Magistro v New York City Hous. Auth NY Slip Op 33798(U) October 9, 2020 Supreme Court, Kings County Docket Number: /19 Judge: Rosemarie

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Magistro v New York City Hous. Auth.

2020 NY Slip Op 33798(U) October 9, 2020

Supreme Court, Kings County Docket Number: 510285/19 Judge: Rosemarie Montalbano

Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New

York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official

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At an IAS Term, Part 22 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at Civic Center, Brooklyn, New York, on the 9th day of October, 2020.

PRES ENT:

HON. ROSEMARIE MONTALBANO,

Justice.

- - - -.: - _-,- - - -X \.. MICHAEL MAGISTRO,

Plaintiff,

- against - Index No. 510285/19

NEW YORK CITY HOUSING AUTHORITY AND THE CITY OF NEW YORK,

kffr.

5'1.

1,

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lv\l>

Defendants.

- - - -X

The following e-filed papers read herein: NYSCEF Doc. Nos.

Notice of Motion/Order to Show Cause/ Petition/Cross Motion and I

Affidavits (Affirmations) Annexed _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

12-19, 20-28, 29-38 Opposing Affidavits

(Affirmations)---~---29-44, 45-50, 55

Reply Affidavits (Affirmations) _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 53 _ _ _ _ _ _ _ _ Affidavit (Affirmation) _ _ _ _ _ _ _

~---Other Papers _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

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Upon the foregoing papers, defendant New York City Housing Authority (NYCHA) moves for an order (in motion sequence number 001), pursuant to CPLR 3212, granting summary judgment dismissing the complaint of plaintiff Michael Magistro (plaintiff). Defendant City ofNew York (the City) moves (in motion sequence number 002), pursuant to the same statute seeking the same relief.1 _{Plaintiff moves (in} motion sequence number 003) for partial summary judgment in his favor against NYCHA on the issue of liability under Labor Law§§ 240 (1) and 241 (6) claims.

Background and Procedural History

On July 3, 2018, plaintiff was injured while engaged in his work as a plumber for non-party Richards Plumbing & Heating Co., Inc., (Richards). NYCHA had contracted with Richards to perform work outside of the Linden Houses, a NY CHA property located in Brooklyn. , The work involved replacing a leaking underground water pipe. A portion of the concrete sidewalk had been broken up and a hole was created to gain access to the pipes. The hole was approximately eight foot long, four foot deep and five foot wide. Plaintiff testified at his 50-h hearing that on the day of the incident, slabs of concrete from the broken up sidewalk were inside and outside of the hole. The slabs varied in size with the largest measuring approximately two feet by two feet. Plaintiff testified that his supervisor, Paul, instructed him and the other members of his crew to remove the concrete slabs from the area. This was accomplished by placing the slabs into an excavation bucket located on the ground next to the hole. Plaintiff was

1 _{The court notes that the plaintiff does not oppose the City's motion, and has consented to} summary judgment being granted in the City's favor dismissing his complaint in its entirety as

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positioned inside the excavated hole lifting slabs out of the hole and placing them up into the bucket. His co-worker, Frank Tauriello, was standing outside of the hole picking up concrete slabs from the sidewalk and placing them in the same excavation bucket. At some point while plaintiff was placing a concrete slab into the same bucket, Tauriello also placed an approximately two foot by one foot slab of concrete into the bucket directly on top of plaintiffs right hand causing him to sustain injury.

Plaintiff filed a notice of claim as against NY CHA on August 21, 2019, and testified at a hearing held pursuant to Public Housing Law § 157 (2) and General Municipal Law § 50-h on January 23, 2019. Plaintiff commenced this action by filing a summons and complaint on May 8, 2019, alleging violations of Labor Law §§ 240 (1), 241 (6), 200 and common law negligence. Issue was joined by service of NYCHA's answer on July 11, 2019. Plaintiff served a verified bill of particulars on July 26, 2019.

Discussion

NY CHA moves for summary judgment dismissing plaintiffs complaint in its entirety. Plaintiff opposes and moves for partial summary judgment as to liability on his Labor Law§§ 240 (1) and 241 (6) claims as asserted against NYCHA.

At the outset, the court notes that plaintiff argues that NYCHA's motion should be denied as it is premature. "A summary judgment motion is not premature merely because discovery has not been completed" (Northfield Ins. Co. v Golob, 164 AD3d 682, 683-684 [2018]; see Chemical Bank v PIC Motors Corp., 58 NY2d 1023, 1026 [1983];

against said defendant.

