Burkowsky v. BOP NE LLC

2024 NY Slip Op 32175(U)

• Court: New York Supreme Court, New York County
• Decided: June 27, 2024
• Status: Unpublished

Opinion

Burkowsky v BOP NE LLC 2024 NY Slip Op 32175(U) June 27, 2024 Supreme Court, New York County Docket Number: Index No. 153228/2020 Judge: Arlene P. Bluth Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. FILED: NEW YORK COUNTY CLERK 06/28/2024 04:51 PM INDEX NO. 153228/2020 NYSCEF DOC. NO. 68 RECEIVED NYSCEF: 06/28/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. ARLENE P. BLUTH PART 14 Justice ---------------------------------------------------------------------------------X INDEX NO. 153228/2020 STEVEN BURKOWSKY, MOTION DATE 06/24/2024 Plaintiff, MOTION SEQ. NO. 001 -v- BOP NE LLC, BROOKFIELD PROPERTIES, INC., DECISION + ORDER ON MOTION Defendant. ---------------------------------------------------------------------------------X

The following e-filed documents, listed by NYSCEF document number (Motion 001) 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67 were read on this motion to/for JUDGMENT - SUMMARY .

Defendants’ motion for summary judgment dismissing plaintiff’s complaint is granted in

part and denied in part and plaintiff’s cross-motion for summary judgment on his Labor Law §

241(6) claim is denied.

Background

This Labor Law action concerns an accident that happened when plaintiff was working as

an electrician for a non-party (“Corporate Electric”) at a construction site in Manhattan. At his

deposition, plaintiff testified that he was told to retrieve two boxes of materials which “were in

the closet with the pipe. There were two boxes which I’d say were about 16 by 16 by 12 filled

with connectors, straps, all sorts of other assorted materials that I needed for the job” (NYSCEF

Doc. No. 43 at 99). He noted there were these two boxes and a “bundle” of pipe (id.).

Plaintiff testified that he knew his task for that day as it was the same thing he had been

working on the previous Friday (the accident happened on a Monday) (id. at 102-03). He added

that he got in the elevator with a coworker who was going to take the boxes and “I went to get 153228/2020 BURKOWSKY, STEVEN vs. BOP NE LLC Page 1 of 7 Motion No. 001

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the material. I walked in, handed the boxes, walked out. Walked back in, got the pipe, went to

walk out, my shoelaces got caught on my left boot on that piece of rebar that was attached to the

ground in an L shape and then I fell. So that’s what I remember” (id. at 112).

Plaintiff alleges that he took about two or three steps before his accident while the pipes

were on his shoulder (id. at 146-47). He insists that his foot “got caught in the rebar and because

it got stuck, my body jerked forward, the pipe started falling off my shoulder and I fell flat on the

ground and I covered by my face with my hands so I wouldn’t smash my face on the ground” (id.

at 149). After he fell, plaintiff says he looked around and noticed the rebar (id. at 159).

Labor Law § 240(1)

Defendants move to dismiss plaintiff’s Labor Law § 240(1) claim on the ground that this

accident does not involve a gravity-related injury. Plaintiff did not oppose this branch of the

motion and so the Court severs and dismisses this cause of action.

Labor Law § 241(6)

“The duty to comply with the Commissioner’s safety rules, which are set out in the

Industrial Code (12 NYCRR), is nondelegable. In order to support a claim under section 241(6). .

. the particular provision relied upon by a plaintiff must mandate compliance with concrete

specifications and not simply declare general safety standards or reiterate common-law

principles” (Misicki v Caradonna, 12 NY3d 511, 515, 882 NYS2d 375 [2009]). “The regulation

must also be applicable to the facts and be the proximate cause of the plaintiff’s injury” (Buckley

v Columbia Grammar and Preparatory, 44 AD3d 263, 271, 841 NYS2d 249 [1st Dept 2007]).

“Section 241(6) subjects owners and contractors to liability for failing to adhere to

required safety standards whether or not they themselves are negligent. Supervision of the work,

control of the worksite, or actual or constructive notice of a violation of the Industrial Code are

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not necessary to impose vicarious liability against owners and general contractors, so long as

some actor in the construction chain was negligent” (Leonard v City of New York, 216 AD3d 51,

55-56, 188 NYS3d 471 [1st Dept 2023]).

Defendants move to dismiss plaintiff’s claims pursuant to this subsection, which rely

upon Industrial Code sections 23-1.5, 23-1.7, 23-1.21, 23-1.30, 23-2.1, and 23-2.7. In his

opposition, plaintiff only addresses 23-1.7(e)(2) and 23-1.30. The remaining Industrial Code

sections are therefore dismissed as plaintiff did not address them in his opposition.

23-1.7(e)(2)

12 NYCRR 23-1.7(e)(2) is titled “tripping and other hazards” and provides that

“Working areas. The parts of floors, platforms and similar areas where persons work or pass

shall be kept free from accumulations of dirt and debris and from scattered tools and materials

and from sharp projections insofar as may be consistent with the work being performed.”

Defendants contend that the accident did not happen in a working area under the

Industrial Code. They also contend that the rebar over which plaintiff tripped was neither dirt nor

debris, nor was it a sharp projection. Defendants argue that instead, the rebar was an integral

part of the work relating to the construction of the floor.

Plaintiff opposes this branch of the motion and cross-moves for summary judgment as to

this Industrial Code section. He insists that the rebar was not integral to the work being

performed and cites to his expert affidavit for the proposition that the rebar was likely left there

as a construction error. Plaintiff argues that the rebar was also a sharp projection.

