New York State Court of Claims

New York State Court of Claims
DOS SANTOS v. STATE OF NEW YORK, # 2018-015-107, Claim No. 127227, Motion Nos. M-91502, M-91513

Synopsis

Claimant, who was employed by a contractor to perform sandblasting on a suspension scaffold under a State-owned bridge, was granted partial summary judgment on the issue of liability pursuant to Labor Law 240 (1) where he stepped through a large hole in the scaffold and fell up to his groin. Dismissal of claimant's Labor Law 241 (6) and 200 causes of action was denied.

Case information

UID: 2018-015-107
Claimant(s): AGNALDO DOS SANTOS
Claimant short name: DOS SANTOS
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 127227
Motion number(s): M-91502, M-91513
Cross-motion number(s):
Judge: FRANCIS T. COLLINS
Claimant's attorney: Law Offices of Lawrence P. Biondi
By: Lawrence P. Biondi, Esq.
Defendant's attorney: Goldberg Segalla, LLP
By: Jonathan M. Bernstein, Esq.
Third-party defendant's attorney:
Signature date: March 13, 2018
City: Saratoga Springs
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

Claimant moves for partial summary judgment on the issue of liability under Labor Law 240 (1) and, in a separate motion, defendant moves for summary judgment dismissing the claim. Both motions are consolidated for disposition herein.

The defendant entered into a contract with Hamar International and A. Servidone-B-Anthony Construction Corp. for the rehabilitation of nine bridges, including the Patroon Island Bridge which carries Interstate 90 (I-90) over the Hudson River between Albany and Rensselaer Counties (see defendant's Exhibit A, 6; defendant's Exhibit C, First; defendant's Exhibit H, p. 15). Claimant was allegedly injured on November 6, 2015 during the course of his employment with P.S. Bruckel, Inc., a subcontractor (defendant's Exhibit H, p. 69), when he partially fell into an opening on a work platform "set-up below the main deck of the Patroon Island Bridge" (claim, 3). Two work platforms were suspended under the bridge for the performance of the work. Claimant, a journeyman sandblaster, was situated on the upper work platform sandblasting the under section of the bridge when he stepped back with his right leg into an opening in the work platform that he alleges measured approximately one foot by twelve feet (see defendant's Exhibit A, 2; defendant's Exhibit F, pp. 77-78). The opening in the work platform is depicted in the photograph submitted as claimant's Exhibit 7 (see defendant's Exhibit F, p. 78, claimant's EBT testimony identifying the opening). Claimant testified that his right leg fell into the opening up to the middle of his thigh, which caused him to strike his head on part of the bridge structure behind him and fall onto the corrugated metal work platform (defendant's Exhibit F, pp. 67, 71-77, 82, 91). Claimant's co-workers came to his assistance, secured his blasting hose, and removed his leg from the hole. He was then taken from the platform and driven to a nearby hospital.

Jeffrey Watkins, a co-worker, was vacuuming nearby on the same work platform as the claimant when he observed claimant fall into the opening "out of the corner of [his] eye" (defendant's Exhibit G Watkins EBT, p. 8). Mr. Watkins went to the claimant and pulled his leg out of the opening, which he described as a gap between a 45-degree bridge support and the deck of the platform (defendant's Exhibit G, p. 9). He testified that although a board partially covered a larger opening, it was not "flush" to the 45-degree bridge support, which left a gap that "shouldn't have been that open" (id. at p. 27; see also p. 14).

