Harney v. Site 3 DSA Owner LLC

2024 NY Slip Op 30463(U)

• Court: New York Supreme Court, New York County
• Decided: February 13, 2024
• Status: Unpublished

Opinion

Harney v Site 3 DSA Owner LLC 2024 NY Slip Op 30463(U) February 13, 2024 Supreme Court, New York County Docket Number: Index No. 153979/2020 Judge: Mary V. Rosado 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. INDEX NO. 153979/2020 NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 02/13/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON.MARYV.ROSADO PART 33M Justice -------------· --- ... ~------------------~HT------------------. H -~-- ----------X INDEX NO. _153979/2020 JOHN HARNEY, CHRISTI NE HARNEY MOTION DATE 01/1 812023 Plaintiff, MOTION SEQ. NO. _..:...00..:....1_ __

SITE 3 DSA OVI/NER L LC, TRITON CONSTRU CTlON AND DECISION + ORDER ON DEVELOPMENT LLC, MOTION Defendant.

The fol1owfng e-filed documents, listed by NYSCEF document number (Motion 001) 18, 19, 20. 21, 22, 23,24, 25, 26, 27,28, 29, 30, 31, 32,41.44.45.46,47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61,62, 63, 64, 65,66, 67, 68,69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87.88, 89, 90, 91 we re read on th is motion to/for JUDGMENT-SUMMARY ------ - ----- l; pon the fon.~going papers, and after oral argument \Vhich was held on August 22, 2023

with David L Engelsher, Esq. appearing for plaintiff~ John Hamey ("Mr. Hamey") and Christine

Hamey ("Mrs. IIarnc:y") (''Plaintiffs") and Mkhael flake~ Esq. appearing for defendants Site 3

lJSA Owner LLC (''DSA") Jnd Triton Construction and Development LLC C'Triton") (together,

··Defendants"), Pluintiffs' motion for partial summary judgment on the issue ofliabihty with

respect to their claims under T,ahor Law 200 and Labor Law 241 (6): is denied. Defendants:

cross-motion for summary judgment di1::missing Plaintjffs' Complaint is granted in part and

denied in patt.

I. Background and ProccduraJ Histon·

This case arises out Plaintiff John Harnc:f strip and foH at a construt::1ion site located at

202 Broome Street, Kev,..· York, I\. Y. (the "•Site") on Septemhcr 17, 2019 (the '· Accident")

(KYSCEF Doc" 22 at~ 17).

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On the date of the Accident, the Sil.e was owned by DSA (NYSCFF Doc. 23 at ~! 3 ). DSA

had contracted with Triton rm Triton to act as the Construction \ifunagcr of the Site (:-JYSCEF Doc. 19 at~ 6). Triton's Field General Superinl~n

(a/k/a :'Kavesh") (/d. ) .

Prior to the date of the Accident, Triton entered into a contract with Mr. Hamey's

employer. Park Avenue Concrete} to perform construction work at the Site (NYSCEF Doc. 22 at

•· 14). At the time of the Accident, Mr. Hamey was employed by Park Avenue Concrete as a

hoist operator at the Site (NYSCF.f Doc. 5 5 at pp. 73-74 ). The Site had tw·o hoi:'its in operation.

po-;i tioncu ~idc hy side, each tnstallcd and maintained by S&F Scaffold, LLC, a company hired

by Triton (NYSCEF Doc. 19 at~ 7).

On June 5, '.2020 Plaintiffs commenced this action aguirn,L Ddcndants Owner and Triton,

aHcging violations of Labor Law Sections 200,241 (6) and 240(1) (NYSCEF Doc. 22). Mr.

Barney alleges thaL on September 17, 2019, he tripped and fell while walking into a hoist at the

Site because the Jov,,:er gate attached to the hoist \Vas not flush to the floor, creating a tripping

hazard (NYSCEF Doc. 19 at ii 5).