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Lamore v Panapoulos, 121 AD3d 863, 864 [2014]). "A party who contends that a summary judgment motion is premature is required to demonstrate that discovery might lead to relevant evidence or that the facts essential to justify opposition to the motion were exclusively within the knowledge and control of the movant" (Morales v Amar, 145 AD3d 1000, 1003 [2016] [holding that a plaintiff who relied solely on their attorney's affirmation, failed to set forth either basis]; see CPLR 3212 [f]; Suero-Sosa v Cardona,

112 AD3d 706, 708 [2013]; Cajas-Romero v Ward, 106 AD3d 850, 852 [2013]; Woodard v Thomas, 77 AD3d 738, 740 [2010]). "The mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is insufficient to deny the motion. Rather, there must be 'some evidentiary basis . . . to suggest that discovery may lead to relevant evidence"' (see Haidhaqi v Metropolitan Transp. Auth., 153 AD3d 1328, 1329 [2017], quoting Ruttura &

Sons Constr. Co. v Petrocelli Constr., 257 AD2d 614, 615 [1999]; Suero-Sosa, 112 AD3d at 708 [holding that the plaintiffs argument, supported only by her attorney's affirmation, that a deposition of a witne~s was necessary since it may lead to evidence was without merit since, based on the record, such discovery was unlikely to lead to relevant evidence]). Here, plaintiffs 50-h testimony sets forth his accountofthe manner in which the accident occurred, as well as who directed and supervised the work that he was performing at the time of the accident. Accordingly, the court finds that NYCHA's motion is not premature as, based on the record, it is unlikely that relevant evidence would be revealed that would alter the outcome. Moreover, the court notes that plaintiff

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himself moves for partial summary judgment based upon the record presently before the court.

Labor Law§ 240 (1)

Turning to the merits, NYCHA seeks summary judgment dismissing plaintiffs Labor Law § 240 ( 1) cause of action. Conversely, plaintiff seeks partial summary judgment as to liability on said claim as against NYCHA. In support of its motion, NYCHA argues that it is not liable under Labor Law § 240 (1) because plaintiffs accident is not attributable to an elevation differential as he did not fall from a height; nor was he struck by a falling object that required securing for the purpose of the operation. In this regard, NYCHA notes that plaintiff and his co-worker were both using the same bucket from a standing position and plaintiffs right hand was injured when he placed a piece of concrete into the excavator bucket at the same time that his co-worker was performing the same task. Thus, NY CHA maintains that plaintiff was injured as a result of the manner in which he and his co-worker performed their jobs, and not due to the risk of an elevation differential at the work site. In support of this contention, NYCHA points to the Second Department's holding in Natale v City of New York, (33 AD3d 772 [2006], arguing that the facts of Natale are virtually identical to the instant case, except for the fact that an object actually fell on the plaintiff in Natale. Mr. Natale was working in a three-foot deep trench while his co-worker was excavating the trench with a backhoe. During this work, Mr. Natale was struck by a falling slab of the overhanging concrete sidewalk. In discussing Mr. Natale's Labor Law § 240 (1) claim, the Second

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Department held that the hazard he· faced was not related to elevation differentials as contemplated in the statute and that "the piece of concrete did not fall while being hoisted or secured, 'nor did it fall 'because of the absence or inadequacy of a safety device of the kind enumerated in the statute' . . . , and thus the statute is inapplicable" (Natale, 33 AD3d at 774 [internal citations omitted]).

In opposition to this branch of NYCHA's motion, and in support of his own motion seeking summary judgment in his favor on this claim, plaintiff argues that the undisputed facts make clear that he was injured as a result of being struck by a falling object at his work site. Plaintiff contends that NYCHA, as the owner of the premises, was required to secure the concrete to prevent it from falling, or at least provide protection so that if it did fall, it would not strike him. In support of this position, plaintiff submits the affidavit of Daniel M. Paine, who affirms that he is a Certified Safety Executive (C.S.E.), and a Construction Safety and Fall Protection Expert. Mr. Paine states that he reviewed all of the pleadings, as well as the transcript of plaintiffs 50-h testimony, for the purpose of assessing whether plaintiff was afforded proper protection to minimize the risks against a dangerous fall such as the one that caused his injuries on July 3, 2018.2

Mr. Paine opines that plaintiff was not afforded proper protection with respect to the elevation risks to which he was exposed while performing the tasks of his job. Specifically, he contends that plaintiff should not have been allowed in an excavation

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while his coworkers were dropping very large pieces of concrete at least four to five feet into a bucket from above. Mr. Paine opines that this work should have been performed using an excavator. However, he notes that based upon plaintiffs 50-h testimony, this could not be accomplished because the person that was operating the excavator at the site was incompetent; which is also a safety violation. Mr. Paine opines that as an alternative, though less safe option, the debris from within the excavation should have been loaded "using a hoist or the bucket of the excavator, and then, only after all workers had departed from the excavation and a barrier was put in place, should the debris from outside the excavation be loaded and discarded, perhaps by employing a chute. Doing both areas of demolition at once violates safety standards" ( NYSCEF Doc No. 32, Paine aff at

if

11).

In opposition to this branch of plaintiffs motion and in further support of its own motion, NYCHA argues that plaintiffs counsel misrepresents the facts of the case. Specifically, NYCHA points to page 10 of plaintiffs counsel's Affirmation in Support of the motion, in which he states that "the sidewalk flagstone, which dropped almost five feet, striking plaintiff clearly was not secured" (NYSCEF Doc No. 30, at p. 10). NYC HA contends that plaintiffs counsel fails to cite any testimony in support of this statement, as none exists. Conversely, NYCHA points to plaintiffs testimony from his 50-h hearing wherein he described how the accident happened:

2 _{The court notes that it is undisputed that plaintiffs injuries are not attributable to him falling} on the premises.

