Flores v. Infrastructure Repair Serv., LLC

Decision Date25 September 2015
Citation2015 N.Y. Slip Op. 25461,52 Misc.3d 664,34 N.Y.S.3d 324
PartiesRaul FLORES, Plaintiff, v. INFRASTRUCTURE REPAIR SERVICE, LLC, Defendant.
CourtNew York Supreme Court

Timothy Norton Esq. and Richard Winograd Esq., Ginarte, O'Dwyer, Gonzalez, Gallardo & Winograd, LLP, New York, for Plaintiff.

Andrew Preston Esq. and Michael Siravo Esq., Bee Ready Fishbein Hatter & Donovan, LLP, Mineola, for Defendant.

LUCY BILLINGS, J.

The remaining defendant, Infrastructure Repair Service, LLC, a general contractor (GC), moves to preclude plaintiff's expert engineer, Harlan Fair, from testifying regarding defendant's or its subcontractors' violations of state regulations under New York Labor Law § 241(6) or of federal regulations under the federal Occupational Safety and Health Act of 1970 (OSHA), 29 U.S.C. §§ 651 –78.

I. TESTIMONY REGARDING THE APPLICABLE LAW

No expert, over objection, may testify what any law requires or whether it applies to the evidence adduced, which is a legal conclusion for the court to draw. Morris v. Pavarini Constr., 9 N.Y.3d 47, 51, 842 N.Y.S.2d 759, 874 N.E.2d 723 (2007) ; Buchholz v. Trump 767 Fifth Ave., 5 N.Y.3d 1, 7, 798 N.Y.S.2d 715, 831 N.E.2d 960 (2005) ; Lopez v. Chan, 102 A.D.3d 625, 626, 959 N.Y.S.2d 67 (1st Dep't 2013) ; McCoy v. Metropolitan Transp. Auth., 53 A.D.3d 457, 459, 863 N.Y.S.2d 8 (1st Dep't 2008). While an expert may testify regarding acts, omissions, or conditions that would constitute a violation of a state or federal regulation, other law, or duty of care or regarding other facts bearing on the issue, an expert may not, over objection, draw the ultimate conclusion that the evidence adduced does or does not amount to a violation. E.g., Lichtman v. Heit, 300 A.D.2d 242, 243, 752 N.Y.S.2d 649 (1st Dep't 2002) ; Colon v. Rent–A–Center, 276 A.D.2d 58, 61–62, 716 N.Y.S.2d 7 (1st Dep't 2000) ; Measom v. Greenwich & Perry St. Hous. Corp., 268 A.D.2d 156, 159, 712 N.Y.S.2d 1 (1st Dep't 2000) ; Litts v. Wayne Paving Co., 261 A.D.2d 906, 907, 689 N.Y.S.2d 840 (4th Dep't 1999). See People v. Inoa, 25 N.Y.3d 466, 473, 475, 13 N.Y.S.3d 329, 34 N.E.3d 839 (2015) ; Burtman v. Brown, 97 A.D.3d 156, 161, 164, 945 N.Y.S.2d 673 (1st Dep't 2012) ; People v. Vaello, 91 A.D.3d 548, 548, 937 N.Y.S.2d 51 (1st Dep't 2012) ; Dimond v. Salvan, 78 A.D.3d 407, 408, 909 N.Y.S.2d 725 (1st Dep't 2010). If an expert witness offers an ultimate conclusion whether a violation has occurred, that opinion necessarily depends on the witness' opinion of the law's requirements and applicability, which are legal conclusions that the court must delineate.

