Preview
FILED: NEW YORK COUNTY CLERK 06/26/2020 12:02 PM INDEX NO. 158327/2013
NYSCEF DOC. NO. 512 RECEIVED NYSCEF: 06/26/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
------------------------------------------------------------------------------------X
KEVIN McGONIGAL,
Index No. 158327/13
Plaintiff,
DECISION AND
-against- ORDER WITH
NOTICE OF ENTRY
NYY STEAK MANHATTAN, LLC, PLAZA CONSTRUCTION
CORP. and BARING INDUSTRIES, INC., (Motion Seq. No. 003,005,
006 and 007)
Defendants.
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PLAZA CONSTRUCTION CORP.,
Third-Party
Third-Party Plaintiff, Index No. 595146/14
-against-
BARING INDUSTRIES, INC.,
Third-Party Defendant.
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BARING INDUSTRIES, INC.,
Second Third-Party
Second Third-Party Plaintiff, Index No. 595130/15
-against-
DAY & NITE REFRIGERATION CORP. and KIMCO
REFRIGERATION CORP.,
Second Third-Party Defendants.
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NYY STEAK MANHATTAN, LLC and PLAZA CONSTRUCTION
LLC f/k/a PLAZA CONSTRUCTION CORP., Third Third-Party
Index No. 595638/15
Third Third-Party Plaintiffs,
-against-
B&G ELECTRICAL CONTRACTORS, ESS & VEE ACOUSTICAL
CONTRACTORS, INC. and BARING INDUSTRIES, INC.,
Third Third-Party Defendants.
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1982008
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PLEASE TAKE NOTICE, that the Decision and Order of Motions #003, 005, 006 and 007,
dated May 14, 2020, of which the within is a true copy, was duly entered/e-filed in the office of
the Clerk of the within above-named Court on June 25, 2020. A copy of the Decision and Order
is annexed hereto as Exhibit “A”.
Dated: New York, New York
June 26, 2020 Yours, etc.,
FABIANI COHEN & HALL, LLP
Patrick Aurilia
_____________________________
Patrick Aurilia
Attorneys for Defendant/Third Third-Party
Plaintiff NYY STEAK MANHATTAN, LLC
Defendant/Third-Party Plaintiff PLAZA C
ONSRUCTION CORP. AND
Third Third-Party Plaintiff
PLAZA CONSTRUCTION, LLC f/k/a PLAZA
CONSTRUCTION CORP.
570 Lexington Avenue, 4th floor
New York, New York 10022
(212) 644-4420
TO: VIA E-FILING ONLY
SACKS AND SACKS, LLP
Attorneys for Plaintiff
KEVIN McGONIGAL
150 Broadway, 4th floor
New York, New York 10038
(212) 964-5570
LAW OFFICE OF TROMELLO & FISHMAN
Attorneys for Third-Party Defendant
Second Third-Party Plaintiff
Third Third-Party Defendant
BARING INDUSTRIES, INC.
395 N. Service Road, Suite 410
Melville, New York 11747
(631) 577-2400
[1982008/2] -2-
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MILBER MAKRIS PLOUSADIS & SEIDEN LLP
Attorneys for Second Third-Party Defendants
DAY & NITE REFRIGERATION CORP. and
K.I.M. CO. REFRIGERATION CORP.
s/h/a KIMCO REFRIGERATION CORP.
1000 Woodbury Road, Suite 402
Woodbury, New York 11797
(516) 712-4000
File No. 532-11347
SMITH MAZURE DIRECTOR WILKINS YOUNG & YAGERMAN, P.C.
Attorneys for Third Third-Party Defendant
ESS & VEE ACOUNSTICAL CONTRACTORS, INC.
111 John Street
New York, New York 10038
(212) 964-7400
File No. AWA-00112
FULLERTON BECK LLP
Attorneys for Third Third-Party Defendant
B&G ELECTRICAL CONTRACTORS
1 West Red Oak Lane
White Plains, New York 10604
(914) 305-8634
[1982008/2] -3-
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Exhibit A
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SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. MARGARET A. CHAN PART IAS MOTION 33EFM
Justice
---------------------------------------------------------------------------------X INDEX NO. 158327/2013
KEVIN MCGONIGAL,
01/23/2019,
Plaintiff, 07/19/2019,
07/18/2019,
MOTION DATE 07/22/2019
-v-
NYY STEAK MANHATTAN, LLC, PLAZA CONSTRUCTION 003 005 006
CORP., BARING INDUSTRIES, INC., MOTION SEQ. NO. 007
Defendants. DECISION + ORDER ON
MOTION
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The following e-filed documents, listed by NYSCEF document number (Motion 003) 213, 214, 215, 216,
217, 218, 219, 220, 221, 222, 223, 224, 225, 226, 227, 228, 229, 230, 231, 232, 233, 234, 235, 236,
237, 249, 250, 251, 252, 253, 254, 255, 256, 258, 259, 265, 266, 267, 268, 269, 270, 271, 272, 273,
274, 277, 278, 279, 280, 281
were read on this motion to/for DISMISS .
The following e-filed documents, listed by NYSCEF document number (Motion 005) 322, 323, 324, 325,
326, 327, 328, 329, 330, 331, 332, 333, 334, 335, 336, 337, 338, 339, 340, 381, 388, 389, 390, 391,
392, 393, 394, 395, 396, 397, 398, 399, 400, 401, 402, 403, 404, 405, 406, 436, 438, 439, 440, 441,
442, 443, 444, 445, 446, 447, 448, 450, 453, 455, 456, 464, 465, 466, 470, 471, 472, 473, 474, 475,
476, 477, 488, 489, 490, 491
were read on this motion to/for SUMMARY JUDGMENT(AFTER JOINDER .
The following e-filed documents, listed by NYSCEF document number (Motion 006) 285, 286, 287, 288,
289, 290, 291, 292, 293, 294, 295, 296, 297, 298, 299, 300, 301, 302, 303, 304, 305, 306, 307, 308,
309, 310, 311, 312, 313, 314, 315, 316, 317, 318, 319, 320, 321, 377, 378, 379, 380, 382, 386, 387,
422, 423, 424, 425, 426, 427, 428, 429, 430, 431, 432, 433, 434, 435, 451, 457, 458, 461, 478, 492,
493, 494
were read on this motion to/for JUDGMENT - SUMMARY .
The following e-filed documents, listed by NYSCEF document number (Motion 007) 341, 342, 343, 344,
345, 346, 347, 348, 349, 350, 351, 352, 353, 354, 355, 356, 357, 358, 359, 360, 361, 362, 363, 364,
365, 366, 367, 368, 369, 370, 371, 372, 373, 374, 375, 376, 383, 384, 385, 407, 408, 409, 410, 411,
412, 413, 414, 415, 416, 417, 418, 419, 420, 421, 437, 449, 452, 454, 459, 460, 462, 463, 467, 468,
469, 479, 480, 481, 482, 483, 484, 485, 486, 495, 496, 497
were read on this motion to/for JUDGMENT - SUMMARY .
Motion Sequence (MS) numbers 003, 005, 006 and 007 are consolidated
for disposition.