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i • Q. Just so I understand, so you were placing the concrete in

the bucket. Frank was placing concrete from above ground into the bucket?

A. Yes.

Q. Did he as you were placing concrete in the bucket he at the same time, place that slab and that's how your hand got caught or slammed on?

A. Yes (NYSCEF Doc. No.15, transcript of plaintiff's 50-h testimony at p.26-27).

NYCHA notes that the plaintiff unequivocally testified that his hand was injured when his co-worker placed a piece of concrete on top of it, and that he never testified that anything was dropped or fell on him. NYCHA contends that plaintiff's counsel continually uses the word "falling" in an effort to squeeze the facts of this case into the Labor Law. In further support, NYCHA reiterates that the Second Department Natale

case is controlling as that court found no Labor Law§ 240 (1) violation in a substantially similar factual situation.

Labor Law § 240 ( 1 ), states, in relevant part, that:

All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed ...

The purpose of Labor Law § 240 ( 1) is to protect workers "from the pronounced risks arising from construction work site elevation differentials" (Runner v New York

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Stock Exch., Inc., 13 NY3d 599, 603 [2009]; see also Rocovich v Consolidated Edison

Co., 78 NY2d 509, 514 [1991]; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [1993]). Consequently, Labor Law § 240 (1) applies to accidents and injuries that directly flow from the application of the force of gravity to an object or to the injured worker performing a protected task (see Gasques v State of New York, 15 NY3d 869 [2010]; Vislocky v City of New York, 62 AD3d 785, 786 [2009], Iv dismissed 13 NY3d 857 [2009]; see also Ienco v RFD Second Ave., LLC, 41 AD3d 537 [2007]; Ortiz v

Turner Constr. Co., 28 AD3d 627 [2006]). The duty to provide the required "proper protection" against elevation-related risks is nondelegable; therefore, owners, contractors and their agents are liable for the violations even if they have not exercised supervision and control over either the subject work or the injured worker (Zimmer v Chemung

County Performing Arts, Inc., 65 NY2d 513, 521 [1985] [owner or contractor is liable for Labor Law § 240 ( 1) violation "without regard to ... care or lack of it"]).

Labor Law § 240 ( 1) requires owners and contractors 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 NY2d 494, 501 [1993]). "To prevail on a motion for summary judgment in a Labor Law § 240 (1) 'falling object' case, the plaintiff must demonstrate that at the time the object fell, it either was being hoisted or secured, or required securing for the purposes of the undertaking" (Wiski v Verizon N.Y., Inc., __ AD3d_, 2020 NY Slip Op 05089, 1 [2nd

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Dept], quoting Romero v 2200 N Steel, LLC, 148 AD3d 1066, 1067 [2017]; see Fabrizi v 1095 Ave. of the Ams., L.L.C., 22 NY3d 658, 662-663 [20l4];0utar v City of New York,

5 NY3d 731, 732 [ ]; Passos v Noble Constr. Grp., LLC, 169 AD3d 706, 707 [2019). Moreover, Labor Law § 240 (1) "does not automatically apply simply because an object fell and injured a worker; '[a] plaintiff must show that the object fell ... because of the absence or inadequacy of a safety device of the kind enumerated in the statute"' (Fabrizi,

22 NY3d at 663, quoting Narducci

v

Manhasset Bay Assoc., 96 NY2d 259, 268 [2001]). Thus, where the hoisting or securing of a device of the kind enumerated in the statute would not have been necessary or even expected, Labor Law § 240 ( 1) does not apply

(see Romero, 148 AD3d at 1067).

As an initial matter, the court rejects plaintiffs argument that the concrete slab that fell on him was a "falling object" that should have been secured within the meaning of Labor Law§ 240 (1). Here, based upon plaintiffs 50-h testimony, the concrete slab was purposely being placed in the bucket by his co-worker at the time of the incident, and thus was not a "falling object"(see Roberts v General Elec. Co., 97 NY2d 737, 738 [2002] [the court found no Labor Law § 240 (1) liability where plaintiff, an employee of an asbestos removal company, was injured when a piece of asbestos, which had been cut and deliberately dropped from a chemical tank approximately 12 feet above ground, fell on him]; Natale, 33 AD3d at 774 [holding that Labor Law§ 240 (1) was inapplicable as the piece of concrete that struck plaintiff while he was working in an excavation ditch did not fall while being hoisted or secured, nor did it fall due to the absence or inadequacy of

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a safety device of the kind enumerated in the statute]; Mueller v PSEG Power N.Y., Inc., 83 AD3d 1274, 1275 [2011] [court found no Labor Law §240 (1) violation where plaintiff was struck by a steel form after a crane cable accidentally snagged it which was not in the course of purposeful hoisting or moving of the forms. The court stated that "[i]t would be illogical to hold defendant liable for failing to utilize or properly attach a protective hoisting device when no further hoisting of the forms was contemplated"]).

Based upon the foregoing, that branch of plaintiffs motion seeking partial summary judgment in his favor on his Labor Law§ 240 (1) claim is denied. NYCHA's motion seeking summary judgment dismissing plaintiffs Labor Law§ 240 (1) claim is granted and said claim is hereby dismissed.

