Lyons v. New York City Economic Dev. Corp.

2024 NY Slip Op 33440(U)

• Court: New York Supreme Court, New York County
• Decided: September 30, 2024
• Docket: Index No. 160496/2015
• Status: Unpublished

Opinion

Lyons v New York City Economic Dev. Corp. 2024 NY Slip Op 33440(U) September 30, 2024 Supreme Court, New York County Docket Number: Index No. 160496/2015 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. 160496/2015 NYSCEF DOC. NO. 186 RECEIVED NYSCEF: 09/30/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. MARY V. ROSADO PART 33M Justice -----------------------------X INDEX NO. 160496/2015 RICHARD LVONS, and JODY LVONS, MOTION DATE 09/22/2023 Plaintiff, MOTION SEQ. NO. 005 - V -

NEW YORK CITY ECONOMIC DEVELOPMENT CORPORATION, NEW YORK CITY DEPARTMENT OF DECISION + ORDER ON ENVIRONMENTAL PROTECTION, and THE MOTION COMPTROLLER OF THE CITY OF NEW YORK

Defendant. -----------------------------------------------X

The following e-filed documents, listed by NYSCEF document number (Motion 005) 119, 120, 121, 122, 123,124,125, 126, 127,128,129,130,131,132,133, 134,135,136,137,138,139,140, 141, 142, 143, 144,145,146,147,148,149,150,151,152,153,154,155,156,157,158,159,160,161,162,163,164, 165,166,167,168,169,170,171, 172,173,174,175, 176,177,178,179, 180,181,182,183,184,185 were read on this motion to/for JUDGMENT-SUMMARY

Upon the foregoing documents, and after final submission date of July 16, 2024,

Defendants New York City Economic Development Corporation, City of New York i/s/a New

York City Department of Environmental Protection ("NYCDEP"), and City of New York's

(collectively, "Defendants") motion for summary judgment dismissing Plaintiffs Richard Lyons

("Plaintiff') and Jody Lyons's ("Plaintiff Jody Lyons") (collectively, "Plaintiffs") Complaint is

granted.

I. Background

This action was commenced on October 12, 2015 following injuries sustained by Plaintiff

on September 4, 2014, when he tripped and fell on a metal mesh walkway while working as a

survey engineer on the Staten Island Water Siphon Tunnel Project (the "Project") (see NYSCEF

Docs. 3, and 130 at 48:3-49:9). It is alleged that the metal mesh expanded and buckled as Plaintiff

stepped on it, causing his fall (Id.). The metal mesh walkway served as a platform which Plaintiff 160496/2015 LVONS, RICHARD vs. NEW YORK CITY ECONOMIC Page 1 of 8 Motion No. 005

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stepped on it, causing his fall (Id.). The metal mesh walkway served as a platform which Plaintiff

and other workers traversed and worked on (NYSCEF Docs. 140 at 75-76, and 143 at 60-61).

Plaintiff was employed by Tully Construction Co., Inc./OHL S.A., Joint Venture ("Tully

Construction"), the general contractor for the Project (NYSCEF Doc. 140 at 41: 18-19). Defendant

NYCDEP partially funded the Project (NYSCEF Doc. 149 at ,r 4). Defendants move for summary

judgment seeking dismissal of Plaintiffs' New York Labor Law§ 200 and common law claim, as

well as Plaintiffs' New York Labor Law 241(6) for an alleged violation of New York Industrial

Code§ 23-1.7(e)(l).

Defendants argue that they did not control Plaintiffs method or manner of work and did

not create or have notice of any dangerous condition. Defendants further argue that the metal mesh

walkway was an open and obvious condition that was not inherently dangerous. Defendants argue

that the metal mesh walkway was a work area, and not a passageway. Even if the metal mesh

walkway was considered a dangerous condition on a passageway, it was integral to the work.

Plaintiffs argue that Defendants supervised Plaintiffs method and manner of work, and that the

metal mesh walkway represented a dangerous condition that was undiscoverable. Plaintiff argues

that the metal mesh walkway was a passageway and not integral to the Project's work because it

was used to traverse the tunnel and because, hypothetically, it could be a tripping hazard.

II. Discussion

A. Standard

Summary judgment is a drastic remedy, to be granted only where the moving party has

tendered sufficient evidence to demonstrate the absence of any material issues of fact." (Vega v

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

on a motion for summary judgment, facts must be viewed in the light most favorable to the non-

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moving party." (Jacobsen v New York City Health and Hasps. Corp., 22 NY3d 824, 833 [2014]).

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

evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact

which require a trial (See e.g., Zuckerman v City of New York, 49 NY2d 557, 562 [1980];

Pemberton v New York City Tr. Auth., 304 AD2d 340,342 [1st Dept 2003]). Mere conclusions of

law or fact are insufficient to defeat a motion for summary judgment (see Banco Popular North

Am. v Victory Taxi Mgt., Inc., l NY3d 381 [2004]).