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In this action for personal injuries asserting Labor Law violations,
third third-party defendant B & G Electrical Contractors (B&G) moves in MS
003, for an order pursuant to CPLR 3212: (1) dismissing the complaint of
defendants / third third-party plaintiffs, NYY Steak Manhattan LLC (NYY
Steak) and Plaza Construction LLC f/k/a Plaza Construction Corp. (Plaza) for
contractual indemnification, common law indemnification, contribution, and
breach of contract as against them; and (2) dismissing any and all cross-
claims as against them in their entirety. Third third-party defendant Ess &
Vee Acoustical Contractors, Inc. (EVAC) cross-moves, pursuant to CPLR
3212, for an order dismissing the third third-party complaint and all cross-
claims as against it.
In MS 005, 006, and 007, defendant / third-party defendant / third
third-party defendant Baring Industries, Inc. (Baring) moves for summary
judgment for an order: (1) dismissing all cross claims as against it; (2)
granting its contractual indemnity claims against second third-party
defendants Day & Nite Refrigeration Corp. (DNRC) and Kimco Refrigeration
Corp. (KRC); and (3) dismissing all claims of NYY Steak and Plaza as against
it. Plaintiff Kevin McGonigal cross-moves, pursuant to CPLR 3212, for
partial summary judgment on the issue of liability under Labor Law §§ 240
(1) and 241 (6) against defendants NYY Steak, Plaza, and Baring. Also in MS
006, DNRC and KRC move for summary judgment for an order dismissing
the second third-party complaint and all cross claims as against them, or in
the alternative, granting leave to amend their verified amended answer to
include cross claims as against B&G and EVAC.
In MS 007, NYY Steak and Plaza move, pursuant to CPLR 3212, for an
order: (1) dismissing plaintiff’s Labor Law § 200 and common law negligence
claims as against them; (2) granting their third-party claims as against B&G,
EVAC, and Baring for contractual indemnification, common law
indemnification, and contribution; (3) dismissing all claims and cross claims
as against them by B&G, EVAC, Baring, DNRC, and KRC; and (4) granting
their third third-party claims as against Baring for breach of contract to
procure insurance.
BACKGROUND
Plaintiff was allegedly injured on September 6, 2013 (the accident)
while transporting a refrigeration unit for a renovation project transforming
a bank into a restaurant (the project). Defendant NYY Steak, the lessee of
the property retained defendant Plaza as the construction manager for the
project. Plaza retained B&G as the electrical subcontractor, and Baring to
purchase and oversee the installation of the refrigeration of the food service
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equipment. Baring hired plaintiff’s employer, DNRC, as the refrigeration
installation company.
Plaintiff testified at his deposition that he began working for DNRC in
August 2013 about two or three weeks before the accident occurred (see
plaintiff tr at 34). Plaintiff received his instructions from Julian Gomez,
plaintiff’s foreman, as well as Jimmy Vespe, a DNRC construction manager
(id. at 59). On the date of the accident, plaintiff and Gomez unloaded a
refrigeration unit onto a dolly provided by DNRC (id. at 40-41, 45). Vespe told
plaintiff and Gomez to place the unit in the basement (id. at 73). Plaintiff and
Gomez pushed the dolly from the street through the front entrance of the
building (id. at 66-67). Gomez pushed the cart while plaintiff pulled the cart
walking backwards (id. at 72, 81, 93, 99, 127, 129-130). After entering the
building, plaintiff and Gomez took the freight elevator to the basement, and
then exited the elevator proceeding approximately eight feet down the
corridor (id. at 78-79). They turned left into another hallway approximately
four feet long (id. at 89, 92-93). While walking backwards, he stepped on a
piece of wood about two to three inches thick and three to four feet long that
caused him to fall into a pit that was about 18 inches deep (id. at 97-99, 102;
plaintiff aff, ¶ 18).
Deposition Testimony of James Vespe of DNRC
James Vespe testified at his deposition that he was the construction
manager for DNRC at the time of the accident (Vespe tr at 9). As the
construction manager, he was responsible for addressing the installation in
commercial construction sites (id. at 12). DNRC had two workers at the
project daily, plaintiff and Gomez (id. at 21). Plaintiff and Gomez were
responsible for installing copper piping, evaporators, and condensers at the
project (id. at 23). Plaza laborers were responsible for removing debris from
the project area (id. at 68-71). If Vespe had any complaints regarding project
conditions, he would make those complaints to Plaza, specifically George
Usher, the superintendent of Plaza for the project (id. at 70).
On the date of the accident, Vespe was at the project (id. at 27). DNRC
was accepting a delivery for evaporators for a walk-in refrigerator unit (id.).
Plaintiff and Gomez carried the equipment to the basement facing each other,
with plaintiff walking backwards before stepped into the pit which was about
12 inches (id. at 29, 32, 34, 48, 78, 80).
Deposition Testimony of Julian Gomez of DNRC
Julian Gomez testified at his deposition that he was the foreman for
DNRC at the time of the accident (Gomez tr at 11). On the date of the
accident, a box truck containing a delivery of three evaporator coils and three
condenser units arrived at the project (id. at 30-32). The box truck arrived
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curb side and the items were lowered to the street level and put onto a dolly
one by one (id.). Thereafter, the coils and condensers would be unpackaged
and delivered to the basement where the walk-in refrigerators were located
(id. at 33-34).
Gomez testified that he and plaintiff arrived at the project at 7 a.m. on
the date of the accident and the delivery was expected at 10 a.m. (id. at 40,
99). When they arrived, Gomez discussed with plaintiff what was expected for
the day and the delivery job, and together, did a walkthrough of the route to
deliver the equipment in the basement to determine how to bring the
equipment down and where it would be installed (id. at 40-41, 100). After the
walkthrough, he and plaintiff made two or three trips through the delivery
route, including the area where the subject pit was located, bringing tools
from Gomez’s truck to the basement (id. at 80-81, 99). The temporary lighting
in the hallway where the hole was located was hanging from a ceiling on a
rope with three individual lights (id. at 153). The lighting did not prevent
them from performing their job and seeing where they were pushing the dolly
(id. at 153-156). Gomez did not make any complaints to anyone about the
lighting (id. at 133). At the time of the accident, he was pushing the dolly
while plaintiff was pulling it while walking backwards. Plaintiff was
supposed to guide the dolly to the right to make the turn down a third
hallway, but instead walked into the pit (id. at 56).
Deposition Testimony of George Usher of Plaza
George Usher testified at his deposition that on the date of the
accident, he was a superintendent for Plaza at the project (Usher tr at 9, 16-
17). He was responsible for walking through the project area and visually
inspecting it for construction and safety issues, and the preparation of daily
reports of the work performed at the project (id. at 39-40).
Usher testified that the subject pit was located on the 2LL floor and
was a recess for the installation of an elevator piston (id. at 86). The pit was
approximately 18 inches deep (id. at 88, 92-93). B&G installed temporary
lighting in the project area including the area with the subject pit (id. at 100).
The lights were incandescent stringer bulbs with protective plastic cages
hanging on wires from the ceiling (id. at 144). Plaza never complained of any
issues with the lighting and never received any complaints about the lighting
from anyone (id. at 146).
Deposition Testimony of Chris Wolske of Baring
Chris Wolske testified at his deposition that he was a project manager
for Baring on the date of the accident (Wolske tr at 9). Plaza hired Baring to
supply food service equipment for the project, and Baring hired DNRC as a
subcontractor for installation of kitchen equipment for the project (see id. at
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12, 17, 23). DNRC attended progress meetings with Plaza and Baring when
they walked through the project to review the scope of their work (see id. at
34-35). DNRC was required to provide labor, tools and materials to perform
its refrigeration and installation work for the project (see id. at 45).
