GALARZA v. LINCOLN CTR. FOR PERFORMING ARTS, INC.

104771/07

2011 NY Slip Op 51435(U)

JOSE L. GALARZA AND MARIA TERESA PAREDES, Plaintiffs, v. LINCOLN CENTER FOR THE PERFORMING ARTS, INC., LINCOLN CENTER DEVELOPMENT PROJECT, INC., AND TURNER CONSTRUCTION COMPANY, Defendants.

Supreme Court, New York County.

Decided June 1, 2011.


Attorney(s) appearing for the Case

ARGYROPOULOS & BENDER, Michael S. Bender , 31-19 Newtown Avenue, Suite 500, Astoria, NY 11102, Counsel for Plaintiff.

HELEN R TEPER , LAW OFFICES OF ED GARFINKEL, 176 Huguenot Avenue, Englewood, NJ 07631, Counsel for Defendants LINCOLN CENTER FOR PERFORMING and LINCOLN CENTER DEVELOPMENT PROJECT.


MEMORANDUM DECISION

CAROL R. EDMEAD, J.

Plaintiff Jose Galarza ("plaintiff"), a worker involved in demolition and asbestos removal at the Metropolitan Opera building at Lincoln Center, New York, allegedly lost sight in one eye when a piece of asbestos-contaminated dirt fell into his eye. Consequently, plaintiff and his wife Maria Teresa Paredes (collectively, "plaintiffs") commenced this personal injury action against defendants Lincoln Center for the Performing Arts, Inc., ("LCPA") and Lincoln Center Development Project, Inc. ("LCDP") (collectively, "defendants")1 asserting claims under Labor Law §§200, 240 (1), 241 (6) and for common law negligence.2

Defendants now move pursuant to CPLR §3212 for summary judgment dismissing plaintiffs' complaint. Plaintiff opposes the motion and cross-moves for partial summary judgment on his Labor Law §240 (1) claim.

Background Facts

It is alleged that at the relevant time, plaintiff was employed by a non-party Abatement Unlimited, Inc. ("Abatement"), retained by LCDP, the general contractor, to perform demolition and asbestos removal work at the Metropolitan Opera building (the "building"). LCPA was the owner of the construction site.

On the day of the accident, plaintiff was engaged in the removal of asbestos panels (the "panels") from a 20-feet high roofed ceiling of the third floor, on top of which several cooling towers were located. At the time of the accident, plaintiff was standing on a ladder below another worker who removed the panels from the ceiling, and handed them down to plaintiff. According to plaintiff, when he looked up to receive the panel from his co-worker, a piece of asbestos-contaminated dirt fell into his left eye through an opening between his goggles and his face, causing severe injury to his eye. Plaintiff alleges that at the time of the accident, he wore a protective suit, a respirator, gloves, a hard hat and a pair of protective plastic glasses. The protective glasses, however, did not snugly fit his face, leaving a gap between the glasses and the area just above his eye brows unprotected.

In this action, it is alleged that plaintiff was not provided with proper protective equipment to guard against the risks of eye injury while performing asbestos removal work, and are liable to plaintiffs under theories of Labor Law §§240 (1), 241 (6) and 200 and common law negligence.

In support of their motion to dismiss the complaint, defendants argue that they are entitled to summary judgment since there is no basis for their liability under any of the alleged sections of the Labor Law or under common law negligence.

Defendants argue that plaintiffs cannot establish their claim under Labor Law §200 because defendants did not control or supervise plaintiff's work.

Plaintiffs likewise cannot recover under Labor Law § 240 (1) because the accident was not gravity related, i.e., plaintiff was not struck by a falling object which was improperly hoisted or secured, and plaintiff was provided with a proper harness for working on a ladder.

As to the Labor Law § 241 (6) claim, the sections of the New York Industrial Code (the "Industrial Code") cited by plaintiffs, are inapplicable to this case. According to the affidavit of Thomas McGuire, a project manager for Abatement Unlimited, plaintiff was provided with the protective clothes and mask, in accordance with all applicable regulations. A full face mask was not required because the asbestos plaintiff was removing was not of a "friable" kind (i.e., does not crumble under the pressure or touch of a human hand). And in any event, plaintiff did not make any complaints with respect to the inadequate protective devices before the accident.

Finally, plaintiff has no proof other than his self-serving testimony that he should have been provided with a full face mask, since plaintiff never exchanged his expert information with defendants.

In opposition, and in support of their cross-motion for summary judgment on Labor Law §240 (1) claim, plaintiffs argue that defendants are absolutely liable under both sections 240 (1) and 241 (6) because defendants, as the owner and the general contractor of the project, exercised supervision and control over plaintiff's work.

In support of their 240 (1) claim, plaintiffs argue that "asbestos removal" is an activity covered by Labor Law 240 (1); plaintiff was struck by a falling object, i.e., asbestos dirt from the asbestos panels and/or from the ceiling located below the cooling tower. Plaintiffs submit an affidavit of an expert Alvin Ubell ("Ubell's affidavit"), stating that this kind of an eye hazard was a contemplated risk of performing an overhead asbestos removal work. Also, a platform should have been erected and the panels should have been encapsulated in plastic immediately upon removal to prevent the dirt from falling down on plaintiff.

Plaintiffs also argue that, because the piece of the asbestos-contaminated dirt was "dropped accidentally rather than deliberately," it is a "falling object" within the meaning of Labor Law §240 (1).

And, that no safety devices enumerated in the statute was used to hoist or secure the construction materials, does not preclude the imposition of liability under Labor Law §240 (1) because the kind of a device required for a particular job depends on the hazards normally associated with that job.

