Benway v. Melcara Corp.

• Court: New York Supreme Court
• Writing for the Court: George J. Silver
• Citation: Benway v. Melcara Corp., 2013 NY Slip Op 32194, INDEX NO. 111113-09, MOTION SEQ. NO. 005 (N.Y. Sup. Ct. Sep 12, 2013)
• Decision Date: 12 September 2013
• Docket Number: MOTION SEQ. NO. 005,INDEX NO. 111113-09
• Parties: BENWAY, ALFRED v. MELCARA CORP., PRISMA CONSTRUCTION, INC. and INDANZA CONSTRUCTION, INC.

2013 NY Slip Op 32194

BENWAY, ALFRED v. MELCARA CORP., PRISMA CONSTRUCTION, INC. and INDANZA CONSTRUCTION, INC.

INDEX NO. 111113-09

MOTION SEQ. NO. 005

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PART 10

FILED: September 18, 2013

Dated: September 12, 2013

PRESENT: Hon. George J. Silver

Justice

The following papers, numbered 1 to 7 were read on this motion for _______

Notice of Motion/ Order to Show Cause — Affirmation — Affidavit(s) —

Exhibits

No(s). 1, 2

Notice of Cross-Motion— Affirmation — Affidavit(s) — Exhibits

No(s). 3

Answering Affirmation(s) — Affidavit(s) — Exhibits

No(s). 4, 5

Replying Affirmation - Affidavit(s) - Exhibits

No(s). 6, 7

Upon the foregoing papers, it is ordered that the motion is

In an action to recover for personal injuries allegedly sustained during an accident on a construction site, Defendants Melcara Corp. ("Melcara") and Prisma Construction Inc. ("Prisma") move for an Order pursuant to CPLR §3212, granting Defendants summary judgment and dismissing Plaintiff Alfred Benway's ("Plaintiff") claims. Plaintiff opposes the motion and cross moves for leave to supplement his Bill of Particulars, which Defendants oppose.

On March 18, 2009, Plaintiff, an employee of Department of Housing, Preservation, and Development ("HPD"), was tasked with inspecting the fireproofing at various HPD job sites, including a project at 310 W. 122^nd Street, New York, New York ("the building"). Melcara was hired as the construction manager of the renovation and rehabilitation project at the building. Melcara hired Prisma as its general contractor, who hired Indanza Construction Inc. ("Indanza") as a subcontractor to complete work on demolition, sheet rock, framing, window installation, and tile work. While Plaintiff was at the premises during an inspection, he walked down the stairs between the third and fourth floors of the building and tripped on the height difference between the metal nosing and unsecured sheetrock on the stairs. Plaintiff fell forward, sustaining injuries.

In support of its motion, Defendants Melcara and Prisma argue that all claims against it under Labor Law §240(1) and §241(6) should be dismissed. Defendants argue that Labor Law §240(1) was enacted to protect workers using inadequate scaffolding, ladders, and hoists, where the employers failed to provide the workers proper protection. Plaintiff did not fall from an unsafe elevated mechanism like a scaffold, ladder, or hoist while performing work on a project. Rather, he tripped and fell on a permanent staircase and as such, the claim under Labor Law §240(1) should be dismissed. Defendants also argue that Plaintiff's claim under Labor Law §241(6) should be dismissed. In order to have a claim under Labor Law §241(6), Plaintiff must allege specific violations of the Commissioners regulations in the Industrial Code. Defendants argue that 12 NYCRR 23-1.7(d), which involves slipping on foreign substances, is not applicable. Based upon Plaintiff's own testimony, he does not claim that he slippedon anything but rather claims he tripped on the stairwell. Further, Defendants argue that 12 NYCRR 23-1.7(e)(1) and (2) are not applicable to this case. 12 NYCRR 23-1.7(e)(2) is inapplicable where Plaintiff does not allege that he tripped as a result of dirt, debris, or scattered tools in the work area. 12 NYCRR 23-1.7(e)(1) concerns passageways being kept free from dirt and debris accumulation that could cause tripping. The sheetrock upon which Plaintiff allegedly tripped is an "integral part" of the work being performed and Plaintiff testified that his boot got caught on the raised nosing of the stair, not on any materials or debris on the stair case. As such, Plaintiff cannot maintain a cause of action 12 NYCRR 23-1.7(e)(1) or (2). Defendants also argue that Plaintiff's amended complaint alleges violations of 12 NYCRR 23-1.5, 23-1.7(f), and 23-2.1(b). 12 NYCRR 23-1.5 alone lacks the specificity required to support a cause of action under Labor Law §241(6) where it only addresses the general responsibility of employers. NYCRR 23-1.7(f) addresses the need for vertical passages at work sites and the absence of such passages is a violation of the regulation. There is no allegation in this case of the absence of a stairwell, making this regulation inapplicable. Lastly, 12 NYCRR 23-2.1(b) addresses disposal of debris, which is never alleged in Plaintiff's claim or in his testimony.

