Brown v. Tishman Constr. Corp. of N.Y.

1

2023 NY Slip Op 31982(U)

WILLIAM BROWN, Plaintiff, v. TISHMAN CONSTRUCTION CORPORATION OF NEW YORK, BOP NE LLC Defendant.

Index No. 154484/2019, Motion Seq. No. 003, NYSCEF Doc. No. 92

Supreme Court, New York County

June 13, 2023

Unpublished Opinion

DECISION + ORDER ON MOTION

LORI S. SATTLER, J.S.C.

The following e-filed documents, listed by NYSCEF document number (Motion 003) 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79 80, 81, 82, 83, 84, 85, 86, 88, 89, 90, 91 were read on this motion to/for JUDGMENT - SUMMARY.

Plaintiff William Brown ("Plaintiff") moves for summary judgment on his Labor Law § 241(6) cause of action as against all defendants. Defendants Tishman Construction Corporation of New York ("Tishman") and BOP NE LLC ("BOP") (collectively "Defendants") oppose the motion and cross-move for summary judgment dismissing Plaintiff's Complaint in its entirety.

Plaintiff alleges injury in a workplace construction accident at 401 9th Avenue, New York, New York ("the building"), on February 26, 2018. He was employed as a lather foreman by nonparty Navillus, which was subcontracted by Tishman for construction of the building. BOP was the owner of the building and had contracted for Tishman to perform construction management services.

At the time of the accident, Plaintiff was constructing a rebar-reinforced exterior concrete wall on the 60th floor of the building. His task involved stuffing rebar into prefabricated wall cages that served as the frame for the exterior wall. According to Plaintiff, the practice at the worksite was to carry a few pieces of rebar at a time from a central location to one's section of the wall. As he was walking through different sections of the worksite, he encountered a pile of rebar created by another foreman, Steve Morales, who was working on an interior wall. Plaintiff alleges that Morales had created a pile of rebar near his work area rather than carrying a few pieces at a time. This pile allegedly protruded into and obstructed the walkway that Plaintiff was using to reach his work area from the location where the rebar was stored.

As Plaintiff was attempting to step over the pile, Morales allegedly lifted a rebar out of the pile, which then struck Plaintiff and caused him to lose his footing. As Plaintiff tried to regain his balance, his feet came down on the loose rebar in Morales's pile, which rolled and scattered under his feet and prevented him from regaining his footing. This allegedly caused Plaintiff to fall and sustain injuries.

Plaintiff commenced this action on May 1, 2019, asserting causes of action under Sections 200 and 241(6) of the Labor Law and for common law negligence. After discovery, he moved for summary judgment on his Labor Law § 241(6) cause of action and Defendants subsequently cross moved for summary judgment dismissing the entire Complaint.

On a motion for summary judgment, the moving party "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York Univ. Med. Center, 64 N.Y.2d 851, 853 [1985] citing Zuckerman v City of New York, 49 N.Y.2d 557, 562 [1980]). "Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers" (Winegrad, 64 N.Y.2d at 853). Should the movant make its prima facie showing, the burden shifts to the opposing party, who must then produce admissible evidentiary proof to establish that material issues of fact exist (Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986]).

Plaintiff argues he is entitled to summary judgment on his 241(6) claim because there is no dispute of fact as to whether Defendants violated the Industrial Code, specifically 12 NYCRR §§ 23-2.1(a), 23-1.7(e)(1), and 23-1.7(e)(2). Defendant argues that the 241(6) cause of action should be dismissed as the rebar on which Plaintiff tripped was "integral to the work being performed" and therefore was not a tripping hazard or "stored material pile" under the applicable Industrial Code regulations (12 NYCRR §§ 23-1.7[e][1]-[2], 12 NYCRR 23-2.1[a][1]).

Labor Law 241(6) "imposes a nondelegable duty of reasonable care upon owners and contractors to provide reasonable and adequate protection to persons employed in . . . all areas in which construction, excavation or demolition work is being performed" (Rizzuto v L.A. Wenger Constr. Co., 91 N.Y.2d 343, 348-349 [1998]). To establish a defendant's liability under Section 241(6), "a plaintiff must show that a specific, applicable Industrial Code regulation was violated and that the violation caused the complained-of injury" (Cappabianca v Skanska USA Bldg. Inc., 99 A.D.3d 139, 146 [1st Dept 2012], citing Ross v Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494). Industrial Code Section 23-2.1(a)(1) reads:

(a) Storage of material or equipment.