In support of their Labor Law §241 (6) claim, plaintiffs argue defendants failed to provide plaintiff with proper protection from the asbestos debris hazard pursuant to various rules and Industrial Code regulations.3

For example, under 12 NYCRR23-1.7(a), entitled "Protection from general hazards," and specifically, 12 NYCRR 23-1.7(a)(1) ("Overhead hazards"), defendants had a duty to provide a "suitable overhead protection."

Further, under 12 NYCRR 23-1.8(a), entitled "Personal protective equipment," subsection (a) "Eye protection," and 12 NYCRR 23-1.8 (c)(4), "Protection from corrosive substances," defendants failed to comply with the approved eye protection equipment standards which require that laborers engaged in asbestos removal be provided with and wear a full-mask respirator in performing their work (Exh. H, paragraph 8).

Plaintiffs further argue that defendants violated 12 NYCRR 23-2.1(b), entitled"Disposal of debris." According to Ubell's affidavit, defendants were required to test the various materials of the demolition area to accurately identify the hazardous materials so as to provide proper protection to plaintiff (Exh. H, paragraph 10).

Next, defendants violated Industrial Code §23-3.2(d), entitled "Dust control." Ubell attested that the asbestos panels should have been wetted down prior to their removal, and immediately thereafter, encapsulated in plastic bags to limit the airborne hazardous dust and debris, which would have prevented plaintiff's injuries (Exh. H, ¶ 16).

Defendants also violated Industrial Code §23-3.3(b)(5), entitled "Demolition of walls and partitions," which requires that workers be provided with "safe footing in the form of sound flooring or scaffolds," and §23-3.39 (c) ("Inspection") providing for continuing inspection during hand demolition operations. According to plaintiffs' expert, defendants were required to provide a staging platform on which the asbestos panels could have been encapsulated in biohazard bags before being lowered down to plaintiff (Exh. H, ¶16).

Plaintiffs further argue that non-friable asbestos can become friable as the building materials age and wear or, are removed or demolished, and plaintiff and his co-workers "were scraping and sanding the panel" containing asbestos, while trying to dislodge it from its tight place in the ceiling.

And, plaintiffs contend that defendants' violation of various sections of the Industrial Code, is also the evidence of defendants' violation of section 240 (1), which requires that safety devices for proper eye protection be provided to demolition workers.

In addition, defendants violated various sections of the American National Standard Institute ("ANSI") Z87-1-20034 setting forth the requirements for workers' eye and face protection equipment and various sections of Occupational Safety and Health Act ("OSHA"), all of which require that the worker be provided with personal protective equipment capable of preventing eye injury in accordance with the nature of the work performed, and set forth the basis for the required protective devices referenced in the Industrial Code. Plaintiffs' expert attests that all the above OSHA and ANSI standards require that a worker involved in the overhead asbestos removal, should be provided with a full-face mask that seals his eyes (Exh. H, ¶6).

As to Labor law 200 and common law negligence claims,5 plaintiffs argue that a question of fact exists as to defendants' control and supervision of plaintiff's work. LCPA as the owner hired LCDP as the general contractor to oversee the demolition and to ensure that the subcontractors were complying with the applicable statutes, rules and regulations. LCDP, in turn, specifically hired two contractor companies, ATC and Seamus Henchy, to directly oversee the work of its subcontractors including plaintiff's employer. ATC performed daily inspections of the site and reported on the compliance with the procedures of asbestos removal work to Seamus Henchy.

In reply, defendants argue plaintiffs did not raise any triable issues of fact. The court should not consider plaintiffs' expert's affidavit because it was not exchanged pursuant to CPLR 3101 (d) prior to the filing of the note of issue. And in any event, plaintiffs' expert does not possess requisite expertise as to asbestos safety equipment and makes numerous misstatements of fact. And, the affidavit is speculative and conclusory as he never examined the site or the physical evidence. For example, there is no evidence that asbestos is a corrosive substance, or that the "dust" that fell into plaintiff's eye contained or was "soaked" with any corrosive chemicals. The dirt fell from the panel and not from the ceiling, and plaintiff testified at his deposition that it was "dry dirt."

Also, plaintiffs' photograph inaccurately reflects the way plaintiff wore the protective glasses on the day of the accident since it shows the glasses lowered on his nose and not on the top of his nose. A full face mask is not required by law for demolition work in New York City. The affidavit of defendants' expert (the project manager of Abatement Unlimited, plaintiff's employer) based on his observations and first hand knowledge of the work at the site and asbestos regulation practices, establishes that the protective equipment was proper for the type of work performed by plaintiff.

The Industrial Code sections are inapplicable and none of the ANSI or OSHA regulations cited by plaintiff mandate any greater type of protection than that given to plaintiff. There was no dust floating around, but for a mere spec of dust that fell off the panel into plaintiff's eye.

In response, plaintiffs contend that Ubell is an experienced inspector in construction and renovation, demolition and asbestos abatement, and has 60 years of experience in the construction industry and testified in court on numerous occasions as a construction safety expert. Defendants admit that the working conditions were dusty, based on the deposition testimony of Joseph Pepe, a project director of LCDP, who stated that the room where plaintiff was working was blocked off by plastic sheathing (Exh. D to plaintiffs' cross-motion, p. 22). Defendants failed to produce an independent expert with respect to requirements for eye protection and instead submitted an affidavit of plaintiff's employer, Thomas McGuire, whose assertion that full face mask was not required because the panels contained asbestos in a "non-friable" form is incorrect and biased.

Finally, as to the Labor Law 200 claim, pursuant to the contract between LCDP and Abatement (plaintiff's employer) (Exh. F to plaintiffs' reply), LCDP had a right to stop the contractor's work in the event of non-compliance with the contract and failure to provide plaintiff with proper protection equipment was a violation of the contract.

