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Carlos GARCIA, Plaintiff–Respondent, v. 225 EAST 57TH STREET OWNERS, INC., Defendant–Appellant.

Decided: April 26, 2012

PETER TOM, J.P., RICHARD T. ANDRIAS, JAMES M. CATTERSON, SHEILA ABDUS–SALAAM, NELSON S. ROMÁN, JJ. Thomas D. Hughes, New York (Richard C. Rubinstein of counsel), for appellant. Ephrem J. Wertenteil, New York, and Hecht, Kleeger, Pintel & Damashek, New York, for respondent.

In this personal injury action in which the plaintiff alleges a violation of Labor Law § 241(6), the critical inquiry is not whether the plaintiff was engaged in the demolition or “dismantling” of a structure. Rather, we must decide if the breaking of a mirrored panel that injured plaintiff is the type of hazard contemplated by the Industrial Code provisions that plaintiff alleges were violated.

The following facts are undisputed: The plaintiff Carlos Garcia was employed by nonparty JMPB Enterprises, LLC as a laborer. The defendant owns a 22–story cooperative apartment building in Manhattan and contracted with JMPB to remove wall coverings including mirrored wall panels. JMPB was then to plaster, prime, and paint the walls.

The two-by-eight-foot panels were affixed to the surface of the walls with adhesive. The plaintiff removed the panels by wedging a spatula between the panel and the drywall. The plaintiff then tapped the spatula with a hammer to pry the panel loose. Several of the panels had broken while being removed. On January 16, 2007, the plaintiff was injured when a piece of panel he was removing broke and cut his hand.

The plaintiff commenced this action on April 23, 2007, alleging common-law negligence and violations of the Labor Law. After discovery, the defendant moved for summary judgment seeking dismissal of the complaint. In a decision and order dated March 10, 2011, the motion court granted summary judgment dismissing the Labor Law §§ 200 and 240(1) and common-law negligence claims and the Labor Law § 241(6) claim based on 12 NYCRR 23–1.7(e)(1) and (2) and an alleged OSHA violation, and denied that part of the motion seeking dismissal of plaintiff's § 241(6) claim insofar as it was based on 12 NYCRR 23–3.3(b)(3) and 23–3.3(c) on the ground that the plaintiff raised a triable issue of fact as to whether the work being performed on the premises was demolition. For the reasons set forth below, we reverse, and dismiss the remainder of the § 241(6) claim.

In relevant part, Labor Law § 241(6) states:

“All 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 [ ․ ] The commissioner may make rules to carry into effect the provisions of this subdivision.”

The Commissioner's rules are set forth in the Industrial Code, 12 NYCRR, part 23, which defines demolition work as:

“work incidental to or associated with the total or partial dismantling or razing of a building or other structure including the removing or dismantling of machinery or other equipment.” 12 NYCRR 23–1.4(b)(16).

We have held that, in order to constitute demolition, the work must “involve changes to the structural integrity” of a building or structure. Cardenas v. One State St., LLC, 68 A.D.3d 436, 439, 890 N.Y.S.2d 41, 43 (2009) (internal quotation marks omitted).

On appeal, the plaintiff relies on Pino v. Robert Martin Co., (22 A.D.3d 549, 802 N.Y.S.2d 501 (2d Dept.2005)) to argue that he was injured while “dismantling a structure” and therefore he was engaged in demolition work in the context of Labor Law § 241(6). In Pino, the Second Department found that a shelving unit was a structure under § 241(6), because it was a “production or piece of work artificially built up or composed of parts joined together in some definite manner.” 22 A.D.3d at 552, 801 N.Y.S.2d at 503 (internal quotation marks omitted). However in that case, the Second Department appeared merely to adopt a definition used in the analysis of two cases alleging violations of Labor Law 240(1). See Joblon v. Solow, 91 N.Y.2d 457, 464, 672 N.Y.S.2d 286, 290, 695 N.E.2d 237, 241 (1998), quoting Lewis–Moors v. Contel of N.Y., 78 N.Y.2d 942, 943, 573 N.Y.S.2d 636, 636, 578 N.E.2d 434, 434 (1991). These decisions, in turn, relied upon the hoary authority of Caddy v. Interborough R.T. Co., 195 N.Y. 415, 420, 88 N.E. 747, 749 (1909).

In Caddy, the 1897 statute at issue required employers to furnish scaffolding to workers engaged in the “erection, repairing, altering or painting of a house, building or structure.” The purpose of the statute, as in the current Labor Law § 240(1), was to protect workers from elevation-related hazards. The Court found that in addition to buildings and houses, the statute encompassed other “structures” for which scaffolding would be required. “Structure” was broadly construed in 1909 in order to effectuate the purpose of the statute of 1897. In the case of § 240(1) claims, we still broadly construe the statute to protect workers from falling from a height or being struck by a falling object.

However, Labor Law § 241(6) is different in scope from § 240(1). Section 241 was enacted to protect workers from industrial accidents specifically in connection with construction, demolition or excavation work. Nagel v. D & R Realty Corp., 99 N.Y.2d 98, 102, 752 N.Y.S.2d 581, 584, 782 N.E.2d 558, 561 (2002). Section § 241(6) places a non-delegable duty upon owners and contractors “to provide reasonable and adequate protection and safety” for workers. The scope of that duty in § 241(6) is circumscribed by the specific safety rules set forth in the Industrial Code. Ross v. Curtis–Palmer Hydro–Elec. Co., 81 N.Y.2d 494, 501–502, 618 N.E.2d 82, 86, 601 N.Y.S.2d 49, 53 (1993).