(1) All building materials shall be stored in a safe and orderly manner. Material piles shall be stable under all conditions and so located that they do not obstruct any passageway, walkway, stairway or other thoroughfare.

Plaintiff argues that this regulation was violated when his coworker obstructed the walkway that he was using with a pile of rebar, which was both being stored and constituted a material pile. He maintains that the regulation was violated even if the rebar was not being "stored," as it also prohibits any material piles from obstructing thoroughfares, regardless of whether the material in question was in storage. In opposition, Defendants argue that Section 23-2.1(a)(1) is inapplicable because the rebar was not being stored at the time of Plaintiff's accident.

Section 23-2.1(a) refers to storage of material and does not apply to material being used or installed at the time of an alleged accident (Waitkus v Metropolitan Hous. Partners, 50 A.D.3d 260 [1st Dept 2008]). It is undisputed that Morales was drawing from the pile of rebar at the time of the accident as part of his work of stuffing rebar into the interior wall. The rebar pile was therefore not "in storage" under the meaning of the regulation and therefore Defendants cannot be liable for a violation of Section 23-2.1(a) as a matter of law.

Plaintiff next contends that Defendants violated Sections 23-1.7(e)(1) and (2) of the Industrial Code because the pile of rebar obstructed a passageway and/or an open working area through which workers passed. Defendants argue that they cannot be held liable under these regulations because the site of the accident was not a "passageway" and because the rebar was integral to the work being performed.

Industrial Code Section 23-1.7(e)(1) states in relevant part "[a]ll passageways shall be kept free from accumulations and dirt and debris and from any other obstructions or conditions which could cause tripping." "Passageway" may be defined as a corridor, hallway, or other long and narrow way that connects parts of a building (Quigley v Port Auth. of N.Y. &N.J., 168 A.D.3d 65, 67 [1st Dept 2018]). Open common areas do not constitute a passageway for the purposes of this section (see Dalanna v City of New York, 308 A.D.2d 400, 401 [1st Dept 2003]). Section 23-1.7(e)(2) instructs that "[t]he parts of floors, platforms and similar areas where persons work or pass shall be kept free from scattered tools and materials and from sharp projections insofar as may be consistent with the work being performed."

There is no violation of Industrial Code Sections 23-1.7(e)(1) or (2) where a plaintiff is injured by an obstacle that is integral to the work being performed (Bazdaric v Almah Partners LLC, 203 A.D.3d 643, 644-645 [1st Dept 2022]). This 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" (Krzyazanowski v City of New York, 179 A.D.3d 479, 481 [1st Dept 2020], citing O'Sullivan v IDI Constr. Co., Inc., 7 N.Y.3d 805, 806 [2006]). An object is integral to the work being performed only where it was being used at the time of the accident (see Rossi v 140 W. JV Mgr. LLC, 171 A.D.3d 668 [1st Dept 2019]).

Here, the record indicates that Morales created the pile of rebar that allegedly caused Plaintiff's injury in the two hours before the accident and was actively removing rebar from that pile as part of his work stuffing the interior wall cage. The undisputed facts establish that there was no violation of Industrial Code Section 23-1.7(e)(2) as a matter of law. Morales's rebar pile was being used at the time of the accident and was therefore an integral part of the work being performed. Even if the pile of rebar by Morales's workspace was not being actively used at the time of the accident, the Court finds that it did not constitute "scattered tools and materials" in violation of Section 23-1.7(e)(2). The branch of Defendants' cross motion for dismissal of the Labor Law § 241(6) cause of action is granted.

Defendants cross-move for summary judgment dismissing Plaintiff's Labor Law § 200 and common law negligence causes of action. They argue that there is no issue of fact as to their lack of supervisory control over the means or method of Plaintiff's work. They also argue that they cannot be held liable because Plaintiff was injured by a hazard that was either readily observable or inherent in the work being performed.

Labor Law § 200 codifies the common law duty of owners and general contractors to provide a safe workplace to construction site workers (Comes v NY State Elec &Gas Corp., 82 N.Y.2d 876, 877 [1993]). Where the alleged injury was "caused by the manner and means of the work, including the equipment used, the...