Bazdaric v. Almah Partners LLC

203 A.D.3d 643

166 N.Y.S.3d 135

Srecko BAZDARIC et al., Plaintiffs-Respondents,

v.ALMAH PARTNERS LLC, et al., Defendants-Appellants.

14578

Index No. 159433/15

Case No. 2020–03296

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

ENTERED March 31, 2022

Marshall Dennehey Warner Coleman & Goggin, P.C., New York (Richard Imbrogno of counsel), for appellants.

Elefterakis, Elefterakis & Panek, New York (Eileen Kaplan of counsel), for respondents.

Manzanet–Daniels, J.P., Oing, Moulton, Scarpulla, Shulman, JJ.

Order, Supreme Court, New York County (Carol R. Edmead, J.), entered October 9, 2019, which, to the extent appealed from as limited by the briefs, granted plaintiffs’ motion for summary judgment as to liability on their Labor Law § 241(6) cause of action and denied defendants’ cross motion for summary judgment dismissing the § 241(6) cause of action, reversed, on the law, without costs, plaintiffs’ motion denied and defendants’ cross motion for summary judgment dismissing the § 241(6) cause of action granted.

Plaintiff tripped and fell on a heavy-duty plastic covering that was placed on the stairs of an escalator to protect it from dripping paint while plaintiff was painting. In support of his claim under Labor Law § 241(6), plaintiff alleged that defendants violated Industrial Code Section 12 NYCRR 23–1.7(d) (the regulation) which states:

"Employers shall not suffer or permit any employee to use a floor, passageway, walkway, scaffold, platform or other elevated working surface which is in a slippery condition. Ice, snow, water, grease and any other foreign substance which may cause slippery footing shall be removed, sanded or covered to provide safe footing." Initially, we find that the covering intentionally placed on the escalator to protect it from dripping paint does not constitute a foreign substance under the regulation. A sensible interpretation of the wording of this regulation "calls for the application of the maxim ejusdem generis, the statutory canon that ‘[w]here general words follow specific words in a statutory enumeration, the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words.’ " 2A N. Singer, Sutherland on Statutes and Statutory Construction § 47.17 (1991) ( Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 114–115, 121 S.Ct. 1302, 149 L.Ed.2d 234 [2001] ); see 242–44 E. 77th St., LLC v. Greater N.Y. Mut. Ins. Co., 31 A.D.3d 100, 103–104, 815 N.Y.S.2d 507 [1st Dept. 2006] )["the meaning of a word in a series of words is determined by the company it keeps"] [internal quotations omitted]).

Sensibly interpreted, the heavy-duty plastic covering is not similar in nature to the foreign substances listed in the regulation, i.e., ice, snow, water or grease (see Stier v. One Bryant Park LLC, 113 A.D.3d 551, 552, 979 N.Y.S.2d 65 [1st Dept. 2014] [unsecured piece of masonite floor covering is not a slipping hazard contemplated by this regulation], citing Croussett v. Chen, 102 A.D.3d 448, 958 N.Y.S.2d 105 [1st Dept. 2013] ; see also Kane v. Peter M. Moore Constr. Co., Inc., 145 A.D.3d 864, 869, 44 N.Y.S.3d 141 [2d Dept. 2016] [the plaintiff's slip and fall because of a drop cloth placed on the staircase was not caused by the defendant's failure to remove or cover a foreign substance under the regulation]; cf., DeMercurio v. 605 W. 42nd Owner LLC, 172 A.D.3d 467, 100 N.Y.S.3d 12 [1st Dept. 2019] [triable issue as to whether a cleaning agent, "green dust," and not the protective brown paper floor covering, was the foreign substance which caused the slipping hazard implicating the regulation]).

Further, it is not disputed that the covering was intentionally placed on the escalator to protect it from paint. In other words, the covering was part of the staging conditions of the area plaintiff was tasked with painting, making it integral to his work. Therefore, even if the regulation arguably contemplates plastic sheeting to be a slipping hazard, under the factual circumstances here, the integral to the work defense bars plaintiff's reliance on 12 NYCRR 23–1.7(d).

The integral to work defense "applies to things and conditions that are an integral part of the construction, not just to the specific task a plaintiff may be performing at the time of the accident" ( Krzyzanowski v. City of New York, 179 A.D.3d 479, 481, 118 N.Y.S.3d 10 [1st Dept. 2020] ). In straining to find that the integral to the work defense is inapplicable here, the dissent focuses exclusively on plaintiff's and a foreman's testimony concerning whether the use of the covering was the best choice to protect the escalator while plaintiff was painting. However, nothing in our precedents suggests that a court should determine whether the material at issue is the best (or a poor) choice in making the ultimate determination of whether the material used is integral to the renovation work.