On January 18, 2023 Plaintiffs brought the instant motion for partial summary j udgmcnt

on the issue of liabjlity against Defendants based on Defendants' alleged violations of Labor

Law Section 200 and 241(6) (NYSCEF Doc. 18). On March 2, 2023 Ocfcndants filed a cross-

motion for summary judgment to dismiss Plaintiffs' Complaint in its entirety (NYSCEF Doc. 49)

IL Discussion

A. Summar,,' Judgment Standard

Summary judgment is a drastic remedy, Lu bt::! granted only \Vhcrc the moving pany has

tmdcrcd sufficient evidence to demonstrate the absence or any material issues of fact.•: (Vega v

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Resrani Const. Corp .. 18 NY3d 499,503 [2012]}. The moving party's "burden is a heavy one and

on a motion for summary judgmenl.) facts must he viewed in the light most favorabk to the non-

moving party.': (Jacobsen r },lew York City Heahh and Hasps. Corp.• 22 KY3d 824, 833 [20141).

Once this showing is made, the burden shifts to the party opposing the motion to produce

cvidcntiary proot: in admissible form. sufficient to establish the existence of mate1ial issues ofiacl

w"hich require a lriaI (.vee e.g., Zuckerman v Ci!y n.f }Vew York, 49 ~Y2d 5 S71 562 I l 980t

Pemberton v },lew York City Tr. Auth., 304 AD2d 340, 342 [l 5l Dept 2003 ]). Mere conclusion~ of

lav.· or fact are insufli.cient to defeat a motion for swnrnary judgm~nt (see Bancu Popular .-Vor!h

Am. v Victory 1tixi Mgt .. Inc., I NYJd 381 [2004"1}.

B. Plaintiffs' )..fotion for Partial Summary Judgment on J.iability Based on Labor Law Section 200 is Denied

The First Department has he]d that, '\,,,-her~ an ~xisting defect or

caused the injury, liability attaches if the oWTier or general contractor created the condition or had

actual or ~on:-;lructivc notice ot· il'" (Cappahianw v Slwmka USA Bldg Inc., 99 A1J3d l 39, 144

flst Dept 20121). Contrasting1y, in cases \vhcre the injury was ~•caused by the manner and rn~an~

of the \.vork, including the equipment used," it i~ wdl established lhat "the owner or general

contractor is liable if it actually exercised supervisory control over the injury-producing work''

(!d. ). Further, '·where a defect JS not inherent but is creattd by th~ manner in which the \vork is

performed. the clatm under Labor law 200 is one for means and methods and not one for a

d angerOll s condition existing on the premises)• ( Villanueva v 1J4 Fiji h Ave. As soc. LL C, 16 2 AD 3

404, 406 [1st Dept 2018]).

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1. Material Questions of Fact Remain Regarding Whether ~1r. Harney' s Injury Stems from the Manner in which IIis Work \VflS Performed

J.4lbor J.aw 200 codij1es an O\Vner or gtner4ll c:ontractor' s rnmmon-law Julie~ of care (Rom

v 47 E J4lh St, (NY), LP.. 208 ALJJ d 1075, 1081 [1st Dept 2O22 l). "Claims for personal injury

under the statute and the common lmv fall into lv,..-o broad caLtgories: tho~e arising from un alleged

defect or dangerous condition cxistjng on the premises and those arising from the manner in which

lhe work was perforn1ed" (Cappabianca at 143-144).

Plaintiffs contend that Mr. Hamey's injuries were caused by a dangerous or defective

condition in the hoist door~ namely, that the door created a tripping hazard because it was too big

and was not CTush with Lhe floor (l\"YSCF.F Doc. 20 al p. 14). In opposition) Defendants argue,

inter alia, that ('[a]s the hoist operator, it was [Nlr. Hamey's] job to bring the gates flush when

entering the hoist" {N YSCEF Doc. 44 at ~36).

