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Alfred TROTMAN and Karen Trotman, Plaintiffs, v. BOSTON PROPERTIES, INC., et al., Defendants.
The following papers numbered 1 to 5 read on the below motion noticed on October 16, 2017 and duly submitted on the Part IA15 Motion calendar of December 14, 2017:
Defs.' Affirmation in Support of Motion, with Exhibits 1,2
Pls.' Opposition, Exhibits 3,4
Defs.' Affirmation in Reply 5
Upon the foregoing papers, the defendants Boston Properties, Inc., BP/CG Center I LLC, BP/CG Center II LLC (collectively, “Boston”), and Structure Tone, Inc. (“Structure Tone”)(collectively, “Defendants”) move for summary judgment, dismissing the complaint of the plaintiffs Alfred Trotman (individually, “Plaintiff”) and Karen Trotman (collectively, “Plaintiffs”) pursuant to CPLR 3212. Plaintiffs oppose the motion.
On March 2, 2013, Plaintiff was working as a laborer at a construction site owned by Boston, located at 601 Lexington Avenue in New York, New York. Structure Tone contracted with nonparty Citigroup Technology Inc. to perform an interior fit-out for a portion of the premises. To accomplish this task, Structure Tone contracted with non-party Tri–State Dismantling (“Tri–State”) to provide demolition services. Plaintiff was an employee of Tri–State at the time of this accident. Plaintiff's duties included clean up and removal of garbage and construction-related debris using wheeled handcarts. Plaintiff would fill the carts with debris and move the carts down a steel ramp and onto a sidewalk. At the time of his accident, Plaintiff was moving a cart filled with debris down the steel ramp in question. Plaintiff could not see any portion of the ramp in front of him as he was moving the cart. Once he got to the bottom of the ramp, he believed that the cart wheel struck a piece of metal, which caused the cart to tip over. Plaintiff identified photographs of the alleged defect on the ramp, which he described as a “seam” or “gap” between the ramp itself and a 2 1/212–3 inch metal plate where the ramp met the floor. When the cart tipped over, it struck Plaintiff's left knee and allegedly caused him to sustain injuries. Plaintiffs thereafter commenced this action against Defendants asserting causes of action under Labor Law 240(1), 200, 241(6), and common law negligence.
Defendants now move for summary judgment, seeking dismissal of Plaintiffs' complaint in its entirety.
II. Standard of Review
To be entitled to the “drastic” remedy of summary judgment, the moving party “must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact from the case.” (Winegrad v. New York University Medical Center, 64 NY2d 851 ; Sillman v. Twentieth Century–Fox Film Corp., 3 NY2d 395  ). The failure to make such prima facie showing requires denial of the motion, regardless of the sufficiency of any opposing papers. (Id., see also Alvarez v. Prospect Hosp., 68 NY2d 320, 324  ). Facts must be viewed in the light most favorable to the non-moving party (Sosa v. 46th Street Development LLC., 101 AD3d 490 [1st Dept. 2012] ). Once a movant meets his initial burden, the burden shifts to the opponent, who must then produce sufficient evidence, also in admissible form, to establish the existence of a triable issue of fact (Zuckerman v. City of New York, 49 NY2d 557  ). When deciding a summary judgment motion the role of the Court is to make determinations as to the existence of bonafide issues of fact and not to delve into or resolve issues of credibility (Vega v. Restani Constr. Corp., 18 NY3d 499  ). If the trial judge is unsure whether a triable issue of fact exists, or can reasonably conclude that fact is arguable, the motion must be denied. (Bush v. Saint Claire's Hospital, 82 NY2d 738  ).
III. Applicable Law and Analysis
(1) Labor Law § 200 and Common Law Negligence Claims
Labor Law § 200 (1) is a codification of the common law duty of an owner or general contractor to provide workers with a safe place to work (see Rizzuto v. L.A. Wenger Contr. Co., 91 NY2d 343, 352  ). Cases involving Labor Law § 200 claims generally fall into two categories: those where workers are injured as a result of dangerous or defective premises conditions at a work site, and those involving the manner in which the work is performed (Ortega v. Puccia, 57 AD3d 54, 61–62 [2nd Dept. 2008] ). Where, as here, an injury results from a defect or dangerous condition existing on the premises, liability attaches where the owner or general contractor created the condition or had actual or constructive notice of it (see Cappabianca v. Skanska USA Bldg., Inc., 99 AD3d 139, 144 [1st Dept. 2012] ).
