O'Sullivan v. Idi Construction Company, Inc.

• Citation: 28 A.D.3d 225,2006 NY Slip Op 02614,813 N.Y.S.2d 373
• Decision Date: 06 April 2006
• Docket Number: 7931.
• Parties: SEAN O'SULLIVAN, Appellant, v. IDI CONSTRUCTION COMPANY, INC., Respondent, et al., Defendant. IDI CONSTRUCTION COMPANY, INC., Third-Party Plaintiff, v. TEMAN ELECTRICAL CONSTRUCTION, INC., et al., Third-Party Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

28 A.D.3d 225

813 N.Y.S.2d 373

2006 NY Slip Op 02614

SEAN O'SULLIVAN, Appellant, v. IDI CONSTRUCTION COMPANY, INC., Respondent, et al., Defendant.

IDI CONSTRUCTION COMPANY, INC., Third-Party Plaintiff, v. TEMAN ELECTRICAL CONSTRUCTION, INC., et al., Third-Party Defendants-Respondents.

7931.

Appellate Division of the Supreme Court of the State of New York, First Department.

April 6, 2006.

Order, Supreme Court, New York County (Sherry Klein Heitler, J.), entered February 9, 2005, which, insofar as appealed from as limited by the briefs, granted the motion by defendant IDI Construction Company (IDI) for summary judgment dismissing the complaint, affirmed, without costs.

Plaintiff, while working as the employee of a subcontractor at a construction site, tripped over an electrical pipe protruding two or three feet from a newly laid floor. For the reasons explained below, the motion court correctly granted the motion for summary judgment dismissing plaintiff's causes of action against IDI, the general contractor, for alleged violation of Labor Law §§ 200 and 241 (6), and for common-law negligence. We observe that IDI is the only direct defendant that has appeared or answered in this action.

To prevail on a cause of action pursuant to Labor Law § 241 (6), a plaintiff must prove a violation of a provision of the Industrial Code that sets forth a specific safety standard (see Ross v. Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 505 [1993]). Here, the record contains no evidence of any violation of 12 NYCRR 23-1.7 (e) (1) or (2) (relating to tripping hazards in passageways or work areas caused by the accumulation of dirt, debris or obstructions), the Industrial Code provisions on which plaintiff bases his Labor Law § 241 (6) cause of action. The record reveals that plaintiff was injured in an open work space, not a passageway (see Alvia v. Teman Elec. Contr., 287 AD2d 421, 423 [2001], lv dismissed 97 NY2d 749 [2002]; Isola v. JWP Forest Elec. Corp., 267 AD2d 157, 158 [1999]). Moreover, he did not trip over an accumulation of dirt, debris, scattered tools or materials, but rather over a permanently placed electrical pipe, and there is no liability under section 241 (6) where the injury-producing object is an integral part of what is being constructed (see Isola v. JWP Forest Elec. Corp., 267 AD2d at 158; Vieira v Tishman Constr. Corp., 255 AD2d 235, 235-236 [1998]). Despite plaintiff's argument to the contrary, the record is clear that the protruding pipe was an integral part of the floor on which he was working. Indeed, plaintiff conceded that the conduit he tripped over appeared to be permanent. Unlike the situation in Rizzo v. HRH Constr. Corp. (301 AD2d 426 [2003]), the record here is sufficiently developed "to permit [a] finding[] that the [obstruction] was . . . an integral part of a floor under construction" (id. at 427 [citations omitted]).

Plaintiff's claims for common-law negligence and under Labor Law § 200, which is a codification of the owner's or general contractor's common-law duty to maintain a safe construction site, were also properly dismissed. In order to prevail on such a claim against an owner or general contractor, a plaintiff must prove that the party so charged had authority or control over the activity causing the injury, thus enabling it to avoid or correct an unsafe condition (Rizzuto v. L.A. Wenger Contr. Co., 91 NY2d 343, 352 [1998]). Not only was the allegedly dangerous condition here (failing to safeguard workers against the tripping hazard created by the protruding pipes) created by a subcontractor, but the record is devoid of any evidence that IDI, the general contractor, supervised, controlled or directed the performance of plaintiff's job. Plaintiff has admitted never speaking with or taking instructions from anyone other than his supervisor at Cosner. Therefore, while the general contractor's on-site safety manager may have had overall responsibility for the safety of the work done by the subcontractors, such duty to supervise and enforce general safety standards at the work site was insufficient to raise a question of fact as to its negligence (see Singh v. Black Diamonds LLC, 24 AD3d 138, 140 [2005]; Torres v. Morse Diesel Intl., Inc., 14 AD3d 401, 403 [2005]). Absent any evidence that IDI gave anything more than general instructions as to what needed to be done, as opposed to how to do it, these entities cannot be held liable under Labor Law § 200 or for common-law negligence (see Dalanna v. City of New York, 308 AD2d 400 [2003]).