Claimant testified "[t]here were holes everywhere on the entire deck" (defendant's Exhibit F, p. 49), but that he did not complain to his supervisor because he was "afraid of being sent away" (id.). Claimant testified that although he knew the opening into which he partially fell was present prior to his accident (id. at p. 56), he was never instructed to cover the hole himself or to request his supervisor to do so (id. at pp. 55, 58). In any event, claimant testified that there were no loose boards available on the job site (id. at pp. 57, 59) and that it was the containment crew's job to cover the holes (id. at pp. 59-60). Although Mr. Watkins testified, contrary to the claimant, that there were loose boards available on the job site (defendant's Exhibit G, p. 12), his testimony was consistent with the claimant's to the extent he stated that it was the containment crew's responsibility to board up any hole in the platform floor (id. at p. 11). Claimant's work as a sandblaster required that he wear a "full jumper" and a helmet with "a visor that covers our entire head, face, our neck" (defendant's Exhibit F, p. 28). While the outfit would accommodate a safety harness (id. at p. 31), claimant testified that a harness was only needed when work was performed on a scaffold under the deck (id. at pp. 31-32). Claimant, however, performed 90% of his work on the upper deck where there was no place to "tie-off" or "clip" a safety harness (id. at pp. 42, 48, 152). Mr. Watkins agreed that there was no place to "tie-off" a safety harness on the upper deck and that, in any event, safety harnesses were unnecessary because the work on the upper deck was performed inside a containment enclosure (defendant's Exhibit G, p. 24). Mr. Watkins did not observe the opening where claimant fell prior to the accident (id. at p. 10). The claimant, however, denied that a board would support the weight of a person walking on it (defendant's Exhibit F, p. 149), and denied that a ladder, sling, hanger, block, pulley, brace, iron or rope would have prevented the accident (id. at pp. 150-151). According to the claimant, a safety harness may have helped but there was no place on the upper deck to attach it (id. at pp. 151-152).

John Nolan was the Engineer in Charge of the project for the State. He identified the Containment Plans for the Patroon Island Bridge and confirmed that the assembly of corrugated metal deck platforms and a containment system was required (defendant's Exhibit H, p. 21). Mr. Nolan testified that the Containment Plans, submitted by P.S. Bruckel and approved by the State Department of Transportation, required that deck openings be sealed with "plywood, batt and foam insulation" (id. at pp. 21-22, quoting defendant's Exhibit L, Containment Plans, Sheet B-1). Mr. Nolan explained that although localized blasting did not require the containment to be sealed, "production paint removal" did (id. at pp. 39-40). Mr. Nolan agreed that holes or openings in the metal decking could result in the escape of debris and pose a falling hazard to workers who were not "tied-off" (id. at pp. 40-41).

Mr. Nolan was present at the job site almost daily and walked on the metal decking when sandblasting was not in progress (id. at p. 27). Although Mr. Nolan was aware of various openings in the metal decking, he did not direct that the openings be closed (id. at pp. 25-27; 29-30). In fact, when asked what precautions he took to ensure "that there were no holes or openings in the elevated work platform" he responded "None" (id. at p. 31). Mr. Nolan explained that although he had authority to stop the work in order to correct an unsafe condition, he would not direct the use of particular safety devices (id. at pp. 31-32, 49-50). According to Mr. Nolan, that function was performed by the contractor's Competent Safety Person (id. at pp. 31-32). Mr. Nolan testified that he conveyed no safety concerns to the contractor (id. at p. 38), and agreed that the contract work required fall protection for employees working at an elevation that was six feet or more (id. at pp. 46-47).

Viewing the photograph marked at the deposition as Exhibit 4 (claimant's Exhibit 7 herein), which claimant testified depicts the opening through which he partially fell, Mr. Nolan testified that had he been aware work was going on in the area he would have directed the contractor to protect its workers by whatever means it deemed necessary (id. at p. 51). Mr. Nolan also testified that if the opening in the work platform depicted in claimant's Exhibit 7 measured one foot by twelve feet wide, it would violate the Health and Safety Plan and could present a danger to workers (id. at pp. 56-57). However, Mr. Nolan estimated that he performed approximately 50 walk-throughs of the work underway on the Patroon Island Bridge but was unaware of any unprotected openings and does not recall seeing the particular opening depicted in claimant's Exhibit 7 (id. at pp. 58-61). He testified that had he observed such an opening he would have directed that it be protected (id. at p. 61). The Health and Safety Plan required that holes be covered, labeled and color-coded to provide warning; however, Mr. Nolan did not ensure that the covers were in place (id. at p. 80). Mr. Nolan also explained that the corrugated metal platform was altered from time to time to accommodate the use of jacking towers and steel repairs (id. at pp. 102-105). As of the date of claimant's accident, however, only one jacking tower remained and all of the steel repairs had been completed. Mr. Nolan did not recall any safety complaints and none were recorded in his daily diary (id. at p. 127). Mr. Nolan testified that there were "removable access point covers" in the deck of the elevated work platform used to access the scaffolding (id. at pp. 137-138). Notably, the accident report pertaining to this matter indicates that this accident may possibly have been prevented through the use of "access point covers" (claimant's Exhibit 9, p. 2, no. 23).