Wolske testified that he visited the project once or twice per week and
as they were finishing up the work, he visited with more frequency (see id. at
30-31). He was the only person from Baring who visited the project (see id. at
32-33). He was not at the project on the day of plaintiff’s accident (see id. at
30). Neither Baring nor DNRC was responsible for protection work or lighting
at the project (see id. at 59).
DISCUSSION
“‘The proponent of a summary judgment motion 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’”
(Santiago v Filstein, 35 AD3d 184, 185-186 [1st Dept 2006], quoting Winegrad
v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). The burden then
shifts to the motion’s opponent “to present evidentiary facts in admissible
form sufficient to raise a genuine, triable issue of fact” (Mazurek v
Metropolitan Museum of Art, 27 AD3d 227, 228 [1st Dept 2006], citing
Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; see also DeRosa v
City of New York, 30 AD3d 323, 325 [1st Dept 2006]). If there is any doubt as
to the existence of a triable issue of fact, the motion for summary judgment
must be denied (Rotuba Extruders v Ceppos, 46 NY2d 223, 231 [1978];
Grossman v Amalgamated Hous. Corp., 298 AD2d 224, 226 [1st Dept 2002]).
Labor Law § 240 (1) Claim
NYY Steak and Plaza move for summary judgment dismissing the
Labor Law § 240 (1) claim as against them. Plaintiff cross moves for partial
summary judgment in his favor as to liability on the Labor Law § 240 (1)
claim as against all defendants. Labor Law § 240 (1), also known as the
Scaffold Law (Ryan v Morse Diesel, 98 AD2d 615, 615 [1st Dept 1983]),
provides, in relevant part:
“All contractors and owners and their agents . . . 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
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constructed, placed and operated as to give proper protection to
a person so employed.”
It is well established that Labor Law § 240 (1) applies to “extra-
ordinary elevation risks,” and not the “usual and ordinary dangers of a
construction site” (Rodriguez v Margaret Tietz Ctr. for Nursing Care, 84
NY2d 841, 843 [1994]). To establish liability under Labor Law § 240 (1), the
plaintiff must establish the following two elements: (1) a violation of the
statute, i.e., that the owner or general contractor failed to provide adequate
safety devices; and (2) that the statutory violation was a proximate cause of
the injuries (Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280,
289 [2003]). Where a plaintiff is the sole proximate cause of an injury,
liability does not attach under the statute (id. at 290). In Rocovich v
Consolidated Edison Co. (78 NY2d 509 [1991]), the Court of Appeals
explained that:
“[t]he contemplated hazards 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”
(id. at 514).
“The special hazards . . . however, do not encompass any and all perils that
may be connected in some tangential way with the effects of gravity. Rather,
the special hazards referred to are limited to 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] [internal citations and quotations
omitted]; see also Runner v New York Stock Exch., Inc., 13 NY3d 599, 603
[2009] [“the single decisive 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”]).
Labor Law § 240 (1) does not apply to the circumstances of this case.
According to plaintiff, he stepped on a piece of wood while walking backwards
that caused him to lose his balance into a pit that was about 18 inches deep
(see plaintiff tr at 97-99, 102; plaintiff affidavit, ¶ 18). Usher testified that
the depth of the subject pit was approximately 18 inches (see Usher tr at 92).
Vespe testified that the depth of the pit was approximately 12 inches (see
Vespe tr at 48). Given the aforementioned deposition testimony, the subject
pit was at most 18 inches deep. Plaintiff was performing his assigned task of
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delivering a refrigeration unit by pushing a cart at the basement level when
the accident occurred. Thus, plaintiff “was exposed to the usual and ordinary
dangers of a construction site, and not the extraordinary elevation risks
envisioned by Labor Law § 240 (1)” (Rodriguez, 84 NY2d at 843; see also
Lombardo v Park Tower Management Ltd., 76 AD3D 497, 498 [1st Dept
2010] [finding that 18 inch elevation differential of the plaintiff’s fall from a
broken step “was not of sufficient height to trigger the protection of § 240 (1),
nor was plaintiff exposed to the type of extraordinary risk for which the
statute was designed”]; Romeo v Property Owner (USA) LLC, 61 AD3d 491,
491 [1st Dept 2010] [finding that the plaintiff’s right foot falling 18 inches
below into a hole "while walking on the permanent floor did not involve an
elevation-related hazard of the type contemplated by [§ 240 (1)], and did not
necessitate the provision of the type of safety devices set forth in the
statute”]; see all Nicometi v Vineyards of Fredonia, LLC, 25 NY3d 90, 99
[2015] [finding that the injuries plaintiff sustained when he slipped on a
patch of ice and fell to the floor while using stilts to install insulation in a
ceiling were not the direct consequence of an elevation-related risk within the
scope of Labor Law § 240 (1)]; Cohen v Memorial Sloan-Kettering Cancer
Ctr., 11 NY3d 823, 825 [2008] [finding that Labor Law § 240 (1) did not apply
where injuries sustained by a worker while installing pipe racks in ceiling
when he attempted to climb off a ladder and could not clear the first step due
to protruding pipes from a nearby unfinished wall because injuries were a
result of the usual and ordinary dangers at a construction site not elevation-
related hazard]).
Therefore, the branch of plaintiff’s cross motion for partial summary
judgment as to liability on the Labor Law § 240 (1) claim is denied, and the
branch of the motion by NYY Steak and Plaza seeking dismissal of plaintiff’s
Labor Law § 240 (1) claim is granted. The court has considered the remaining
arguments and finds them unavailing.
Labor Law § 241 (6) Claim
NYY Steak and Plaza move for summary judgment on plaintiff’s Labor
Law § 241 (6) claim. Plaintiff cross moves for partial summary judgment in
his favor as to liability on the Labor Law § 241 (6) claim as against all
defendants. 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:
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(6) All areas in which construction, excavation or
demolition work is being performed shall be so
constructed, shored, [and] equipped . . . as to provide
reasonable and adequate protection and safety to the
persons employed therein or lawfully frequenting such
places. . . .”
Labor Law § 241 (6) imposes a nondelegable duty “on owners and contractors
to ‘provide reasonable and adequate protection and safety’ for workers” (Ross
v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [1993]). However, Labor
Law § 241 (6) is not self-executing, and in order to show a violation of this
statute, and withstand a defendant’s motion for summary judgment, it must
be shown that the defendant violated a specific, applicable, implementing
regulation of the Industrial Code, rather than a provision containing only
generalized requirements for worker safety (id. at 505).
Plaintiff’s complaint alleges violations of Industrial Code provisions 12
NYCRR 23-1.7 (b) (1) (i) (ii) (iii) (a) (b) (c). 12 NYCRR 23-1.7(b) (1) applies to
hazardous openings and requires that hazardous openings "into which a
person may step or fall . . . be guarded by a substantial cover . . . or by a
safety railing constructed and installed in compliance with this Part (rule)."
The First Department has held that an 18-inch deep opening is not the type
of opening to which 12 NYCRR 23-1.7 (b) (1) applies (see Romeo, 61 AD3d at
492 [dismissing plaintiff’s Labor Law § 240 (1) claim based on an alleged
violation of 12 NYCRR 23-1.7 (b) (1) because "the 18-inches depth to the sub-
floor did not present significant depth" warranting such protection]).
Therefore, 12 NYCRR 23-1.7 (b) (1) and all of its subdivisions are not
applicable in this case.