Thus, whether a violation has occurred is a legal conclusion either for the court to draw based on the undisputed relevant evidence or for the fact finder at trial to draw after determining the facts from conflicting relevant evidence and applying the law according to the court's instructions. E.g., Singh v. Kolcaj Realty Corp., 283 A.D.2d 350, 351, 725 N.Y.S.2d 37 (1st Dep't 2001) ; Miely–Watkins v. New Latham Hotel Corp., 262 A.D.2d 239, 239, 693 N.Y.S.2d 23 (1st Dep't 1999) ; Faber v. New York City Hous. Auth., 258 A.D.2d 394, 394, 685 N.Y.S.2d 691 (1st Dep't 1999) ; Berliner Handels-und Frankfurter Bank, N.Y. Branch v. Coppola, 172 A.D.2d 369, 373, 568 N.Y.S.2d 751 (1st Dep't 1991). See, e.g., Ivezic v. Tully Constr. Corp., 47 A.D.3d 480, 481, 850 N.Y.S.2d 65 (1st Dep't 2008) ; Singh v. Young Manor, Inc., 23 A.D.3d 249, 249–50, 804 N.Y.S.2d 65 (1st Dep't 2005) ; Ross v. Manhattan Chelsea Assocs., 194 A.D.2d 332, 333–34, 598 N.Y.S.2d 502 (1st Dep't 1993). The parties' attorneys of course may advocate what various laws require, whether they apply to the evidence, and that it does or does not establish a violation of those laws, but the court grants defendant's motion to the extent of precluding Harlan Fair from giving opinions on those questions.

Perhaps anticipating plaintiff's cross-motion, defendant also suggests that any evidence of facts showing a violation of the regulations under Labor Law § 241(6) is irrelevant, because the court already dismissed his claim under § 241(6) after determining that those regulations on which plaintiff relied, 12 N.Y.C.R.R. §§ 23–1.7(h) and 23–1.8(c), are inapplicable to the relevant evidence, which was undisputed. Flores v. Infrastructure Repair Serv., LLC, 115 A.D.3d 543, 543–44, 982 N.Y.S.2d 103 (1st Dep't 2014). Defendant further suggests that any evidence of facts showing a violation of OSHA regulations is irrelevant, because these regulations did not govern defendant GC's conduct insofar as it affected plaintiff, who was not defendant's employee.

II. STATE REGULATIONS UNDER NEW YORK LAW § 241(6)

Plaintiff, on the other hand, cross-moves to amend his bill of particulars to claim a violation of a regulation under Labor Law § 241(6), 12 N.Y.C.R.R. § 23–1.24(d), that he did not claim previously and that the court therefore did not address when concluding that other regulations under that statute were inapplicable and dismissing his claims under § 241(6). Although plaintiff's reliance on this newly claimed regulation raises no new facts, the new regulation would resuscitate a theory of liability and claim under Labor Law § 241(6) that the court already dismissed. A question then would arise whether that resuscitation of a previously dismissed theory of liability is prejudicial, see Fellner v. Morimoto, 52 A.D.3d 352, 353, 862 N.Y.S.2d 349 (1st Dep't 2008) ; Cherebin v. Empress Ambulance Serv., Inc., 43 A.D.3d 364, 365, 841 N.Y.S.2d 277 (1st Dep't 2007), or contrary to the law of the case, Flores v. Infrastructure Repair Serv., LLC, 115 A.D.3d at 543–44, 982 N.Y.S.2d 103, except that plaintiff relies on defendant's violation of 12 N.Y.C.R.R. § 23–1.24(d) only as evidence of its negligence to support his claims under Labor Law § 200 as well as for negligence. In any event, plaintiff fails to meet his burden to demonstrate the merit of this proposed amendment to his bill of particulars through admissible evidence. JPMorgan Chase Bank, N.A. v. Low Cost Bearings N.Y. Inc., 107 A.D.3d 643, 644, 969 N.Y.S.2d 19 (1st Dep't 2013) ; Greentech Research LLC v. Wissman, 104 A.D.3d 540, 541, 961 N.Y.S.2d 406 (1st Dep't 2013) ; Yuko Ito v. Suzuki, 57 A.D.3d 205, 208, 869 N.Y.S.2d 28 (1st Dep't 2008) ; Zaid Theatre Corp. v. Sona Realty Co., 18 A.D.3d 352, 355, 797 N.Y.S.2d 434 (1st Dep't 2005). See Sepulveda v. Dayal, 70 A.D.3d 420, 421, 893 N.Y.S.2d 549 (1st Dep't 2010). 12 N.Y.C.R.R. § 23–1.24(d) applies to “hot luggers,” used to transport hot roofing material, Stasierowski v. Conbow Corp., 258 A.D.2d 914, 915, 685 N.Y.S.2d 545 (4th Dep't 1999) ; Irwin v. St. Joseph's Intercommunity Hosp.,