Claimant argues that he is entitled to partial summary judgement on the issue of liability under Labor Law 240 (1) because his injuries were the result of the failure to take statutorily mandated safety measures to protect him from elevation-related risks. Defendant, on the other hand, argues that dismissal of the claim is required. With respect to the Labor Law 240 (1) cause of action, defendant contends that dismissal is required because claimant encountered none of the extraordinary elevation risks envisioned by Labor Law 240 (1) and, in any event, claimant's conduct was the sole proximate cause of the accident. Defendant also contends that claimant's cause of action premised upon a violation of Labor Law 241 (6) must be dismissed because the Industrial Code sections on which claimant relies are inapplicable. With respect to claimant's negligence and Labor Law 200 cause of action, defendant contends it had neither actual nor constructive notice of the defective condition.

Labor Law 240 (1) imposes absolute liability upon owners, contractors and their agents for the failure to provide "scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices" in order to properly protect against elevation-related special hazards. The extraordinary protections required by the statute apply only to a narrow class of dangers presenting " 'elevation-related risk[s]' " (Nicometi v Vinyards of Fredonia, LLC, 25 NY3d 90, 97 [2015], rearg denied 25 NY3d 1195 [2015], quoting Rocovich v Consolidated Edison Co., 78 NY2d 509, 514 [1991]). Not every hazard that is connected "in some tangential way with the effects of gravity" is covered by the statute, however (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [1993]). Rather,

"[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" (Rocovich, 78 NY2d at 514).

This duty is "nondelegable and . . . an owner is liable for a violation of the section even though the job was performed by an independent contractor over which it exercised no supervision or control" (Rocovich,, 78 NY2d at 513 [emphasis omitted]). "The statute is to be interpreted liberally to accomplish its purpose" (Striegel v Hillcrest Hgts. Dev. Corp., 100 NY2d 974, 977 [2003]). To establish a violation of Labor Law 240 (1), the claimant must "show that the statute was violated and that the violation proximately caused his injury" (Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35, 39 [2004]). When those elements are established, contributory negligence cannot defeat the claim (Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 287 [2003]). "[W]here a worker is provided with an elevation-related safety device, the question of whether the device provided proper protection pursuant to Labor Law 240 (1) is ordinarily a question of fact, except where the device collapses, slips or otherwise fails to perform its function of supporting the worker" (Dalaba v City of Schenectady, 61 AD3d 1151, 1152 [3d Dept 2009] [inner quotation marks and citation omitted]; see also McKay v Weeden, 148 AD3d 1718 [4th Dept 2017]).