Discussion

Labor Law §200 and Common Law Negligence Claims

Labor Law §2006 codifies the common-law duty imposed on an owner or general contractor to provide construction site workers with a safe work site ( Nevins v Essex Owners Corp., 276 A.D.2d 315 [1st Dept 2000], citing Blessinger v Estee Lauder Companies, Inc., 271 A.D.2d 343 [2000]). However, liability under §200 is "limited to parties who exercise supervision or control over the manner in which the activity alleged to have caused the injury was performed" (Burkoski v Structure Tone, Inc., 40 A.D.3d 378, 836 N.Y.S.2d 130 [1st Dept 2007], citing Rizzuto v L.A. Wenger Contracting Co., Inc., 91 N.Y.2d 343, 670 N.Y.S.2d 816 [1998)]), or who create or have actual or constructive notice of an unsafe condition which causes the injury(Comes v New York State Electric & Gas Corp., 82 N.Y.2d 876, 877 [1993]).

Where, as here, plaintiff's injury arose from the method or manner in which contractor or plaintiff performed the work, and the owner or general contractor exercised no supervisory control over such work, no liability for negligence attaches under the Labor Law §200 or common law (Comes v New York State Electric & Gas Corp., 82 NY2d at 877 [no Labor Law §200 liability where plaintiff's injury was caused by lifting a beamand there was no evidence that defendant exercised supervisory control or had any input into how the beam was to be moved]).

Here, defendants made a prima facie showing that they neither directly controlled or supervised plaintiff's work, or had any input into how plaintiff and his co-workers were removing the panels, so as to impose statutory (Labor Law §200) or common law liability upon defendants (McByrne v Ambassador Construction Co., Inc., 290 A.D.2d 243, 736 N.Y.S.2d 17 [1st Dept 2002]; Comes v New York State Elec. & Gas Corp., 82 N.Y.2d 876). Plaintiff's testimony shows that he received all his instructions from his employer and neither LCPA nor LCDP directed or controlled the means or methods of the work performed by plaintiff. Neither did defendants create or have actual or constructive notice of an alleged asbestos and other chemicals-contaminated dirt which caused plaintiff's injury(Comes v New York State Electric & Gas Corp., supra).

Plaintiffs' evidence that LCDP hired two consulting entities to oversee the compliance and safety at the site, and had the authority to stop the work done by the subcontractors, is insufficient to raise a question of fact as to defendants' negligence or liability under Labor Law § 200 (Rizzuto v L.A. Wenger Contracting Co., Inc., 91 N.Y.2d 343; Singh v Black Diamonds LLC, 24 A.D.3d 138, 140 [2005] [dismissing Labor Law § 200 and common-law negligence claims against general contractor, even though its project superintendent conducted regular walk-throughs and had the authority to stop the work if he observed an unsafe condition]; Torres v Morse Diesel Intl., Inc., 14 A.D.3d 401, 403 [2005] [general contractor's contractual duties to supervise and enforce general safety standards at the work site did not create an issue of fact as to its negligence]).

Accordingly, plaintiffs' Labor Law §200 and common-law negligence claims are likewise dismissed.

Labor Law § 240 (1) Claim

Labor Law §240 (1) states in pertinent part:

"All contractors and owners engaged in the erection, demolition, repairing [. . .] of a building or other structure shall furnish [. . .] 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."

Labor Law § 240 (1) imposes a nondelegable duty and absolute liability on owners, contractors, and their agents for failing to provide adequate safety devices to workers subject to elevation-related hazards (see Rocovich v Consolidated Edison Co., 78 N.Y.2d 509, 513-514 [1991]). The protection of the statute, however, is limited "to a narrow class of special hazards" and does "not encompass any and all perils that may be connected in some tangential way with the effects of gravity" (Buckley v Columbia Grammar and Prep., 44 A.D.3d 263, 841 N.Y.S.2d 249 1st Dept 2007] citing Ross v Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 500-501, 601 N.Y.S.2d 49 [1993]; Rocovich v Consolidated Edison Co., 78 N.Y.2d 509, 583 N.E.2d 932 [1991]). Not every object that falls on a worker gives rise to the extraordinary protections of Labor Law §240 (1) (see Narducci v Manhasset Bay Assoc., 96 N.Y.2d 259, 267), and the plaintiff must also show that the object fell "because of the absence or inadequacy of a safety device of the kind enumerated in the statute" (Narducci v Manhasset Bay Assoc., supra).

Significantly, there is a distinction between the "extraordinary elevation risks envisioned by [the statute]," which give rise to liability, and "the usual and ordinary dangers of a construction site," which do not (Toefer v Long Is. R.R., 4 N.Y.3d 399, 407 [2005]; Rodriguez v Margaret Tietz Ctr. for Nursing Care, 84 N.Y.2d 841, 843-844 [1994]; Thompson v St. Charles Condominiums, 303 A.D.2d 152, 153 [1st Dept], lv dismissed 100 N.Y.2d 556 [2003]). Elevation risks "are those related to the effects of gravity where protective devices are called for either because of a difference between the elevation level of the required work and a lower level or a difference between the elevation level where the worker is positioned and the higher level of the materials or load being hoisted or secured" (Suwareh v State of New York, 24 A.D.3d 380, 381 [1st Dept 2005], quoting Rocovich, 78 NY2d at 514).

Since the hazards that Labor Law §240 (1) is intended to prevent are those that by virtue of height differentials, e.g., work being performed at elevations or loads being hoisted or positioned above a worker, relate to the effects of gravity, there can be no liability under the statute where the work is not being performed at an elevated level or where there is no appreciable height differential between a worker and the falling object that strikes him or her (Makarius v Port Authority of New York and New Jersey, 76 A.D.3d 805, 907 N.Y.S.2d 658 [1st Dept 2010] (internal citations omitted).