Labor Law§ 241 (6)

NYCHA also seeks summary judgment dismissing plaintiffs' Labor Law§ 241 (6) claim arguing that all of the Industrial Code provisions he cites in support of this claim are either too general to support a section 241 ( 6) claim or inapplicable to the facts herein. Plaintiff opposes this branch of NYCHA's motion and seeks partial summary judgment as to liability on his Labor Law§ 241 (6) claim.

Labor Law § 241 ( 6), provides, in pertinent part, that:

"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 persons employed therein or lawfully frequenting such places."

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The statute imposes a nondelegable duty on owners, contractors and their agents to provide reasonable and adequate protection and safety to persons employed in construction, excavation. or demolition work, and to comply with the safety rules and regulations promulgated by the Commissioner of the Department of Labor (see Misicki v Caradonna, 12 NY3d 511 [2009]; Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343 [1998]; Seales v Trident Structural Corp., 142 AD3d 1153 [2016]; Norero v 99-105 Third Ave. Realty, LLC; 96 AD3d 727 [2012]). The ultimate responsibility for safety practices at building construction sites lies with the owner and general contractor (see Allen v Cloutier Constr. Corp., 44 NY2d 290 [1978]). In order to prevail on a Labor Law § 241 (6) claim, it must be predicated upon violations of specific codes, rules, or regulations applicable to the circumstances of the accident (Reyes v Arco Wentworth Mgt. Corp., 83 AD3d 47, 53 [2011]). Plaintiff, in his bill of particulars, alleged the violation of multiple Industrial Code sections in support of his Labor Law § 241 (6) claim, all of which NYCHA argues are either not specific enough or are not applicable to the facts herein. Specifically, plaintiff alleges the violation of Industrial Code §§ 23-3.2; 23-3.3; 23-3.5 ( c ); 23-3.3(e); 23-3.3(g); 23-4.2; and 23-4.2(k). In addition, plaintiff moves for an order, pursuant to CPLR 3025, granting him leave to amend his bill of particulars to add several additional Industrial Code provisions in support of his Labor Law § 241 ( 6) claim. Specifically, he seeks to add the following Industrial Code §§: 23-l.7(a); 23-1.20; 23-l.33(a); 23-2.l(b); and 23-3.4(c)(5).

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However, the court notes that plaintiffs opposition to NYCHA's motion and affirmation in support of his own motion raises arguments with regard to the Industrial Code provisions that he seeks leave to add, namely§§ 23-l.7(a); 23-1.20; 23-1.33(a); and 23-2.l(b); as well as only two of the sections he asserted in his original bill of particulars, namely §§ 23-3 .3 and 23-4.2. Therefore, the court finds that plaintiff has abandoned his claim that NYCHA violated Industrial Code §§ 23-3.2 and 23-3.5 ( c ) (see Videan v NRG Energy, Inc., 149 AD3d 1533, 1534-1535 [2017]; Perez v Folio House, Inc., 123 AD3d 519, 520 [2014]; Kempisty v 246 Spring St., LLC, 92 AD3d 474, 475 [2012] ["[w]here a defendant so moves [for summary judgment], it is appropriate to find that a plaintiff who fails to respond to allegations that a certain section is inapplicable or was not violated be deemed to abandon reliance on that particular Industrial Code section"]).

However, before the court addresses this branch of the motions, it must decide the portion of plaintiffs motion seeking leave to amend his bill of particulars. Plaintiff argues that leave to amend should be freely given as the sections he proposes to add are specific and applicable. Here, plaintiff seeks to add alleged violations of Industrial Code §§ 23-1.7[a]; 23-1.20; 23-1.33(a); 23-2.l(b); and 23-3.4(c)(5) to support his Labor Law§ 241 (6) claim. In opposition, NYCHA argues that leave to amend should be denied as none of the sections proposed by plaintiff are applicable to the facts of the case.

"Leave to amend the pleadings to identify a specific, applicable Industrial Code provision 'may properly be granted, even after the note of issue has been filed, where the plaintiff makes a showing of merit, and the amendment involves no new factual

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allegations, raises no new theories of liability, and causes no prejudice to the defendant"

(D'Elia v City of New York, 81 AD3d 682, 684 [2011], quoting Galarraga v City of New York, 54 AD3d 308, 310 [2008]; see Dowd v City of New York, 40 AD3d 908, 911

[2007]; Kelleir v Supreme Indus. Park, 293 AD2d 513, 514 [2002]).

As to Industrial Code§ 23-1.7 (a), that provision pertains to overhead hazards and provides that:

"( 1) Every place where persons are required to work or pass that is normally exposed to falling material or objects shall be provided with suitable overhead protection. Such overhead protection shall consist of tightly laid sound planks at least two inches thick full size, tightly laid three-quarter inch exterior grade plywood or other material of equivalent strength. Such overhead protection shall be provided with a supporting structure capable of supporting a loading of 100 pounds per square foot.

"(2) Where persons are lawfully frequenting areas exposed to falling material or objects but wherein employees are not required to work or pass, such exposed areas shall be provided with barricades, fencing or the equivalent in compliance with this Part (rule) to prevent inadvertent entry into such areas."

