LAMBERT v. JONES CONSTRUCTION GROUP LLC

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Supreme Court, Bronx County, New York.

Eric D. LAMBERT, Plaintiff, v. J.A. JONES CONSTRUCTION GROUP, LLC, and Trustees of Columbia University in the City of New York, Defendants.

Decided: July 23, 2007

Anthony La Trace Esq., Law Offices of Michael S. Lamonsoff, New York, for Plaintiff. Cesar Zuniga Esq., Steven R. Sundheim & Associates, LLC, White Plains, for Defendants.

I. INTRODUCTION

Plaintiff sues to recover for personal injuries he sustained August 5, 2002, when he fell into an uncovered hole in concrete flooring while engaged in construction of a law school dormitory on premises owned by defendant Trustees of Columbia University, where defendant J.A. Jones Construction Group, LLC, was the general contractor.   Defendants move for summary judgment dismissing the complaint.  C.P.L.R. § 3212(b).  For the reasons explained below, the court grants defendants' motion to the extent of dismissing plaintiff's Labor Law § 241(6) claims insofar as they rely on any regulatory provision other than 12 N.Y.C.R.R. § 23-1.7(b)(1)(i)-(ii), against both defendants, and otherwise denies their motion.  C.P.L.R. § 3212(b) and (e).   The court concludes that § 23-1.7(b)(iii) and (e) do not apply to the conditions plaintiff claims caused his injury.

II. PLAINTIFF'S LABOR LAW § 241(6) CLAIM

 The duty to comply with the regulations under Labor Law § 241(6) is non-delegable, subjecting the owner of the premises and the general contractor where plaintiff was injured to liability for a violation even if they exercised no supervision or control over plaintiff's worksite and had no notice of worksite conditions.  Balbuena v. IDR Realty LLC, 6 N.Y.3d 338, 361 n. 8, 812 N.Y.S.2d 416, 845 N.E.2d 1246 (2006);  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 (1993);  Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 502-503, 601 N.Y.S.2d 49, 618 N.E.2d 82 (1993).   While a failure to take the safety measures required by this statute, proximately causing injury, does not impose absolute liability absent negligence, the statute imposes liability on defendant owner and defendant general contractor for injuries caused by another party's negligence regardless of defendants' own negligence.  Rizzuto v. Wenger Contr. Co., 91 N.Y.2d 343, 349-50, 670 N.Y.S.2d 816, 693 N.E.2d 1068 (1998);  Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d at 502 n. 4, 601 N.Y.S.2d 49, 618 N.E.2d 82.

Upon defendants' summary judgment motion, defendants bear the burden to demonstrate the inapplicability of the regulatory provisions plaintiff claims were violated.  Wyckoff v. Jujamcyn Theaters, Inc., 11 A.D.3d 319, 320, 784 N.Y.S.2d 26 (1st Dep't 2004);  Herrera v. Persaud, 276 A.D.2d 304, 305, 714 N.Y.S.2d 26 (1st Dep't 2000).   Plaintiff relies only on 12 N.Y.C.R.R. § 23-1.7(b) and (e) as the regulations he claims defendants violated.

A. 12 N.Y.C.R.R. § 23-1.7(e)

 12 N.Y.C.R.R. § 23-1.7(e)(1) imposes a specific duty to keep “passageways” free from accumulations of debris and “other obstructions or conditions which could cause tripping” and to remove or cover sharp projections.   Subsection 23-1.7(e)(2) imposes a specific duty to keep “floors ․ and similar areas where persons work or pass” free from accumulations of debris and from “scattered tools and materials and from sharp projections.”   These provisions impose sufficiently specific duties on which to base liability for a violation of Labor Law § 241(6).  Singh v. Young Manor, Inc., 23 A.D.3d 249, 804 N.Y.S.2d 65 (1st Dep't 2005);  Murphy v. Columbia Univ., 4 A.D.3d 200, 202, 773 N.Y.S.2d 10 (1st Dep't 2004);  Faulkner v. Allied Manor Rd. Co., 306 A.D.2d 224, 225, 760 N.Y.S.2d 853 (1st Dep't 2003);  Canning v. Barney's N.Y., 289 A.D.2d 32, 34-35, 734 N.Y.S.2d 116 (1st Dep't 2001).

