Gonzalez v. N.Y.C.

212 N.Y.S.3d 380

227 A.D.3d 958

Juan GONZALEZ, appellant,

v.CITY OF NEW YORK, et al., respondents.

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

Argued—December 15, 2023

May 22, 2024

Gorayeb & Associates, P.C., New York, NY (John M. Shaw of counsel), for appellant.

Lewis Brisbois Bisgaard & Smith, LLP, New York, NY (Nicholas Hurzeler and Audree Maldonado of counsel), for respondents.

FRANCESCA E. CONNOLLY, J.P., JOSEPH J. MALTESE, WILLIAM G. FORD, LAURENCE L. LOVE, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Kevin J. Kerrigan, J.), dated September 3, 2020. The order, insofar as appealed from, granted those branches of the defendants’ motion which were for summary judgment dismissing the causes of action alleging a violation of Labor Law § 200 and common-law negligence, and so much of the cause of action alleging a violation of Labor Law § 241(6) as was, in effect, predicated upon a violation of 12 NYCRR 23-1.8(a), and denied the plaintiff’s cross-motion for leave to amend the bill of particulars.

ORDERED that the order is modified, on the law and in the exercise of discretion, (1) by deleting the provision thereof granting that branch of the defendants’ motion which was for summary judgment dismissing so much of the cause of action alleging a violation of Labor Law § 241(6) as was, in effect, predicated upon a violation of 12 NYCRR 23-1.8(a), and substituting therefor a provision denying that branch of the motion, and (2) by deleting the provision thereof denying the plaintiff’s cross-motion for leave to amend the bill of particulars, and substituting therefor a provision granting the cross-motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The plaintiff allegedly was injured while dismantling scaffolding outside a New York City public school located in Queens. The plaintiff thereafter commenced this action against the defendants alleging common-law negligence and violations of Labor Law §§ 200 and 241(6). Following discovery, the defendants moved for summary judgment dismissing the complaint. The plaintiff cross-moved pursuant to CPLR 3025(b) for leave to amend the bill of particulars to allege a violation of Industrial Code (12 NYCRR) § 23-1.8(a) with regard to the cause of action alleging a violation of Labor Law § 241(6). The Supreme Court, inter alia, granted those branches of the defendants’ motion which were for summary judgment dismissing the causes of action alleging a violation of Labor Law § 200 and common-law negligence, and so much of the cause of action alleging a violation of Labor Law § 241(6) as was, in effect, predicated upon a violation of 12 NYCRR 23-1.8(a), and denied the plaintiff’s cross-motion. The plaintiff appeals.

[1–3] The Supreme Court properly granted those branches of the defendants’ motion which were for summary judgment dismissing the causes of action alleging violations of Labor Law § 200 and common-law negligence. "Labor Law § 200 is a codification of the common-law duty of an owner or employer to provide employees with a safe place to work" (Simmons v. City of New York, 165 A.D.3d 725, 727, 85 N.Y.S.3d 462, citing Rizzuto v. L.A. Wenger Contr. Co., 91 N.Y.2d 343, 352, 670 N.Y.S.2d 816, 693 N.E.2d 1068). Where, as here, the methods or materials of the work are at issue, and the owner or general contractor exercises no supervisory control over the operation, no liability attaches even if they may have had notice of the allegedly unsafe manner in which the work was performed (see Comes v. New York State Elec. & Gas Corp., 82 N.Y.2d 876, 877, 609 N.Y.S.2d 168, 631 N.E.2d 110; Ortega v. Puccia, 57 A.D.3d 54, 61, 866 N.Y.S.2d 323). The right to generally supervise the work, to stop the work if a safety violation is noted, or to ensure compliance with safety regulations does not amount to the supervision and control of the work necessary to impose liability on an owner or a general contractor pursuant to Labor Law § 200 (see Murphy v. 80 Pine, LLC, 208 A.D.3d 492, 495, 173 N.Y.S.3d 552; Dennis v. City of New York, 304 A.D.2d 611, 611, 758 N.Y.S.2d 661).

[4] Here, the defendants established, prima facie, that the alleged accident arose from the work performed over which they did not exercise supervision or control (see Murphy v. 80 Pine, LLC, 208 A.D.3d at 495, 173 N.Y.S.3d 552; Dennis v. City of New York, 304 A.D.2d at 611, 758 N.Y.S.2d 661). In opposition, the plaintiff failed to raise a triable issue of fact.

[5–8] Nevertheless, the Supreme Court erred in granting that branch of the defendants’ motion which was for summary judgment dismissing so much of the cause of action alleging a violation of Labor Law § 241(6) as was, in effect, predicated upon a violation of 12 NYCRR 23-1.8(a). " ‘Labor Law § 241(6) imposes a nondelegable duty upon owners and contractors to provide reasonable and adequate protection and safety to construction workers’ " (Ricottone v. PSEG Long Is., LLC, 221 A,D.3d 1032, 1034, 200 N.Y.S.3d 445, quoting Washington-Tatum v. City of New York, 205 A.D.3d 976, 977, 166 N.Y.S.3d 577). " ‘To establish liability under Labor Law § 241(6), a plaintiff must demonstrate that the injuries allegedly sustained were proximately caused by a violation of an Industrial Code provision that is applicable under the circumstances of the case’ " (Ricottone v. PSEG Long Island, LLC, 221 A.D.3d at 1034, 200 N.Y.S.3d 445, quoting Carranza v. JCL Homes, Inc., 210 A.D.3d 858, 860, 179 N.Y.S.3d 95). An owner or contractor may be held liable under Labor Law § 241(6) even if it did not have control of the site or notice of the allegedly dangerous condition (see Rizzuto v. L.A. Wenger Contr. Co., Inc., 91 N.Y.2d at 348-351; 670 N.Y.S.2d 816, 693 N.E.2d 1068). In order to establish prima facie entitlement to summary judgment, a defendant must show that the plaintiff failed to identify a section of the Industrial Code that was allegedly violated, that any such section is insufficiently specific to support liability or is inapplicable to the facts of the case, or that the defendant complied with the requirements of the identified provision (see Karwowski v. Grolier Club of City of N.Y., 144 A.D.3d 865, 867, 41 N.Y.S.3d 261; Harkin v. County of Nassau, 121 A.D.3d 942, 943, 996 N.Y.S.2d 289).

[9] Industrial Code (12 NYCRR) § 23-1.8(a), titled Personal Protective Equipment, provides: "Eye protection. 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." Here, the defendants failed to establish, prima facie, their entitlement to judgment as a matter of law with respect to this provision of the Industrial Code. The evidence submitted in support of the...