The Court severs and dismisses this branch of plaintiff’s Labor Law § 241(6) claim on

the ground that plaintiff did not trip in an area “where persons work or pass.” Plaintiff tripped

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while in a closet, which means it was not a passageway. “Although the regulations do not define

the term ‘passageway’ ..., courts have interpreted the term to mean a defined walkway or

pathway used to traverse between discrete areas as opposed to an open area” (Quigley v Port

Auth. of New York, 168 AD3d 65, 67, 90 NYS3d 156 [1st Dept 2018] [internal quotations and

citations omitted]). That plaintiff had to walk through another area to get to the closet is of no

moment because he testified that he fell while in the closet.

And the First Department has held that a storage area is not a working area under the

meaning of 23-1.7(e)(2) (Dachille v Metropolitan Life Ins. Co., 262 AD2d 149, 149, 692 NYS2d

47 [1st Dept 1999]). The Court also finds that the rebar did not constitute “dirt,” “debris,”

scattered tools or materials” or a “sharp projection” (see Dalanna v City of New York, 308 AD2d

400, 401, 764 NYS2d 429 [1st Dept 2003] [finding that a protruding bolt that plaintiff tripped

over while carrying a pipe did not fall under Industrial Code section 23-1.7(e)(2)]).

23-1.30

This Industrial Code section refers to adequate lighting and provides that “Illumination

sufficient for safe working conditions shall be provided wherever persons are required to work or

pass in construction, demolition and excavation operations, but in no case shall such illumination

be less than 10 foot candles in any area where persons are required to work nor less than five

foot candles in any passageway, stairway, landing or similar area where persons are required to

pass.”

The Court denies this branch of defendants’ motion as plaintiff testified that the two

lightbulbs located in the closet were not working on the day of his accident (NYSCEF Doc. No.

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43 at 119). This raises an issue of fact as to whether there was appropriate lighting where, as

here, the place where the accident happened alleged had no lighting at all.

That defendants argue that plaintiff admits to seeing some things in the area is merely an

issue of fact for the jury to consider. The Court cannot find, as a matter of law, that the lighting

met the relevant standard on this record as there is no definitive proof concerning the lighting in

this closet.

Labor Law § 200

Labor Law § 200 “codifies landowners’ and general contractors’ common-law duty to

maintain a safe workplace” (Ross v Curtis-Palmer Hydro-Electric Co., 81 NY3d 494, 505, 601

NYS2d 49 [1993]). “[R]ecovery against the owner or general contractor cannot be had unless it

is shown that the party to be charged exercised some supervisory control over the operation . . .

[A]n owner or general contractor should not be held responsible for the negligent acts of others

over whom the owner or general contractor had no direction or control” (id. [internal quotations

and citation omitted]).

“Claims for personal injury under this statute and the common law fall under two broad

categories: those arising from an alleged defect or dangerous condition existing on the premises

and those arising from the manner in which the work was performed” (Cappabianca v Skanska

USA Bldg. Inc., 99 AD3d 139, 143-44, 950 NYS2d 35 [1st Dept 2012]). “Where an existing

defect or dangerous condition caused the injury, liability attaches if the owner or general

contractor created the condition or had actual or constructive notice of it” (id. at 144).

Defendants point to the affidavit of Mr. Pennotti, the construction superintendent for non-

party Tishman (seemingly the general contractor), who claims that the rebar was part of another

contractor’s work (Navillus) (NYSCEF Doc. No. 47, ¶ 3). They contend that Navillus controlled

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the means and methods of its work so defendants are not responsible under a Labor Law § 200

theory.

Plaintiff emphasizes in opposition that the exposed rebar was a dangerous condition that

defendants should not have permitted to exist at the jobsite. He argues that it appears that

Navillus’ work was not yet completed (as concrete would be filled in around the rebar) and so

defendants had a duty to ensure that other workers on site did not trip over this dangerous

condition.

The Court grants this branch of defendants’ motion. As noted above, claims under Labor

Law § 200 fall under two categories: dangerous conditions and those arising from the means and

methods of a plaintiff’s work. Here, plaintiff contends that there was a dangerous condition and

so he had to raise an issue of fact that defendants either created this dangerous condition or had

actual or constructive notice of it. There is little dispute that the contractor Navillus laid down

the rebar—therefore, the key issue is defendants’ notice about the protruding rebar.

The problem is that plaintiff’s papers are wholly silent on the notice issue; in fact, the

word notice does not appear at all in either plaintiff’s affirmation in support of his cross-motion

(NYSCEF Doc. No. 56) or in his reply papers (NYSCEF Doc. No. 66). Although plaintiff

references poor coordination between the trades and that there were inadequate inspections,

plaintiff did not sufficiently explain or argue that how this raises an issue of fact that defendants

had either actual or constructive notice of the rebar that caused plaintiff to trip. This Court cannot

make that connection or those arguments on plaintiff’s behalf.

Accordingly, it is hereby

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ORDERED that defendants’ motion for summary judgment is granted in all respects

except to the extent that plaintiff’s Labor Law § 241(6) claim reliant upon 23-1.30 (Illumination)

remains; and it is further

ORDERED that plaintiff’s cross-motion for summary judgment is denied.

6/27/2024 $SIG$ DATE ARLENE P. BLUTH, J.S.C. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION

□ GRANTED DENIED GRANTED IN PART X OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

□ CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE

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