Plaintiff testified at his deposition that he was walking from an area where he had collected wood for the building frame, through the second floor of the building under construction, when he stepped into an uncovered hole in the floor approximately one foot square.   Although the hole opened to the floor below, he did not fall all the way through.   He fell through up to his knee, lost his balance, and in an effort to resist falling downward or forward, pulled his body backward onto the floor where he had been walking.   No admissible evidence establishes that plaintiff's tasks related to constructing the hole or working in the immediate surrounding area;  he merely was walking past it.

Based on the undisputed testimony, the cause of plaintiff's fall fits within the scope of “other obstructions or conditions which could cause tripping” that defendants were required to eliminate from “passageways.”  12 N.Y.C.R.R. § 23-1.7(e)(1).   No evidence, however, reveals that the “open area” of the second floor where plaintiff was injured qualifies as a passageway.   Aff. of Cesar Zuniga, Ex. F at 16.   See Maza v. University Ave. Dev. Corp., 13 A.D.3d 65, 66, 786 N.Y.S.2d 149 (1st Dep't 2004);  Canning v. Barney's N.Y., 289 A.D.2d at 34, 734 N.Y.S.2d 116;  Isola v. JWP Forest Elec. Corp., 267 A.D.2d 157, 158 (1st Dep't 1999);  Castillo v. Starrett City, 4 A.D.3d 320, 321-22, 772 N.Y.S.2d 74 (2d Dep't 2004).

Although the floor's open area, where plaintiff was traversing during his work, does fit precisely within the scope of “floors ․ and similar areas where persons work or pass,” to which 12 N.Y.C.R.R. § 23-1.7(e)(2) still applies, defendants were required to eliminate only accumulations of debris, “scattered tools and materials and ․ sharp projections” from these areas.   See Singh v. Young Manor, Inc., 23 A.D.3d 249, 804 N.Y.S.2d 65;  Canning v. Barney's N.Y., 289 A.D.2d at 34-35, 734 N.Y.S.2d 116;  Farina v. Plaza Constr. Co., 238 A.D.2d 158, 159, 655 N.Y.S.2d 952 (1st Dep't 1997);  Faulkner v. Allied Manor Rd. Co., 306 A.D.2d at 225, 760 N.Y.S.2d 853.   The record raises no factual issue that debris or scattered tools or materials, to which § 23-1.7(e)(2) would apply, contributed to plaintiff's fall.  Isola v. JWP Forest Elec. Corp., 267 A.D.2d at 158;  Greenfield v. New York Tel. Co., 260 A.D.2d 303, 304, 689 N.Y.S.2d 72 (1st Dep't 1999).

Conceivably, had plaintiff alleged that a sharp edge or protrusion in the hole contributed to his fall or ensuing injury, such a condition might be considered a sharp projection under § 23-1.7(e)(2).   Again, however, the record discloses no such evidence.   Therefore defendants have shown that they are not liable under Labor Law § 241(6) for a violation of 12 N.Y.C.R.R. § 23-1.7(e).  Mitchell v. New York Univ., 12 A.D.3d 200, 201, 784 N.Y.S.2d 104 (1st Dep't 2004);  Isola v. JWP Forest Elec. Corp., 267 A.D.2d at 158;  Dacchille v. Metropolitan Life Ins. Co., 262 A.D.2d 149, 692 N.Y.S.2d 47 (1st Dep't 1999);  Greenfield v. New York Tel. Co., 260 A.D.2d at 304, 689 N.Y.S.2d 72.   See Maza v. University Ave. Dev. Corp., 13 A.D.3d at 65-66, 786 N.Y.S.2d 149;  Castillo v. Starrett City, 4 A.D.3d at 321-22, 772 N.Y.S.2d 74.

B. 12 N.Y.C.R.R. § 23-1.7(b)

 The other provision plaintiff relies on requires that:

Every hazardous opening into which a person may step or fall shall be guarded by a substantial cover fastened in place or by a safety railing constructed and installed in compliance with this Part (rule).

12 N.Y.C.R.R. § 23-1.7(b)(1)(i) (emphases added).   Subdivision (ii) of this provision sets forth the requirements for safety railings.   Subdivision (iii) further requires that:

Where employees are required to work close to the edge of such an opening, such employees shall be protected as follows:

(a) Two-inch planking, full size, or material of equivalent strength installed not more than one floor or 15 feet, whichever is less, beneath the opening;  or

(b) An approved life net installed not more than five feet beneath the opening;  or

(c) An approved safety belt with attached lifeline which is properly secured to a substantial fixed anchorage.

