MENDEZ v. VARDARIS TECH INC

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Supreme Court, Appellate Division, Second Department, New York.

Guido MENDEZ, Appellant, v. VARDARIS TECH, INC., Respondent.

2016–06235

Decided: June 19, 2019

CHERYL E. CHAMBERS, J.P., SHERI S. ROMAN, BETSY BARROS, LINDA CHRISTOPHER, JJ. Silberstein, Awad & Miklos, P.C., Garden City, N.Y. (Susan B. Eisner and Dennis R. Smith of counsel), for appellant. Wilson Elser Moskowitz Edelman & Dicker LLP, New York, N.Y. (Mathew P. Ross, Judy C. Selmeci, and I. Elie Herman of counsel), for respondent.

DECISION & ORDER

ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the defendant's motion which was for summary judgment dismissing the cause of action to recover damages for a violation of Labor Law § 241(6), and substituting therefor a provision denying that branch of the motion;  as so modified, the order is affirmed insofar as appealed from, with costs to the plaintiff.

The defendant, the general contractor for a construction project at an elementary school in Manhattan, retained nonparty Asar International, Inc. (hereinafter Asar), to perform asbestos removal work in the building.  On the date of the subject accident, the plaintiff, a foreman employed by Asar, was supervising the removal of asbestos-containing material from a classroom ceiling, portions of which were removed using a jackhammer.  There were several “long” overhead light fixtures in the classroom which were attached to the ceiling by thin steel beams.  After the plaintiff entered the classroom following a break in the work, he allegedly was injured when a light fixture fell from the ceiling and struck him on the head.

The plaintiff commenced this action against the defendant to recover damages for violations of Labor Law §§ 200, 240(1), and 241(6), and for common-law negligence.  The defendant moved for summary judgment dismissing the complaint.  In the order appealed from, the Supreme Court, inter alia, granted those branches of the defendant's motion which were for summary judgment dismissing the causes of action to recover damages for violations of Labor Law §§ 200 and 241(6), and for common-law negligence.

“Cases involving Labor Law § 200 fall into two broad categories:  namely, 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 A.D.3d 54, 61, 866 N.Y.S.2d 323).  Here, the parties agree that the plaintiff's claim arises out of an allegedly dangerous condition on the premises.  “A contractor may be liable in common-law negligence and under Labor Law § 200 in cases involving an allegedly dangerous premises condition ‘only if it had control over the work site and either created the dangerous condition or had actual or constructive notice of it’ ” (Doto v. Astoria Energy II, LLC, 129 A.D.3d 660, 663, 11 N.Y.S.3d 201, quoting Martinez v. City of New York, 73 A.D.3d 993, 998, 901 N.Y.S.2d 339).  In this case, the defendant established, prima facie, that it did not create the allegedly dangerous condition involving the light fixture, or have actual or constructive notice of such condition (see Guevera v. Simon Prop. Group, Inc., 134 A.D.3d 899, 900–901, 22 N.Y.S.3d 490;  Ragone v. Spring Scaffolding, Inc., 46 A.D.3d 652, 655, 848 N.Y.S.2d 230).  In opposition, the plaintiff failed to raise a triable issue of fact.  Accordingly, we agree with the Supreme Court's determination to grant that branch of the defendant's motion which was for summary judgment dismissing the causes of action to recover damages for a violation of Labor Law § 200 and for common-law negligence.