The Affidavit of Defendants' Engineering Consultant Preston R. Quick, P.E.(thc i'Quick

A ffiduvit") (NYSCFF Doc. 46) states that the hoist cars were inspected and found to be fully

opel'ational three \Veeks prior to the Acddent and approximately two months foJlowing the

Accident (N YSCEF Doc. 46 al .- 10), und thut "[ aJny difference in e levalion bet v,.:~en Lht hoist car

gate and the hoist car platform and/or landing was due to the manner in which the designated hoist

openum ~onlro l led the l1oi ~t car gates'' (Id. at.- 19). 1

1Wh ii;:, Pl ai citiffa comeiid that the Quid, Affohwil shoo Id not be wn~id w:d bt,.1mse no curriculum vttae Wa'j ~llai.::hcd Lo it~ origin~] submi~~ion. thi~ argum~nl i~ 1..mavailing. hi~ well cstabli~hcd that ·-rt1or a witne.,s to be qualified a, at~ expcrr.. the witness must possess th.c req u i~itc skill, training., cduemion, ~n(IW l~dg.c m ex pc1·icn cc from which it can he a.~~lJ me-ii ll1 at che opi[lii.1n rendered is rcliahle·· {Sch~chfrr ~ .H2tJ ffnlduig U.C. M i\D.1t! 4-"6, 449 [ I ~I fkp! 2:0(t9j). The Qui~k Affai

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Quick specifically asserts in his Affirmation that a hoist car operator's responsibilities

include:

(A) VerticaJ operation of the hoist c:ar f1·om the operator station in the hojst car ... including stopping and positioning the hoist car floor/platfrnm flush v,,:ith the respective building floor landing ... (R) manual vertical operation of the biparting car gates ... tu ac:hieve full- open position of the vertically hiparting gages (e.g. pushing the lmvcr gate section dov,m flush \vith the hoist car floor and building Door lan

Additionally~ the Affidavit of Kavesh (the ixavcsh Affidavit")} the Field Superintendt:nt

ror Triton, states that ·'the kvcling of the clamshell gates ,vas part of the process of operating the

clamshell gates of the hoist," and thal there were no violations issued pertaining to the hoisL car in

q uc:~tion al any tllne (NYSCEF lJoc. 4 7 at ir,i 9-10). Kave~h further testified that he

Ohscrvcd only~ tempornry level differential caused hy the manner in v,:hic:h the hoist operator controlled the "clamshell"' doors of the hoist that [Mr. Harney\ was enlering. The le\'el differentiaJ that [hc1 observed was nol a defective condition or caused by any ma] fundi()n uf the hoist. Instead, it was caused entirely hy the hoi,~l opera Lor· s operation of the jmcrnal "clamshell'' doors. by foiling to step on the bottom portion of these gates. (or push the top portion upwards) to bring them level \',,,'ith the platform \Vhcn f\1r. Harney I entered lhe car (1'-:YSCEf. Doc. 4 7 at ,1 7).

As the Quick and Kavesh A ffi.davits assert that the hoist gates were inspected and found to

be operational bolh before and after Mr. Harney Accident (NYSCEF Doc:. 46 at i 13), that it was

part of Mr. Hamey's job responsibility to bring the gates flush when entering the hoist (ld. at 1

t 2), and that the elevation differential that allegedly cauo;ed Mr. I Iamey' s injury was caused

••entirely by the hoist operator's operation of the ink:rnal ·'clamshell)' doors by failing to step on

the holtom portion of these gates" (NYSCF.F Doc. 4 7 al ,r 7), Defendants have established the

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pr~~ence or material issues of fact regarding \vhether Mr. Hamey' .-s, Ac.::cidtnl stems from the

manner in which his work was performed.

11. MateriaJ Issues of fact Remain Regarding Whether Defendants Exercised Supcrvison.· Control Over the_ Operation of the I (ois~ Car or Gates

As discussed .rnpra, \vhere an injury i~ causc

\vork, including the equipment used. it is well established that the owner or general contractor is

liable only if it aclually exercis~

(Cappabianca at 144). The First Department has held that ''a general duty to supervise the work

and ensure compliunc~ w1th safety regulations is insufficient to constitute the requisite supervision

and control under Labor Law §200" (De La Rosa v Philip Morris Mgmt. Corp., 303 AD2d 190,

192 l1sl Dept 2003 ]).