In one of the most significant recent decisions addressing a §240 (1) claim, Runner v New York Stock Exchange, Inc. (13 N.Y.3d 599, 895 N.Y.S.2d 279 [2009]), the Court of Appeals stated that the "special hazards" are limited to such specific gravity-related accidents "in which the scaffold, hoist, stay, ladder or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person" (Runner v New York Stock Exchange, Inc., 13 N.Y.3d 599, quoting Ross at 501).7 In Runner, plaintiff, while serving as a counterweight on a make-shift pulley to move a large reel of cable weighing in excess of 800 pounds down a short flight of stairs, was dragged down the stairs after the reel rapidly descended the stairs, and his hands struck a metal bar. The Court stated that the relevant inquiry was "whether the harm flows directly from the application of the force of gravity to the object" (Runner, 13 NY3d at 604), and that "the single decisive question was whether plaintiff's injuries were the direct consequence of afailure to provide adequate protection against a risk arising from a physically significant elevation differential" (id.). Thus, although the case did not involve either a "falling worker" or "falling object," because the harm to plaintiff was the direct consequence of the application of the force of gravity to the reel,8 Labor Law §240 (1) applied to plaintiff's injury.

Thus, in Runner, the Court concluded that "the specific task being performed at the time of the plaintiff's injury was moving a heavy reel from a higher to a lower elevation, that the danger to be guarded against arose from the reel's insufficiently checked descent, and that the plaintiff's injury flowed directly from the effect of gravity on the reel as it descended" (Harris v City of New York, 83 A.D.3d 104, 109, ___ NYS2d ___, 2011 WL 1238187 [1st Dept 2011] (emphasis added)).9

The Court made it clear, however, that it was "not establishing any new principles," and "merely expounding on the governing principle enunciated almost 20 years previously" (Harris v City of New York, 83 A.D.3d 104, ___ NYS2d ___, 2011 WL 1238187 [1st Dept 2011] citing Runner, 13 NY3d at 604, 895 NYS2d at 281, citing Ross, 81 NY2d at 501, 601 NYS2d at 53 [holding that "Labor Law § 240(1) was designed to prevent those types of accidents in which the scaffold, hoist, stay, ladder or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person"]).

While the question of whether in a demolition case, debris or dirt generated in the process of the demolition is a "material that requires securing for the purposes of the undertaking," has not been sufficiently explored by the courts in the First Department, the courts in the Second Department have explicitly or implicitly held that "falling masonry or other structural components unsecured as part of a demolition or other work" is a risk contemplated by Labor Law §240 (1) (see Tylutki v Tishman Technologies, 7 A.D.3d 696, 777 N.Y.S.2d 514 [2d Dept 2004] [the plaintiff was struck by a falling piece of sprinkler pipe while engaged in the demolition of a building when the plaintiff's coworker hit a section of the pipe with a hammer causing the pipe to fall]; Castro v JK USA Group, Inc., 29 Misc.3d 1226(A), 918 N.Y.S.2d 396 [Sup Ct, Kings County 2010][injury caused by a falling unsecured cinder block which was being removed from a top portion of the wall]; Mendoza v Bayridge Parkway Assoc., LLC, 38 A.D.3d 505, 507, 831 N.Y.S.2d 485 [2d Dept 2007][injury by a large stone improperly secured by a rope]; Portillo v Roby Anne Dev, LLC, 32 A.D.3d 421, 422, 819 N.Y.S.2d 566 [2d Dept 2006] [injury by an unsecured steel beam as part of material being cleared from the site]; Bornschein v Shuman, 7 A.D.3d 476, 478, 776 N.Y.S.2d 307 [2d Dept 2004] [a fallen unsecured steel beam where demolition workers were cutting the roof and stripping the masonry, wood, and other material holding the steel beams in place]).

In a different context, at least one court in this Department applied protections of Labor Law §240 (1) to a situation where a worker's injury resulted from a "spill" of a material contained within the load that was being "hoisted or secured" (Suwareh v State, 24 A.D.3d 380 [1st Dept 2005]).

In Suwareth, the plaintiff, a roofer, was hoisting a bucket of hot tar onto the roof by hand with a rope when the bucket became stuck on the ledge at the roof line. While he was trying to free up the bucket he leaned back so as not to fall and lose control of the bucket, resulting in the tar splashing on his feet causing burns. Pointing out that both plaintiffs' and defendant's expert provided testimony that the safety devices of the type referred to in the statute are normally used to transport hot tar safely to the roof the Court concluded that this fact pattern fit the Rocovich10 test criteria.

More recently, in Arnaud v 140 Edgecomb LLC (83 A.D.3d 507 [1st Dept 2011]), the First Department, citing Runner, reiterated that "The extraordinary protections of Labor Law § 240(1) extend only to a narrow class of special hazards, and the decisive question as to whether the statute applies to a particular accident is whether plaintiff's injuries were the direct consequence of a failure to provide adequate protection against harm directly flowing from the application of the force of gravity to an object or person." The Court continued, "In the context of falling objects, the risk to be guarded against is the unchecked or insufficiently checked descent of the object." Therefore, the Court held that a wood plank that struck a worker, who had his arms outstretched through a second-floor window to catch the wood planks being lowered from the fourth floor by a pulley and ropes, was the "object that required securing for the purposes of the undertaking," and thus injuries the worker sustained to his wrist and fingers were within scope of 240 (1), since the risk to be guarded against was "unchecked or insufficiently checked descent of plank."

The issue, thus, is whether plaintiff's eye injury, allegedly from a piece of asbestos-contaminated dirt that fell into a slot between plaintiff's protective goggles and his face during the demolition, was caused by the type of special risk contemplated by Labor Law §240 (1), so as to trigger absolute liability on the part of defendants. In this case, defendants' evidence (plaintiff's testimony, McGuire's affidavit) does not conclusively establish that Labor Law 240 (1) is inapplicable.