Lastly, Defendants argue that all claims against Melcara should be dismissed where, as a construction manager, it should not be considered an "owner" within the meaning of the Labor Law statutes. Defendants argue that Melcara can be held vicariously liable only where it had the ability/authority to control or supervise any activities on the job site, which Melcara contends it did not. Melcara's representative Demitrio Acot testified that Melcara had no employees on site at the premises and only had a representative visit the site a few times per week for a few minutes each visit and there is no testimony or evidence that Melcara had any control over the injury producing work on site. Further, for the same reasons, Melcara argues it also cannot be held liable under Labor Law §200.

In opposition, Plaintiff argues that there are issues of fact remaining in regards to Labor Law §241(6) and §200. Under his Labor Law §241(6) claim, Plaintiff argues that 12 NYCRR 23-1.7(e)(1) was violated where Plaintiff testified that he tripped on a height difference between the protective sheet rock placed on the stairs and a protruding metal nosing of nearly two inches. Additionally, the stair case was filled with loose and broken sheetrock and concrete stucco fragments. Further, since Prisma's witness William Douvas testified that the gap which caused the accident should not have been there, the gap cannot be said to have been integral to the work and as such, Defendants violated 12 NYCRR 23-1.7(e)(1). In further opposition, Plaintiff argues there are issues of fact as to who created the defect by placing the sheetrock on the stairs (between Indanza and Prisma) which caused Plaintiff's accident and as such, Defendants's motion for summary judgment on Labor Law §200 must be denied. Douvas, an employee of Primsa, testified that Indanza put down the sheetrock on the stairs. Jose Guzman, an employee of Indanza, denied this and testified that Prisma sent a former employee to place the sheetrock. Where each Defendant places blame on the other, neither claim should be dismissed by summary judgment. Plaintiff argues Melcara, as construction manager, should be found liable under Labor Law §200 where it had the power, pursuant to its contract with Prisma, to stop work in the event of a safety hazard. This authority is also exhibited in Melcara's contract with HPD. Lastly, Plaintiff argues Prisma, as general contractor, will be found liable under Labor Law §200 where it had the power to supervise or control all of the subcontractors, including the power to hire and fire.

Plaintiff cross moves for leave to amend its Bill of Particulars, where Plaintiff seeks to include a violation of 12 NYCRR 23-2.7(b) and (c) in its pleadings. Plaintiff alleges these sections were violated, where the raised nosing was a condition that caused tripping in a passageway. Further, Plaintiff argues that Defendants' use of sheet rock instead of temporary wooden treads on the stairs before they were filled with concrete could also cause tripping in a passageway and as such, is a violation of 12 NYCRR 23-2.7. Although this violation was not originally plead, it has been held repeatedly that failure to allege a specific violation of an Industrial Code is not necessarily fatal to the Labor Law §241(6) cause of action, especially where there is no unfair prejudice or surprise. Belated allegations of specific violations which involve no new factual allegations and raise no new theories of liability is allowable (see generally, Kellier v. Supreme Industrial Park, LLC, 293 A.D.2d 513 (2^nd Dept. 2002); Zuluga v.P.P.C. Const, LLC, 45 A.D.3d 479(1st Dept 2007)).

In opposition to Plaintiff's cross motion, Defendants argue that Plaintiff is seeking to amend/supplement its Bill of Particulars more than six months after the Note of Issue was filed and only in response to Defendants' Motion for Summary Judgment, with no explanation as to its delay. Defendants argue that the only time the Court will allow Plaintiff to amend its Bill of Particulars is when there is merit to the proposed amendment, which this application lacks. 12 NYCRR 23-2.7 concerns the placement and construction of temporary stairways but the stairway which Plaintiff allegedly tripped upon is permanent, albeit unfinished. Further, both William Douvas and Demitrio Acot testified that it is customary to use either sheetrock or plywood to temporarily fill the stairs before concrete is poured. Thus, Plaintiff's allegations that Defendants failed to use wooden treads is not in it of itself a violation of 12 NYCRR 23-2.7. Further, to the extent that Plaintiff seeks to include an OSHA violation, such a violation cannot serve as a predicate to liability under Labor Law §241(6).

Analysis

"A party moving for summary judgement must make a prima facie showing of entitlement to a judgement as a matter of law, providing sufficient evidence to demonstrate the absence of any material issue of fact." (Giuffrida v Citibank Corp., 100 NY2d 72, 81, 760 NYS2d 397, 790 NE2d 772 [2003]). "Once this showing has been made, the burden shifts to the nonmoving party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact that require a trial for resolution." (Id.) Defendants make their prima facie case for dismissal of Plaintiff's claim under Labor Law §240(1), where the statute, in relevant part, provides, "All contractors and owners and their agents ... in the erection, demolition, repairing, altering, painting, cleaning or pointing...