Recitation as required by CPLR 2219(a), of the papers considered in plaintiff’s motion for summary judgment. Papers Numbered Order to Show Cause/Motion and Affidavits Annexed 60-77 Answering Affidavits 78, 113, 118 Reply Papers 112, 114, 116 Memoranda of Law 117 ADDITIONAL CASES ZZZ Carpentry, Inc., Third-Party Plaintiff, v. A.R. Equipment, LLC, Third-Party Defendant DECISION AND ORDER Upon the foregoing cited papers, the Decision/Order on this motion is as follows: In this action to recover damages for personal injuries arising out of a construction site accident, plaintiff Osiel Perez [Perez] moves for an order pursuant to CPLR 3212 granting him partial summary judgment on his Labor Law §§240(1) and 241(6) claims. On July 23, 2018, Perez, an employee of third-party defendant A.R. Equipment LLC [A.R. Equipment], was allegedly injured due to a ceiling collapse at a 100-year-old townhouse that was under going a gut renovation located at 150 East 28th Street, New York. At the time of this alleged accident, Perez and several of his coworkers were in the process of removing debris on the 4th floor of the townhouse when the partially demolished 4th floor ceiling, which was not braced or shored, collapsed on them. On the date of the accident, the premises was owned by defendant Angela Sun [Sun] who retained ZZZ Carpentry Inc. [ZZZ] as the general contractor to perform the gut renovation of the townhouse. A.R. Equipment was the subcontractor retained by ZZZ to perform the demolition work for the project. Perez commenced this action against defendants ZZZ and Sun1 asserting causes of action for common-law negligence, and alleging violations of Labor Law §§200, 240(1), and 241(6)2. Labor Law §240 (1) imposes a nondelegable duty upon owners and contractors to provide certain safety devices to protect workers from elevation-related risks, and the absence of appropriate safety devices constitutes a violation of the statute as a matter of law (see Ross v. Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494 [1993]; Barr v. 157 5 Ave., LLC, 60 AD3d 796 [2d Dept 2009]). “In order for liability to be imposed under Labor Law §240(1), there must be ‘a foreseeable risk of injury from an elevated-related hazard…, as defendants are liable for all normal and foreseeable consequences of their acts’” (Shipkoski v. Watch Case Factory Assoc., 292 AD2d 587, 588 [2d Dept 2002]). “Thus, to establish a prima facie case pursuant to Labor Law §240(1), a plaintiff must demonstrate that the risk of injury from an elevation-related hazard was foreseeable, and that an absent or defective protective device of the type enumerated in the statute was a proximate cause of the injuries alleged” (Shipkoski at 588). Perez’s testimony indicates that on the morning of the accident he and some of his co-workers were removing debris from the surface of the 4th floor. The debris was from the demolition of the rear half of the 4th floor ceiling that had occurred three to four days prior. While he and his co-workers were in the process of clearing the debris, the remaining front half of the 4th floor ceiling suddenly collapsed on top of them. A.R. Equipment’s foreman, Rodolfo Carino, who was also clearing debris at the time, testified that the front portion of the 4th floor ceiling was not braced, shored, or otherwise guarded, and that the only thing securing the ceiling were two by fours that remained from the existing wall of the structure. Mr. Carino acknowledged that after the rear portion of the ceiling was demolished, the remainder of the ceiling was weakened. He also acknowledged that the existing pieces of wood were not able to support the ceiling. Mr. Carino testified that ceilings at demolitions sites should be secured at all times while workers are working underneath them, and that a partially-demolished ceiling, that is not braced, reinforced, or secured, can collapse. John Sherman, who was the president and owner of ZZZ in 2018, testified that ZZZ did not brace, shore or place any device to secure any part of the 4th floor ceiling for this project, and did not request that any other company do so. When shown pictures of the ceiling after its collapse, Mr. Sherman testified that the material used in the ceiling was not typical construction and that the ceiling itself had been attached in a way that did not provide it with adequate support. Based on the above testimony, plaintiff establishes prima facie that