Here, it is undisputed that the gap through which the claimant partially fell was located in the metal decking suspended under the Patroon Island Bridge. Adam Cady, the Superintendent for the project on behalf of P.S. Bruckel, submitted an affidavit in support of defendant's motion in which he describes the metal decking as "part of a multi-point suspension scaffold" (defendant's Exhibit K, 3, p. 2). Whatever the label, however, it is clear that the corrugated metal platform was the functional equivalent of a scaffold (Beard v State of New York, 25 AD3d 989 [3d Dept 2006]), which exposed claimant to the types of elevation-related hazards Labor Law 240 (1) is intended to protect against. Since the scaffold was inadequate to protect the claimant from the risk of a fall during the course of his work sandblasting the bridge, a prima facie violation of Labor Law 240 (1) was established (see Meyers v State of New York, 30 AD3d 927 [3d Dept 2006], lv dismissed 7 NY3d 864 [2006]; see also Kircher v City of New York, 122 AD3d 486 [1st Dept 2014]; Cody v State of New York, 52 AD3d 930 [3d Dept 2008]; Gomez v 2355 Eighth Ave., LLC, 45 AD3d 493 [1st Dept 2007]; Brandl v Ram Bldrs., Inc., 7 AD3d 655 [2d Dept 2004]; Campisi v Epos Contr. Corp., 299 AD2d 4 [1st Dept 2002]; Cordero v Kaiser Org., 288 AD2d 424 [2d Dept 2001]; Russell v Baker Rd. Dev., 278 AD2d 790 [4th Dept 2000], lv dismissed 96 NY2d 824 [2001]; O'Connor v Lincoln Metrocenter Partners, 266 AD2d 60 [1st Dept 1999]; Becerra v City of New York, 261 AD2d 188 [1st Dept 1999]; Carpio v Tishman Constr. Corp. of N.Y., 240 AD2d 234 [1st Dept 1997]; Bennion v Goodyear Tire & Rubber Co., 229 AD2d 1003 [4th Dept 1996], appeal withdrawn 91 NY2d 1004 [1998]; Robertti v Powers Chang, 227 AD2d 542 [2d Dept 1996], lv dismissed 88 NY2d 1064 [1996]; Pietsch v Moog, Inc., 156 AD2d 1019 [4th Dept 1989]; cf. Salazar v Novalex Contr. Corp., 18 NY3d 134 [2011] [covering opening would have been inconsistent with the work being performed]). That claimant did not fall completely from the scaffold does not remove this case from the reach of Labor Law 240 (1) since he was nevertheless exposed to the risk of injury posed by "a difference between the elevation level of the required work and a lower level" (Rocovich, 78 NY2d at 514). In fact, none of the plaintiffs in Gomez, Campisi, Cordero, O'Connor, Becerra, Carpio, Bennion, or Pietsch fell completely to a lower level. Considering the height at which the claimant's work was performed and the size of the opening into which he fell, this case is easily distinguishable from those in which the protections afforded by Labor Law 240 (1) were found to be unnecessary (see Vitale v Astoria Energy II, LLC, 138 AD3d 981 [2d Dept 2016] [openings in the grid upon which plaintiff was walking were not large enough to fall through]; Wrobel v Town of Pendleton, 120 AD3d 963 [4th Dept 2014] [fall into hole at ground level]; Coleman v Crumb Rubber Mfrs., 92 AD3d 1128 [3d Dept 2012] [opening in permanent floor did not present an elevation-related risk requiring the protections of Labor Law 240]; Avila v Plaza Constr. Corp., 73 AD3d 670 [2d Dept 2010], lv granted 15 NY3d 706 [2010], appeal withdrawn 15 NY3d 918 [2010] [openings in rebar grid were too small to require the protections of Labor Law 240]; D'Egidio v Frontier Ins. Co., 270 AD2d 763 [3d Dept 2000], lv denied 95 NY2d 765 [2000] [5 by 12-inch hole at ground level did not require the protections of Labor Law 240]). Moreover, despite defendant's contrary contention, claimant was not required to articulate the particular safety device that would have prevented the injury (McGill v Qudsi, 91 AD3d 1241 [3d Dept 2012], lv dismissed 19 NY3d 1013 [3d Dept 2012]; Miranda v Norstar Bldg. Corp., 79 AD3d 42 [3d Dept 2010]; Cody, 52 AD3d at 931). Although protective floor planks or covers are not devices specifically enumerated in Labor Law 240 (1), the statutory phrase "and other devices" has been interpreted to mean "any device that would protect a worker from an elevation-related risk covered by the statute" (Serpe v Eyris Prods., 243 AD2d 375, 379 [1st Dept 1997]; Flansburg v Merritt Meridian Constr. Corp., 191 AD2d 756 [3d Dept 1993]). Thus, claimant established a prima facie violation of Labor Law 240 (1).

Defendant's contention that claimant's failure to board-up the opening himself constitutes the sole proximate cause of the accident lacks merit. The law is settled that liability under Labor Law 240 (1) does not attach where adequate safety devices were available at the job site and claimant "knew both that they were available and that he was expected to use them" (Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35, 40 [2004]). Proof establishing no more than the fact that the required safety devices were readily available is insufficient. Rather, there must be proof that the safety devices were available and the claimant was specifically instructed to use them but failed to do so for no good reason (Gallagher v New York Post, 14 NY3d 83, 88 [2010]; see also Batista v Manhattanville Coll., 28 NY3d 1093 [2016], modifying 138 AD3d 572 [1st Dept 2016]; Przyborowski v A&M Cook, LLC, 120 AD3d 651, 653 [2d Dept 2014]; Handville v MJP Contrs., Inc., 77 AD3d 1471, 1473 [4th Dept 2010]; Justyk v Treibacher Schleifmittel Corp., 4 AD3d 882 [4th Dept 2004], amended on reargument, 2004 NY Slip Op 03501 [4th Dept 2004]; Clark v Fox Meadow Bldrs., 214 AD2d 882 [3d Dept 1995]).

