Order, Supreme Court, New York County (Barbara Jaffe, J.), entered April 28, 2015, which, insofar as appealed from as limited by the briefs, granted the motion of defendants 56 Leonard LLC (56 Leonard) and Lend Lease (US) Construction LMB Inc. (Lend Lease) to dismiss plaintiff’s Labor Law § 241 (6) claim as against them, reversed, on the law and the facts, without costs, and the motion denied.1
Plaintiff, Robert Gerrish, sustained injuries when, while working as an ironworker, he tripped and fell on debris at a work site. At the time of the accident, he was working at a yard in the Bronx, where he was bending and cutting steel rebar to be used for the construction of a new building located at 56 Leonard Street in downtown Manhattan. 56 Leonard was the property owner and Lend Lease was the construction manager. Lend Lease, “[a]cting solely as agent for [56 Leonard],” subcontracted with defendant Collavino Structures, LLC (Collavino) as the superstructure concrete contractor pursuant to a Trade Contract dated February 13, 2012. Collavino in turn subcontracted with plaintiff’s employer, nonparty Navillus Tile, Inc. (Navillus), to “receive, bend and install all rebar required for said project.” The Collavino/Navillus subcontract further provided that “Collavino will provide all trucking for bent rebar [512] from Bronx yard to the site.” It also incorporated by reference numerous other contracts involving defendants, but which are not part of the record and, therefore, are not currently before this Court.
The Trade Contract provided, inter alia, in Schedule 3 — “Temporary Facilities” — that “[a] 11 temporary Project site facilities and storage, sheds, shanties, material storage rooms, field offices, power, hoists, scaffolding, cold weather protection, etc. (‘Temporary Facilities’) required in performing the Work shall be furnished by Contractor [Collavino]. Contractor agrees to furnish, at Contractor’s expense, sufficient Temporary Facilities for the efficient performance of the Work. Contractor agrees to place its Temporary Facilities in locations designated by Owner or Construction Manager. When it becomes necessary, in the opinion of the Construction Manager, for Contractor to provide Temporary Facilities, Contractor will do so in an expeditious manner and at no additional cost. . . .” (Emphasis added.)
Thereafter, Collavino leased a portion of a work site in the Bronx (Bronx Yard) from nonparty Harlem River Yard Ventures, Inc. (Harlem River). Pursuant to that Temporary License, the only work Collavino was to carry out at the yard was in connection with “a construction site in Manhattan.” Collavino could not perform any other type of work at the Bronx Yard without first obtaining prior written approval from Harlem River. Plaintiffs employer was not a party to the Temporary License or the Trade Contract.
Plaintiff commenced this action against defendants, alleging, inter alia, a violation of Labor Law § 241 (6).
Labor Law § 241 (6) provides, in relevant part, that “[a] 11 contractors and owners and their agents, . . . when constructing or demolishing buildings or doing any excavating in connection therewith, shall comply with the following requirements: ... 6. All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places.”
56 Leonard and Lend Lease moved to dismiss the complaint against them pursuant to CPLR 3211 (a) (1) and (7), arguing that Labor Law § 241 (6) did not apply because, at the time of his accident, plaintiff was fabricating “steel rebars at an off-site temporary project facility in the Bronx . . . for a construction project located at 56 Leonard Street in Manhattan,” and, therefore, this did not constitute work at a construction site, as [513] required by the statute. The motion court agreed, citing Flores v ERC Holding LLC (87 AD3d 419 [1st Dept 2011]). We disagree and reverse, finding that Flores is distinguishable.2 In Flores, the plaintiff was injured while working at “his employer’s Bronx facility” (emphasis added), which was leased by his employer for the “storage of its equipment and materials” (87 AD3d at 420). Thus, neither the property owner defendant, nor the general contractor defendant in Flores was involved with the Bronx facility.
