Santos v. Condo 124 LLC

• Decision Date: 29 May 2018
• Docket Number: Index 110582/10,5976
• Parties: Franklin SANTOS, et al., Plaintiffs–Respondents–Appellants, v. CONDO 124 LLC, et al., Defendants–Respondents, Construction & Realty Safety Group, Inc., Defendant–Appellant–Respondent.
• Court: New York Supreme Court — Appellate Division

161 A.D.3d 650

78 N.Y.S.3d 113

Franklin SANTOS, et al., Plaintiffs–Respondents–Appellants,

v. CONDO 124 LLC, et al., Defendants–Respondents,Construction & Realty Safety Group, Inc., Defendant–Appellant–Respondent.

5976

Index 110582/10

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

Decided May 29, 2018

Abrams, Gorelick, Friedman & Jacobson, LLP, New York (Barry Jacobs of counsel), for appellant-respondent.

Gorayeb & Associates, P.C., New York (John M. Shaw of counsel), for respondents-appellants.

Marks, O'Neill, O'Brien, Doherty & Kelly, P.C., New York (Anthony Broccolo of counsel), for respondents.

Friedman, J.P., Andrias, Singh, Moulton, JJ.

Order, Supreme Court, New York County (Lucy Billings, J.), entered November 28, 2016, which, insofar as appealed from as limited by the briefs, denied defendant Construction & Realty Safety Group, Inc.'s (CRSG) motion for summary judgment dismissing the Labor Law § 240(1) and § 241(6) claims as against it on the grounds that it was not a statutory agent under the statutes, denied plaintiffs' cross motion for partial summary judgment on the Labor Law § 240(1) claim, and granted defendants' motions for summary judgment dismissing the Labor Law § 200 and common-law negligence claims and the Labor Law § 241(6) claim predicated on Industrial Code ( 12 NYCRR) §§ 23–1.7(b)(1)(ii), (iii), 23–5.1(j), and 23–5.3(e), affirmed, without costs.

Plaintiff Franklin Santos alleges that on July 28, 2010, he was injured when he fell from a scaffold at a construction site. Under construction was a mixed hotel and condominium building. Defendants Condo 124 LLC, 124 Longview Owners, LLC, and Ramius, LLC were the owners of the building being constructed (the owners). Defendant Ross & Associates, LLC (Ross) was the construction manager on the project, which retained CRSG as site safety consultant. Santos worked as a mason's helper for nonparty subcontractor Bayport Construction (Bayport). Bayport erected the scaffolds in order to perform its masonry work.

By amended verified complaint, plaintiffs asserted causes of action for common-law negligence, violations of Labor Law §§ 200, 240(1), and 241(6), and a derivative claim on behalf of Santos's wife. Plaintiffs alleged that Santos's injuries were the result of defendants' failure to maintain a safe work site, particularly the failure to provide him with adequate scaffolding.

They alleged that defendants violated, inter alia, Industrial Code §§ 23–1.5, 23–1.7, 23–1.15, 23–1.16, 23–1.17, 23–5.1, and 23–5.3.

During his deposition, Santos testified that he was responsible for carrying materials such as "[c]ement, blocks, [and] marble." On the date of the accident, Santos carried marble down to the cellar, before bringing it upstairs. The marble was brought to the cellar at first because the scaffolding had not yet been set up.

Santos carried the marble up the metal staircase inside a tower scaffold on site. The marble weighed 400 to 500 pounds. The scaffold's steps were three feet wide, and reached a height of eight or nine feet. The scaffold was 9 to 10 feet off the ground. The accident occurred when Santos and a coworker known only as Giovanni carried a block of marble up the scaffolding. Santos was walking backwards. Giovanni faced him. Santos states that once he got "upstairs" he "step[ped] back" and went "completely downwards." Santos alleges that he fell 10 to 12 feet onto the pipes of the scaffold's lower level. At the time of the accident, Santos was holding the marble from underneath. He did not recall what happened to the marble after he fell. Santos did not have a back brace

, harness, or other safety equipment at the time.

The scaffold floor was made out of wooden planks. When Santos fell, he alleges that the floor was missing some of the planks, which caused the accident. According to Santos, it was evident that Bayport's employees, who erected the scaffold that morning, did not install all the necessary planking. It is undisputed that Santos only received instructions from other Bayport employees.

Sanjeev Kumar worked for Bayport as a supervisor at the time of the accident. Bayport employees were required to inspect all scaffolds daily. The scaffold platform was comprised of about six wooden planks. Kumar knew Carmine DeSimone as a safety inspector, but did not know for whom he worked. DeSimone never talked with Kumar about the scaffolding. Kumar did not receive any reports about defects on the scaffold prior to the accident. Kumar was told by a Bayport employee "Franklin [Santos] fell from [the] scaffold." Kumar found Santos at the crossbars that are on the side of the platform. After the accident, Kumar inspected the scaffold and saw six planks on the platform from which plaintiff fell. There was no space between the stairs and the platform and he found nothing wrong with the scaffold. Santos and Giovanni were not wearing safety harnesses when the accident happened.