Here, it is undisputed that a plaintiff was injured during the demolition, which is a protected activity under the statute (Labor Law § 240 [1]; see also Martinez v City of New York, 93 N.Y.2d 322, 326 [1999]). It is also undisputed that plaintiff's work involved elevation-related risk since at the time of the accident, plaintiff was standing on a ladder below another worker who removed the panel from the 20-foot high ceiling and handed it down to plaintiff. Further, plaintiff was injured during the lowering of the panel, and thus, the falling object into plaintiff's eye arguably constitutes injury "related to the effects of gravity" (Suwareh v State of New York, 24 A.D.3d 380, 381 [1st Dept 2005], quoting Rocovich, 78 NY2d at 514). And, the record supports the claim that no protective device designed to catch the falling pieces of asbestos dirt was used in connection with plaintiff's work.

Further, plaintiff's contradictory statements during his deposition testimony as to whether the pieces of asbestos dirt came directly from the ceiling or were part of the panel itself, raise an issue of fact as to whether thepiece of asbestos dirt was part of the load which required to be secured (see Outar v City of New York, 5 N.Y.3d 731, 732, supra; Quattrocchi v F.J. Sciame Constr. Corp., 11 N.Y.3d 757). Plaintiff stated at his deposition both that the "dirt" fell "from the area of the slot where the boards [were] inserted [in the ceiling]" (Exh. E, p. 103), and that it may have been "particles of the part of the boards with asbestos" (id., p. 104). And, defendants failed to show that any safety device designed to "catch" the falling pieces of asbestos pieces was used in connection with the work. Thus, in the event it is established that the piece of asbestos dirt that struck plaintiff was the part of the load being lowered from the elevated level, a trier of fact may conclude that such load required proper securing to prevent such dirt from falling off of the panel, and if so, that the absence of a safety device caused plaintiff's injury (Narducci v Manhasset Bay Assoc., 96 N.Y.2d 259, 267).

Thus, since an issue of fact exists as to whether the subject piece of asbestos dirt was part of the panel, i.e., the load that was being lowered and required securing, it cannot be said that defendants are not liable to plaintiff under Labor Law §240 (1) as a matter of law, and this portion of defendants' summary judgment motion is denied.

Likewise, plaintiffs are not entitled to summary judgment on their cross-motion. Neither plaintiff's testimony, nor plaintiffs' expert's affidavit11 are sufficient to establish their entitlement to relief under Labor Law §240 (1). Even assuming that Ubell possesses the requisite expertise as an experienced inspector and safety expert in construction, demolition and asbestos abatement, his affidavit is based on the "review of [plaintiff's] legal file" and not on the examination of the site or the physical evidence, with the exception of the protective goggles which were similar to those used by plaintiff at the time of the accident (Vasquez v JRG Realty Corp., 81 A.D.3d 555, 917 N.Y.S.2d 562 [1st Dept 2011]; Azzaro v Super 8 Motels, Inc., 62 A.D.3d 525, 880 N.Y.S.2d 14 [1st Dept 2009] [the affidavit from plaintiff's expert, who never visited the accident site or examined the bath mat, was purely speculative and conclusory]). As such, Ubell's affidavit lacks probative value with respect to defendants' liability under Labor Law 240 (1).12

Accordingly, based on the above, the portion of defendants' motion and plaintiffs' cross-motion based on Labor Law §240 (1) are denied.

Labor Law §241(6) Claim

Labor Law §241 (6)13 imposes a nondelegable duty on owners and contractors to providereasonable and adequate protection and safety to workers (see Ross, 81 NY2d at 504-05). To prevail under this statute, plaintiff is required to show the applicability of a specific provision of the Industrial Code to the relevant work, a violation of the provision and that such violation was a proximate cause of the injury (see Padilla v Frances Schervier Housing Dev. Fund Corp., 303 A.D.2d 194, 758 N.Y.S.2d 3 [1st Dept 2003], citing Brown v New York City Economic Dev. Corp., 234 A.D.2d 33, 650 N.Y.S.2d 213 [1st Dept 1996]).

Plaintiffs' Labor Law §241(6) claim is predicated on the alleged violations of the following Industrial Code sections: 23-1.7(a)(1); 23-1.7(e)(1); 23-1.7(e)(2); 23-1.8(a); 23.1.8(c)(4); 23-2.1(b); 23-3.3(c); 23-3.2 (d); 23-3.3(b)(5); 23-3.3(c), which are addressed in turn.

12 NYCRR §23-1.7 (a)(1)

Section 23-1.7 (a)(1), entitled "Overhead hazards" provides:

"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."

Here, in light of the nature of plaintiff's work, he was "normally exposed to falling material or objects" and defendants have not submitted evidence that any overhead protection was provided. Thus, the portion of the motion dismissing plaintiffs' 241 (6) claim with respect to 23-1.7 (a)(1) is denied.

Further, section 23-1.7 (e), entitled "Tripping and Other Hazards," requires that the areas in which workers must pass and work be kept clear and free of debris.14 While both sections 23-1.7 (e)(1) and (e)(2) have been held to be sufficiently specific to provide bases for liability under Labor Law §241(6) (Rizzuto v Wenger Construction, Co., 91 N.Y.2d 343; Corbi v Ave. Woodward Corp., 260 A.D.2d 255 [1st Dept 1999]; Scannell v Mt. Sinai Medical Center, 256 A.D.2d 214 [1st Dept 1998]), neither of them applies to the "injury-producing activity" in this case (Scott v American Museum of Natural History, 3 A.D.3d 442, 771 N.Y.S.2d 499 [1st Dept 2004]).