To the extent that the dissent's reasoning injects into the analysis consideration of the propriety of the material being used to determine the applicability of the integral to the work defense, that approach is not supported by our precedent (see Johnson v. 923 Fifth Ave. Condominium, 102 A.D.3d 592, 959 N.Y.S.2d 146 [1st Dept. 2013] ; Rajkumar v. Budd Contr. Corp., 77 A.D.3d 595, 909 N.Y.S.2d 453 [1st Dept. 2010] ). Thus, for example, in Johnson, the plaintiff tripped over a piece of plywood that had been purposefully laid over the sidewalk to protect it while unloading materials at a construction worksite. We held that such purposeful use of the plywood constituted an integral part of the work and affirmed dismissal of the Labor Law § 241(6) claim. Similarly, in Rajkumar, the plaintiff tripped over brown construction paper that was purposefully laid over newly installed floors to protect them while performing interior decorating work. Under those circumstances, we held that the paper covering constituted an integral part of the floor work on the renovation project.

There is nothing in these cases, or in any of our cases applying the integral to the work defense, indicating that the defendant must make an additional showing that "there was something intrinsic about the material in relation to the work." Indeed, it is hard to imagine how plywood ( Johnson ) or brown paper covering ( Rajkumar ) is "intrinsic" material in relation to protecting floors from renovation/construction work.

Additionally, the Supreme Court and the dissent incorrectly find liability pursuant to Industrial Code Section 23–1.7(e)(1). This section is inapplicable for the same reasons stated above with respect to Industrial Code Section 23–1.7(d), namely that the plastic covering was an integral part of the work being performed (see Savlas v. City of New York, 167 A.D.3d 546, 547, 91 N.Y.S.3d 33 [1st Dept. 2018] [steel plates covering openings into lower level of building project held integral part of construction, precluding violations of Code section 23–1.7(e) ]; Conlon v. Carnegie Hall Society, Inc., 159 A.D.3d 655 at 655, 70 N.Y.S.3d 833 [1st Dept. 2018] [ section 241(6) claim based on violation of section 23–1.7(e)(1) dismissed where plaintiff injured installing sheetrock in stairwell when he tripped and fell over extension cord deemed an integral part of the work]). Moreover, section 23–1.7(e)(1) is not applicable because, here, the escalator was not serving as a "passageway" but rather was a work area (see Conlon, 159 A.D.3d at 655–66, 70 N.Y.S.3d 833 [ section 23–1.7(e) inapplicable as staircase was not serving as a "passageway" but was instead a "working area"]).

Further, the dissent attempts to distinguish Johnson and Rajkumar based on the fact that these cases were decided under 12 NYCRR 23–1.7(e)(2) rather than 12 NYCRR 23–1.7(e)(1). However, in Kyrzanowski , we specifically held that " ‘the integral to the work defense’ ... equally applies to Industrial Code § 23–1.7(e)(1), as well as § 23–1.7(e)(2)" ( Krzyzanowski, 179 A.D.3d at 480, 118 N.Y.S.3d 10 ).

Here, regardless of whether the heavy-duty plastic covering was the best choice, in retrospect, for the specific task of painting, there can be no dispute that the covering was purposefully laid to protect the escalator and the floor during the renovation project. Applying our precedent to the facts of this appeal, the covering was integral to the renovation work, and plaintiff failed to raise an issue of fact in opposition (cf. Krzyzanowski, 179 A.D.3d at 481, 118 N.Y.S.3d 10 [factual issue exists as to whether protective covering purposefully installed on the floor is an integral part of the renovation project where no renovation work was occurring during the month of the accident]).

All concur except Manzanet–Daniels, J.P. and Moulton, J. who dissent in a memorandum by Moulton, J. as follows:

MOULTON, J. (dissenting)

I respectfully dissent.

The majority interprets a statute designed to protect workers’ safety in a way that imperils workers’ safety. According to the majority, if a material—in this case slippery plastic sheeting—was "intentionally placed" to advance the work, then it is "integral to the work" and therefore not a "foreign substance" or a "condition[ ]which could cause tripping" barred by Labor Law § 241(6) and Industrial Code §§ 23–1.7(d), 23–1.7(e)(1). To be sure, the plastic sheeting in this case was a non-porous covering that was "intentionally placed" to protect the escalator from paint spots. However, it provided no protection to the painter. To the contrary: the plastic sheeting introduced to the worksite a slippery condition that caused plaintiff's injuries.

Plaintiff Srecko Bazdaric alleges that he was injured while working as a painter at a construction renovation project in lower Manhattan. On the day of the accident, he was instructed by his foreman to paint the walls around an escalator between the second and third floors. The escalator had been taken out of service and was stationary. Bazdaric testified that a heavy-duty...