Here, defendant's proof included the examination before trial testimony of Jeffrey Watkins who testified, contrary to the claimant, that there were loose boards available on the job site (defendant's Exhibit G, p. 12). Mr. Cody, the project Superintendent, also states that P.S. Bruckel employees, such as claimant, "were responsible for inspecting the area [where] they were to perform work, prior to commencing work, and ensuring any openings were covered by either covering it themselves or reporting it so that someone else could tend to it" (defendant's Exhibit K, Cody affidavit, 7). No proof was submitted, however, that claimant was specifically instructed to inspect the area before the start of work and board up the holes himself (cf. Valente v Lend Lease (US) Constr. LMB, Inc., 29 NY3d 1104 [2017] [question of fact was raised as to whether plaintiff had adequate safety devices available, was instructed to use them, but chose for no good reason not to do so]; Silvia v Bow Tie Partners, LLC, 77 AD3d 1143 [3d Dept 2010] [summary judgment was denied for plaintiff injured in scaffold collapse accident where questions of fact were raised concerning plaintiff's alleged failure to use available scaffold planks and safety devices]). Neither the fact that claimant was an experienced bridge painter/sandblaster nor Mr. Cody's assertion that employees, such as claimant, were responsible for boarding up the holes themselves (or asking someone else to do it) support a conclusion that claimant's conduct constituted the sole proximate cause of his injuries, so as to preclude liability altogether, rather than contributory negligence, which is not a defense in a Labor Law 240 (1) action. Where a device intended to support a worker at a construction site fails, as it did here, "it is conceptually impossible for a statutory violation (which serves as a proximate cause for a plaintiffs injury) to occupy the same ground as a plaintiff's sole proximate cause for injury" (Blake, 1 NY3d at 290; see also Fabiano v State of New York, 123 AD3d 1262 [3d Dept 2014], lv dismissed 25 NY3d 957 [2015]; Portes v New York State Thruway Auth., 112 AD3d 1049 [3d Dept 2013], lv dismissed 22 NY3d 1167 [2014]; Valensisi v Greens at Half Hollow, LLC, 33 AD3d 693 [2d Dept 2006]). Viewing the evidence in the light most favorable to the defendant, as the opponent of claimant's motion, it failed to demonstrate that a violation of Labor Law 240 (1) was not a proximate cause of the accident or that claimant's conduct was the sole proximate cause thereof (cf. Robinson v East Medical Ctr., LP, 6 NY3d 550 [2006]; Montgomery v Federal Express Corp., 4 NY3d 805 [2005]; Capellan v King Wire Co., 19 AD3d 530 [2d Dept 2005]; Mack v Altmans Stage Light. Co., 98 AD2d 468, [2d Dept 1984]). Accordingly, claimant's motion for partial summary judgment on the issue of liability under Labor Law 240 (1) is granted, and defendant's motion dismissing this cause of action is denied.

Labor Law 241 (6) imposes a nondelegable duty upon owners, contractors and their agents, "when constructing or demolishing buildings or doing any excavating in connection therewith", to comply with the specific safety rules promulgated by the Commissioner of the Department of Labor (Labor Law 241 [6]; Ross, 81 NY2d at 501-503). Despite its express terms, the application of Labor Law 241 (6) is not limited to building sites and includes work performed on highways and bridges (Mosher v State of New York, 80 NY2d 286 [1992]; Ares v State of New York, 80 NY2d 959 [1992]). Moreover, the term "construction" in the statute has been broadly interpreted to include the painting of bridges (Love v New York State Thruway Auth. 17 AD3d 1000 [4th Dept 2005], lv denied 20 AD3d 946 [2005]; see also 12 NYCRR 23-1.4 [b]). To prevail on a Labor Law 241 (6) cause of action it must be established that the defendant "violated a regulation that sets forth a specific standard of conduct and not simply a recitation of common-law safety principles", and that the violation was a proximate cause of a claimant's injury (St. Louis v Town of N. Elba, 16 NY3d 411, 414 [2011]; Ross, 81 NY2d at 501-502; Van Wormer v Watkins Glen Props., LLC, 140 AD3d 1378 [3d Dept 2016]; Oakes v Wal-Mart Real Estate Bus. Trust, 99 AD3d 31, 40 [3d Dept 2012]). Since the duty is nondelegable, a showing of actual supervision or control is unnecessary for liability to attach under the statute (St. Louis, 16 NY3d at 413). "Nonetheless, comparative negligence remains a cognizable affirmative defense to a section 241 (6) cause of action" (St. Louis, 16 NY3d at 414).