The Flores Court, relying on Adams v Pfizer, Inc. (293 AD2d 291 [1st Dept 2002], lv denied 99 NY2d 511 [2003]), looked to factors such as physical proximity and common ownership and operation of the off-site premises in determining whether the plaintiff was working in a construction area within the meaning of Labor Law § 241 (6) (87 AD3d at 421). However, the facts in Adams are distinguishable. In Adams, the plaintiff was injured on his employer’s premises while working on a mock-up design being constructed by his employer in connection with renovations to be completed at the defendant Pfizer’s premises {id. at 292). The Adams case does not stand for the proposition that a construction area within the meaning of Labor Law § 241 (6) must be within a certain mileage of, or proximity to, the actual building site. Nor does it support the proposition that the property owner and/or construction manager must have ownership of, or operate the additional off-site facility, in order to bring it within the purview of the statute. Rather, Adams simply stands for the proposition that an individual who was injured while working on a project for his employer in connection with the renovation of a defendant’s premises was not involved in “construction” within the intended meaning of the statute, and thus is not afforded the protections of Labor Law § 241 (6).
Here, however, and as distinguishable from Flores, there is a closer nexus between the leasing of the Bronx Yard and defendants 56 Leonard and Lend Lease. Indeed, Collavino, subcontracted by Lend Lease, which was hired by 56 Leonard, was responsible for furnishing “[a] 11 temporary Project site facilities” and agreed “to place its Temporary Facilities in locations designated by Owner or Construction Manager.” Additionally, the Temporary License for the Bronx Yard was secured solely by Collavino, and for the purpose of completing work to be “forwarded directly to a construction site in Manhattan.”
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Order, Supreme Court, New York County (Barbara Jaffe, J.), entered April 28, 2015, which, insofar as appealed from as limited by the briefs, granted the motion of defendants 56 Leonard LLC (56 Leonard) and Lend Lease (US) Construction LMB Inc. (Lend Lease) to dismiss plaintiff’s Labor Law § 241 (6) claim as against them, reversed, on the law and the facts, without costs, and the motion denied.1
Plaintiff, Robert Gerrish, sustained injuries when, while working as an ironworker, he tripped and fell on debris at a work site. At the time of the accident, he was working at a yard in the Bronx, where he was bending and cutting steel rebar to be used for the construction of a new building located at 56 Leonard Street in downtown Manhattan. 56 Leonard was the property owner and Lend Lease was the construction manager. Lend Lease, “[a]cting solely as agent for [56 Leonard],” subcontracted with defendant Collavino Structures, LLC (Collavino) as the superstructure concrete contractor pursuant to a Trade Contract dated February 13, 2012. Collavino in turn subcontracted with plaintiff’s employer, nonparty Navillus Tile, Inc. (Navillus), to “receive, bend and install all rebar required for said project.” The Collavino/Navillus subcontract further provided that “Collavino will provide all trucking for bent rebar [512] from Bronx yard to the site.” It also incorporated by reference numerous other contracts involving defendants, but which are not part of the record and, therefore, are not currently before this Court.
The Trade Contract provided, inter alia, in Schedule 3 — “Temporary Facilities” — that “[a] 11 temporary Project site facilities and storage, sheds, shanties, material storage rooms, field offices, power, hoists, scaffolding, cold weather protection, etc. (‘Temporary Facilities’) required in performing the Work shall be furnished by Contractor [Collavino]. Contractor agrees to furnish, at Contractor’s expense, sufficient Temporary Facilities for the efficient performance of the Work. Contractor agrees to place its Temporary Facilities in locations designated by Owner or Construction Manager. When it becomes necessary, in the opinion of the Construction Manager, for Contractor to provide Temporary Facilities, Contractor will do so in an expeditious manner and at no additional cost. . . .” (Emphasis added.)