Plaintiff argues that this section is applicable and has been violated as he was struck by falling debris. At the outset, the court notes that § 23-1.7 (a) has been determined to be sufficiently specific to support a Labor Law § 241 (6) claim (see

Moncayo v Curtis Partition Corp., 106 AD3d 963, 965 [2013]). However, the court

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notes that§ 23-1.7 (a) (2) is not applicable to the facts of the case as plaintiff was in fact required to work in the area at which the incident occurred.

NYCHA opposes the amendment of plaintiffs bill of particulars to assert a violation of this code provision arguing that this section requires the laying of planks or barricades to protect workers from objects falling from a height. NYCHA maintains that if planks had been either laid over the trench, or a barricade had been placed around it, this would have made it impossible for anyone to access the trench to remove the concrete.

Here, the court finds that this Industrial Code provision is inapplicable to the facts herein. Specifically, there is no evidence that the excavation trench that plaintiff was standing in at the time of his accident was an area that was "normally exposed to falling material or objects" that would trigger the need for overhead protection (see Clarke v

Morgan Contr. Corp., 60 AD3d 523, 524 [2009] [holding that the regulation does not apply where an object unexpectedly falls on a worker in an area not normally exposed to such hazards]; Ginter v Flushing Terrace, LLC, 121 AD3d 840, 844 [2014]; Buckley v

Columbia Grammar & Preparatory, 44 AD3d 263, 271 [2007]; Portillo v Roby Anne

Dev., LLC, 32 AD3d 421, 422 [2006]). Moreover, the court notes that plaintiffs expert does not even address this Industrial Code provision in his affidavit. Accordingly, that branch of plaintiffs motion seeking leave to amend to add this Industrial Code provision is denied.

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Plaintiff also seeks to add Industrial Code § 23-1.20 which relates to chutes. Specifically this section states:

Wooden or metal chutes used for the removal of material and debris from elevated levels of a building or other structure and which are at an angle of more than 45 degrees from the horizontal shall be entirely enclosed on all sides and the top, except for openings used for the receiving and discharging of material and debris. Such necessary openings shall not exceed 48 inches in height, measured along the wall of the chute, and all openings shall be covered when not in use. Chutes which are at an angle of 45 degrees or less from the horizontal may be open on the upper side.

In support of plaintiffs position that this section is applicable, his expert, Mr. Paine, opines that "[i]f the workers wanted to load the concrete from above the excavation into the bucket, they should have employed a chute so that the descent of the debris could be guided away from people" (NYSCEF Doc. No. 32, Paine aff at~ 9).

In opposition, NYCHA argues that this section is inapplicable as it applies to debris being removed from an elevated level. The concrete slabs involved in this incident were either at the same level as where they were being placed into the bucket or at a lower level. The court finds that this Industrial Code section is not applicable to the facts of the instant case. This was not a situation involving the movement of material and debris from an elevated level to a lower level. Rather, plaintiffs co-worker was required to pick up the concrete slab off the ground and place it into a bucket located at

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street level, and plaintiff was required to lift up concrete that remained in the excavation pit and place it into the same bucket. Thus, there was no movement of material from an elevated level to an area down below triggering the protection required pursuant to this Industrial Code provision. Therefore, that branch of plaintiffs motion seeking leave to amend his bill of particulars to assert a violation oflndustrial Code § 23-1.20 is denied.

Next, Industrial Code§ 23-l.33(a) provides as follows:

(a) Protection required. (1) Reasonable and adequate protection and safety shall be provided for all persons passing by areas, buildings or other structures in which construction, demolition or excavation work is being performed. In addition, such protection and safety shall also be provided for persons passing by unattended excavations, such as sump holes, trenches, shafts, wells, pits and similar excavations. Such protection and safety shall be provided in accordance with the provisions of this Part (rule).

NY CHA correctly argues that this section does not apply to the facts of the instant case inasmuch as it pertains to people passing by areas in which construction/excavation work is being performed and specifically does not apply to persons involved in that work. Accordingly, that branch of plaintiffs motion seeking leave to amend to ~ssert a violation oflndustrial Code§ 23-1.33 (a) is denied (see Turgeon v 'Vassar Coll., 172 AD3d 1134, 1135 [2019]; Mancini v Pedra Constr., 293 AD2d 453, 454 [2002]; Lawyer v Hoffman,

275 AD2d 541, 542 [2000]).

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Plaintiff also seeks to assert a violation of Industrial Code § 23-2. l(b) which states: "[d]ebris shall be handled and disposed of by methods that will not endanger any person employed in the area of such disposal or any person lawfully frequenting such area." In opposition, NYCHA notes that the Second Department has determined that this Industrial Code provision is not sufficiently specific to support a Labor Law § 241 (6) claim. Accordingly, that part of plaintiff's motion seeking leave to amend his bill of particulars to assert a violation of Industrial Code § 23-2.1 (b) is denied (see Longo v Long Is. R.R., 116 AD3d 676, 677 [2014] [holding that Industrial Code§ 23-2.1 (b) lacks the specificity required to support a cause of action under Labor Law § 241 (6)]; Parrales v Wonder Works Constr. Corp., 55 AD3d 579, 582 [2008]; Madir v 21-23 Maiden Lane Realty, LLC, 9 AD3d 450, 452 [2004]; Salinas v Barney Skanska Constr. Co., 2 AD3d 619, 622 [2003]).