Although claimant alleges in his bill of particulars a litany of Industrial Code sections that he claims were violated, he relies upon only 23-1.7 (b) (12 NYCRR) in opposition to defendant's motion to dismiss his Labor Law 241 (6) cause of action. This section states the following:

(b) Falling hazards.

(1) Hazardous openings.

(i) Every hazardous opening into which a person may step or fall shall be guarded by a substantial cover fastened in place or by a safety railing constructed and installed in compliance with this Part (rule).

(ii) Where free access into such an opening is required by work in progress, a barrier or safety railing constructed and installed in compliance with this Part (rule) shall guard such opening and the means of free access to the opening shall be a substantial gate. Such gate shall swing in a direction away from the opening and shall be kept latched except for entry and exit.

As the Appellate Division, Third Department, made clear in Coleman v Crumb Rubber Mfrs., 92 AD3d 1128 [3d Dept 2012]), although this section of the Industrial Code is sufficiently specific to support a Labor Law 241 (6) cause of action, it does not apply to every gap or opening. "Case law has established that an opening must be of 'significant depth and size' to fall within the regulation's protection" (Coleman, 92 AD3d at 1130). As set forth previously, it is undisputed that the opening into which claimant partially fell measured one foot by twelve feet and was therefore sufficiently large to require the protections afforded by Labor Law 240 (1) as well as Labor Law 241 (6) (see Norero v 99-105 Third Ave. Realty, LLC, 96 AD3d 727 [2d Dept 2012] [summary judgment was granted on the issue of liability under Labor Law 240 [1] and 241 [6] where plaintiff partially fell through opening large enough for his body to have passed through]; Wells v British Am. Dev. Corp., 2 AD3d 1141 [3d Dept 2003] [hazardous opening under 23-1.7 [b] is one of significant depth and size, i.e., more than 5 by 12 inches wide and 15 to 24 inches deep]; cf. Palumbo v Transit Tech., LLC, 144 AD3d 773 [2d Dept 2016] [trench only two feet deep did not require the protections of 12 NYCRR 23-1.7 (b)]; Vitale, 138 AD3d at 983 [12 NYCRR 23-1.7 [b] is inapplicable to openings that are too small for a worker to completely fall through]; DeLiso v State of New York, 69 AD3d 786 [2d Dept 2010] [no violation of 12 NYCRR 23-1.7 [b] where gap was too narrow for a worker to fall through]; Romeo v Property Owner (USA) LLC, 61 AD3d 491 [1st Dept 2009] [size of opening and 18-inch depth was insufficient depth and size to warrant the protection of 12 NYCRR 23-1.7 (b) (1)]). Defendant contends that "Section 23-1.7 (b) is not applicable because a board was present over the opening", and also because claimant "could have obtained or had someone else obtain another board to cover the portion of the opening that he claims remained exposed" (Bernstein affidavit sworn to Dec. 4, 2017, 31). Defendant's first contention is belied by the facts. Obviously, no board was present over the opening through which claimant fell (see claimant's Exhibit 7). The second contention implicates principles of comparative negligence which provide no basis for dismissal of the claimant's Labor Law 241 (6) cause of action.