Defendants argue that Plaintiffs' Labor Law § 200 and common law negligence claims must be dismissed because there was no defective condition at the construction site. In support of these contentions, Defendants rely on, among other things, Plaintiff's own testimony and an affirmation from their expert who averred that the ramp in question complied with all required regulations, and was not dangerous.
First, Plaintiff's testimony is not dispositive on the issue of whether a defective condition existed on the subject ramp. While Plaintiff worked on the ramp without incident for six days prior to the accident date, he testified that hand carts would sometimes “buckle” and get caught in the “seams” (Pl. EBT at 40), or the “gap” between the ramp and the 2 1/212–3 inch plate where the ramp met the floor (id ). He testified that carts would tip over on previous occasions (id ), and that carts “would always buckle,” requiring workers to “push the cart over the bottom piece,” which he described as “always a problem” (id at 42). Plaintiff consistently explained what was causing the problem—the gap between the ramp and the separate metal piece on the floor (id at 42–43). Although Plaintiff could not see precisely what caused the cart to tip over at the moment of his accident, his testimony as a whole provides a sufficient, nonspeculative basis for his contention that this “gap” or “seam” caused his cart to tip over, resulting in his injuries (see, e.g., Garcia v. 1265 Morrison LLC., 122 AD3d 512, 513 [1st Dept. 2014] ).
Next, the affidavit from Defendants' expert engineer Dennis R. Andrews fails to establish prima facie that the “gap” at issue was not an actionable defect. The expert states that the “gap between the bottom plate of the ramp and the sidewalk” was only 1/212 inch wide and 1/16th of an inch deep, and thus could not have caused the cart to tip (see Andrews Aff. at P. 8; at P. 11). However, this is not the “gap” that Plaintiff is complaining about. Plaintiff testified that the “gap” or “seam” was located between the ramp and the 2 1/212–3 inch metal plate located where the ramp met the floor (Pl. EBT at 39–40), and he clearly identified a photograph of the defect, (id at 76; Exhibit “Q” to Defendants' Motion). Plaintiff does not allege that the space between the metal plate and the sidewalk caused his accident. Defendants' expert affidavit, accordingly, is not probative on the issue of whether or not the ramp and plate at issue was defective or whether or not it complied with inter alia, the Industrial Code.
Even assuming for purposes of this motion that the Andrews affidavit carried Defendants' initial burden of proving that the ramp at issue was not defective, the expert affidavit from Plaintiff's engineer Nicholas Bellizzi, P.E., raises an issue of fact. The affidavit is admissible even though Plaintiffs' expert was not previously disclosed. The CPLR “does not require a party to retain an expert at any particular time” (CPLR 3101[d]; Kimberlee M. v. Jaffe, 139 AD3d 508, 509 [1st Dept. 2016] ). Furthermore, a recent amendment to CPLR 3212(b) provides: “[w]here an expert affidavit is submitted in support of, or opposition to, a motion for summary judgment, the court shall not decline to consider the affidavit because an expert exchange pursuant to subparagraph (I) or paragraph (1) of subdivision (d) of section 3101 was not furnished prior to the submission of the affidavit. When reviewing the same photographs and deposition testimony that were reviewed by Andrews, Bellizzi opines that there was a 2–3 inch gap created by a weld or a seam between the bottom portion of the ramp and the metal diamond plate that transitioned the ramp to the concrete floor. He states that this gap was “jagged, irregular, and discontinuous,” and Plaintiff was not provided with a flush, proper, or safe ramp surface at the time of his accident, in violation of inter alia various Industrial Code provisions. Bellizzi states that this gap caused Plaintiff's loaded debris cart to tip over when it became snagged in the gap between the ramp plates. Plaintiffs' expert affidavit, which is entitled to equal weight as Defendants' expert affidavit, raises a triable issue of fact as to whether the ramp at issue contained a defective condition, and whether or not that condition proximately caused Plaintiff's accident (see e.g., Keneally v. 400 Fifth Realty LLC., 110 AD3d 624 [1st Dept. 2013]; O'Brien v. Port Authority of New York and New Jersey, 29 NY3d 27, 34  ).