Plaintiff alleges in his complaint a violation of 12 NYCRR 23-1.15. This
section applies to safety railings and is inapplicable as a matter of law
because plaintiff was not provided with a safety railing (see Dzieran v 1800
Boston Road, LLC, 25 AD3d 336 [1st Dept 2006] [dismissing the plaintiff's
Labor Law § 241(6) claim based on an alleged violation of 12 NYCRR 23-1.15
because the plaintiff was not provided with a safety railing]; Ferluckaj v
Goldman Sachs & Co., 53 AD3d 422 [2d Dept 2008] [finding that the
plaintiff's Labor Law § 241(6) claim based on an alleged violation of 12
NYCRR 23-1.15 should have been dismissed because the section applies only
where a worker was provided with safety railings]).
Plaintiff also alleges violations of Industrial code provisions 12 NYCRR
23-1.7(e) (1) and (2). Section 23-1.7 (e) (Tripping and other hazards) provides
as follows:
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“(1) Passageways. All passageways shall be kept free from
accumulations of dirt and debris and from any other
obstructions or conditions which could 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”
In Dalanna v City of New York (308 AD2d 400 [1st Dept 2003]), a
plumber tripped over a protruding bolt while carrying a pipe across an
outdoor 50-foot-long concrete slab. In that case, the First Department held
that neither section 23-1.7 (e) (1) nor 23-1.7 (e) (2) applied:
“[t]he slab, although regularly traversed to bring pipes to the
tanks, remained a common, open area between the job site and
the street, and thus was not [a] ‘passageway’ covered by 12
NYCRR 23-1.7 (e) (1), and at best was a ‘working area’ covered
by 12 NYCRR 23-1.7 (e) (2). However, the bolt, which was
embedded in the ground, was not ‘dirt,’ ‘debris,’ ‘scattered tools
and materials’ or a ‘sharp projection[],’ as required by the latter
provision”
(id. at 401 [citations omitted]). Here plaintiff’s accident occurred when he
fell into an 18-inch-deep pit while walking backwards pulling a dolly. His
accident did not occur as a result of “accumulations of dirt and debris,”
“scattered tools and materials,” or “sharp projections” (see Dalanna, 308
AD2d at 401). Therefore, this section is not applicable.
Plaintiff alleges in his complaint a violation of industrial code
provision 12 NYCRR 23-1.30 which pertains to illumination. Gomez and
Usher both testified during their depositions that there was no issue with the
lighting in the area by the subject pit (see Gomez tr at 153, 154,156; Usher tr
at 146). Plaintiff testified he was walking backwards right before the accident
while pulling the dolly (Plaintiff tr at 97-99, 102). Plaintiff’s conclusory
deposition testimony that the lighting in the basement area was “dark”
(plaintiff tr at 92) is not sufficient to support a violation of this regulation
(see Carty v Port Authority of New York and New Jersey, 32 AD 3d 732 [1st
Dept 2005] [holding that the plaintiff's testimony that the lighting in the
basement was "dark" was "'insufficient to create an inference that the
amount of lighting fell below the specific statutory standards”][internal
9
13
9 of
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citations and quotations omitted]; Kochman v City of New York, 110 AD3d
477 [1st Dept 2013] [dismissing the plaintiff's Labor Law § 241(6) claim based
on a violation of Rule 23-1.30 because his allegations were too vague to
support any inference that the lighting fell below the specific statutory
requirements]). Therefore, this section is not applicable to this case.
Plaintiff alleges a violation of 12 NYCRR 23-5.1 (j) in his complaint.
This section sets forth standards for the construction of safety railings on
scaffold platform. This section is not applicable as a matter of law because
plaintiff was not on a scaffold platform at the time of the accident.
Since plaintiff has failed to identify a specific and applicable industrial
code regulation that was violated, plaintiff’s Labor Law § 241 (6) claim is
dismissed (see Owens v Commercial Sites, 284 AD2d 315, 315 [2d Dept
2001]). Therefore, the branch of plaintiff’s cross motion for partial summary
judgment as to liability for Labor Law § 241 (6) is denied, and the branch of
the motion by NYY Steak and Plaza seeking dismissal of plaintiff’s Labor
Law § 241 (6) claim is granted. The court has considered the remaining
arguments and finds them unavailing.
Labor Law § 200 and Common Law Negligence Claims
NYY Steak and Plaza move for summary judgment dismissing
plaintiffs’ Labor Law § 200 and common law negligence claims as against
them. Labor Law § 200 (1) provides:
“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. The board may make rules to carry into effect the
provisions of this section.”
It is well established that Labor Law § 200 is a codification of the
common-law duty imposed upon landowners and general contractors to
provide workers with a reasonably safe place to work (Comes v New York
State Elec. & Gas Corp., 82 NY2d 876, 877 [1993]), and, therefore, the same
standards apply to both Labor Law § 200 and common-law negligence
theories of recovery. “Liability pursuant to Labor Law § 200 may fall into two
broad categories: workers ‘injured as a result of dangerous or defective
premises condition at a work site, and those involving the manner in which
the work is performed’” (McLean v 405 Webster Ave. Assoc., 98 AD3d 1090,
10
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1093 [2d Dept 2012], quoting Ortega v Puccia, 57 AD3d 54, 61 [2d Dept
2008]).
When an injury arises out of a dangerous or defective premises
condition, “a property owner is liable under Labor Law § 200 when the owner
created the dangerous condition causing an injury or when the owner failed
to remedy a dangerous or defective condition of which he or she had actual or
constructive notice” (Mendoza v Highpoint Assoc., IX, LLC, 83 AD3d 1, 9 [1st
Dept 2011] [internal quotation marks and citation omitted]). To prevail on a
claim under Labor Law § 200 and common-law negligence, where the injury
arises out of the means or methods of the construction work, the plaintiff
must establish that the defendant supervised or controlled the activity giving
rise to the injury (see Hughes v Tishman Constr. Corp., 40 AD3d 305, 306 [1st
Dept 2007]; Cahill v Triborough Bridge & Tunnel Auth., 31 AD3d 347, 350
[1st Dept 2006]). General supervision over the work, including coordination of
the trades and inspection of quality of the work, is insufficient to impose
liability (see Hughes, 40 AD3d at 306).
This branch of the motion by defendants NYY Steak and Plaza is
granted. There is nothing in the record to establish that defendants
supervised or controlled the work, other than general supervision, giving rise
to plaintiff’s injury or that defendants created the alleged dangerous
condition or had notice of it prior to the accident. The court has considered all
remaining arguments and finds them unavailing.