However, the Supreme Court should have denied that branch of the defendant's motion which was for summary judgment dismissing the cause of action to recover damages for a violation of Labor Law § 241(6).  That statute “imposes a nondelegable duty of reasonable care upon owners and contractors to provide reasonable and adequate protection and safety to persons employed in, or lawfully frequenting, all areas in which construction, excavation or demolition work is being performed” (Lopez v. New York City Dept. of Envtl. Protection, 123 A.D.3d 982, 983, 999 N.Y.S.2d 848;  see 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).  Labor Law § 241(6) requires owners and contractors to comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor (see Misicki v. Caradonna, 12 N.Y.3d 511, 515, 882 N.Y.S.2d 375, 909 N.E.2d 1213;  Ross v. Curtis–Palmer Hydro–Elec. Co., 81 N.Y.2d at 505, 601 N.Y.S.2d 49, 618 N.E.2d 82;  Lopez v. New York City Dept. of Envtl. Protection, 123 A.D.3d at 983, 999 N.Y.S.2d 848).  Here, the cause of action alleging a violation of Labor Law § 241(6) was predicated on, inter alia, Industrial Code (12 NYCRR) § 23–3.3(b)(3) and (c).  Industrial Code (12 NYCRR) § 23–3.3(b)(3) provides 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.”  Industrial Code (12 NYCRR) § 23–3.3(c), which governs inspections, requires “continuing inspections against hazards which are created by the progress of the demolition work itself, rather than inspections of how demolition would be performed” (Smith v. New York City Hous. Auth., 71 A.D.3d 985, 987, 897 N.Y.S.2d 232 [internal quotation marks omitted] ).

In support of its motion, the defendant submitted the transcript of the plaintiff's deposition testimony, in which the plaintiff testified that a supervisor from the defendant instructed the plaintiff not to remove the light fixtures, and to cover them with plastic to prevent them from getting damaged during the work.  In addition, the plaintiff testified that, prior to the accident, he had complained about the absence of scaffolds to perform the work, and that the defendant's representative responded that no scaffolds or braces had been placed around the room to hold the walls and the light fixtures because the defendant “didn't want the wires to be cut.”  Industrial Code (12 NYCRR) § 23–3.3(b)(3) and (c) are sufficiently specific to support a cause of action under Labor Law § 241(6) (see Bennett v. SDS Holdings, 309 A.D.2d 1212, 1213, 764 N.Y.S.2d 763).  Moreover, under the circumstances presented, the defendant failed to demonstrate, prima facie, that these regulations were inapplicable to the facts of this case, that the regulations were applicable but not violated, or that the alleged violation of these regulations was not a proximate cause of the accident (see Simmons v. City of New York, 165 A.D.3d 725, 729, 85 N.Y.S.3d 462).  In this regard, the defendant failed to establish, prima facie, that the hazard which allegedly caused the accident arose from the actual performance of the work, and not structural instability caused by the progress of the demolition (see Sierzputowski v. City of New York, 14 A.D.3d 606, 607, 789 N.Y.S.2d 214;  Bald v. Westfield Academy & Cent. School, 298 A.D.2d 881, 882, 747 N.Y.S.2d 623;  cf. Vega v. Renaissance 632 Broadway, LLC, 103 A.D.3d 883, 885, 962 N.Y.S.2d 200;  Garcia v. 225 E. 57th St. Owners, Inc., 96 A.D.3d 88, 92–93, 942 N.Y.S.2d 533;  Campoverde v. Bruckner Plaza Assoc., L.P., 50 A.D.3d 836, 837, 855 N.Y.S.2d 268).  Accordingly, the Supreme Court should have denied that branch of the defendant's motion which was for summary judgment dismissing the cause of action to recover damages for a violation of Labor Law § 241(6), regardless of the sufficiency of the opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).

Although the parties raise arguments regarding the plaintiff's cross motion for summary judgment on the issue of liability on the causes of action alleging violations of Labor Law §§ 240(1) and 241(6), the Supreme Court did not decide that cross motion in the order appealed from, and it remains pending and undecided (see Rhodehouse v. CVS Pharm., Inc., 151 A.D.3d 771, 773, 56 N.Y.S.3d 228;  Katz v. Katz, 68 A.D.2d 536, 542–543, 418 N.Y.S.2d 99).  Accordingly, we do not address those arguments.

We decline the defendant's request, made in its brief, to search the record and award it summary judgment dismissing the Labor Law § 240(1) cause of action.

CHAMBERS, J.P., ROMAN, BARROS and CHRISTOPHER, JJ., concur.