Although 12 N.Y.C.R.R. § 23-1.7(b) does not define “hazardous opening,” the term undisputedly applies to openings through which a person could fall, because the final subdivision (1)(iii) specifies protections “beneath the opening,” § 23-1.7(b)(1)(iii)(a) and (b), or to catch persons if they fall through it.   See Bell v. Bengomo Realty, 36 A.D.3d 479, 480-81, 829 N.Y.S.2d 42 (1st Dep't 2007);  Messina v. City of New York, 300 A.D.2d 121, 123, 752 N.Y.S.2d 608 (1st Dep't 2002);  Alvia v. Teman Elec. Contr., Inc., 287 A.D.2d 421, 423, 731 N.Y.S.2d 462 (2d Dep't 2001).   The opening at least must be “of significant size and depth” to qualify as “hazardous.”  Ellis v. J.M.G., Inc., 31 A.D.3d 1220, 1221, 818 N.Y.S.2d 724 (4th Dep't 2006);  Wells v. British Am. Dev. Corp., 2 A.D.3d 1141, 1143, 770 N.Y.S.2d 161 (3d Dep't 2003).   Thus, an unshored, unbraced excavation 6-7 feet deep qualified as hazardous, Bell v. Bengomo Realty, 36 A.D.3d at 480-81, 829 N.Y.S.2d 42, while a roof drainpipe only 7-10 inches deep and hand-holes for wires and ducts only eight inches deep and securely covered when not in use by electricians did not qualify.  Messina v. City of New York, 300 A.D.2d at 122, 752 N.Y.S.2d 608;  Piccuillo v. Bank of N.Y. Co., 277 A.D.2d 93, 94, 716 N.Y.S.2d 20 (1st Dep't 2000).   In addition, the step or fall must be into an “opening” in the surface where an employee is walking or working, not off the edge, e.g., Smith v. McClier Corp., 38 A.D.3d 322, 323, 831 N.Y.S.2d 413 (1st Dep't 2007), or through the collapse of an elevated surface, where Labor Law § 240(1) would apply.   See Bell v. Bengomo Realty, 36 A.D.3d at 480, 829 N.Y.S.2d 42;  Dzieran v. 1800 Boston Rd., LLC, 25 A.D.3d 336, 337-38, 808 N.Y.S.2d 36 (1st Dep't 2006).

The protections against falling to the level below, however, are only in subdivision (iii), specifically where “employees are required to work close to the edge” of an opening.   See Bell v. Bengomo Realty, 36 A.D.3d at 480, 829 N.Y.S.2d 42;  Luckern v. Lyonsdale Energy Ltd. Partnership, 281 A.D.2d 884, 886-87, 722 N.Y.S.2d 632 (4th Dep't 2001).   Subdivision (i), in contrast, applies regardless whether an employee's assigned task, here collecting wood, is close to the opening or the employee simply is walking through the area of the opening from one work area to another.   Moreover, subdivision (i) specifies a cover or railing, in contrast to subdivision (iii)'s requirement for planking or a life net “beneath the opening,” rather than covering or surrounding it, or a lifeline secured to the employee, rather than to the floor where the opening lies.   See Uluturk v. City of New York, 298 A.D.2d 233, 234, 748 N.Y.S.2d 371 (1st Dep't 2002);  Piccuillo v. Bank of N.Y. Co., 277 A.D.2d at 94, 716 N.Y.S.2d 20;  Keegan v. Swissotel N.Y., 262 A.D.2d 111, 112-13, 692 N.Y.S.2d 39 (1st Dep't 1999);  Wells v. British Am. Dev. Corp., 2 A.D.3d at 1143, 770 N.Y.S.2d 161.   If employees' assigned task requires the employees “to work close to the edge” of an opening, to run pipes, wires, or plumb lines through it, for example, the protections subdivision (i) affords, a cover or railing, would prohibit accomplishing the task.   See Bell v. Bengomo Realty, 36 A.D.3d at 480, 829 N.Y.S.2d 42;  Luckern v. Lyonsdale Energy Ltd. Partnership, 281 A.D.2d at 885, 887, 722 N.Y.S.2d 632.   Finally, in further contrast, subdivision (i) applies to all openings into which a person may step or fall, rather than only openings wide enough to fall through to the level below.  Keegan v. Swissotel N.Y., 262 A.D.2d at 112, 114, 692 N.Y.S.2d 39;   Ellis v. J.M.G., Inc., 31 A.D.3d at 1220-21, 818 N.Y.S.2d 724;  Bonse v. Katrine Apt. Assoc., 28 A.D.3d 990, 813 N.Y.S.2d 578 (3d Dep't 2006).

