, 229 N.Y.S.3d 462;  Lazo v. New York State Thruway Auth., 204 A.D.3d 774, 775, 167 N.Y.S.3d 119).  “ ‘The statute is intended to protect workers from gravity-related occurrences stemming from the inadequacy or absence of enumerated safety devices’ ” (Nucci v. County of Suffolk, 204 A.D.3d 817, 818, 166 N.Y.S.3d 672, quoting Ortega v. Puccia, 57 A.D.3d at 58, 866 N.Y.S.2d 323).  Where a worker is performing work on a floating platform, Labor Law § 240(1) is implicated, as the work involves an elevation-related risk of falling into water (see Harkin v. County of Nassau, 121 A.D.3d 942, 943, 996 N.Y.S.2d 289;  Dooley v. Peerless Importers, Inc., 42 A.D.3d at 203–204, 837 N.Y.S.2d 720).

Here, the parties' submissions failed to eliminate triable issues of fact as to the cause of action alleging a violation of Labor Law § 240(1), and the Supreme Court properly denied that branch of the defendants' motion which was for summary judgment dismissing that cause of action and that branch of the plaintiff's cross-motion which was for summary judgment on the issue of liability on that cause of action (see Laliashvili v. Kadmia Tenth Ave. SPE, LLC, 221 A.D.3d at 990–991, 200 N.Y.S.3d 430;  Nucci v. County of Suffolk, 204 A.D.3d at 820–821, 166 N.Y.S.3d 672).  The plaintiff's deposition testimony that he was ordered by his supervisor to continue working after a boat they had been using as a work platform to remove the finger piers temporarily left was directly rebutted by an affidavit of his supervisor, who attested that he told the plaintiff to take a break and wait for the boat to return.  Contrary to the plaintiff's contention, the court providently exercised its discretion in considering the affidavit of the supervisor, as the plaintiff was aware of the supervisor's existence, the affidavit was provided prior to the note of issue being filed, and there was no evidence that the defendants' failure to disclose the supervisor as a witness was willful (see Edwards v. Freedom Church of Revelation, 230 A.D.3d 740, 741–742, 218 N.Y.S.3d 90;  Yax v. Development Team, Inc., 67 A.D.3d 1003, 1004, 893 N.Y.S.2d 554).

Finally, the plaintiff's contention that the defendants' motion was premature is without merit, because he failed to show that additional discovery may lead to relevant evidence or that facts essential to opposing the motion were exclusively within the knowledge and control of the defendants (see Mitchell v. 148th St. Jamaica Condominium, 221 A.D.3d 596, 597, 198 N.Y.S.3d 396).

DILLON, J.P., CHRISTOPHER, WAN and HOM, JJ., concur.