Pfaintiffs assert that Kavesh exercised supervisory control over Mr. Hamey's work

(NYSCFF Doc. 82 ut p. 29). In support of this condusion, Plaintiffs cite to Kavesh's deposition

testimony \Vhcrc, when asked whctht..>-r he was "the lord" and "the king" or th~ ~on~tru'.:tion sile

and v.·hether he says what goes and the \Vorkers listen, Kavcsh responded "yes'' (NS YCEF Doc.

I Iowever, when Mr. I Iarncy was asked at his deposition who gave him instructions on his

work~ he tc:'ili ficd 1hat his mvn employer, PH.:rk Avenue Concrete, supervis.ed hi~ work (NYSCEF

Doc. 55 at p. 74-75). Further: ·the Kavcsh Affidavit states that Triton ''

control over how the hoist operations were performed or how the hoist operator would operate the

hoist) including the op~ralion or the internal. "clamshell" doors)' (N YSCEF Doc. 4 7 at ~i 11 ).

Given the compet1 ng testimony on the record. Defendant has established the existence of

material issues of fact regarding who exercised supervisory control over Mr. Harn~y's. injury-

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producing \vork. As such, Plaintiffs' motion for summary judgment on their Labor Law 200 claim

is denied.

C. Plaintiffs' :\ilotion for Summary Judgment on their Labor Law 241(6) Claim is o~nie

Labor La,;,v 241 (6) imposes a non•delcgablc duty of reasonable care upon owners.

contractors and their agents to provide reasonable and adequate protection and safety for workers

(Ross r Cunis-Palmer f fvdro-1.!.:lec. Co .• 81 l\Y2d 494.501 [ 1993 l). It is wcU established that "to

stall: a daim under section 241 (6), [aJ plaint1ff must allege lhat defendant violated an Tn

Code regulation that sets forth a specific standard of conduct and [isl not simply a rccitatjon of

common-law safety principles" (Toussaint v Port Auth. ofN Y., 38 NY.1

Here, Plaintiffs' Memorandum of Law in support of their motion for summary _judgment

allege~ that Defendants violated 12 N .Y .C.R.R. 23-1.7 (e )( 1). which applies to tripping and other

hazards in pa:,:;sagcways (NYSCEF Doc. 20 at p. 12). Section 23- f. 7 (c)( l) states that "fa"l!l

passageways shall be kept free from accwnulations of din and debris and from any other

obstrnctions or conditions which could cause tripping. Sharp projections ,;,vhjch could cut or

puncture any person shall he removed or covered." Plaintiff., argue thut T'vfr. Humey was v,..-alking

in a passageway at the time of his accident and that "ls!incc the tripping hazard twasJ in this

•pas.sageway ·, the ddendanls vi oiated 2 3-1. 7( e ){ 1f' (NYSCEF Doc. 20 at p. 18 ).

In opposition: Defendants argue that ''the condition on which lMr. Hameyj tripped \vas not

a "tripping hazard' ... but v.·as an 'integral part of the constrnction ": {NYSCEP Doc. 44 at , 13).

Jndeed, it is ,vell established that a claim for violation of Labor Law 241 (6) premised on an alleged

violation of Industrial Code Section 23-1. 7( e )( 1) should he dismissed \Vhcrc the alleged tripping

hazard was '•an integral part of the \Vork being_ performed" (Bazdaric v .,umah Partners U.C:) 203

AD3d 643, 645 [1st Dept 20221).