In addition, Defendants failed to carry their initial burden of demonstrating that they did not create, or lacked notice of the allegedly hazardous condition. Importantly, it is not a plaintiff's burden in opposing summary judgment to establish that defendants had actual or constructive notice of a hazardous condition. Rather, it is the moving defendants' burden to establish a lack of notice as a matter of law (see generally Giuffrida v. Metro N., Commuter R.R. Co., 279 AD2d 403, 404 [1st Dept. 2001] ). To demonstrate the absence of constructive notice, a moving defendant must show that there is a lack of evidence regarding how the condition came into existence, how visible and apparent it was, and for how long a period of time prior to the accident it existed (id ).
In this case, with respect to the Boston-owner defendants, Defendants failed to demonstrate a lack of constructive notice of the defect because they failed to present any evidence as to when the location was inspected prior to the accident (see, e.g., Ladignon v. Lower Manhattan Dev. Corp., 128 AD3d 534 [1st Dept. 2015][triable issues of fact as to notice where there was no evidence regarding when accident location last inspected]; see Velez v. City of New York, 134 AD3d 447 [1st Dept. 2015] [same] ). Where, as here, the injuries allegedly arose from a condition at the workplace, a defendant-owners' lack of supervisory control over the plaintiff's work is immaterial to the issue of its liability under Labor Law § 200 and common law negligence (see McCullough v. One Bryant Park, 132 AD3d 491, 492 [1st Dept. 2017] ).
A general contractor such as defendant-Structure Tone “may be liable in common-law negligence and under Labor Law § 200 if it has control over the work site and actual or constructive notice of the dangerous condition” (see Urban v. No. 5 Times Sq. Dev. LLC., 62 AD3d 553, 556 [1st Dept. 2009][internal quotation omitted] ). Here, Structure Tone failed to establish its lack of constructive notice of the allegedly defective condition, as Defendants do not point to any probative evidence in this regard. The fact that Structure Tone did not supervise Plaintiff's work is not dispositive of the issue (id ). Furthermore, contrary to Defendants' contentions, Structure Tone's representative Brendan Maynihan testified that Structure Tone employed a supervisor or “superintendent” who was present at the constructive site (Maynihan EBT at 26–27), thus raising issues of fact as to whether Structure Tone retained control over the site.
Plaintiff's deposition testimony did not carry Defendants' burden of proving lack of notice. Plaintiff testified that he complained about the condition of the ramp to “[t]he building, the building's people sitting in the security booth” and “the supervisor” on site, which included a Tri–State employee as well as “the other guy that was on site” (Pl. EBT at 41). Plaintiff testified that he told a supervisor and the “building manager” about the condition, who said that he would “look into it” (id at 43–44), and he said that people always complained about carts flipping over (id at 44). Since Defendants failed to establish a lack of any presence or control over the work site, this testimony raises issues of fact as to whether Defendants were apprised of a potentially dangerous condition prior to the accident.
In light of the foregoing, Defendants failed to demonstrate their entitlement to summary judgment with respect to Plaintiffs' Labor Law § 200 and common law negligence claims. This branch of Defendants' motion is therefore denied, even without considering the additional affidavit submitted by Plaintiff in opposition, and without considering the allegedly inadmissible evidence of subsequent remedial measures.
(2) Labor Law § 241(6) Claim
To the extent that a plaintiff asserts a viable claim under Labor Law § 241(6), the plaintiff must demonstrate that his or her injuries were proximately caused by a violation of an applicable Industrial Code regulation. (Penta v. Related Cos., L.P., 286 AD2d 674 [2nd Dept 2001] ). The regulation(s) relied on must be “concrete specifications” as opposed to general safety standards (Ross v. Curtis–Palmer Hydro Electric, et. al., 81 NY2d 494  ). In this case, Plaintiffs' verified bill of particulars alleges, in pertinent part, that Defendants violated Industrial Code provisions 12 NYCRR §§ 23–1.5; 23–1.7(e)(1) and (2); 23–1.22(b)(3); 23–1.32; and 23–1.33(d).