B. Plaintiffs' Labor Law § 200 and Common Law Claim

Defendants' motion seeking summary judgment and dismissal of Plaintiffs' claims under

New York Labor Law § 200 and common law is granted. "Labor Law § 200 is a codification of

the common-law duty of property owners and general contractors to provide workers with a safe

place to work" (Grasso v. New York State Thruway Auth., 159 A.D.3d 674, 678 [2d Dept 2018]).

A worker's claims pursuant to § 200 are analyzed based on injuries caused either by the manner

and method by which work is performed or those caused by dangerous or defective conditions at

the worksite ( Urban v No. 5 Times Sq. Dev., LLC, 62 AD3d 553, 556 [1st Dept 2009]).

To establish supervisory control over method and manner of work, a showing that the

owner or contractor controlled the way the work was performed is required (Hughes v Tishman

Constr. Corp., 40 Ad3d 305, 306 [1st Dept 2007]). General supervisory authority is insufficient

(Id.). Here, this Court finds that the Defendants did not control Plaintiffs methods and manner of

work. Plaintiffs argument that Defendants had authority to stop work if there was a dangerous

condition is insufficient to establish supervisory control (see NYSCEF Doc. 148 at 25:25-26:12).

Under the dangerous or defective condition category, there must be evidence showing that

the property owner or contractor created a dangerous or defective condition or had actual or

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constructive notice of it without remedying it within a reasonable time (Grasso at 678; see Gordon

v American Museum of Natural History, 67 NY2d 836 [1986]). General awareness that a

dangerous or condition may exist is insufficient to constitute notice (Piacquadio v Recine Realty

Corp., 84 NY2d 967 [1994]). "The notice must call attention to the specific defect or hazardous

condition and its specific location, sufficient for corrective action to be taken" (Mitchell v NYU,

12 Ad3d 200 [1st Dept 2004] citing Gordon at 836). Liability may not be imposed where the

condition is open and obvious, readily observable by the reasonable use of one's senses, and not

inherently dangerous (DiSanto v Spahiu, 169 AD3d 861, 862 [2d Dept 2019]).

Defendants have established their prima facie entitlement to summary judgment based on

the dangerous or defective condition category of§ 200 claims. Defendants argue that they did not

install the metal mesh walkway and they therefore did not create any alleged dangerous condition

(NYSCEF Docs. 130 at 44:20-45:11, and 153 at 50:16-18). Defendants argue they lacked notice

of any alleged dangerous or defective condition because Plaintiff failed to identify a specific area

and the expanded metal was open and obvious (see NYSCEF Docs. 123 at ,i 18, and 130 at 55:3-

8). Defendants further argue that the alleged deflection of four to five inches that caused Plaintiff's

injury is impossible, according to their expert testimony (see NYSCEF Doc. 123 at ,i 14). Finally,

Defendants argue that the metal mesh walkway installation and use was a normal and acceptable

safety practice (see NYSCEF Docs. 123 para 11; 124 para 14). Plaintiffs allege that additional

workers suffered injuries and that there were multiple complaints addressing the integrity of the

mesh walkway (NYSCEF Doc. 130 at 76:9-77:16, 80:7-81:2). Plaintiffs further argue that the

metal mesh walkway concealed its expansion and deflection, creating a dangerous condition.

The evidence does not contradict Defendants' argument that they did not create the

condition. It is Plaintiffs' own testimony that non-party Tully Construction employees installed

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the metal mesh walkway on the Project. Therefore, the Court finds that Defendants did not create

a dangerous condition for purposes of Labor Law § 200. Moreover, Plaintiffs' testimony shows

that Plaintiff and other workers were aware of the metal mesh walkway and its expansion, but that

Plaintiff failed to identify the specific area of the alleged defect. The Court therefore finds that the

evidence provided by Plaintiff does not, without more, refute sufficiently Defendants' showing

that such expansion was a safe, normal practice, nor that the metal mesh walkway was a reasonable

means of providing a platform on which to work on. Thus, Defendants' motion for summary

judgment is granted as to Plaintiffs' Labor Law§ 200 and common law claim.

C. Plaintiffs' Labor Law§ 241(6) Claim

Defendants' motion seeking summary judgment and dismissal of Plaintiffs' claim under

New York Labor Law§ 241(6) is granted. Labor Law§ 241(6) provides:

"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. The commissioner may make rules to carry into effect the provisions of this subdivision, and the owners and contractors and their agents for such work, except owners of one and two-family dwellings who contract for but do not direct or control the work, shall comply therewith."

(Bazdaric v Almah Partners LLC, 209 NYS3d 310, 314 (2024]). An owner or general

contractor "is vicariously liable without regard to [their] fault," and "even in the absence of control

or supervision of the worksite," where a plaintiff establishes a violation of a specific and applicable

Industrial Code regulation (Id. at p. 317). The relevant Industrial Code should be sensibly

interpreted and applied (Id.). Industrial Code§ 23-l.7(e)(l) provides that "[a]ll passageways shall

be kept free from accumulations of dirt and debris and from any other obstructions or conditions

which could cause tripping'' (12 NYCRR § 23-l.7[e][l]). A defendant may defeat a claim under

Labor Law§ 241 (6) for a violation oflndustrial Code§ 23-1.7(e)(l) when a dangerous or defective

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condition is integral to the work performed (Krzyzanowski v City ofNew York, 179 Ad3d 479,480

[1st Dept 2020]; 0 'Sullivan v ID! Constr. Co., Inc., 7 NY3d 805, 806 [2006]). The "integral-to-

the-work" defense doctrine "applies only when a dangerous condition is inherent to the task at

hand, and not ... when a defendant or third party's negligence created a danger that was avoidable

without obstructing the work or imperiling the worker" (Bazdaric at 320).