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The First Department has held that the ··Integral to the Work" defense "applies to things

and conditions that arc an integral part of the construction, not just to the specific task a plaintiff

may be perfom1ing al the time or the accident" (Krzyzanowski v City oj}./ew York, 179 AD3d 479,

48 l 11 st Dept 20201). The First Department has funher held thai a plaintiffs motion for summary

judgment should be denied where the plaintiff fails to establish that the alleged tripping ha;,-..a.rd

was .. accumulated debris or scattered material;(;," and not something "pmposely placed on the

floor" lld J.

Plaintiffs have presented no evidence to estahlish that debris or dirt had any role in cau~ing

Mr. Hamey's Accident. Moreover, the record establishes that in August 2019 th~ clamshctl gates

were intentionally installed as part of the dual hoist cars as '"safely devices" (l\YSCEF Doc. 46 at

Accordingly, the Court finds because Defendants have raised material issues of facl

regarding whether the darns.hell gates which allegedly caused T\.-fr. Hamey's injury can be

considered a tripping hazard for purposes or I 2 N. Y. C.R. R. 23- 1. 7 (c )(1 ), Plaintiffs• mo lion for

summary judgment on their I...abor Law 241(6) Claim is Denied.

D. Dcfr:ndanrs· Cross-\fotion for Summary Judgment Dismissing Plaintiffs) Claims under Labor L:

Pre Uminarily, P1ain tiffs failed to m~k e an arg um cm op posing De fc ndants' cross~ motion

for summary judgment dismi:-1sing Plaintiffs' Labor Law 240(1) claim.

Labor law 240 ( 1) obligates owners and contractors engaged "in the erection. demolition.,

repairing, altering, pc1inling, deaning or poinling of a building or structure," except certain ov.ners

of one- and two-family dwellings, to ti funiish or er~t ... scaffolding, hoists~ stays. ladders, slings,

hangers, blocks, pulleys, braces, irons. rope~, and oLher devic~~ which shalJ be so constructed,

placed and operated as to give proper protection to a person" employed in the performance of

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the labor (Rivas v Seward Park Hous. Corp., 219 A03d 59, 63 11 st Dept 20231}. The First

Department has held that " [t1he single deci sj ve question ... is w hetl1er plain ti ff::; inj uri cs were the

direct consequence of a failure to provide adequate protection against a risk arising from a

physically significant elevation differential·• (Id. citing Runner v }lew York Stock Exch., Inc., 13

NY3d 599) 603 [2009]).

In Lombardo v. Park Tower Manage-men{ Ltd .. 76 A.D.3d 497 (1st Dept. 20 I 0), the First

Department held that a step, "whic:h ivas 18 inches above the floor. .. was not of suflicient height

to trigger the proli;ction of s.cction 240( I}, nor was plaintiff exposed to the type of extraordinary

risk for which the statute ,vas de~igneJ"' (1.omhurdo at 498). As ~-fr. Harney testified that the

clamshell door over which he allegedly tripped was raised "anyv,,.·here from ~ight inches to a foot,"

De (cndants. have established thal the dam shell door did not constitute a sufficiently significant

elevation differential to satisfy a claim under Labor Law 240(1). As Plaintiffs faitcd to proffer any

argument in opposition to Defendants' motion to dismiss Plaintiffs' 240(1) claims, D~fendants'

motion is granted. •.

E. Defendants' Cro~s-T\fotion for Summary Judgment Dismissing Plaintiffs' Claims Under Labor Law 241 (6) is Granted

\\.-'hile Plainli ffs' Rill of Particulars alleges violations of 12 N. Y.C.R.R Sections 23-1.S(a),

23-1.5lb), n-!.7(a) (1). 23· l.7(a)(2), 23-l.7(d), 23-1.7 (e)(l), n 1.7 (e){2). and 23-2.l(b) (NYSCEF Doc. 24), PJainljffs' opposi{ion to Defendants' cms~-motion argues only thut there was

a violation orinJustrial Code 23-L7(e)(l) (l\YSCEF Ooc. 71 at p. 42). A:'i such. Plaintiffs' claims

,vith re~p~ct lo all other indllstrial code provisions arc dismissed (see Jamie 11./g v 1VTU Langone

Med. Ctr. 157 A 03d 549 11 st Dept 20181).