Remaining Claims
In light of the dismissal of the main action insofar as asserted against
defendants the remaining claims are dismissed as acad
Preview
FILED: NEW YORK COUNTY CLERK 06/26/2020 12:02 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 512 RECEIVED NYSCEF: 06/26/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ------------------------------------------------------------------------------------X KEVIN McGONIGAL, Index No. 158327/13 Plaintiff, DECISION AND -against- ORDER WITH NOTICE OF ENTRY NYY STEAK MANHATTAN, LLC, PLAZA CONSTRUCTION CORP. and BARING INDUSTRIES, INC., (Motion Seq. No. 003,005, 006 and 007) Defendants. ------------------------------------------------------------------------------------X PLAZA CONSTRUCTION CORP., Third-Party Third-Party Plaintiff, Index No. 595146/14 -against- BARING INDUSTRIES, INC., Third-Party Defendant. ------------------------------------------------------------------------------------X BARING INDUSTRIES, INC., Second Third-Party Second Third-Party Plaintiff, Index No. 595130/15 -against- DAY & NITE REFRIGERATION CORP. and KIMCO REFRIGERATION CORP., Second Third-Party Defendants. -----------------------------------------------------------------------------------X NYY STEAK MANHATTAN, LLC and PLAZA CONSTRUCTION LLC f/k/a PLAZA CONSTRUCTION CORP., Third Third-Party Index No. 595638/15 Third Third-Party Plaintiffs, -against- B&G ELECTRICAL CONTRACTORS, ESS & VEE ACOUSTICAL CONTRACTORS, INC. and BARING INDUSTRIES, INC., Third Third-Party Defendants. -----------------------------------------------------------------------------------X 1982008 1 of 16 FILED: NEW YORK COUNTY CLERK 06/26/2020 12:02 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 512 RECEIVED NYSCEF: 06/26/2020 PLEASE TAKE NOTICE, that the Decision and Order of Motions #003, 005, 006 and 007, dated May 14, 2020, of which the within is a true copy, was duly entered/e-filed in the office of the Clerk of the within above-named Court on June 25, 2020. A copy of the Decision and Order is annexed hereto as Exhibit “A”. Dated: New York, New York June 26, 2020 Yours, etc., FABIANI COHEN & HALL, LLP Patrick Aurilia _____________________________ Patrick Aurilia Attorneys for Defendant/Third Third-Party Plaintiff NYY STEAK MANHATTAN, LLC Defendant/Third-Party Plaintiff PLAZA C ONSRUCTION CORP. AND Third Third-Party Plaintiff PLAZA CONSTRUCTION, LLC f/k/a PLAZA CONSTRUCTION CORP. 570 Lexington Avenue, 4th floor New York, New York 10022 (212) 644-4420 TO: VIA E-FILING ONLY SACKS AND SACKS, LLP Attorneys for Plaintiff KEVIN McGONIGAL 150 Broadway, 4th floor New York, New York 10038 (212) 964-5570 LAW OFFICE OF TROMELLO & FISHMAN Attorneys for Third-Party Defendant Second Third-Party Plaintiff Third Third-Party Defendant BARING INDUSTRIES, INC. 395 N. Service Road, Suite 410 Melville, New York 11747 (631) 577-2400 [1982008/2] -2- 2 of 16 FILED: NEW YORK COUNTY CLERK 06/26/2020 12:02 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 512 RECEIVED NYSCEF: 06/26/2020 MILBER MAKRIS PLOUSADIS & SEIDEN LLP Attorneys for Second Third-Party Defendants DAY & NITE REFRIGERATION CORP. and K.I.M. CO. REFRIGERATION CORP. s/h/a KIMCO REFRIGERATION CORP. 1000 Woodbury Road, Suite 402 Woodbury, New York 11797 (516) 712-4000 File No. 532-11347 SMITH MAZURE DIRECTOR WILKINS YOUNG & YAGERMAN, P.C. Attorneys for Third Third-Party Defendant ESS & VEE ACOUNSTICAL CONTRACTORS, INC. 111 John Street New York, New York 10038 (212) 964-7400 File No. AWA-00112 FULLERTON BECK LLP Attorneys for Third Third-Party Defendant B&G ELECTRICAL CONTRACTORS 1 West Red Oak Lane White Plains, New York 10604 (914) 305-8634 [1982008/2] -3- 3 of 16 FILED: NEW YORK COUNTY CLERK 06/26/2020 12:02 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 512 RECEIVED NYSCEF: 06/26/2020 Exhibit A 4 of 16 FILED: NEW YORK COUNTY CLERK 06/26/2020 06/25/2020 12:02 01:43 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 512 503 RECEIVED NYSCEF: 06/26/2020 06/25/2020 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. MARGARET A. CHAN PART IAS MOTION 33EFM Justice ---------------------------------------------------------------------------------X INDEX NO. 158327/2013 KEVIN MCGONIGAL, 01/23/2019, Plaintiff, 07/19/2019, 07/18/2019, MOTION DATE 07/22/2019 -v- NYY STEAK MANHATTAN, LLC, PLAZA CONSTRUCTION 003 005 006 CORP., BARING INDUSTRIES, INC., MOTION SEQ. NO. 007 Defendants. DECISION + ORDER ON MOTION ---------------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 003) 213, 214, 215, 216, 217, 218, 219, 220, 221, 222, 223, 224, 225, 226, 227, 228, 229, 230, 231, 232, 233, 234, 235, 236, 237, 249, 250, 251, 252, 253, 254, 255, 256, 258, 259, 265, 266, 267, 268, 269, 270, 271, 272, 273, 274, 277, 278, 279, 280, 281 were read on this motion to/for DISMISS . The following e-filed documents, listed by NYSCEF document number (Motion 005) 322, 323, 324, 325, 326, 327, 328, 329, 330, 331, 332, 333, 334, 335, 336, 337, 338, 339, 340, 381, 388, 389, 390, 391, 392, 393, 394, 395, 396, 397, 398, 399, 400, 401, 402, 403, 404, 405, 406, 436, 438, 439, 440, 441, 442, 443, 444, 445, 446, 447, 448, 450, 453, 455, 456, 464, 465, 466, 470, 471, 472, 473, 474, 475, 476, 477, 488, 489, 490, 491 were read on this motion to/for SUMMARY JUDGMENT(AFTER JOINDER . The following e-filed documents, listed by NYSCEF document number (Motion 006) 285, 286, 287, 288, 289, 290, 291, 292, 293, 294, 295, 296, 297, 298, 299, 300, 301, 302, 303, 304, 305, 306, 307, 308, 309, 310, 311, 312, 313, 314, 315, 316, 317, 318, 319, 320, 321, 377, 378, 379, 380, 382, 386, 387, 422, 423, 424, 425, 426, 427, 428, 429, 430, 431, 432, 433, 434, 435, 451, 457, 458, 461, 478, 492, 493, 494 were read on this motion to/for JUDGMENT - SUMMARY . The following e-filed documents, listed by NYSCEF document number (Motion 007) 341, 342, 343, 344, 345, 346, 347, 348, 349, 350, 351, 352, 353, 354, 355, 356, 357, 358, 359, 360, 361, 362, 363, 364, 365, 366, 367, 368, 369, 370, 371, 372, 373, 374, 375, 376, 383, 384, 385, 407, 408, 409, 410, 411, 412, 413, 414, 415, 416, 417, 418, 419, 420, 421, 437, 449, 452, 454, 459, 460, 462, 463, 467, 468, 469, 479, 480, 481, 482, 483, 484, 485, 486, 495, 496, 497 were read on this motion to/for JUDGMENT - SUMMARY . Motion Sequence (MS) numbers 003, 005, 006 and 007 are consolidated for disposition. 1 1 of 16 5 12 FILED: NEW YORK COUNTY CLERK 06/26/2020 06/25/2020 12:02 01:43 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 512 503 RECEIVED NYSCEF: 06/26/2020 06/25/2020 In this action for personal injuries asserting Labor Law violations, third third-party defendant B & G Electrical Contractors (B&G) moves in MS 003, for an order pursuant to CPLR 3212: (1) dismissing the complaint of defendants / third third-party plaintiffs, NYY Steak Manhattan LLC (NYY Steak) and Plaza Construction LLC f/k/a Plaza Construction Corp. (Plaza) for contractual indemnification, common law indemnification, contribution, and breach of contract as against them; and (2) dismissing any and all cross- claims as against them in their entirety. Third third-party defendant Ess & Vee Acoustical Contractors, Inc. (EVAC) cross-moves, pursuant to CPLR 3212, for an order dismissing the third third-party complaint and all cross- claims as against it. In MS 005, 006, and 007, defendant / third-party defendant / third third-party defendant Baring Industries, Inc. (Baring) moves for summary judgment for an order: (1) dismissing all cross claims as against it; (2) granting its contractual indemnity claims against second third-party defendants Day & Nite Refrigeration Corp. (DNRC) and Kimco Refrigeration Corp. (KRC); and (3) dismissing all claims of NYY Steak and Plaza as against it. Plaintiff Kevin McGonigal cross-moves, pursuant to CPLR 3212, for partial summary judgment on the issue of liability under Labor Law §§ 240 (1) and 241 (6) against defendants NYY Steak, Plaza, and Baring. Also in MS 006, DNRC and KRC move for summary judgment for an order dismissing the second third-party complaint and all cross claims as against them, or in the alternative, granting leave to amend their verified amended answer to include cross claims as against B&G and EVAC. In MS 007, NYY Steak and Plaza move, pursuant to CPLR 3212, for an order: (1) dismissing plaintiff’s Labor Law § 200 and common law negligence claims as against them; (2) granting their third-party claims as against B&G, EVAC, and Baring for contractual indemnification, common law indemnification, and contribution; (3) dismissing all claims and cross claims as against them by B&G, EVAC, Baring, DNRC, and KRC; and (4) granting their third third-party claims as against Baring for breach of contract to procure insurance. BACKGROUND Plaintiff was allegedly injured on September 6, 2013 (the accident) while transporting a refrigeration unit for a renovation project transforming a bank into a restaurant (the project). Defendant NYY Steak, the lessee of the property retained defendant Plaza as the construction manager for the project. Plaza retained B&G as the electrical subcontractor, and Baring to purchase and oversee the installation of the refrigeration of the food service 2 2 of 16 6 12 FILED: NEW YORK COUNTY CLERK 06/26/2020 06/25/2020 12:02 01:43 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 512 503 RECEIVED NYSCEF: 06/26/2020 06/25/2020 equipment. Baring hired plaintiff’s employer, DNRC, as the refrigeration installation company. Plaintiff testified at his deposition that he began working for DNRC in August 2013 about two or three weeks before the accident occurred (see plaintiff tr at 34). Plaintiff received his instructions from Julian Gomez, plaintiff’s foreman, as well as Jimmy Vespe, a DNRC construction manager (id. at 59). On the date of the accident, plaintiff and Gomez unloaded a refrigeration unit onto a dolly provided by DNRC (id. at 40-41, 45). Vespe told plaintiff and Gomez to place the unit in the basement (id. at 73). Plaintiff and Gomez pushed the dolly from the street through the front entrance of the building (id. at 66-67). Gomez pushed the cart while plaintiff pulled the cart walking backwards (id. at 72, 81, 93, 99, 127, 129-130). After entering the building, plaintiff and Gomez took the freight elevator to the basement, and then exited the elevator proceeding approximately eight feet down the corridor (id. at 78-79). They turned left into another hallway approximately four feet long (id. at 89, 92-93). While walking backwards, he stepped on a piece of wood about two to three inches thick and three to four feet long that caused him to fall into a pit that was about 18 inches deep (id. at 97-99, 102; plaintiff aff, ¶ 18). Deposition Testimony of James Vespe of DNRC James Vespe testified at his deposition that he was the construction manager for DNRC at the time of the accident (Vespe tr at 9). As the construction manager, he was responsible for addressing the installation in commercial construction sites (id. at 12). DNRC had two workers at the project daily, plaintiff and Gomez (id. at 21). Plaintiff and Gomez were responsible for installing copper piping, evaporators, and condensers at the project (id. at 23). Plaza laborers were responsible for removing debris from the project area (id. at 68-71). If Vespe had any complaints regarding project conditions, he would make those complaints to Plaza, specifically George Usher, the superintendent of Plaza for the project (id. at 70). On the date of the accident, Vespe was at the project (id. at 27). DNRC was accepting a delivery for evaporators for a walk-in refrigerator unit (id.). Plaintiff and Gomez carried the equipment to the basement facing each other, with plaintiff walking backwards before stepped into the pit which was about 12 inches (id. at 29, 32, 34, 48, 78, 80). Deposition Testimony of Julian Gomez of DNRC Julian Gomez testified at his deposition that he was the foreman for DNRC at the time of the accident (Gomez tr at 11). On the date of the accident, a box truck containing a delivery of three evaporator coils and three condenser units arrived at the project (id. at 30-32). The box truck arrived 3 3 of 16 7 12 FILED: NEW YORK COUNTY CLERK 06/26/2020 06/25/2020 12:02 01:43 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 512 503 RECEIVED NYSCEF: 06/26/2020 06/25/2020 curb side and the items were lowered to the street level and put onto a dolly one by one (id.). Thereafter, the coils and condensers would be unpackaged and delivered to the basement where the walk-in refrigerators were located (id. at 33-34). Gomez testified that he and plaintiff arrived at the project at 7 a.m. on the date of the accident and the delivery was expected at 10 a.m. (id. at 40, 99). When they arrived, Gomez discussed with plaintiff what was expected for the day and the delivery job, and together, did a walkthrough of the route to deliver the equipment in the basement to determine how to bring the equipment down and where it would be installed (id. at 40-41, 100). After the walkthrough, he and plaintiff made two or three trips through the delivery route, including the area where the subject pit was located, bringing tools from Gomez’s truck to the basement (id. at 80-81, 99). The temporary lighting in the hallway where the hole was located was hanging from a ceiling on a rope with three individual lights (id. at 153). The lighting did not prevent them from performing their job and seeing where they were pushing the dolly (id. at 153-156). Gomez did not make any complaints to anyone about the lighting (id. at 133). At the time of the accident, he was pushing the dolly while plaintiff was pulling it while walking backwards. Plaintiff was supposed to guide the dolly to the right to make the turn down a third hallway, but instead walked into the pit (id. at 56). Deposition Testimony of George Usher of Plaza George Usher testified at his deposition that on the date of the accident, he was a superintendent for Plaza at the project (Usher tr at 9, 16- 17). He was responsible for walking through the project area and visually inspecting it for construction and safety issues, and the preparation of daily reports of the work performed at the project (id. at 39-40). Usher testified that the subject pit was located on the 2LL floor and was a recess for the installation of an elevator piston (id. at 86). The pit was approximately 18 inches deep (id. at 88, 92-93). B&G installed temporary lighting in the project area including the area with the subject pit (id. at 100). The lights were incandescent stringer bulbs with protective plastic cages hanging on wires from the ceiling (id. at 144). Plaza never complained of any issues with the lighting and never received any complaints about the lighting from anyone (id. at 146). Deposition Testimony of Chris Wolske of Baring Chris Wolske testified at his deposition that he was a project manager for Baring on the date of the accident (Wolske tr at 9). Plaza hired Baring to supply food service equipment for the project, and Baring hired DNRC as a subcontractor for installation of kitchen equipment for the project (see id. at 4 4 of 16 8 12 FILED: NEW YORK COUNTY CLERK 06/26/2020 06/25/2020 12:02 01:43 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 512 503 RECEIVED NYSCEF: 06/26/2020 06/25/2020 12, 17, 23). DNRC attended progress meetings with Plaza and Baring when they walked through the project to review the scope of their work (see id. at 34-35). DNRC was required to provide labor, tools and materials to perform its refrigeration and installation work for the project (see id. at 45). Wolske testified that he visited the project once or twice per week and as they were finishing up the work, he