By its terms, therefore, § 241(6) “require[s] reference to outside sources to determine the standard by which a defendant's conduct must be measured.” 81 N.Y.2d at 503, 601 N.Y.S.2d at 54, 618 N.E.2d 82 (internal quotation marks omitted) (the provision “contemplates the establishment of specific detailed rules through the Labor Commissioner's rule-making authority”). In other words, unlike § 240(1), to establish liability under this provision, a plaintiff “must specifically plead and prove the violation of an applicable Industrial Code regulation.” Buckley v. Columbia Grammar & Preparatory, 44 A.D.3d 263, 271, 841 N.Y.S.2d 249, 256 (1st Dept.2007), lv. denied 10 N.Y.3d 710, 859 N.Y.S.2d 395, 889 N.E.2d 82 (2008).

Here, in support of his claims, the plaintiff relies on § 23–3.3(b)(3): “Demolition by hand” of “walls and partitions,” which requires that:

“[w]alls, chimneys and other parts of any building or other structure shall not be left unguarded in such condition that such parts may fall, collapse or be weakened by wind pressure or vibration.”

The plaintiff also relies on section § 23–3.3(c) which requires that:

“continuing inspections shall be made by designated persons as the work progresses to detect any hazards to any person resulting from weakened or deteriorated floors or walls or from loosened material. Persons shall not be suffered or permitted to work where such hazards exist until protection has been provided by shoring, bracing or other effective means.”

The court below observed that “one could conclude” that the broken mirror was “a hazard arising from ‘loosened material’ as [the] defendant failed to guard the glass mirror from falling into large broken pieces.” However, the court interpreted “loosened material” too broadly. The cited provisions have been construed as specific safety rules designed to protect a worker from the hazards created when a structure is weakened by the “progress of the demolition.” Smith v. New York City Hous. Auth., 71 A.D.3d 985, 987, 897 N.Y.S.2d 232, 234 (2d Dept.2010)(emphasis added); Campoverde v. Bruckner Plaza Assoc. L.P., 50 A.D.3d 836, 837, 855 N.Y.S.2d 268, 269 (2d Dept.2008) (citation omitted). Thus, “loosened material” must be material loosened by the “progress” of demolition. This loosening material might evade notice until it “fall[s]” or “collapse[s]” and injures a worker. This does not encompass material which is being loosened deliberately.

Hence, in Medina v. City of New York (87 A.D.3d 907, 929 N.Y.S.2d 582 (1st Dept.2011)), we found a § 241(6) violation based on 12 NYRCC 23–3.3(c) where the plaintiff was injured when a section of subway rail, which he was cutting, sprang free and fell on him, injuring his leg. We found that the stressed rail was the kind of hazard contemplated by section 23–3.3(c) since “repeated saw cuts loosened the rail, rendering it unstable.” 87 A.D.3d at 909, 929 N.Y.S.2d at 584. In that case, we found that continued inspections would have detected the hazard of the stressed rail.

In Ortega v. Everest Realty LLC (84 A.D.3d 542, 923 N.Y.S.2d 74 (1st Dept.2011)), the plaintiff was injured when the wall of an aluminum shed fell on him as he was sawing through it. We found that, if the plaintiff could demonstrate at trial that the wall fell as a result of structural instability caused by the vibrations from the plaintiff's saw cutting, he could go forward with his § 241(6) claim based on violations of Industrial Code sections 23–3.3(b)(3) and (c). Ortega, 84 A.D.3d at 545, 923 N.Y.S.2d at 78. In that case, there was no dispute that the defendants had failed to make any inspections, and we determined that the required inspections and shoring might have protected the plaintiff from the hazard of a wall weakened by the progress of demolition.

The Second Department's determination in Smith v. New York City Hous. Auth. (71 A.D.3d 985, 897 N.Y.S.2d 232) is particularly instructive. In Smith, the Court found that 12 NYCRR 23–3.3(b)(3) and (c) did not apply to the plaintiff's claim. The plaintiff was using a jackhammer to demolish a four-foot wall. He was chipping away at the mortar surrounding a cinder block in order to dislodge it when it fell along with one or two other blocks that were attached and injured him. The Court found that the hazard of the falling bricks arose from the performance of the demolition work, and not from structural instability caused by the progress of demolition. See also Ofri v. Waldbaum, Inc., 285 A.D.2d 536, 728 N.Y.S.2d 74 (2d Dept.2001).

It is clear, therefore, that the code provisions cited by the plaintiff are inapplicable to his claim, and therefore even if we accepted that the plaintiff was engaged in the demolition or dismantling of a structure, his claim cannot survive the defendant's summary judgment motion: The mirrored panel did not break because it was weakened by the progress of demolition or dismantling, and therefore neither shoring or bracing or continued inspections could have prevented it from breaking and injuring plaintiff.

In this case, the plaintiff was deliberately loosening the mirror in order to remove it from the wall, and it broke as he was removing it. The hazard therefore arose from the actual performance of his work, and not from structural instability caused by the progress of other demolition work. To guard, shore, or brace the mirror would have precluded the plaintiff from performing the task of removing the mirror. Thus, the provisions of the Industrial Code relied upon by the plaintiff could not have protected him, and so cannot support his claim.

Accordingly, the order of the Supreme Court, New York County (Joan M. Kenney, J.), entered March 10, 2011, which, insofar as appealed from as limited by the briefs, denied defendant's motion for summary judgment dismissing the Labor Law § 241(6) cause of action to the extent it is based on violations of Industrial Code (12 NYCRR) § 23–3.3(b)(3) and (c), should be reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment in favor of defendant dismissing the complaint.

Order, Supreme Court, New York County (Joan M. Kenney, J.), entered March 10, 2011, reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment in favor of defendant dismissing the complaint.

Order filed.


All concur.