12 N.Y.C.R.R. § 23-1.7(b)(1)(i) is sufficiently specific to support a Labor Law § 241(6) claim.  Uluturk v. City of New York, 298 A.D.2d at 234, 748 N.Y.S.2d 371;  O'Connor v. Lincoln Metrocenter Partners, 266 A.D.2d 60, 61, 698 N.Y.S.2d 632 (1st Dep't 1999);  Claus v. John Hancock Mut. Life Ins. Co., 254 A.D.2d 102, 103, 679 N.Y.S.2d 6 (1st Dep't 1998);  Bonse v. Katrine Apt. Assoc., 28 A.D.3d 990, 813 N.Y.S.2d 578.   The deposition testimony is undisputed that plaintiff stepped into an opening, the depth of which extended to the floor below and the size of which at least permitted his leg to fall through, before he lost his balance and, fortuitously, managed to pull himself backward onto the floor above to avoid falling further.   The testimony also is undisputed that there was no cover over the opening or railing around the opening to guard against persons stepping into it.   See O'Connor v. Lincoln Metrocenter Partners, 266 A.D.2d at 61, 698 N.Y.S.2d 632.   The court need not consider the affidavit of plaintiff's expert to demonstrate any of these facts.

Defendants, who bear the burden in the context of their summary judgment motion, have not established as a matter of law, first, that the hole was too small to permit a person's entire body to fall through.   Even if plaintiff's entire body did not fall through the hole, defendants have not established, by measuring his girth, that the hole was too small to permit his body, at least, to fall through. Defendants rely only on a copy of a medical report showing plaintiff's height as 6′2″ and weight as 160 pounds, Zuniga Aff., Ex. I, which is not in admissible form, failing to satisfy the best evidence rule or C.P.L.R. § 4539, and indicates that plaintiff was slender in any event.  Dhillon v. Bryant Assoc., 26 A.D.3d 155, 157, 809 N.Y.S.2d 25 (1st Dep't 2006);  Banco Nacional de Mexico v. Ecoban Fin., 276 A.D.2d 284, 713 N.Y.S.2d 869 (1st Dep't 2000);  Glatter v. Borten, 233 A.D.2d 166, 168, 649 N.Y.S.2d 677 (1st Dep't 1996);  Anametrics Servs. v. Clifford A. Botway, Inc., 159 A.D.2d 247, 552 N.Y.S.2d 238 (1st Dep't 1990).   See People v. Joseph, 86 N.Y.2d 565, 570, 635 N.Y.S.2d 123, 658 N.E.2d 996 (1995);   Schozer v. William Penn Life Ins. Co. of N.Y., 84 N.Y.2d 639, 644-45, 620 N.Y.S.2d 797, 644 N.E.2d 1353 (1994);  Chamberlain v. Amato, 259 A.D.2d 1048, 1049, 688 N.Y.S.2d 345 (4th Dep't 1999);  People v. Sims, 257 A.D.2d 582, 684 N.Y.S.2d 3 (2d Dep't 1999).

Most importantly, defendants may not rely exclusively on the size of the opening to establish, as a matter of law, that the hole was not a “hazardous opening” into which a person might “step,” requiring a cover or railing.  12 N.Y.C.R.R. § 23-1.7(b)(1)(i).   E.g., O'Connor v. Lincoln Metrocenter Partners, 266 A.D.2d at 61, 698 N.Y.S.2d 632.   The authority concluding that a hole of similar horizontal dimensions was not “hazardous” relies on all relevant circumstances, including the location, depth, and purpose of the opening.   Thus, a roof drainpipe was not hazardous both because it was shallow and because a cover or railing would completely frustrate the drain's purpose.  Messina v. City of New York, 300 A.D.2d at 122, 752 N.Y.S.2d 608.   Hand-holes for wires and ducts were not hazardous because they were similarly shallow, and keeping them covered when electricians were using them would frustrate their use.  Piccuillo v. Bank of N.Y. Co., 277 A.D.2d at 94, 716 N.Y.S.2d 20.