Thereafter, Collavino leased a portion of a work site in the Bronx (Bronx Yard) from nonparty Harlem River Yard Ventures, Inc. (Harlem River). Pursuant to that Temporary License, the only work Collavino was to carry out at the yard was in connection with “a construction site in Manhattan.” Collavino could not perform any other type of work at the Bronx Yard without first obtaining prior written approval from Harlem River. Plaintiffs employer was not a party to the Temporary License or the Trade Contract.
Plaintiff commenced this action against defendants, alleging, inter alia, a violation of Labor Law § 241 (6).
Labor Law § 241 (6) provides, in relevant part, that “[a] 11 contractors and owners and their agents, . . . when constructing or demolishing buildings or doing any excavating in connection therewith, shall comply with the following requirements: ... 6. All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places.”
56 Leonard and Lend Lease moved to dismiss the complaint against them pursuant to CPLR 3211 (a) (1) and (7), arguing that Labor Law § 241 (6) did not apply because, at the time of his accident, plaintiff was fabricating “steel rebars at an off-site temporary project facility in the Bronx . . . for a construction project located at 56 Leonard Street in Manhattan,” and, therefore, this did not constitute work at a construction site, as [513] required by the statute. The motion court agreed, citing Flores v ERC Holding LLC (87 AD3d 419 [1st Dept 2011]). We disagree and reverse, finding that Flores is distinguishable.2 In Flores, the plaintiff was injured while working at “his employer’s Bronx facility” (emphasis added), which was leased by his employer for the “storage of its equipment and materials” (87 AD3d at 420). Thus, neither the property owner defendant, nor the general contractor defendant in Flores was involved with the Bronx facility.
The Flores Court, relying on Adams v Pfizer, Inc. (293 AD2d 291 [1st Dept 2002], lv denied 99 NY2d 511 [2003]), looked to factors such as physical proximity and common ownership and operation of the off-site premises in determining whether the plaintiff was working in a construction area within the meaning of Labor Law § 241 (6) (87 AD3d at 421). However, the facts in Adams are distinguishable. In Adams, the plaintiff was injured on his employer’s premises while working on a mock-up design being constructed by his employer in connection with renovations to be completed at the defendant Pfizer’s premises {id. at 292). The Adams case does not stand for the proposition that a construction area within the meaning of Labor Law § 241 (6) must be within a certain mileage of, or proximity to, the actual building site. Nor does it support the proposition that the property owner and/or construction manager must have ownership of, or operate the additional off-site facility, in order to bring it within the purview of the statute. Rather, Adams simply stands for the proposition that an individual who was injured while working on a project for his employer in connection with the renovation of a defendant’s premises was not involved in “construction” within the intended meaning of the statute, and thus is not afforded the protections of Labor Law § 241 (6).
Here, however, and as distinguishable from Flores, there is a closer nexus between the leasing of the Bronx Yard and defendants 56 Leonard and Lend Lease. Indeed, Collavino, subcontracted by Lend Lease, which was hired by 56 Leonard, was responsible for furnishing “[a] 11 temporary Project site facilities” and agreed “to place its Temporary Facilities in locations designated by Owner or Construction Manager.” Additionally, the Temporary License for the Bronx Yard was secured solely by Collavino, and for the purpose of completing work to be “forwarded directly to a construction site in Manhattan.”
[514] The dissent contends that there is no need for this Court to interpret the Trade Contract, because it “governs only temporary on-site facilities that Collavino might need to perform its work” (emphasis added). However, the Temporary Facilities clause does not specifically limit its application to “on-site facilities.” Rather, it references generally “Temporary Facilities,” which will be in “locations designated by Owner or Construction Manager.” To find that it applies only to “on-site facilities” requires us to read a term into the contract that is not there. Additionally, the dissent argues that there is nothing in the record to suggest that “56 Leonard and Lend Lease had any reason to dictate where Collavino . . . performed any necessary off-site work . . . .” However, this is merely speculation; whether the Temporary Facilities clause is limited to on-site facilities or is inclusive of off-site facilities is clearly a question of fact that cannot be determined on this prediscovery motion to dismiss.