Dirk McRae was a project manager for Ross and was responsible for safety at the site. CRSG was the site's safety manager. McRae talked with DeSimone most days at the work site. Bayport was the entity on site responsible for scaffolds. McRae observed the scaffold on the day of the accident, saw no net under it, and no safety lines above it. There was no general contractor on the site distinct from Ross. If McRae saw an unsafe condition he had the authority to stop work.

DeSimone, CRSG's safety consultant at the site, testified that Ross hired CRSG to "look over the men to make sure everybody is working safe ... [and ensure the] safety of the job site." After the accident, DeSimone observed the scaffold from which Santos fell. It was in good condition, "normal scaffolding, planks were right." None of the planks were splintered, broken, or appeared out of order.

DeSimone, as safety manager, could only stop work at the site if there was an immediate danger. If he saw unsafe practices he would alert the worker to desist.

"If [he] s[aw] somebody in immediate danger, [he] would stop them from working and tell their supervisor," but could not simply "stop the project or workers from working." DeSimone could not alter the "means or methods" of the worker's employer. If he was not happy with a supervisor's response, DeSimone would file a report with Ross. In his safety manager log, DeSimone noted, on July 7, 2010, that there was an "[i]nadequate scaffold" at the site. DeSimone noted that the scaffold did not have "toe boards" or "cross bars".

CRSG moved for summary judgment arguing that it was not a "statutory agent" for purposes of the Labor Law. Ross and the owners moved for summary judgment dismissing the complaint arguing that the section 240(1) claim should be dismissed because there was no evidence that Santos fell due to a defect in the scaffold in that the claim that he fell due to missing planks was belied by the record. Ross argued that the complaint should be dismissed as against it because it was not a general contractor, and it did not provide safety equipment to or control the means and methods of Santos's work.

Ross and the owners also moved for summary judgment on the section 241(6) claim arguing that plaintiffs did not specify in the bill of particulars which sections of the Industrial Code were violated. Finally, Ross and the owners moved for summary judgment on the common-law negligence and Labor Law § 200 claims arguing that Ross and the owners did not supervise Santos's work and did not have notice of any defect that caused Santos's fall. Plaintiffs' cross-moved for partial summary judgment on their Labor Law § 240(1) claim.

Supreme Court denied CRSG's motion for summary judgment and plaintiffs' cross motion for partial summary judgment. Supreme Court granted Ross's and the owners' motion for summary judgment on the section 241(6) claims predicated on Industrial Code §§ 23–1.7(b)(1)(ii) and (iii) and Industrial Code §§ 23–5.1(j), and 23–5.3(e) as inapplicable to the facts of the case. The court also dismissed the common-law negligence and section 200 claims because defendants did not have the requisite level of supervision or control over Santos's work, and did not have notice of the condition that caused the accident.

Supreme Court properly denied CRSG's motion for summary judgment. Labor Law §§ 240(1) and 241(6) impose absolute liability on "contractors and owners and their agents" for worker injuries on construction sites (see Russin v. Louis N. Picciano & Son, 54 N.Y.2d 311, 317, 445 N.Y.S.2d 127, 429 N.E.2d 805 [1981] ). CRSG, as site safety consultant, was neither an owner nor general contractor on the project. Thus, whether CRSG is subject to the Labor Law is dependant on whether it was an "agent" of the owners or Ross at the site.

To hold a defendant liable under the Labor Law as a "statutory agent" of either the owner or the general contractor, it must be shown that the defendant had the " ‘authority to supervise and control’ " the injury-producing work ( Walls v. Turner Constr. Co., 4 N.Y.3d 861, 864, 798 N.Y.S.2d 351, 831 N.E.2d 408 [2005], quoting Russin at 318, 445 N.Y.S.2d 127, 429 N.E.2d 805 ; see Oliveri v. City of New York, 146 A.D.3d 522, 522, 44 N.Y.S.3d 447 [1st Dept. 2017] ). The determinative factor is whether the defendant had the right to exercise control over the work, not whether it actually exercised that right (see Bart v. Universal Pictures, 277 A.D.2d 4, 6, 715 N.Y.S.2d 240 [1st Dept. 2000] ). Where the owner or general contractor delegates to a third party the duty to conform to the requirements of the Labor Law, that third party becomes the statutory agent (see Walls, 4 N.Y.3d at 863–864, 798 N.Y.S.2d 351, 831 N.E.2d 408 ).

The authority of DeSimone, as an employee of CRSG, to stop work in the event of unsafe practices raises an issue of fact as to whether CRSG is a "statutory agent" for purposes of the Labor Law (compare Barreto v. Metropolitan Transp. Auth., 25 N.Y.3d 426, 434, 13 N.Y.S.3d 305, 34 N.E.3d 815 [2015] [defendant wa...