The Defendants have established their prima facie entitlement to a grant of summary

judgment. Defendants argue that the metal walkway mesh was not a passageway within the

meaning oflndustrial Code§ 23-1.7(e)(l), but a flat walking surface that constituted the Project's

work area (see NYSCEF Doc. 123 at 1 11). Defendants further argue that, even if the metal mesh

walkway were a passageway, Industrial Code§ 23-1.7(e)(l) was not violated because the mesh

walkway was an integral part of the work carried out on the Project (see NYSCEF Doc. 130 at

59:22-25). In support, Defendants submit an engineering expert's testimony that the metal mesh

was not inherently dangerous, a hazard, or an unreasonable risk under the circumstances (Id. at 1

12). Moreover, Defendants' engineering expert testified that the metal mesh walkway "complied

with the industry standards for safety" and "made the [P]roject safer" (Id. at 1 15). Defendants also

submitted the testimony of a senior biomechanics and human factors engineering expert that the

use of expanded metal spreaders provided a reasonable means for creating a walking surface to

avoid the circular tunnel invert (NYSCEF Doc. 124 at 1 14). According to the testimony, this

would allow workers the ability to traverse and operate on the Project and prevent injury (Id.).

Plaintiffs argue that the metal mesh walkway was a passageway that Plaintiff needed to

traverse to access his work area (NYSCEF Docs. 140 at 75:25-76:8, and 148 at 61:5-12). Plaintiff

further argues that the mesh walkway was not Plaintiff's work area because Plaintiff did not

"actively work" on it. The metal mesh walkway was not integral to the work because it could,

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"hypothetically," be a tripping hazard if it expanded (NYSCEF Doc. 148 at 64:21-65: 19). Plaintiff

submits his testimony that at the time of the accident he was walking on the metal mesh walkway

to perform his work (NYSCEF Doc. 130 at 48:6-14). Additionally, testimony of an Tully

Construction Site Safety Manager alleges that there had been complaints about the metal mesh

walkway's deflection and attempts to install a thicker mesh that ultimately caused problems with

train cars derailing (NYSCEF Docs. 130 at 79:18-22, and 153 at 81:3-7, 91:22-93:2).

Plaintiff has failed to rebut the Defendants' showing that the metal walkway constituted

the Project's work area (see Conlon v Carnegie Hall Society, Inc., 159 AD3d 655-656 [1st Dept

2018] [finding that a staircase was a work area when work was required to be conducted on it and

it served as the sole means of access to the plaintiffs work area]. Plaintiffs unsupported allegation

that he needed to traverse the metal mesh walkway to reach an area to work at does not, without

more, rebut Defendants' expert testimony that the metal mesh walkway constituted a work area

(see McHugh v Peduto Constr. Corp., 225 AD3d 496, 497 [1st Dept 2024] [contradictory

deposition testimony, absent any supporting evidentiary proof, was merely surmise or conjecture

insufficient to raise an issue of fact to defeat a motion for summary judgment]).

Moreover, Defendants established that the metal mesh walkway was integral to the work

on the Project. The evidentiary proof offered by Plaintiffs does not dispute this (see Weitz v

Bernstein, 194 AD3d 592, 593 [1st Dept 2021] [a plaintiff failed to raise an issue of fact when the

movant' s expert testimony was not contradicted by the available evidence]). At best, Plaintiffs

and the Tully Construction Site Safety Manager's allegations constitute speculation as to the

integrity of the metal mesh walkway and whether it was an unavoidable condition. Additionally,

Plaintiffs' testimony shows that attempts to alter the metal mesh walkway obstructed the Project's

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work. Therefore, Defendant's motion for summary judgment is granted as to Plaintiffs' New York ·

Labor Law§ 241(e)(l) claim for a violation of New York State Industrial Code§ 23-1.7(e)(

Accordingly, it is hereby,

ORDERED that Defendants New York City Economic Development Corporation, City of

New York i/s/a New York City Department of Environmental Protection, and City of New York's

motion for summary judgment dismissing Plaintiffs' Complaint is granted; and it is further

ORDERED that within ten days of entry, counsel for Defendants New York City Economic

Development Corporation, City of New York i/s/a New York City Department of Environmental

Protection, and City of New York shall serve a copy of this Decision and Order, with notice of

entry, on all parties to this case; and it is further

ORDERED that the Clerk of the Court is directed to enter judgment accordingly.

This constitutes the Decision and Order of the Court.

9/30/2024 DATE H(>N~MARY V. ROSADO, J.S.C.

CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION

x GRANTED □ DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER

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

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