The record contains no testimony that plaintiff was injured due to "tripping" in the passageway or accumulation of debris on the floor. Thus, the portion of the motion dismissing plaintiffs' Labor Law §241 (6) claim with respect to 23-1.7 (e) is warranted.

12 NYCRR §§23-1.8 (a) and 23-1.8 (c)(4)

Industrial Code §23-1.8, entitled "Personal protective equipment," subsection (a), "Eye protection" provides:

"Approved eye protection equipment suitable for the hazard involved shall be provided for and shall be used by all persons while employed in welding, burning or cutting operations or in chipping, cutting or grinding any material from which particles may fly, or while engaged in any other operation which may endanger the eyes."

(emphasis added).

Section 23-1.8 (c)(4), entitled "Protection from corrosive substances" provides that "[e]very employee required to use or handle corrosive substances or chemicals shall be provided with and shall be required to wear appropriate protective apparel as well as approved eye protection."

Defendants failed to establish that these sections are inapplicable as a matter of law.

Contrary to defendants' contention that §23-1.8 (a) applies only to workers involved in "welding, burning or cutting operations," this section has been interpreted by the courts as a broad safety requirement protecting employees "engaged in any other operation which may endanger the eyes" (see Brady v City of New York, 52 A.D.3d 331, 859 N.Y.S.2d 193 [1st Dept 2008], citing McByrne v Ambassador Constr. Co., 290 A.D.2d 243, 243-244 [sustaining a 241 (6) claim predicated on 12 NYCRR 23-1.8 (a)]; Cappiello v Telehouse Intl. Corp. of Am., 193 A.D.2d 478, 479, 597 N.Y.S.2d 393 [1st Dept 1993]).

And in any event, the court finds that, in light of the nature of plaintiff's work and Ubell's affidavit stating that plaintiff's injury could have been prevented if he had been provided with a full-face mask instead of the plastic glasses, an issue of fact exists as to the adequacy of plaintiff's eye protection equipment pursuant to §§23-1.8 (a) and 23-1.8 (c)(4).

Specifically, plaintiffs' expert's statements in his affidavit that defendants failed to comply with the eye protection equipment standards, set forth by ANSI,15 referenced in the provisions of OSHA,16 which in turn, are referenced in §23-1.8 (a) as the "approved eye protection," raise an issue of fact as to defendants' compliance with the statute.

Furthermore, plaintiffs set forth sufficient admissible evidence to demonstrate the existence of a triable issue of whether defendants violated section 23-1.8 (c) (4), which requires owners and general contractors to provide appropriate protective equipment where an employee is using corrosive substances (see Creamer v Amsterdam High School, 241 A.D.2d 589, 591, 659 N.Y.S.2d 560 [3d Dept 1997]). Affidavit of Dr. Vivien Boniuk, a board-certified ophthalmologist, sufficiently shows that plaintiff's eye injury resulted, inter alia, from a corrosive substance, including asbestos. Thus, based on the record, it cannot be said as a matter of law that a face mask is not a form of approved eye protection considered suitable for the type of work plaintiff was performing.

Thus, the dismissal of the portion of plaintiffs' claim based on alleged violations of §23-1.8 (a) and §23-1.8 (c)(4) is unwarranted.

12 NYCRR §23-2.1 (b)

12 NYCRR 23-2.1[b], entitled "Maintenance and housekeeping,17 lacks the specificity required to qualify as a predicate for Labor Law § 241(6) liability (Canning v Barney's New York, 289 A.D.2d 32, 734 N.Y.S.2d 116 [1st Dept 2001] citing Lynch v Abax, Inc., 268 A.D.2d 366, 702 N.Y.S.2d 271[1st Dept 2000]; see, Mendoza v Marche Libre Associates, 256 A.D.2d 133, 681 N.Y.S.2d 517 [1st Dept 1998]). Thus, the part of defendants' motion dismissing plaintiffs' Labor Law §241 (6) claim based on §23-2.1(b), is granted and said portion of the claim is dismissed.

12 NYCRR §23-3.2 (d)

12 NYCRR §23-3.2 (d),18 entitled "Dust control," provides as follows:

"Provision shall be made at every demolition site to control the amount of airborne dust resulting from demolition operations by wetting the debris and other materials with appropriate spraying agents."

Section § 23-3.2, which governs demolition operations, has been held to give rise to a cause of action under § 241(6) (Bailey v Betlehem Steel Corp., 1994 WL 586944 [WDNY 1994]). Defendants' limited view of this section as applying only to certain types of demolition "where buildings or structures are being knocked down" as to create of airborne dust is controverted by the plain language of this section, which provides for dust control at "every demolition site" NYCRR § 23-3.2 (d) (emphasis added). That the object that allegedly fell into plaintiff's eye was an isolated incident of a minimal amount of dust, as suggested by defendants, does not render this section inapplicable. Thus, defendants failed to show that this section is inapplicable here. Also, as plaintiffs point out, Joseph Pepe, a project director of LCDP, testified at his deposition that the room where plaintiff was working was blocked off by plastic sheathing (Exh. D to plaintiffs' cross-motion, at p. 22), thereby indicating the presence of the airborne dust from the demolition operation. Thus, as defendants failed to establish that §23-3.2 (d) is inapplicable, this branch of their motion is denied.

12 NYCRR §§23-3.3 (b)(5) and 23-3.3 (c)

Section 23-3.3 (b)(5), entitled "Demolition of walls and partitions," provides that "in the demolition by hand of exterior walls, all persons performing such work shall be provided with safe footing in the form of sound flooring or scaffolds constructed and installed in compliance with this Part (rule)."