Lastly, plaintiff seeks to assert a violation of Industrial Code§ 23-3.4(c)(5), which provides as follows:

( c) Zone of demolition.(5) Substantial barricades constructed ·and installed in compliance with this Part (rule) shall be erected whenever there is likelihood of any person entering a zone of demolition other than the persons essential for operation of the demolition devices or equipment.

NYCHA argues that this section is also inapplicable, as it appears to deal with the operation of a swinging weight during demolition. In this regard, NY CHA notes that no

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demolition was being performed at the time of plaintiffs accident. In addition, NYCHA contends that the barricades required in this provision were meant to prevent entry into a demolition zone by persons other than the ones who are essential for operation of the demolition device. NYCHA points out that no demolition was occurring at the time of incident. The court finds that section 23-3 .4( c )( 5) is not applicable to the facts herein, and thus that branch of plaintiffs motion seeking to assert a violation of this provision is denied. Based upon the foregoing, that branch of plaintiffs motion seeking leave to amend his bill of particulars to assert a violation of Industrial Code§§ 23-1.7(a); 23-1.20; 23-l.33{a); 23-2.l(b); and 23-3.4(c)(5) is denied (see CPLR 3025 [b]; Longo, 116 AD3d at 677; Jara v New York Racing Assn., Inc., 85 AD3d 1121, 1124 [2011]).

The court will now address that branch of NYCHA's motion seeking summary judgment dismissing plaintiffs Labor Law§ 241 (6) claim as predicated on a violation of Industrial Code §§ 23-3.3 and 23-4.2, as well as that branch of plaintiffs motion seeking summary judgment in his favor on this claim. Plaintiff asserts that NYCHA made absolutely no attempt to comply with these Industrial Code provisions arguing that no barricades, chutes, or overhead protection were provided. Accordingly, plaintiff maintains that he is entitled to summary judgment in his favor on his Labor Law § 241 (6) claim based upon a violation of these Industrial Code provisions.

In his bill of particulars, plaintiff alleges that subdivisions ( c ), ( e) and (g) of section 23-3.3 were violated. Industrial Code 23-3.3 ( c) provides as follows:

c) Inspection. During hand demolition operations, continuing inspections shall be

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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.

NYCHA argues that section 23-3.3 ( c ) is not applicable where, as here, the hazard arose from the plaintiffs own performance of the demolition work. It cites to several cases in support of this proposition (see Garcia v Market Assoc., 123 AD3d 661

[2014] [finding this subsection inapplicable where the hazard arose from the plaintiffs actual performance of demolition work itself, rather than structural instability caused by the progress of demolition]; Maldonaldo v AMMM Properties Co., 107 AD3d 954 [2013]

[section held inapplicable where plaintiff and co-worker were attempting to dislodge a pane of glass from its frame when it cracked and fell]; Vega v Renaissance 632 Broadway, LLC, 103 AD3d 883 [2013] [section inapplicable where ceiling pipes fell on

plaintiff while he was cutting bracket supporting them];Smith v N Y.C. Hous. Auth., 71

AD3d 985, 987 [2010] [section inapplicable where injured plaintiff was hammering one of the particular cinder blocks that fell in order to dislodge it from the wall]).

In opposition, plaintiff merely points to cases demonstrating that this Industrial Code provision has been found sufficiently specific to support a Labor Law § 241 (6) claim (see Cardenas v One State Street, LLC, 68 AD3d 436 [ 2009] [court held that §

23-3.3 ( c) was sufficiently specific to support a Labor Law § 241(6) cause of action but

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could not determine if it was a proximate cause of the plaintiffs injures where the work involved prying an 80-pound electrical panel from wall]; Salinas v Barney Skanska Constr. Co., 2 AD3d 619, 622 (2003] [holding this section applicable where plaintiff slipped on demolition debris while removing a heavy air conditioning duct attached to the ceiling and the inadequately secured duct fell on top of him]). Plaintiff, however, fails to establish that this provision applies to the facts in the instant case.

The court finds that while section 23-3.3 ( c ) is sufficiently specific to support a Labor Law § 241 ( 6) claim, it is not applicable to the facts herein. In the instant case,

plaintiffs injuries were not caused by a hazard related to weakened or deteriorated floors or walls. Nor was this a situation wherein the concrete slab unexpectedly fell from above into the excavation pit and struck plaintiff. Rather, his co-worker placed the concrete slab into the street level bucket at the same time plaintiff was placing a slab into the same bucket. Moreover, the court notes that the Salinas court cited the holding in

Monroe v City of New York (67 AD2d 89, 100 (1979]) that "[t]he thrust of this subdivision is to fashion a safeguard, in the form of 'continuing inspections', against hazards which are created by the progress of the· demolition work itself'). In the instant case, the hazard was created by the actions of plaintiff and his co-worker in performing their work, and was not the result of a failure to perform inspections at the cite. Accordingly, section 23-3.3 ( c) cannot support plaintiffs section 241(6) claim.