Lastly, defendant failed to establish its prima facie entitlement to summary judgment dismissing claimant's negligence and Labor Law 200 causes of action. Labor Law 200 is a codification of the common law duty of an owner or contractor to provide workers with a reasonably safe place to work (Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343 [1998]; Allen v Cloutier Constr. Corp., 44 NY2d 290 [1978], rearg denied 45 NY2d 776 [1978]). Where the alleged defect or dangerous condition arises from a contractor's methods and a defendant exercises no supervisory control over the operation, no liability under the common law or Labor Law 200 attaches (Comes v New York State Elec. & Gas Corp., 82 NY2d 876 [1993]; Lombardi v Stout, 80 NY2d 290 [1992]; Williams v River Place II, LLC, 145 AD3d 589 [1st Dept 2016]; Guallpa v Canarsie Plaza, LLC, 144 AD3d 1088, 1092 [2d Dept 2016]; Matter of Mitchell v NRG Energy, Inc., 125 AD3d 1542, 1544 [2015], rearg denied 128 AD3d 1426 [2015]; Ramos v Patchoque-Medford School Dist., 73 AD3d 1010 [2d Dept 2010]). " 'The retention of general supervisory control, presence at a work site, or authority to enforce safety standards is insufficient to establish the control necessary to impose liability' " (Wright v Ellsworth Partners, LLC, 143 AD3d 1116, 1120 [3d Dept 2016] [citation omitted]). While defendant established that it exercised no supervision and control over the claimant's work, it concedes that "[t]his is not a means and methods case. Rather, claimant is alleging this is a hazardous condition case" (defendant's Memorandum of Law dated Dec. 4, 2017, p. 13, n 2). Indeed, the law is settled that "[w]ith regard to injuries caused by a dangerous condition, 'a showing of control of the place of injury and actual or constructive notice of the unsafe condition is required' " (Barros v Bette & Cring, LLC, 129 AD3d 1279, 1280 [3d Dept 2015], quoting Card v Cornell Univ., 117 AD3d 1225, 1226 [3d Dept 2014]).

"A party seeking summary judgment must establish their position by evidentiary proof in admissible form sufficient to warrant judgment for them as a matter of law" (Montuori v Town of Colonie, 277 AD2d 643, 644 [3d Dept 2000]), see also Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Defendant failed, in support of its motion, to proffer any proof regarding the absence of control over the premises where the accident occurred or that it lacked notice of the hazardous opening. To the contrary, the deposition testimony of Mr. Nolan indicates he was aware of various openings in the metal decking (defendant's Exhibit H, pp. 25-27), that he did not direct closure of the openings (id. at p. 26), and that he took no precautions to ensure that there were no holes or openings in the metal decking (id. at pp. 31-32). While Mr. Nolan also testified that it was the contractor's Competent Safety Person who would direct the closure of the holes (id.), he conceded that had he seen the opening through which claimant partially fell (depicted in claimant's Exhibit 7), he would have directed that it be protected (id. at p. 61). The fact that Mr. Nolan did not recall seeing this specific opening in the more than 50 walk-throughs he performed since 2011 fails to establish that defendant did not create the opening or have actual or constructive notice thereof. Absent evidence of when the area was last inspected or by whom it was last inspected, defendant failed to meet its burden of proof on its motion (Marchese v St. Martha's R.C. Church, Inc., 106 AD3d 881 [2d Dept 2013]). The mere fact that Mr. Nolan may have walked through the area at some point in time is insufficient to establish lack of notice of the condition so as to shift the burden of proof to the claimant. To the extent defendant relies upon Mr. Watkins' testimony that he did not see the gap previously because it was normally boarded up, its reliance is misplaced. Mr. Watkins was not asked when he last observed the area prior to the date of the accident and he testified that, unlike the sandblasters, he worked at various locations throughout the project. As a result, defendant failed to establish that it "neither created the alleged hazardous condition, nor had actual or constructive notice of its existence for a length of time sufficient to discover and remedy it" (id. at pp. 881-882).

Based on the foregoing, claimant's motion for partial summary judgment on the issue of liability under Labor Law 240 (1) is granted, and defendant's motion to dismiss the claim is denied.

Let interlocutory Judgment be entered accordingly.

March 13, 2018

Saratoga Springs, New York

FRANCIS T. COLLINS

Judge of the Court of Claims

Papers Considered:

  1. Notice of Motion, dated December 4, 2017;
  2. Affidavit in Support, sworn to December 4, 2017, with Exhibits A - O;
  3. Memorandum of Law, dated December 4, 2017;
  4. Affirmation in Opposition, dated January 26, 2018, with Exhibits 1 - 3;
  5. Reply Affidavit, sworn to January 31, 2018;
  6. Notice of Motion, dated December 7, 2017;
  7. Affirmation, dated December 7, 2017, with Exhibits 1 - 10;
  8. Affidavit in Opposition, sworn to January 8, 2018;
  9. Memorandum of Law in Opposition, dated January 8, 2018;
  10. Reply Affirmation, dated January 30, 2018.