BRADLEY v. MORGAN STANLEY CO INC (2005)

In an action to recover damages for personal injuries, the defendants appeal from so much of an order of the Supreme Court, Kings County (Vaughan, J.), dated June 16, 2004, as denied their motion for summary judgment dismissing the causes of action based on common-law negligence, Labor Law §§ 200, 240(1), and 241(6), inter alia, predicated upon alleged violations of 12 NYCRR 23-1.7(d), and granted that branch of the plaintiff's cross motion which was for summary judgment on the issue of liability on the Labor Law § 240(1) cause of action.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the plaintiff's cross motion which was for summary judgment on the issue of liability on the Labor Law § 240(1) cause of action, and substituting therefor a provision denying that branch of the cross motion;  as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The plaintiff alleges that he was injured as he was moving construction materials across a temporary elevated construction platform.   He contends that the he slipped due to the accumulation of water on the platform and fell off the unguarded edge of the elevated loading platform to the ground approximately four feet below.   Notwithstanding the presence of an overhead roof, the loading dock was obviously exposed to the elements.   The plaintiff testified that it was raining all day and that work at the construction site had stopped for some hours during the day because the rain had disabled the elevator.   A construction superintendent employed by the defendant Tishman Speyer, Inc., was present at the job site on the day of the accident.   He testified that he did not recall the weather conditions or the condition of the platform either prior to or at the time of the incident.

 Labor Law § 240(1) requires contractors and owners to provide workers with appropriate safety devices to protect against “such specific gravity-related accidents as falling from a height or being struck by a falling object that was improperly hoisted or inadequately secured” (Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 500, 601 N.Y.S.2d 49, 618 N.E.2d 82).

 The plaintiff demonstrated that he fell to the ground from a temporary elevated construction platform (see Striegel v. Hillcrest Hgts. Dev. Corp., 100 N.Y.2d 974, 978, 768 N.Y.S.2d 727, 800 N.E.2d 1093;  Aiello v. Rockmor Elec. Enter., 255 A.D.2d 470, 680 N.Y.S.2d 631;  Rivera v. Squibb, 184 A.D.2d 239, 584 N.Y.S.2d 562).   Clearly, his injuries arose from an elevation-related risk within the contemplation of the statute (see Nieves v. Five Boro Air Conditioning & Refrig. Corp., 93 N.Y.2d 914, 915-916, 690 N.Y.S.2d 852, 712 N.E.2d 1219) rather than from the usual and ordinary dangers of a construction site (cf. Misseritti v. Mark IV Constr. Co., 86 N.Y.2d 487, 634 N.Y.S.2d 35, 657 N.E.2d 1318;  Toefer v. Long Is. R.R., 308 A.D.2d 579, 764 N.Y.S.2d 865, affd. 4 N.Y.3d 399, 795 N.Y.S.2d 511, 828 N.E.2d 614;   Tsatsakos v. Citicorp, 295 A.D.2d 500, 744 N.Y.S.2d 475).   In addition, the plaintiff's expert witness's affidavit raised a question of fact as to whether there was an absence of a required safety device and, if so, whether the failure to provide the safety device was a proximate cause of the plaintiff's injuries (see Zervos v. City of New York, 8 A.D.3d 477, 779 N.Y.S.2d 106;  see also Zimmer v. Chemung County Performing Arts, 65 N.Y.2d 513, 523, 493 N.Y.S.2d 102, 482 N.E.2d 898).   Accordingly, summary judgment based on Labor Law § 240(1) was not appropriate.

 Labor Law § 241(6) imposes a “non-delegable duty on owners and contractors to provide reasonable and adequate protection and safety to construction workers” (Comes v. New York State Elec. & Gas Corp., 82 N.Y.2d 876, 878, 609 N.Y.S.2d 168, 631 N.E.2d 110;  see Rizzuto v. Wenger Contr. Co., 91 N.Y.2d 343, 348, 670 N.Y.S.2d 816, 693 N.E.2d 1068;  Ross v. Curtis-Palmer Hydro-Elec. Co., supra at 501-502, 601 N.Y.S.2d 49, 618 N.E.2d 82;  Dickson v. Fantis Foods, 235 A.D.2d 451, 452, 652 N.Y.S.2d 1007).   An owner or contractor may be liable for injuries to a worker proximately caused by the failure to comply with concrete safety standards promulgated in the Industrial Code, “even in the absence of control or supervision of the worksite” (Rizzuto v. Wenger Contr. Co., supra at 348-349, 670 N.Y.S.2d 816, 693 N.E.2d 1068).

 The Supreme Court correctly denied the defendants' motion for summary judgment on the plaintiff's Labor Law § 241(6) cause of action to the extent it was predicated upon alleged violations of 12 NYCRR 23-1.7(d).  That regulation, in pertinent part, specifically prohibits work on slippery elevated surfaces, including slippery conditions caused by the accumulation of water (see 12 NYCRR 23-1.7[d] ).  The evidence presented in opposition to the motion was sufficient to raise a question of fact as to whether the defendants had actual or constructive notice of the wet condition of the loading platform (cf. McCague v. Walsh Constr., 225 A.D.2d 530, 638 N.Y.S.2d 752).   The alleged culpability of the plaintiff does not preclude liability founded upon a violation of Labor Law § 241(6) (see Rizzuto v. Wenger Contr. Co., supra at 350, 670 N.Y.S.2d 816, 693 N.E.2d 1068;  Edwards v. C & D Unlimited, 295 A.D.2d 310, 743 N.Y.S.2d 876;  Amirr v. Calcagno Constr. Co., 257 A.D.2d 585, 684 N.Y.S.2d 280).

 Labor Law § 200 codifies the common-law duty of an owner or contractor to provide employees with a safe place to work (see Jock v. Fien, 80 N.Y.2d 965, 967, 590 N.Y.S.2d 878, 605 N.E.2d 365).   Even in the absence of supervision or control by the contractor, the statute applies, inter alia, to owners and contractors who either create or have actual or constructive notice of a dangerous condition (see Kerins v. Vassar College, 15 A.D.3d 623, 790 N.Y.S.2d 697;  Blanco v. Oliveri, 304 A.D.2d 599, 758 N.Y.S.2d 376;  Shipkoski v. Watch Case Factory Assoc., 292 A.D.2d 589, 590, 741 N.Y.S.2d 57).

 In opposition to the defendants' prima facie showing of entitlement to judgment as a matter of law, the plaintiff raised triable issues of fact as to whether the defendants had actual or constructive notice of the allegedly dangerous condition which caused the plaintiff's accident (see Linares v. United Mgmt. Corp., 16 A.D.3d 382, 791 N.Y.S.2d 165;  Abayev v. Jaypson Jewelry Mfg. Corp., 2 A.D.3d 548, 769 N.Y.S.2d 563;  Oganessian v. Eternal Mems., 305 A.D.2d 387, 758 N.Y.S.2d 510).   Accordingly, the Supreme Court properly declined to dismiss the plaintiff's common-law negligence and Labor Law § 200 causes of action.