NYCHA next argues that section 23-3.3 (e) also cannot support plaintiffs Labor Law§ 241 (6) claim. That provision states:

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( e) Methods of operation. Where the demolition of any building or other structure is being performed by hand, debris, bricks and any other materials shall be removed as follows:

( 1) By means of chutes constructed and installed in compliance with this Part (rule);

(2) By means of buckets or hoists; or (3) Through openings in the floors of the building or other structure in compliance with this section.

NY CHA maintains that this provision does not apply to plaintiffs injury as the plumbers in plaintiffs crew were not engaged in the demolition of a building or structure; but were simply digging and clearing a hole so that they could work on an underground pipe. Importantly, NYCHA points out that the debris was in fact being removed from the site by an excavator with a bucket, which is one of the permitted methods of operation. In support of its position, NYCHA cites the following cases: Freitas v NY.C.

Transit Auth., 249 A2d 184, 185 [1998] [holding that this sub-section did not apply

where debris on the ground was being collected]; Campoverde v Bruckner Plaza Assocs.,

L.P., 50 AD3d 836, 837 [2008] [holding that this sub-section did not apply to the removal

of material from its original place in a wall or ceiling]).

Plaintiff does not raise any specific opposition to this branch ofNYCHA' motion, nor does he assert any support for the applicability of this section as a predicate for his Labor Law§ 241 (6) claim.

Here, the court finds that NYCHA is entitled to summary judgment dismissing plaintiffs Labor Law§ 241 (6) claim as predicated on a violation of Industrial Code

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§23-3 .3 ( e ). Conversely, that branch of plaintiffs motion seeking summary judgment in his favor on his Labor Law § 241 (6) claim as predicated on a violation of Industrial Code§ 23-3.3 (e) is denied.

Next, the court turns to that branch of NYCHA and plaintiffs respective motions seeking summary judgment with regard to a claimed violation of Industrial Code § 23-3.3 (g) which states:

(g) Protection in other areas. Every floor or equivalent area within the building or other structure that is subject to the hazard of falling debris or materials from above shall be boarded up to prevent the passage of any person through such area, or shall be fenced off by a substantial safety railing constructed and installed in compliance with this Part (rule) and placed not less than 20 feet from the perimeter of such floor opening or such area shall be provided with overhead protection in the form of tight planking at least two inches thick full size, exterior . grade plywood at least three-quarters inch thick or material of equivalent strength.

NYCHA argues that this sub-section does not apply herein as plaintiff was not subject to the hazard of falling debris or materials from above. Additionally, NY CHA asserts that boarding up the area would not have afforded plaintiff any protection. In support of this argument, NYCHA points to the court's holding in Salinas (2 AD3d at 622), that section 23-3.3(g) was inapplicable where plaintiff was working in area not subject to falling debris from another area.

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In opposition to this branch of NYCHA's motion, and in support of his own motion, plaintiff points to the following cases: Murtha v Integral Const. Corp.,253 AD2d 637, 638 [1998]) [where the court found § 23-3.3(g) was applicable when plaintiff was showered by debris falling from the ceiling due to defendant's employees drilling and chopping concrete on the floor directly above the basement]; and Zuluaga v P.P.C. Const., LLC, 45 AD3d 479, 480 [2007] [granting partial summary judgment to plaintiff on his Labor Law § 241(6) claim based on a violation of,Industrial Code § 23-3.3(g), when "plaintiff, while performing asbestos removal work on the building's first floor, was injured when he was struck by a six-foot-long pipe that fell from several floors above where other workers were performing demolition work, including the cutting and removal of pipes"]).

Here, the court finds that this section does not apply to the facts herein. Plaintiff sustained his injuries as a result of his co-worker placing

a

large concrete slab on his hand, and not from being exposed to falling materials or debris. Accordingly, section 23-3.3 (g) cannot support plaintiffs Labor Law§ 241 (6) claim.

Finally, Industrial Code § 23-4.2, entitled Trench and Area Type Excavations, states, in relevant part, as follows:

(a) Whenever any person is required to work in ... any trench or excavation five feet or more in depth which has sides or banks with slopes steeper than those permitted in Table I of this sub part, such sides or banks shall be provided with sheeting and shoring in compliance with the part . . . Additional

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protections against slides and cave ins shall be provided whenever necessary.

As NYCHA correctly argues, this section is not applicable to the facts herein as it

applies to the dangers associated with the collapse or cave in of a trench, which did not occur here. Plaintiff fails to offer any specific opposition to this branch of NYCHA's motion or any support for this branch of his own motion. Accordingly, section 23-4.2 cannot support plaintiffs Labor Law § 241 (6) claim (see Castelo-Branco v. City of

New York,, 50 Misc. 3d 1227(A) [2016] [Richmond County] [February 29, 2016]

[holding that § 23-4.2(a) was inapplicable as there was no allegation or proof that the trench caved in or was improperly secured]).