Plaintiff's Labor Law 241(6) claim predicated upon a violation of Industrial Code § 23–1.32 is dismissed because there is no evidence that defendants had written notice of the allegedly hazardous condition on the ramp (see Mancini v. Pedra Constr., 293 AD2d 453, 454 [2nd Dept. 2002] ). Plaintiffs' claim predicated upon a violation of Industrial Code 23–1.33(d) is dismissed because that regulation is too general and “does not mandate compliance with specifications” (see McMahon v. Durst, 224 AD2d 324 [1st Dept. 1996] ). Industrial Code§ 23–1.22(b)(3) is specific enough to support a Labor Law 241(6) cause of action (see Arrasti v. HRH Constr. LLC., 60 AD3d 582 [1st Dept. 2009] ), however there is no indication that the ramp at issue violated this regulation. For example, there is no claim that the ramp was improperly braced, consisted of improper planking, or was not at least 48 inches wide (§ 23–1.22[b] ). Plaintiff's opposition papers refer to Industrial Code § 23–1.15, however the pleadings fail to allege a violation of that regulation.
Industrial Code § 23–1.7(e)(1) and (2) provide that passageways shall be kept free from debris and “any other obstructions or conditions which could cause tripping” (1.7[e] ), and that working areas shall be kept free from dirt, debris, and from scattered tools and materials and from sharp projections in so far as may be consistent with the work being performed (1.7[e] ). Plaintiff's expert affirmation raises an issue of fact as to whether the defect at issue violated 23–1.7(e)(1), and whether that violation caused Plaintiff's injuries. This regulation is applicable to these facts because the ramp constitutes a “passageway” (see, e.g., Fitzgerald v. Marriott International, Inc., 156 AD3d 458 [1st Dept. 2017] ), and the defect at issue is considered a “tripping” hazard within the meaning of 23–1.7(e)(1) even though it caused the cart, and not plaintiff himself, to “trip” (see, e.g., Picchione v. Sweet Constr. Corp., 60 AD3d 510, 511 [1st Dept. 2009] ). However, § 23–1.7(e)(2) is inapplicable because this accident did not involve an “accumulation of dirt and debris scattered tools and materials” or “sharp projections.”
Plaintiff's claim based on a violation of Industrial Code 23–1.5(a) or (b) must be dismissed because those regulations only impose general workplace safety responsibilities on work site employers (see, e.g., Carty v. Port Authority of New York and New Jersey, 32 AD3d 732, 733 [1st Dept. 2006] ). Plaintiff's claim predicated upon a violation of Industrial Code § 1.5(c) (1) and (2) are also dismissed because those regulations are too general to serve as Labor Law § 241(6) predicates (see Jackson v. Hunter Roberts Constr. Corp., ––– AD3d ––––; [2018 WL 2406186] [1st Dept. May 29, 2018] ). Finally, 12 NYCRR § 23–1.5(c)(3) is inapplicable because the ramp at issue “does not constitute a ‘safety device,’ ‘safeguard,’ or ‘equipment’ as used in the provision” (id.).
Any alleged violations of Occupational Safety and Health Administration (“OSHA”) standards do not provide a basis for liability under Labor Law Sec. 241(6) (see Schiulaz v. Arnell Constr. Corp., 261 AD2d 247, 248 [1st Dept. 1999] ).
(3) Labor Law Sec 240(1) Claim
Plaintiffs' Labor Law Sec. 240(1) claim found in their pleadings is deemed abandoned, as their opposition papers state that they are not asserting a claim under that statute.
Accordingly, it is hereby
ORDERED, that the branch of Defendants' motion for summary judgment seeking to dismissal of Plaintiffs' Labor Law 241(6) claim is granted only to the extent that the claim is predicated upon a violation of 12 NYCRR §§ 23–1.22(b); 23–1.33(d); 23–1.32; 23–1.7(e)(2); and 23–1.5, or OSHA, and it is further,
ORDERED, that the branch of Defendants' motion for summary judgment seeking dismissal of Plaintiffs' Labor Law 200 and common law negligence claims is denied, and it is further,
ORDERED, that Plaintiffs' Labor Law Sec. 240(1) claim is deemed abandoned and is therefore dismissed.
This constitutes the Decision and Order of this Court.
Mary Ann Brigantti, J.
Response sent, thank you
Docket No: 23725/2013E
Decided: May 29, 2018
Court: Supreme Court, Bronx County, New York.
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