Vasquez v. Urbahn Associates Inc.

Order, Supreme Court, New York County (Edward H. Lehner, J.), entered August 6, 2009, which granted the motion of defendants Great American Contracting Corp. and Home Again in Harlem LLC for summary judgment dismissing the complaint only insofar as it sought to dismiss the Labor Law § 241 (6) cause of action, and granted plaintiffs cross motion for summary judgment on the issue of liability on his Labor Law § 240 (1) claim, modified, on the law, the cross motion denied, the motion denied as to the Labor Law § 241 (6) cause of action, and, upon a search of the record, plaintiff granted summary judgment on the issue of liability on his Labor Law § 241 (6) cause of action insofar as it is premised upon a violation of Industrial Code (12 NYCRR) § 23-3.3 (c), and otherwise affirmed, without costs. 12 NYCRR 23-1.7 (f) imposes a duty upon a defendant to provide a safe staircase, free of defects (Murphy v American Airlines, 277 AD2d 25, 26 [2000] [defendant granted seeking summary judgment on plaintiff’s Labor Law § 241 (6) claim based upon a violation of 12 NYCRR 23-1.7 (f) when plaintiff was not injured as a result of a defect in the staircase or debris left thereon]; see also McGarry v CVP 1 LLC, 55 AD3d 441, 442 [2008]). The conflicting evidence as to whether the stairs were defective raises a question of fact with respect to whether 12 NYCRR 23-1.7 (f) was violated by the defendants. Summary resolution of this issue is thus precluded. [494] However, it is clear, upon a search of the record, that defendants violated 12 NYCRR 23-3.3 (c) and plaintiff is entitled to summary judgment to the extent that this section of the Industrial Code serves as a predicate for his Labor Law § 241 (6) claim (see Cardenas v One State St., LLC, 68 AD3d 436, 438 [2009]; Gawel v Consolidated Edison Co. of N.Y., 237 AD2d 138, 138 [1997]). 12 NYCRR 23-3.3 (c) mandates “continuing inspections ... by designated persons as the work progresses to detect any hazards to any person resulting from weakened or deteriorated floors or walls or from loosened material” and is explicitly aimed at preventing persons from working “where such hazards exist until protection has been provided by shoring, bracing or other effective means.” Defendants failed to demonstrate that the mandated inspections were conducted, since their evidence on this issue consisted solely of an affidavit by the general contractor’s project manager, which was at odds with her deposition testimony. When the project manager was deposed, she recalled very little about the project or the accident, continually offering responses such as “I don’t know,” or “I don’t recall.” Specifically, she did not recall how often she visited the building, when or even whether she visited the building during the demolition phase, whether an engineering survey was performed before the demolition began, whether she ever met with any engineers in connection with the project, what type of flooring was in place, whether she observed any rotting floors or missing sections of flooring, whether there were any vertical columns supporting the building, whether she prepared any inspection reports regarding the building’s interior, whether there was a safety plan or any meetings or discussions regarding safety, and whether regular inspections were conducted. Miraculously, in her affidavit, proffered in support of defendants’ motion for summary judgment and prepared a year after her deposition, the project manager recalled conducting walk-through inspections of the building on a regular basis, such that she was now able to establish defendants’ compliance with 12 NYCRR 23-3.3 (c). Clearly, her affidavit was tailored to support defendants’ motion for summary judgment and to oppose plaintiff’s cross motion seeking the same relief. Under these circumstances, the affidavit cannot be accorded any weight and fails to raise an issue of fact (see Lupinsky v Windham Constr. Corp, 293 AD2d 317, 318 [2002]; Joe v Orbit Indus., 269 AD2d 121, 122 [2000]; Phillips v Bronx Lebanon Hosp., 268 AD2d 318, 320 [2000]). Since, as indicated above, plaintiff’s evidence established that no such inspections were conducted, plaintiff is entitled to summary judgment on the issue of liability under Labor Law § 241 (6) predicated upon a violation of 12 NYCRR 23-3.3 (c). [495] As to the Labor Law § 200 and the common-law negligence causes of action, liability generally lies if a defendant created the dangerous condition alleged or had prior notice of the same (Mitchell v New York Univ., 12 AD3d 200, 201 [2004]; Paladino v Society of N.Y. Hosp., 307 AD2d 343, 345 [2003]). Since there exists an issue of fact as to whether these defendants had prior notice that the stairs were defective and thus a question as to whether it was foreseeable that they could fail or collapse, summary judgment in defendants’ favor and with respect to plaintiffs common law negligence and Labor Law § 200 claim was properly denied. Whether the collapse or failure of a permanent structure gives rise to liability under Labor Law § 240 (1) turns on whether “the risk of injury from an elevation-related hazard [is] foreseeable” (Jones v 414 Equities LLC, 57 AD3d 65, 75 [2008]; see also Espinosa v Azure Holdings II, LP, 58 AD3d 287, 291 [2008]). While plaintiff testified that the building in which he was injured was in a dilapidated condition