his work on the 4th floor exposed him to a foreseeable risk of injury from an elevation related hazard, and that absence of a type of safety device enumerated under Labor Law §240(1) was a proximate cause of his injuries (cf, Paguay v. Cup of Tea, LLC, 165 AD3d 964, 966 [2d Dept 2018]). In opposition, ZZZ fails to raise a triable issue of fact in order to defeat Perez’s motion. Contrary to ZZZ’s arguments, the witness testimonies are sufficient such that Perez does not have to offer an expert opinion on the issue of foreseeability in order to prevail on his Labor Law §240(1) claim. Labor Law §241(6) imposes on owners and contractors a nondelegable duty to “provide reasonable and adequate protection and safety to persons employed in, or lawfully frequenting, all areas in which construction, excavation or demolition work is being performed” (Lopez v. New York City Dept. of Envtl. Protection, 123 AD2d 982, 983 [2d Dept 2015]). To establish liability under Labor Law §241(6), “a plaintiff or claimant must demonstrate that his injuries were proximately caused by a violation of an Industrial Code provision that is applicable under the circumstances of the case” (Aragona v. State of New York, 147 AD3d 808, 809 [2d Dept 2017]). The predicate Industrial Code provision must “set[] forth specific safety standards” (Hricus v. Aurora Contrs., Inc., 63 A.D.3d 1004, 1005 [2d Dept 2009] [internal quotation marks omitted]. Here, Perez’ cause of action alleging a violation of Labor Law §241(6) is predicated on alleged violations of Industrial Code (12 NYCRR) §23-3.3(b)(3) and (c). Industrial Code (12 NYCRR) §23-3.3(b)(3) provides that “[w]alls, chimneys and other parts of any building or other structure shall not be left unguarded in such condition that such parts may fall, collapse or be weakened by wind pressure or vibration.” Industrial Code (12 NYCRR) §23-3.3(c) requires that during hand demolition operations, “continuing inspections shall be made by designated persons as the work progresses to detect any hazards to any person resulting from weakened or deteriorated floors or walls or from loosened material.” These regulations have been deemed sufficiently specific to support a Labor Law §241(6) claim (see Mendez v. Vardaris Tech, Inc., 173 AD3d 1004 [2d Dept 2019]). With respect to inspections, A.R. Equipment’s owner Gregg Goldblum testified that he did not recall if there were any inspections performed by a designated person to detect hazards such as loosened materials prior to the ceiling collapse, and that A.R. Equipment did not employ anybody who would have performed those duties. Mr. Goldblum further testified that it was not A.R. Equipment’s custom and practice to have someone inspect structures, such as ceilings, to determine if they might pose a risk or a danger while in the process of being removed and demolished. ZZZ’s owner John Sherman testified that he did not know whether anyone from ZZZ inspected the 4th floor ceiling after it had been partially demolished, that ZZZ did not require A.R. Equipment or any other entity to inspect the 4th floor ceiling after the partial demolition, and did not know whether there were inspections taking place by designated person as the demolition work progressed to detect hazards to persons resulting from loosened materials. Perez establishes prima facie that Industrial Code (12 NYCRR) §23-3.3(b)(3) and §23-3.3(c) were violated and were a proximate cause of his injuries. It is undisputed that Perez was working below a partially demolished ceiling that was left “unguarded” during the demolition process. Moreover, none of the testimony indicates that inspections were conducted of the demolition work for the purpose of detecting “hazards…from loosened material.” Further, contrary to ZZZ’s argument, as A.R. Equipment’s foreman testified that the existing wood supports were unable to support the weakened ceiling, Perez was not required to offer an expert opinion on that issue. Finally, despite ZZZ’s contention, Perez is not required to show that the ceiling collapsed due to wind pressure or vibration to state a claim under §23-3.3(b)(3) (see Wiliniski v. 334 East 92nd Housing Development Fund Corp., 18 NY3d 1 [2011]). Accordingly, Perez’s motion for summary judgment under Labor Law 240(1) and Labor Law 241(6) as predicated upon (12 NYCRR) §23-3.3(b)(3) and §23-3.3(c) is granted. This constitutes the decision/order of the Court Dated: May 13, 2022