236 A.D.2d 123, 125, 665 N.Y.S.2d 773 (4th Dep't 1997) ; Tallchief v. Jemco Roofing, 217 A.D.2d 915, 915–16, 629 N.Y.S.2d 603 (4th Dep't 1995), which plaintiff was carrying, and which spilled on him and caused serious burns to his body. 12 N.Y.C.R.R. § 23–1.24(d) requires that: “ Closed containers or devices used for transporting molten roofing materials” be equipped with specified safety features “to minimize hazards to persons caused by blowbacks of the molten roofing materials.” Irwin v. St. Joseph's Intercommunity Hosp., 236 A.D.2d at 125, 665 N.Y.S.2d 773.

Plaintiff, however, was carrying hot tar roofing material in an open bucket without a cover. 12 N.Y.C.R.R. § 23–1.24(d) is inapplicable to a tar container with “no lid or cover of any kind,” Castillo v. Starrett City, 4 A.D.3d 320, 322, 772 N.Y.S.2d 74 (2d Dep't 2004), and thus does not prohibit use of an open bucket to carry hot tar. Id. ; Stasierowski v. Conbow Corp., 258 A.D.2d at 915, 685 N.Y.S.2d 545. None of the facts alleged indicate a violation of this particular regulation and hence any causal connection between a violation and plaintiff's injury.

12 N.Y.C.R.R. § 23–1.24(d) thus is inapplicable to the undisputed admissible evidence. Therefore the court denies plaintiff's cross-motion to amend his bill of particulars to claim defendant's violation 12 N.Y.C.R.R. § 23–1.24(d) based on the claim's lack of merit. The court also grants defendant's motion to the extent of precluding Harlan Fair from giving testimony to establish a violation of 12 N.Y.C.R.R. § 23–1.24(d) or a causal connection between such a violation and plaintiff's injury.

The absence of a prohibition against use of an open bucket to carry hot tar, however, does not indicate that carrying hot tar in an open bucket is safe, is not “inherently dangerous,” and does not require safety precautions to minimize spillage that may cause serious burns. Stasierowski v. Conbow Corp., 258 A.D.2d at 915, 685 N.Y.S.2d 545. See Flores v. Infrastructure Repair Serv., LLC, 115 A.D.3d at 543, 982 N.Y.S.2d 103. Plaintiff maintains viable claims that defendant's violation of Labor Law § 200 and its negligence in failing to provide him adequate safety equipment caused his burns. Harlan Fair may testify regarding the facts bearing on this issue. Morris v. Pavarini Constr., 9 N.Y.3d at 51, 842 N.Y.S.2d 759, 874 N.E.2d 723.

III. FEDERAL REGULATIONS UNDER OSHA

Plaintiff also cross-moves to amend his bill of particulars to claim defendant's violations of OSHA regulations, as evidence of its negligence. Ganci v. Port Auth. Trans–Hudson Corp., 258 A.D.2d 386, 386, 686 N.Y.S.2d 9 (1st Dep't 1999) ; Gammons v. City of New York, 109 A.D.3d 189, 201–202, 972 N.Y.S.2d 559 (2d Dep't 2013) ; Murdoch v. Niagara Falls Bridge Commn., 81 A.D.3d 1456, 1457, 917 N.Y.S.2d 501 (4th Dep't 2011) ; Khan v. Bangla Motor & Body Shop, Inc., 27 A.D.3d 526, 528–29, 813 N.Y.S.2d 126 (2d Dep't 2006). Defendant insists that Fair may not testify even regarding facts that bear on defendant's violations of these regulations, because they did not govern defendant's conduct, even if it affected plaintiff, when he was not defendant's employee.

For plaintiff to hold defendant GC liable for negligently failing to provide him adequate safety equipment in the first...

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