Other authority concludes that 12 N.Y.C.R.R. § 23-1.7(b)(1)(i) does not apply, either because a cover or railing would frustrate the use of the opening, or because the plaintiff employee was “required to work close to the edge” of the opening, triggering § 23-1.7(b)(1)(iii).   See Bell v. Bengomo Realty, 36 A.D.3d at 480, 829 N.Y.S.2d 42.   Authority focusing on subdivision (iii) concludes that it does not apply, either because the work was not “close to the edge” of the opening, or because the absence of subdivision (iii)'s protections did not contribute to the employee's injury.   See Dzieran v. 1800 Boston Rd., LLC, 25 A.D.3d at 338, 808 N.Y.S.2d 36;  Messina v. City of New York, 300 A.D.2d at 123-24, 752 N.Y.S.2d 608;  Alvia v. Teman Elec. Contr., Inc., 287 A.D.2d at 423, 731 N.Y.S.2d 462.

Here, instead, the evidence is undisputed that plaintiff stepped into and fell part way into an unguarded opening in the second floor of the building being constructed and suffered injuries that a cover over the opening or railing around the opening would have prevented, demonstrating a violation of 12 N.Y.C.R.R. § 23-1.7(b)(1)(i).   Plaintiff's work, moreover, placed him squarely “within the class of persons expected to require access to that floor and thus, would be exposed to the hazards of an unsecured hole.”  Keegan v. Swissotel N.Y., 262 A.D.2d at 114, 692 N.Y.S.2d 39.

To defend against this evidence, defendants must demonstrate that the opening nonetheless was not hazardous, a burden they have not met based on the current record.   At trial, of course, plaintiff will bear the burden to prove that the opening was hazardous given all relevant circumstances, including its location, size, depth, and purpose.   See Rice v. Board of Educ. of City of N.Y., 302 A.D.2d 578, 579, 755 N.Y.S.2d 419 (2d Dep't 2003).

Although this record does not demonstrate that plaintiff's assigned task required plaintiff “to work close to the edge” of the opening, neither have defendants shown to the contrary.  12 N.Y.C.R.R. § 23-1.7(b)(1)(iii).   Nonetheless, the record does establish that the protections 12 N.Y.C.R.R. § 23-1.7(b)(1)(iii) affords, planking one floor or 15 feet beneath the opening, a life net five feet beneath, or a lifeline of unspecified length, would not have prevented or lessened plaintiff's injury.   Subdivision (iii)'s applicability to openings through which a person's entire body may fall, however, does not negate the separate subdivision (i)'s express applicability to:  “Every hazardous opening into which a person may step.”  12 N.Y.C.R.R. § 23-1.7(b)(1)(i) (emphases added).   E.g., Wells v. British Am. Dev. Corp., 2 A.D.3d at 1143-44, 770 N.Y.S.2d 161;  Luckern v. Lyonsdale Energy Ltd. Partnership, 281 A.D.2d at 886, 722 N.Y.S.2d 632.   Therefore defendants have shown that they are not liable under Labor Law § 241(6) for a violation of 12 N.Y.C.R.R. § 23-1.7(b)(1)(iii), but have failed to show nonliability for a violation of 12 N.Y.C.R.R. § 23-1.7(b)(1)(i)-(ii).  Keegan v. Swissotel N.Y., 262 A.D.2d at 112, 114, 692 N.Y.S.2d 39;  Ellis v. J.M.G., Inc., 31 A.D.3d at 1220-21, 818 N.Y.S.2d 724;  Bonse v. Katrine Apt. Assoc., 28 A.D.3d 990, 813 N.Y.S.2d 578.

III. CONCLUSION

For the reasons discussed above, the court grants defendants' motion for summary judgment to the extent of dismissing plaintiff's Labor Law § 241(6) claims insofar as they rely on any regulatory provision other than 12 N.Y.C.R.R. § 23-1.7(b)(1)(i)-(ii), as to both defendants.   The court otherwise denies defendants' motion.  C.P.L.R. § 3212(b) and (e).

LUCY BILLINGS, J.