The court holds that §23-3.3 (b)(5) is inapplicable to the facts of this case, since there is no evidence indicating that plaintiff's eye injury arose from unsafe footing, or that the ladder on which he was standing was in any way defective. And in any event, plaintiff was not involved in the demolition of exterior walls. Thus, this section is inapplicable to the "injury-producing activity" in this case (Scott v American Museum of Natural History, 3 A.D.3d 442, 771 N.Y.S.2d 499 [1st Dept 2004]).

Section 23-3.3 (c), entitled "Inspection,"19 is similarly inapplicable to the facts of this case as it governs the protection of workers from hazards resulting from "weakened or deteriorated floors or walls or from loosened materials" (Abbus v City of New York, 159 F.3d 1345 [2d Cir 1998]; Steinman v Morton Intern., Inc., 2010 WL 4703487 [WDNY 2010]). While it has been held "sufficiently specific" to serve as a predicate for a claim under section 241(6)(see Bennett v SDS Holdings, 309 A.D.2d 1212, 764 N.Y.S.2d 763 [4th Dept 2003]; Steinman v Morton Intern., Inc., 2010 WL 4703487), it does not apply to the facts of this case since it 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 Housing Authority, 71 A.D.3d 985, 897 N.Y.S.2d 232 [2d Dept 2010], citing Campoverde v Bruckner Plaza Assoc., L.P., 50 A.D.3d 836, 837, 855 N.Y.S.2d 268 [2d Dept 2008][23-3.3 (c) held inapplicable where a worker was injured during the removal of the duct from the ceiling, since the hazard injuring plaintiff was the actual performance of the demolition work, and not the structural instability caused by the progress of the demolition]; cf. Ortega v Everest Realty LLC, 2011 WL 1796 [1st Dept 2011][where an unshored aluminum 12-foot wall of the shed shook and fell onto plaintiff after he cut the wall during the demolition, an issue of fact existed as to defendants' failure to make any inspections of the demolition work for the purpose of detecting any hazards "resulting from weakened or deteriorated floors or walls or from loosened material" pursuant to 12 NYCRR 23-3.3 [c]).

Here, the hazard which allegedly caused the injured plaintiff's accident, i.e. the piece of asbestos dirt falling either from the slot in the ceiling or as part of the panel, arose from "the actual performance of the demolition work, and not structural instability caused by the progress of the demolition, the hazard sought to be avoided by that provision of the Industrial Code" (Smith v New York City Housing Auth., supra).

In response, plaintiff failed to raise a triable issue of fact regarding the applicability of these provisions of the Industrial Code. Therefore, the portions of defendants' motion dismissing plaintiff 241(6) claim based on sections 23-3.3 (b)(5) and 23-3.3 (c), are granted.

Accordingly, in view of the inapplicability of sections 23-1.7(e)(1), 23-1.7(e)(2), 23-3.3 (b)(5), 23-3.3 (c) and insufficient specificity of section 23-2.1 (b)(1), and in the absence of opposition to dismissal of the alleged violation of §23-3.2 (c), the portions of plaintiffs' Labor Law §241 (6) claim predicated upon these sections are dismissed.

Conclusion

Based on the foregoing, it is hereby

ORDERED that the branch of the defendants Lincoln Center for the Performing Arts, Inc. and Lincoln Center Development Project, Inc.'s motion, pursuant to CPLR §3212, for summary judgment dismissing plaintiffs' Labor Law §240 (1) claim is denied; and it is further

ORDERED that the branch of the defendants' motion dismissing plaintiffs' Labor Law 200 and common law negligence claims is granted and said claims are severed and dismissed; and it is further

ORDERED that the branch of defendants' motion dismissing plaintiffs' Labor Law §241 (6) claim is granted solely to the extent that the portions of plaintiffs' Labor Law §241 (6) claim based on Industrial Code Sections 23-1.7(e)(1), 23-1.7(e)(2), 23-3.3 (b)(5), 23-3.3 (c), 23-2.1 (b)(1) and §23-3.2 (c), are dismissed, and the motion is otherwise denied; and it is further

ORDERED that plaintiffs' cross-motion for partial summary judgment on their Labor Law §240 (1) claim is denied.

This constitutes the decision and order of the Court.

In accordance with the accompanying memorandum decision, it is hereby

ORDERED that the branch of the defendants Lincoln Center for the Performing Arts, Inc. and Lincoln Center Development Project, Inc.'s motion, pursuant to CPLR §3212, for summary judgment dismissing plaintiffs' Labor Law §240 (1) claim is denied; and it is further

ORDERED that the branch of the defendants' motion dismissing plaintiffs' Labor Law 200 and common law negligence claims is granted and said claims are severed and dismissed; and it is further

ORDERED that the branch of defendants' motion dismissing plaintiffs' Labor Law §241 (6) claim is granted solely to the extent that the portions of plaintiffs' Labor Law §241 (6) claim based on Industrial Code Sections 23-1.7(e)(1), 23-1.7(e)(2), 23-3.3 (b)(5), 23-3.3 (c), 23-2.1 (b)(1) and §23-3.2 (c), are dismissed, and the motion is otherwise denied; and it is further

ORDERED that plaintiffs' cross-motion for partial summary judgment on their Labor Law §240 (1) claim is denied.

This constitutes the decision and order of the Court.

