In Motion Sequence No. 3, plaintiffs move for summary judgment on the issue of liability against the defendant, Timbil Mechanical, Inc. (in the singular, “Timbil”) and setting this case down for an assessment of damages. In Motion Sequence No. 4, defendants The New York Presbyterian Hospital I/S/H/A New York Presbyterian Hospital (In the Singular. “Presbyterian”), Turner Construction Company (in the singular, “Turner”), and Timbil (collectively, “defendants”) move pursuant to CPLR §3212 granting defendants summary judgment and dismissing plaintiff’s claims against them. Plaintiff, an employee of non-party Champion Metal, was allegedly injured on March 28, 2017, during construction of a building owned by defendant Presbyterian. Defendant Turner was the general contractor for the project. At the time of the accident, plaintiff was examining materials when he was struck by a Genie lift that was operated by George Calderon, an employee of defendant Timbil. A video of the accident, as described by the parties, depicts plaintiff speaking on his phone when the vehicle struck him. Ken Musto, an employee of defendant Turner, testified that it was generally known and understood that the area where plaintiff was standing was a “traffic lane” for the movement of materials. While no person was stationed there to ensure compliance with traffic restrictions (i.e., keeping the area clear of workers), all employees were required to be advised not to stand in that area — albeit the witness had no personal knowledge that plaintiff had been so advised. The witness further stated that in sum and substance, he reprimanded the plaintiff after the accident for standing in the traffic lane. Calderon, the operator of the Genie lift, stated in an affidavit that the lift did not require the use of a spotter or flagger, as it was equipped with an audible warning sensor which was operational at the time of the accident. Further, “the operator’s view is not blocked by any of its component parts.” He claimed that plaintiff “walked into the path of the Genie Lift mere seconds before the accident and had been hunched over a stack of pallets examining materials and installation plans while talking on his cell phone.” Calderon admitted at his EBT that the Genie lift would stop immediately when the “joy stick which controlled its movement was put in the neutral position. He initially testified that the plaintiff “jumped” in front of the lift. He later clarified that plaintiff walked in front of the lift moments before the impact. Plaintiff’s expert engineer opines in an affidavit that the defendants were negligent in not employing flagger or spotters to avoid the occurrence of an accident in this heavily trafficked area. Defendants seek summary judgment dismissing plaintiff’s common law negligence and Labor Law §200 claims on the grounds that defendants did not supervise, direct or control the means and methods of plaintiff’s work, defendants did not create or have notice of an allegedly defective condition, and that plaintiff’s “unforeseen actions” caused the accident. Defendants additionally move for summary judgment dismissing plaintiff’s Labor Law §§240(1) and 241(6) claims on the ground that the accident was not elevation-related, and that the Industrial Code sections plaintiff claims were violated are allegedly insufficiently specific or inapplicable to the facts of this action.1 Plaintiff does not oppose the portion of the defendants’ motion that seeks to dismiss the Labor Law Section 240(1) action or the Labor Law Section 200/common law negligence action against the defendant Presbyterian and withdraws those causes of action. Plaintiff asserts that Timbil is negligent based on the negligence of its driver, and that Turner may be liable for creating a dangerous condition (the traffic conditions in the area where the accident occurred). Plaintiff also argues that liability under Labor Law 241(6) may be predicated on 12 NYCRR §23-9.8(1), which requires audible sounding devices on “forklifts.” Plaintiff has not submitted any opposition to defendant’s motion seeking dismissal of plaintiff’s Labor Law §200 claim against Timbil. As plaintiff argues, “[w]here an existing defect or dangerous condition caused the injury, liability [under Labor Law §200] attaches if the owner or general contractor created the condition or had actual or constructive notice of it” (Cappabianca v. Skanska USA Bldg. Inc., 99 AD3d 139, 144, 950 NYS2d 35 [1st Dept. 2012]). Proof of the defendants’ supervision and control over a plaintiff’s work is not required (see Cordeiro v. TS Midtown Holdings, LLC, 87 AD3d 904, 906, 931 NYS2d 41 [1st Dept. 2011]). Plaintiff has not, however, established that any dangerous condition existed, and the defendants, to the contrary, have established prima facie that there was no dangerous condition. The defendants have shown that there was a safety plan in effect. There is no evidence of any prior accidents so as to establish notice that the work place was dangerous. The area where the accident occurred was unobstructed, and the driver of the lift had an unobstructed view as it passed through a well-lighted, straight hallway. The driver admitted that his view was unobstructed, and that there was no need for a flagman or other person to direct traffic. There is no showing that the configuration of the job site, or any other dangerous condition, rather than mere inattentiveness on the part of the driver, caused the accident. It is clear that the accident occurred through the negligence of Timbil’s employee. Whether or not the plaintiff walked or stood in the path of the vehicle, Timbil’s employee clearly failed to see what there was to be seen, and failed to keep a safe distance from persons lawfully on the job site. References to “jumping” are clearly feigned issues in view of the videotape and the EBT testimony of the driver. Issues of fact exist as to whether plaintiff was comparatively negligent in standing in the passageway, and/or in failing to be attentive to conditions around him. A plaintiff is no longer required to show freedom from comparative fault to establish her or his prima facie entitlement to judgment as a matter of law on the issue of liability (see Rodriguez v. City of New York, 31 NY3d 312, 76 N.Y.S.3d 898, 101 N.E.3d 366.) With respect to Labor Law 241(6), 12 NYCRR §23-9.8 (1) applies only to “fork lift trucks,” and not “lifts” generally. Even in view of plaintiff’s testimony that he did not hear an audible warning, the lift involved was equipped with a “driver-activated horn, whistle, gong or similar warning device” as required by the section, and in any event, there is no showing that the lift involved could be construed to constitute a “fork lift truck.” Plaintiff has, as noted above, abandoned reliance on any other section of the Industrial Code. Those issues not addressed herein are found to be without merit. Accordingly, it is hereby, ORDERED that the motion of the plaintiff is granted to the extent of finding defendant Timbil negligent under the common law, and it is further ORDERED that all claims are dismissed under Labor Law 200, 240(1), and 241(6). This is the Decision and Order of the Court. Dated: December 15, 2020