We note that the dissent's reliance on Singh v. Black Diamonds LLC (24 AD3d 138 [2005], supra) as support for reinstating the Labor Law § 200 claim is completely misplaced. On the contrary, Singh plainly requires dismissal of that cause of action under the uncontroverted facts appearing in the record of this case. In Singh, we affirmed summary judgment dismissing negligence and Labor Law § 200 claims against a general contractor (Bovis), notwithstanding that the Bovis project superintendent "conducted regular walk-throughs and, if he observed an unsafe condition, had the authority to find whoever was responsible for the condition and have them correct it or, if necessary, stop the work" (24 AD3d at 140). Indeed, even though the Bovis project superintendent had "discussed covering the subject hole in the roof [through which the plaintiff later fell]" and "had inspected the plywood in question after it had been nailed down over the hole" (id.), we held that such activity "simply indicate[d] Bovis's general supervision and coordination of the work site and [was] insufficient to trigger liability" (id. [emphasis added], citing Vasiliades v. Lehrer McGovern & Bovis, 3 AD3d 400, 401-402 [2004]). Thus, that the general contractor in this case "had an on-site safety manager with responsibility for the safety of the work done by subcontractors" does not (contrary to the dissent's assertion) provide any basis for imposing liability on the general contractor based on an injury allegedly caused by a subcontractor's work.

There is no basis in the record for the dissent's speculation that IDI's safety manager in this case had greater authority or obligation to act than did Bovis's project superintendent in Singh. The Singh project superintendent's "authority to find whoever was responsible for the [unsafe] condition and have them correct it or, if necessary, stop the work" (24 AD3d at 140) is not meaningfully distinguishable from the task of "directing the correction of an unsafe condition" that the dissent attributes to the safety manager in this case. At any rate, no rational inference of a distinction between the roles of these officials can be drawn from the fact that the official in Singh was called a "project superintendent" while the official here was called a "safety manager." As to the dissent's suggestion that IDI could be held liable for the "decision as to where to situate the conduit," there does not appear to be any basis in the record for the dissent's implicit speculation that it would have been possible for the "overall construction plan" to have placed the conduit at another spot that would have posed less of a risk.

We have considered plaintiff's remaining arguments and find them unavailing.

Concur — Andrias, J.P., Friedman and Williams, JJ.

Saxe and Malone, JJ., dissent in part in a memorandum by Saxe, J., as follows:

On October 14, 2000, while employed as a cement and concrete laborer at a multistory construction site at the corner of 51st Street and First Avenue in Manhattan, plaintiff Sean O'Sullivan was injured when he tripped over a two-to-three-inch-wide pipe sticking up from the floor to a height of two to three feet. Although he had noticed the presence of the pipe before, on this occasion he was carrying two three-by-four-inch wooden ribs, used to support concrete forms, and did not see the pipe.

The property was owned by defendant 251 East 51st Street Corp., defendant IDI Construction Company was the general contractor on the project, plaintiff's employer, third-party defendant Cosner Construction, was the concrete subcontractor, and the other third-party defendant, Teman Electrical Construction, Inc., was the electrical subcontractor.

I agree with the majority that plaintiff has no viable claim under Labor Law § 241 (6). The Industrial Code regulation set forth in 12 NYCRR 23-1.7 (e) is inapplicable to a pipe permanently embedded in the poured concrete floor, which is clearly an integral part of the plan of construction, and not an accumulation of debris or an obstruction that ought to have been removed (see ...