visited with more frequency (see id. at 30-31). He was the only person from Baring who visited the project (see id. at 32-33). He was not at the project on the day of plaintiff’s accident (see id. at 30). Neither Baring nor DNRC was responsible for protection work or lighting at the project (see id. at 59). DISCUSSION “‘The proponent of a summary judgment motion 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’” (Santiago v Filstein, 35 AD3d 184, 185-186 [1st Dept 2006], quoting Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). The burden then shifts to the motion’s opponent “to present evidentiary facts in admissible form sufficient to raise a genuine, triable issue of fact” (Mazurek v Metropolitan Museum of Art, 27 AD3d 227, 228 [1st Dept 2006], citing Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; see also DeRosa v City of New York, 30 AD3d 323, 325 [1st Dept 2006]). If there is any doubt as to the existence of a triable issue of fact, the motion for summary judgment must be denied (Rotuba Extruders v Ceppos, 46 NY2d 223, 231 [1978]; Grossman v Amalgamated Hous. Corp., 298 AD2d 224, 226 [1st Dept 2002]). Labor Law § 240 (1) Claim NYY Steak and Plaza move for summary judgment dismissing the Labor Law § 240 (1) claim as against them. Plaintiff cross moves for partial summary judgment in his favor as to liability on the Labor Law § 240 (1) claim as against all defendants. Labor Law § 240 (1), also known as the Scaffold Law (Ryan v Morse Diesel, 98 AD2d 615, 615 [1st Dept 1983]), provides, in relevant part: “All contractors and owners and their agents . . . 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 5 5 of 16 9 12 FILED: NEW YORK COUNTY CLERK 06/26/2020 06/25/2020 12:02 01:43 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 512 503 RECEIVED NYSCEF: 06/26/2020 06/25/2020 constructed, placed and operated as to give proper protection to a person so employed.” It is well established that Labor Law § 240 (1) applies to “extra- ordinary elevation risks,” and not the “usual and ordinary dangers of a construction site” (Rodriguez v Margaret Tietz Ctr. for Nursing Care, 84 NY2d 841, 843 [1994]). To establish liability under Labor Law § 240 (1), the plaintiff must establish the following two elements: (1) a violation of the statute, i.e., that the owner or general contractor failed to provide adequate safety devices; and (2) that the statutory violation was a proximate cause of the injuries (Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 289 [2003]). Where a plaintiff is the sole proximate cause of an injury, liability does not attach under the statute (id. at 290). In Rocovich v Consolidated Edison Co. (78 NY2d 509 [1991]), the Court of Appeals explained that: “[t]he contemplated hazards 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” (id. at 514). “The special hazards . . . however, do not encompass any and all perils that may be connected in some tangential way with the effects of gravity. Rather, the special hazards referred to are limited to 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] [internal citations and quotations omitted]; see also Runner v New York Stock Exch., Inc., 13 NY3d 599, 603 [2009] [“the single decisive 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”]). Labor Law § 240 (1) does not apply to the circumstances of this case. According to plaintiff, he stepped on a piece of wood while walking backwards that caused him to lose his balance into a pit that was about 18 inches deep (see plaintiff tr at 97-99, 102; plaintiff affidavit, ¶ 18). Usher testified that the depth of the subject pit was approximately 18 inches (see Usher tr at 92). Vespe testified that the depth of the pit was approximately 12 inches (see Vespe tr at 48). Given the aforementioned deposition testimony, the subject pit was at most 18 inches deep. Plaintiff was performing his assigned task of 6 10 6 of of 12 16 FILED: NEW YORK COUNTY CLERK 06/26/2020 06/25/2020 12:02 01:43 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 512 503 RECEIVED NYSCEF: 06/26/2020 06/25/2020 delivering a refrigeration unit by pushing a cart at the basement level when the accident occurred. Thus, plaintiff “was exposed to the usual and ordinary dangers of a construction site, and not the extraordinary elevation risks envisioned by Labor Law § 240 (1)” (Rodriguez, 84 NY2d at 843; see also Lombardo v Park Tower Management Ltd., 76 AD3D 497, 498 [1st Dept 2010] [finding that 18 inch elevation differential of the plaintiff’s fall from a broken step “was not of sufficient height to trigger the protection of § 240 (1), nor was plaintiff exposed to the type of extraordinary risk for which the statute was designed”]; Romeo v Property Owner (USA) LLC, 61 AD3d 491, 491 [1st Dept 2010] [finding that the plaintiff’s right foot falling 18 inches below into a hole "while walking on the permanent floor did not involve an elevation-related hazard of the type contemplated by [§ 240 (1)], and did not necessitate the provision of the type of safety devices set forth in the statute”]; see all Nicometi v Vineyards of Fredonia, LLC, 25 NY3d 90, 99 [2015] [finding that the injuries plaintiff sustained when he slipped on a patch of ice and fell to the floor while using stilts to install insulation in a ceiling were not the direct consequence of an elevation-related risk within the scope of Labor Law § 240 (1)]; Cohen v Memorial Sloan-Kettering Cancer Ctr., 11 NY3d 823, 825 [2008] [finding that Labor Law § 240 (1) did not apply where injuries sustained by a worker while installing pipe racks in ceiling when he attempted to climb off a ladder and could not clear the first step due to protruding pipes from a nearby unfinished wall because injuries were a result of the usual and ordinary dangers at a construction site not elevation- related hazard]). Therefore, the branch of plaintiff’s cross motion for partial summary judgment as to liability on the Labor Law § 240 (1) claim is denied, and the branch of the motion by NYY Steak and Plaza seeking dismissal of plaintiff’s Labor Law § 240 (1) claim is granted. The court has considered the remaining arguments and finds them unavailing. Labor Law § 241 (6) Claim NYY Steak and Plaza move for summary judgment on plaintiff’s Labor Law § 241 (6) claim. Plaintiff cross moves for partial summary judgment in his favor as to liability on the Labor Law § 241 (6) claim as against all defendants. 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: 7 11 7 of of 12 16 FILED: NEW YORK COUNTY CLERK 06/26/2020 06/25/2020 12:02 01:43 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 512 503 RECEIVED NYSCEF: 06/26/2020 06/25/2020 (6) All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, [and] equipped . . . as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places. . . .” Labor Law § 241 (6) imposes a nondelegable duty “on owners and contractors to ‘provide reasonable and adequate protection and safety’ for workers” (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [1993]). However, Labor Law § 241 (6) is not self-executing, and in order to show a violation of this statute, and withstand a defendant’s motion for summary judgment, it must be shown that the defendant violated a specific, applicable, implementing regulation of the Industrial Code, rather than a provision containing only generalized requirements for worker safety (id. at 505). Plaintiff’s complaint alleges violations of Industrial Code provisions 12 NYCRR 23-1.7 (b) (1) (i) (ii) (iii) (a) (b) (c). 