As discussed ubov~, a claim for violation of J,ahor Law 241 (6) premised on an alleged

violation of Industrial Code Section 23-L7(e)(l) should he dismissed where the alleged tripping

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hazard was -~an inlegral part of the work being performed" (Bazdaric v Almah Partners !IC, 203

AD3d 643,645 [ ist Dept 2022])1

Here, Plaintiffs prt::sent no evidence or argument to establish that debris or dirt had any role

in causing Mr. Harncy~s Accident. Furthe;:r, the record establishes that in August 2019 the clamshell

gates were intentionally installed as part of the dual hoisL cars as "safety devices" (NYSCEF Doc.

46 at ,r 9). Therefore, as the clmnshell gate that Plaintiffs allege lo be a tripping hazard \Vas not

caused by accumulated debris or scattered materiuls~ hut rather was purposi;:folly placed on the

hoist as a safety device, lhe Courl finds that it was not a tripping hazard for purposes of l ndustrial

Code Section 23-l .7{e}(l ). Accordingly. Defendants' motion for summary judgment dismissing

Ph=iintiffs) claims Under Labor Law 241 (6) is granted.

F. Defendants Cross-.\fotion to Dismi~s Plaintiffs' Claims. Under Labor Law 200 is Denied

As discussed in Section B above, material issues of fact remain regarding whether Mr.

Ilamey's Accidi;:nt stems from the manner in which Mr. Hamey's work was performed or from an

cxi:-1ting defect or dangerous condition. Further. competing testimony on the record establish the

existence of'material issues of fact regarding who exen.::i~ed supervisory control over \ifr. Hamey's

injury-producing work. As such, Defendants' motion ('or summary judgment Dismissing

Plainti lls' daims under Labor Law 200 is denied.

Accordingly, it is hereby,

0 RD FR FD that PI aintiffs John I Iarney and Christi nc Hamcy · s motion for purl i al summary

judgment on lhe issue of liability \Vith respect to their claims under Labor Law 200 and I .abnr Law

241(6), is denied; wd it is 1i.trther

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OlUJERED that Defondanls Site 3 DSA 0"w11er TJ .C and Triton Constrnction and

Development I .I ,C's cross-motion for summary judgment dismissing Plaintiffs' claims. under

Labor Law 240(1) and 241 (6) is granted; and it is further

ORDERED that Defendants Site 3 DSA Owner LLC and Triton Construction and

Development LLCs cross-motion for summary jlldgmem dismissing Plaintiffs' claims under

T.ubor I .aw 200 is. denied; and it is further

ORDERED that on ur bdi.m: February 27. 2024, the parties shall submit a proposed Status

Conference Order via c-maU to SFC-Part:B~Clerk(d nvcourl'i.cov. lfthc parties arc unable to ag~e 1

to a proposed Status Conference Order, the parties arc directed to appear for an in-pcr:'ion status

confowncl: on February 28. 2024 at 9:30 a.m. in Room 442, 60 Centre Street, .>Iew York, J\·ew

York: and it is further

ORDERED that within ten (10) days of entry. counsel for Pluintiffs shall scn"c a copy of

this De-ei si on and Order. with notice or entry~ on Defendants~ and it is further ORDERED that the Clerk of the Court is directed to enter judgment aecordingJy.

This constitutes the Dec:ision 4tnd Order of the Court.

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GRANTED □ DENIED ~ GR.ANTE-Cl Hi PART □ On-ER AF'PLlCA TrON; SE.TTL!:; OHIJ"l:J;: SUBMIT ORDER

CHECK IF AP PRO PRtATE: INCL U0 ES TRANSFER/REAS.SIGN FIDUCIARY AP POlt,jT l'l'lcl•ff □ F!l;.FERE:NCE

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