FootNotes


1. This action has been discontinued without prejudice as against defendant Turner Construction Company pursuant to a stipulation of discontinuance filed with the Clerk of the Court on April 2, 2009.
2. Plaintiff's wife brings a derivative claim for loss of services.
3. Plaintiffs claim that defendants violated the following sections of Rule 23 of the Industrial Code: 12 NYCRR 23-1.7(a), 12 NYCRR 23-1.7(a)(1), 12 NYCRR 23-1.7(e)(1), 12 NYCRR 23-1.7(e)(2), 12 NYCRR 23-1.8(a), 12 NYCRR 23-1.8(c)(4), 12 NYCRR 23-2.1(b), 12 NYCRR 23-3.2(c), 12 NYCRR 23-3.2(d), 12 NYCRR 23-3.3(b)(5) and 12 NYCRR 23-3.3(c).
4. Plaintiffs allege the violations of the following ANSI provisions: sections 3 — Eye Incident Data/History, 6.1.1 — Spectacles and Spectacle Components, 6.1.1.5 — Side Protection, 6.1.2 — Goggles and Goggle Components, 6.1.2.1 — Side Protection, 6.1.3 — Faceshields and Faceshield Components, 6.1.3.1 — Faceshield Windows, 6.1.5 — Respirators, and 13.1 — General Requirements.
5. Plaintiffs note that defendants did not move to dismiss the common law negligence claim. However, in their reply, defendants point out that they seek such relief, since Labor Law 200 is, in essence, a codification of the common law negligence.
6. Labor Law §200 states, in pertinent part: "All places to which this chapter applies shall be so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein or lawfully frequenting such places. All machinery, equipment, and devices in such places shall be so placed, operated, guarded, and lighted as to provide reasonable and adequate protection to all such persons."
7. While Runner does not have direct application to the factual situation in this case, the decision's significance is that it expanded the scope of application of Labor Law §240 (1).
8. The Court stated ". . . we think the dispositive inquiry framed by our cases does not depend upon . . . whether the injury resulted from a fall, either of the worker or of an object upon the worker" (Runner, at 603).
9. And, while "the Court of Appeals in Runner stated that the relevant inquiry with respect to Labor Law § 240(1) is whether the harm flows directly from the application of the force of gravity to the object,' the court first stated that the single dispositive question is whether plaintiff's injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential' . . . and it later stated that "[t]he elevation differential here involved cannot be viewed as de minimis, particularly given the weight of the object and the amount of force it was capable of generating" (id)). "Clearly a significant height differential between the work being performed and the object being hoisted or secured continues to be a required element of the statute (id. citing Narducci at 269-270, 727 N.Y.S.2d 37).
10. Supra, pp. 10-11.
11. The court notes that, contrary to defendants' contention that the court should disregard the affidavit of plaintiffs' expert Ubell based on plaintiff's failure to provide responses to defendants' request for discovery of expert witnesses pursuant to CPLR 3101(d) (see Herrera v Persaud, 276 A.D.2d 304, 305, 714 N.Y.S.2d 26 [1st Dept 2000]), the affidavit of service, attached to plaintiff's papers, shows that plaintiff served his response to defendants' demand for expert information on May 18, 2010, three days prior to filing of the note for issue on May 21, 2010.
12. Since Ubell did not examine the site or the physical evidence, the portions of his affidavit with respect to the presence of other chemicals and contaminated water in the piece of dirt and that it "rained down" on plaintiff are speculative and conclusory. Nonetheless, the court will consider the remaining portions of his affidavit, which are based on the alleged violations of the Industrial Code and OSHA to analyze plaintiffs' Labor Law §241 (6) claim (see Diaz v New York Downtown Hosp., 99 N.Y.2d 542, 544 [2002]["ordinarily the opinion of a qualified expert that a deviation from industry standards caused plaintiff's injuries would raise an issue of fact"]; cf. Murphy v Conner, 84 N.Y.2d 969, 646 N.E.2d 796 [1994][expert's opinion had no probative value because it failed to identify the basis for the standards he used]).
13. Labor Law §241 (6) provides, in pertinent part, as follows: "All contractors and owners and their agents ... when constructing or demolishing buildings or doing any excavating in connection therewith, shall comply with the following requirements: * * * (6) All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped ... as to provide reasonable and adequate protection and safety to the persons employed."
14. Industrial Code §23-1.7 (e), entitled "Tripping and Other Hazards," provides as follows: (1) Passageways. All passageways shall be kept free from accumulations of dirt and debris and from other obstructions or conditions which cause tripping. Sharp projections which could cut or puncture any person shall be removed or covered. (2) Working areas. The parts of floors, platforms and similar areas where persons work or pass shall be kept free from accumulations of dirt and debris and from scattered tools and materials and from sharp projections insofar as may be consistent with the work being performed.
15. Plaintiff relies on the following standards: ANSI 6.1.2 "Goggle and Goggle Components"; 6.1.3 "Faceshields and Faceshield Components" [protection from inter alia, dust and liquid splash]; ANSI 6.1.5 — "Respirators" [full-face tight fitting respirators designed to provide a complete seal with the face and to provide protection to wearer's eyes].
16. The court notes that while Ubell's affidavit relies on the various OSHA sections (1910.132(a, c), 1910.132(d)(1), 1910.133(a)(1) and 1926.102(a)(4)), which require that the worker be provided with personal protective equipment capable of preventing eye injury and appropriate for the kind of work in which the worker is engaged, violations of an OSHA regulation cannot be a predicate for liability under Labor Law §246 (1), since OSHA governs employee/employer relationships. Since defendants are not employers of plaintiff, OSHA regulations do not provide specific statutory duty, a violation of which would result in defendants' liability (Khan v Bangla Motor and Body Shop, Inc., 27 A.D.3d 526, 528-529 [2d Dept 2006]).
17. Section 23-2.1 (b) provides that "[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."
18. The court notes that although plaintiff also alleges in its supplemental bill of particulars violations of the Industrial Code §23-3.2 (c), he does not appear to oppose the dismissal of the claim based on this section. As such, the part of plaintiffs' claim based on said section, is dismissed.
19. Section 23-3.3 (c) provides in pertinent part: "During hand demolition operations, 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."

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