12 NYCRR 23-1.7(b) (1) applies to hazardous openings and requires that hazardous openings "into which a person may step or fall . . . be guarded by a substantial cover . . . or by a safety railing constructed and installed in compliance with this Part (rule)." The First Department has held that an 18-inch deep opening is not the type of opening to which 12 NYCRR 23-1.7 (b) (1) applies (see Romeo, 61 AD3d at 492 [dismissing plaintiff’s Labor Law § 240 (1) claim based on an alleged violation of 12 NYCRR 23-1.7 (b) (1) because "the 18-inches depth to the sub- floor did not present significant depth" warranting such protection]). Therefore, 12 NYCRR 23-1.7 (b) (1) and all of its subdivisions are not applicable in this case. Plaintiff alleges in his complaint a violation of 12 NYCRR 23-1.15. This section applies to safety railings and is inapplicable as a matter of law because plaintiff was not provided with a safety railing (see Dzieran v 1800 Boston Road, LLC, 25 AD3d 336 [1st Dept 2006] [dismissing the plaintiff's Labor Law § 241(6) claim based on an alleged violation of 12 NYCRR 23-1.15 because the plaintiff was not provided with a safety railing]; Ferluckaj v Goldman Sachs & Co., 53 AD3d 422 [2d Dept 2008] [finding that the plaintiff's Labor Law § 241(6) claim based on an alleged violation of 12 NYCRR 23-1.15 should have been dismissed because the section applies only where a worker was provided with safety railings]). Plaintiff also alleges violations of Industrial code provisions 12 NYCRR 23-1.7(e) (1) and (2). Section 23-1.7 (e) (Tripping and other hazards) provides as follows: 8 12 8 of of 12 16 FILED: NEW YORK COUNTY CLERK 06/26/2020 06/25/2020 12:02 01:43 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 512 503 RECEIVED NYSCEF: 06/26/2020 06/25/2020 “(1) Passageways. All passageways shall be kept free from accumulations of dirt and debris and from any other obstructions or conditions which could 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” In Dalanna v City of New York (308 AD2d 400 [1st Dept 2003]), a plumber tripped over a protruding bolt while carrying a pipe across an outdoor 50-foot-long concrete slab. In that case, the First Department held that neither section 23-1.7 (e) (1) nor 23-1.7 (e) (2) applied: “[t]he slab, although regularly traversed to bring pipes to the tanks, remained a common, open area between the job site and the street, and thus was not [a] ‘passageway’ covered by 12 NYCRR 23-1.7 (e) (1), and at best was a ‘working area’ covered by 12 NYCRR 23-1.7 (e) (2). However, the bolt, which was embedded in the ground, was not ‘dirt,’ ‘debris,’ ‘scattered tools and materials’ or a ‘sharp projection[],’ as required by the latter provision” (id. at 401 [citations omitted]). Here plaintiff’s accident occurred when he fell into an 18-inch-deep pit while walking backwards pulling a dolly. His accident did not occur as a result of “accumulations of dirt and debris,” “scattered tools and materials,” or “sharp projections” (see Dalanna, 308 AD2d at 401). Therefore, this section is not applicable. Plaintiff alleges in his complaint a violation of industrial code provision 12 NYCRR 23-1.30 which pertains to illumination. Gomez and Usher both testified during their depositions that there was no issue with the lighting in the area by the subject pit (see Gomez tr at 153, 154,156; Usher tr at 146). Plaintiff testified he was walking backwards right before the accident while pulling the dolly (Plaintiff tr at 97-99, 102). Plaintiff’s conclusory deposition testimony that the lighting in the basement area was “dark” (plaintiff tr at 92) is not sufficient to support a violation of this regulation (see Carty v Port Authority of New York and New Jersey, 32 AD 3d 732 [1st Dept 2005] [holding that the plaintiff's testimony that the lighting in the basement was "dark" was "'insufficient to create an inference that the amount of lighting fell below the specific statutory standards”][internal 9 13 9 of of 12 16 FILED: NEW YORK COUNTY CLERK 06/26/2020 06/25/2020 12:02 01:43 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 512 503 RECEIVED NYSCEF: 06/26/2020 06/25/2020 citations and quotations omitted]; Kochman v City of New York, 110 AD3d 477 [1st Dept 2013] [dismissing the plaintiff's Labor Law § 241(6) claim based on a violation of Rule 23-1.30 because his allegations were too vague to support any inference that the lighting fell below the specific statutory requirements]). Therefore, this section is not applicable to this case. Plaintiff alleges a violation of 12 NYCRR 23-5.1 (j) in his complaint. This section sets forth standards for the construction of safety railings on scaffold platform. This section is not applicable as a matter of law because plaintiff was not on a scaffold platform at the time of the accident. Since plaintiff has failed to identify a specific and applicable industrial code regulation that was violated, plaintiff’s Labor Law § 241 (6) claim is dismissed (see Owens v Commercial Sites, 284 AD2d 315, 315 [2d Dept 2001]). Therefore, the branch of plaintiff’s cross motion for partial summary judgment as to liability for Labor Law § 241 (6) is denied, and the branch of the motion by NYY Steak and Plaza seeking dismissal of plaintiff’s Labor Law § 241 (6) claim is granted. The court has considered the remaining arguments and finds them unavailing. Labor Law § 200 and Common Law Negligence Claims NYY Steak and Plaza move for summary judgment dismissing plaintiffs’ Labor Law § 200 and common law negligence claims as against them. Labor Law § 200 (1) provides: “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. The board may make rules to carry into effect the provisions of this section.” It is well established that Labor Law § 200 is a codification of the common-law duty imposed upon landowners and general contractors to provide workers with a reasonably safe place to work (Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 877 [1993]), and, therefore, the same standards apply to both Labor Law § 200 and common-law negligence theories of recovery. “Liability pursuant to Labor Law § 200 may fall into two broad categories: workers ‘injured as a result of dangerous or defective premises condition at a work site, and those involving the manner in which the work is performed’” (McLean v 405 Webster Ave. Assoc., 98 AD3d 1090, 10 10 of 16 14 12 FILED: NEW YORK COUNTY CLERK 06/26/2020 06/25/2020 12:02 01:43 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 512 503 RECEIVED NYSCEF: 06/26/2020 06/25/2020 1093 [2d Dept 2012], quoting Ortega v Puccia, 57 AD3d 54, 61 [2d Dept 2008]). When an injury arises out of a dangerous or defective premises condition, “a property owner is liable under Labor Law § 200 when the owner created the dangerous condition causing an injury or when the owner failed to remedy a dangerous or defective condition of which he or she had actual or constructive notice” (Mendoza v Highpoint Assoc., IX, LLC, 83 AD3d 1, 9 [1st Dept 2011] [internal quotation marks and citation omitted]). To prevail on a claim under Labor Law § 200 and common-law negligence, where the injury arises out of the means or methods of the construction work, the plaintiff must establish that the defendant supervised or controlled the activity giving rise to the injury (see Hughes v Tishman Constr. Corp., 40 AD3d 305, 306 [1st Dept 2007]; Cahill v Triborough Bridge & Tunnel Auth., 31 AD3d 347, 350 [1st Dept 2006]). General supervision over the work, including coordination of the trades and inspection of quality of the work, is insufficient to impose liability (see Hughes, 40 AD3d at 306). This branch of the motion by defendants NYY Steak and Plaza is granted. There is nothing in the record to establish that defendants supervised or controlled the work, other than general supervision, giving rise to plaintiff’s injury or that defendants created the alleged dangerous condition or had notice of it prior to the accident. The court has considered all remaining arguments and finds them unavailing. Remaining Claims In light of the dismissal of the main action insofar as asserted against defendants the remaining claims are dismissed as acad