before the commencement of the demolition work and that the stairs which collapsed, causing his accident, were “old” and “all like destroyed,” Segundo Maldonado, president of the company which employed plaintiff, testified that the stairs were “solid” and “in good condition” prior to plaintiffs accident. Accordingly, a question of fact exists as to whether the collapse of the permanent stairs was foreseeable. This material issue of fact thus precludes summary judgment on plaintiffs claim pursuant to Labor Law § 240 (1). The dissent takes the untenable position that in denying plaintiffs cross motion for summary judgment on his claim pursuant to Labor Law § 240 (1), we continue to require a statutorily unsupported foreseeability element. Not only is the dissent’s position unsupported by this court’s well reasoned precedent (see Jones v 414 Equities LLC, 57 AD3d at 75; Espinosa v Azure Holdings II, LP, 58 AD3d 287, 291 [2008]), but by precedent in the Second Department (Shipkoski v Watch Case Factory Assoc., 292 AD2d 587, 589 [2002]), and the Court of Appeals (Gordon v Eastern Ry. Supply, 82 NY2d 555, 562 [1993] [“(t)o establish a prima facie case (of a violation of Labor Law § 240 [1]) plaintiff need not demonstrate that the precise manner in which the accident happened or the injuries occurred was foreseeable; it is sufficient that he demonstrate that the risk of some injury from defendants’ conduct was foreseeable” (emphasis added)]). While it is true that Labor Law § 240 (1) fails to mention any foreseeability requirement as a predicate to its violation, a foreseeability requirement must necessarily be [496] imputed as to every claim pursuant thereto, when as here, the claim is premised on a collapsing permanent structure. Labor Law § 240 (1) applies when there is an inherent risk in the task being performed “because of the relative elevation at which the task must be performed or at which materials or loads must be positioned or secured” (Rocovich v Consolidated Edison Co., 78 NY2d 509, 514 [1991]). Thus, “[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). Since permanent structures, such as the stairs here, are normally not expected to collapse or fail, work being performed thereon, much like work performed at ground level and not involving the hoisting or securing of materials, does not usually expose a worker to a gravity-related hazard. Accordingly, only if a defendant has reason to foresee that the permanent structure is likely to collapse, does it then have to comply with the mandates of Labor Law § 240 (1) by providing the safety devices enumerated therein. To hold otherwise, as proposed by the dissent, nonsensically imposes liability upon a defendant when the work being performed does not expose a worker, at the outset, to a gravity related hazard; the hallmark of liability under Labor Law § 240 (1). Zimmer v Chemung County Performing Arts (65 NY2d 513 [1985]) does not alter our holding because it fails to address the pertinent issue. Of course it is true, as the court held in Zimmer, that when safety devices are required pursuant to Labor Law § 240 (1), circumstantial reasonableness plays no role in the analysis related to the failure to provide such devices (65 NY2d at 523). However, the issue here is not whether defendants acted reasonably in failing to provide safety devices when the circumstances so warranted, but rather whether it was foreseeable that the work being performed exposed plaintiff to a gravity-related hazard such that safety devices should have been provided in the first place. The dissent’s second position, while sound public policy, is both legally and factually untenable. While as a policy matter, a defendant who takes a head-in-the-sand approach should not be rewarded for such gross neglect, we find no support for the dissent’s imputation of foreseeability solely because a defendant takes no steps which would enable him or her to foresee that an accident is likely. Foreseeability is “[t]he risk reasonably to be perceived . . . ; it is risk to another or to others within the [497] range of apprehension” (Palsgraf v Long Is. R.R. Co., 248 NY 339, 344 [1928]). Assuming, arguendo, that the defendants here took no steps to ascertain the condition of the building wherein plaintiff worked, we nonetheless disagree that this, by itself, leads to a finding of foreseeability as a matter of law since in such case, albeit through their own neglect, and barring other avenues of notice, defendants would have had no reason to perceive or apprehend prior to the accident that the stairs were in a condition such that they were likely to collapse. A review of the record further weakens the dissent’s position, since while defendants may not have undertaken inspections to the extent urged by the dissent, or to the extent necessary to satisfy the “continuing inspections” requirement promulgated by 12 NYCRR 23-3.3 (c), defendants did in fact inspect the premises prior to plaintiffs accident, including the stairs and beams supporting them, thereafter concluding that they were sound. Based on this record, whether this accident was foreseeable so as to require defendants to provide the safety devices mandated by Labor Law § 240 (1) is a question of fact. We have considered the parties’ remaining arguments for affirmative relief and find them unavailing. Concur — Nardelli, J.P., McGuire, and Román, JJ.