Based upon the foregoing, that branch of NYCHA's motion seeking summary judgment dismissing plaintiffs Labor Law§ 241 (6) claim is granted, and that branch of plaintiffs motion seeking partial summary judgment as to liability on said claim is deniedD

Labor Law § 200/Common Law Negligence

NY CHA moves for summary judgment dismissing plaintiffs Labor Law § 200 and common law negligence claims as asserted against it. NY CHA argues that it did not exercise supervision and control over the means and methods of plaintiffs work, nor did it create or have notice of a dangerous condition at the work site. Specifically, NYCHA contends that plaintiffs injury was not caused by a dangerous condition on the premises of which NYCHA had notice and a duty to correct. Rather, it was caused by the negligent

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handling of the concrete by plaintiffs co-worker. NYCHA maintains that plaintiffs accident did not result from any role NYCHA played at the job site and that his injury resulted from the manner in which plaintiff and his co-worker performed their jobs. In support if this argument, NYCHA points to plaintiffs 50-h testimony as follows:

Q. Getting back to when you were on the work site in the four days leading up to the accident, did you ever have any interaction with any personnel from the New York City Housing Authority?

A. Yes.

Q. What type of interaction would you have with them?

A. They are usually on site to supervise the job.

Q. When you say "supervise the job", would they give you direction as to how to do your work?

A. Not to do my actual work, just make sure that everything is safe and going the way it should go and the work is being done.

Q. They were there to check on the progress and the safety of the work?

A. They weren't there that day.

Q. As far as the day-to-day, the methods and the means of the work that Richard's Plumbing, what you were doing on behalf of Richard's Plumbing, all that direction was from Richard's?

A. Yes (NYSCEF Doc. No. 15, plaintiffs 50-h testimony at p. 53-54, lines

18-25).

Section 200 of the Labor Law statute is a codification of the common-law duty imposed upon an owner or general contractor to provide construction site workers with a

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safe place to work (see Comes v New York State Elec. & Gas Corp., 82 NY2d 876 [1993]; Haider v Davis, 35 AD3d 363(2006]). "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 AD3d 54, 61 [2008]; see

Chowdhury v Rodriguez, 57 AD3d 121, 128 [2008]). "When a claim involves the manner in which the work -is performed, meaning it arises out of alleged defects or dangers in the methods or materials of the work (see Ortega, 57 AD3d at 61), recovery against the owner or general contractor for common-law negligence or a violation of Labor Law § 200 is unavailable unless it is shown that the defendant had the authority to supervise or control the performance of the work" (Abelleira v City of New York, 120 AD3d 1163, 1164 [2014]; see Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343 [1998]; Russin v Louis

N. Picciano & Son, 54 NY2d 311, 317 [1981]; Klimowicz v Powell Cove Assoc., LLC, 111 AD3d 605, 607 [2013]; Galle/lo v MARJ Distribs., Inc., 50 AD3d 734, 735 [2008];

Dooley v Peerless Importers, Inc., 42 AD3d 199, 204-205 [2007]). '"A defendant has the authority to supervise or control the work for purposes of Labor Law § 200 when that defendant bears the responsibility for the manner in which the work is performed"'

(Torres v Perry St. Dev. Corp., 104 AD3d 672, 676 [2013], quoting Ortega v Puccia, 57 AD3d 54, 62 [2008]). "[T]he right to generally supervise the work, stop the contractor's work if a safety violation is noted, or to ensure compliance with safety regulations and contract specifications is insufficient to impose liability under Labor Law § 200 or for

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common-law negligence"(Marquez v L & M Dev. Partners, Inc., 141 AD3d 694, 698 [2016], quoting Austin v Consolidated Edison, Inc., 79 AD3d 682, 684 [2010], quoting

Gasques v State of New York, 59 AD3d 666, 668 [2009], affd on other grounds 15 NY3d 869 [2010]; see Torres, 104 AD3d at 676; Harrison v State of New York, 88 AD3d 951, 954 [2011])

NYC HA has established that it did not supervise or control the plaintiffs work. Plaintiff himself testified that on the date of his accident, he received instructions regarding the work that he was to perform from Paul, a supervisor also employed by Richards (NYSCEF Doc. No. 15, plaintiffs 50-h testimony at p. 17, lines 6-19). Plaintiff fails to oppose this branch of NYCHA's motion. Accordingly, that branch of NYCHA's motion seeking to dismiss plaintiffs Labor Law § 200 and common-law

\

negligence claims against it is granted (see Turgeon., 172 AD3d at 1136; Lopez v Edge 11211, LLC, 150 AD3d 1214, 1216 [2017]; Suconota v Knickerbocker Props., LLC, 116 AD3d 508, 508-509 [2014]).

Conclusion.

Accordingly, it is hereby

ORDERED that NYCHA's motion for summary judgment dismissing plaintiffs' Labor Law §§ 240 (1), 241 (6) , 200, and common-law negligence claims as asserted against it is granted and said claims are hereby dismissed as against NYCHA; and it is further

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ORDERED that branch of plaintiffs motion seeking leave to amend his bill of particulars to assert various Industrial Code provisions is denied; and it is further

ORDERED that branch of plaintiffs motion seeking partial summary judgment as to liability as based upon his Labor Law§§ 240 ( 1) and 241 ( 6) causes of action is denied; and it is further

ORDERED that the City's motion for summary judgment dismissing the plaintiffs complaint as against it is granted.

The foregoing constitutes the decision, order and judgment of the court.

HON.

ROSEMARIE MONTALBANO

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