Nor does the case law cited by the dissent for the proposition that plaintiff was “not working in a construction area within the meaning of Labor Law § 241 (6)” dictate dismissal of plaintiff’s claim. In the first instance, all of the cases referenced were decided on summary judgment, after discovery was complete. In Jock v Fien (80 NY2d 965 [1992]), the plaintiff was injured when he fell “during his customary occupational work of fabricating a concrete septic tank” at the defendant’s facility, “whose business included the manufacture of septic tanks” {id. at 966). The case did not involve any construction project or site; hence, the Court’s decision that the plaintiff’s activity did not fall within the protection of the statute. In Pirog v 5433 Preston Ct., LLC (78 AD3d 676 [2d Dept 2010]), the Court found that the plaintiff was not engaged in construction work and was not working in a construction area because he was injured on his employer’s property, which was used to “store construction-related materials for use on various construction projects” (id. at 676). Similarly, in Davis v Wind-Sun Constr., Inc. (70 AD3d 1383 [4th Dept 2010]), the plaintiff was injured while working at his employer’s facility, and thus, was not entitled to the protection afforded by the statute (see also Maragliano v Port Auth. of N.Y. & N.J., 2012 NY Slip Op 30374[U], *4-5, [Sup Ct. Queens County 2012] [finding that the plaintiff was injured while working at his employer’s facility, which was used as a storage area, and thus, was not protected under the statute], affd 119 AD3d 534 [2d Dept 2014]). Such is not the case here, where the Bronx Yard was leased by Col-lavino, a subcontractor hired by the defendant construction manager, and not by plaintiff’s employer, and was to be used [515] only for work in connection with the Manhattan (56 Leonard Street) construction project.
Further, the dissent places an undue emphasis on Martinez v City of New York (93 NY2d 322 [1999]), where the Court of Appeals rejected the analysis “which focused on whether plaintiff’s work was an ‘integral and necessary part’ of a larger project within the purview of section 240 (1)” (id. at 326). First, Martinez concerned only Labor Law § 240 (1); it did not address or discuss Labor Law § 241 (6). Second, Martinez involved different phases of work, specifically, preconstruction “inspection” or “investigatory” work in which the plaintiff was involved (id. at 325, 326). The Court of Appeals has since reiterated its holding in Martinez to be that the statute “afforded no protection to a plaintiff injured before any activity listed in the statute was under way” (Panek v County of Albany, 99 NY2d 452, 457 [2003]). To the extent the dissent focuses on the Court’s statement that “statutory language must not be strained,” the Martinez Court also stated that the Labor Law statute at issue was “to be construed as liberally as may be for the accomplishment of the purpose for which it was . . . framed” (93 NY2d at 326 [internal quotation marks omitted]). Indeed, the Court of Appeals has found that the purpose of Labor Law § 241 (6) is “to protect workers engaged in duties connected to the inherently hazardous work of construction, excavation or demolition.” (Nagel v D & R Realty Corp., 99 NY2d 98, 101 [2002]). To apply the dissent’s reasoning would be a failure to accomplish the purpose for which Labor Law § 241 (6) was framed.
Morever, there is no set distance which would automatically include or exclude applicability of Labor Law § 241 (6). Although the dissent cites Shields v General Elec. Co. (3 AD3d 715 [3d Dept 2004]) and Brogan v International Bus. Machs. Corp. (157 AD2d 76 [3d Dept 1990]) in support of the proposition that fabrication work performed in close proximity to the building under construction falls under the ambit of Labor Law § 241 (6), neither Court there was focused on the question of proximity, but rather, the decisive factor was that the injury occurred on property owned by the entity constructing the building. Here, there is still a question of fact as to the property owner and construction manager’s involvement with the off-site temporary facilities.
Concur — Acosta, Feinman, Kapnick and Webber, JJ.