Recitation per CPLR §2219 (a), of the papers considered on review of this motion: NYSCEF Doc. #s 47-60; 86 by Defendant NYSCEF Doc. #s 80-85 by Plaintiffs DECISION AND ORDER Upon the foregoing papers and after oral argument on November 8, 2023, pursuant to CPLR §3212, Defendant New York City Department of Education’s (DOE) Motion for Summary Judgment is GRANTED in its entirety. Background Plaintiffs Ahmed Aljahmi (Ahmed) and Tahia Aljahmi (Tahia) (collectively Plaintiffs) commenced the instant action by filing a summons and verified complaint on February 20, 2019.1 According to the complaint, Ahmed slipped and fell on liquid or debris on June 30, 2018, at William E. Grady Career and Technical Education High School (the school) located at 25 Brighton 4th Road, Brooklyn, New York.2 Plaintiffs allege that Defendant was the record owner and operated, managed, and controlled the school.3 Defendant contracted the services of a school custodian, an independent contractor, who maintained the school and employed Ahmed.4 Ahmed alleges that he was caused to slip and fall while performing construction/repairs/maintenance work on the floor of the subject premises.5 Ahmed contends that Defendant violated Labor Law §§200, 240 (1), 241 (6), the United States Occupational and Safety Health Administration (OSHA), and Rule 23 of the New York Code of Rules and Regulations.6 Ahmed alleges he sustained serious bodily injuries as a result of the slip and fall.7 Tahia is Ahmed’s legal spouse and she brought an action for loss of consortium.8 During his deposition, Ahmed testified that he worked at the school part-time, cleaning classrooms, hallways, and spaces five to six days a week.9 On the date of the accident, Ahmed arrived at the school around two or three o’clock in the afternoon and changed into his work outfit consisting of pants, a shirt, and nonslip shoes.10 Ahmed further testified that he was to remove old wax from classroom floors with another worker named Achmed “Alex” Habibi (Alex).11 According to Defendant witness Glenn Gentile (Gentile), Alex was the fireman at the building and was responsible for mechanicals of the building ensuring that there was heat, electrical service, plumbing, and that everything was in good, system wise, operational condition.12 To remove the wax in the first classroom, Ahmed and Alex started by turning the classroom into two halves, cleaning the room, and applying wax to the second half, then the first half.13 The old wax was removed by clearing the classroom and applying a stripper agent to the floor and waiting five to ten minutes before removing it.14 After Ahmed and Alex applied the stripper to the first classroom, they began to prepare the second classroom by clearing it out and sweeping the floor.15 Once the second classroom was cleared and before any stripper was applied, Ahmed and Alex went back to the first classroom to clean the floor using a buff machine and squeegee.16 When the first classroom dried, they applied the wax. Alex then left the first classroom to go to the second classroom while Ahmed finished up in the first classroom and joined Alex in the second classroom about five to six minutes later.17 Ahmed testified that he took the squeegee and the spray and walked over to the second classroom where he ultimately slipped and fell, thereby sustaining injuries.18 Ahmed speculates that he slipped on stripper agent that might have been spilled on the half of the second classroom where the stripper was not or should not have been applied.19 As a result of the accident, Ahmed claims to have suffered injuries to his head/brain, spine, knee, and hip.20 Gentile, who is a Custodial Engineer for the New York City DOE since 2001, testified that he managed the three cleaners at the school. The cleaners’ duties include picking up garbage, sweeping rooms, and cleaning bathrooms, classrooms, and hallways.21 Gentile averred that when a classroom is going to be de-waxed, the procedure would be to either remove the furniture or push the furniture to one side of the room.22 All the lights are dusted, the walls are washed, they fill a 55-gallon bucket with water, add some stripper, and then mop the floor.23 Then, a machine runs over the mopped floor to get the wax and stripper up. After the floor is stripped, a person follows with a vacuum which sucks the water up. Thereafter, a damp mopping is done to get the moisture and any residue up before they move on to the next room.24 Gentile testified that there are no written protocols or directions provided to cleaners as to how they are supposed to de-wax the floors nor are there any instructional videos.25 Parties’ Contentions In support of its motion, Defendant argues that Plaintiffs’ causes of action are barred as Ahmed was injured using instrumentality inherent and incidental to his employment.26 Defendant contends that Ahmed was injured by a risk inherent in the performance of his routine duties, and while an employer has a duty to provide employees with a place of employment free from recognized hazards, the protection does not extend to hazards which are part of or inherent in the very work which the contractor is to perform, or where the workers are engaged for the specific purpose of repairing the defect.27 Defendant asserts that Ahmed was removing wax from the floor of two classrooms on the date of the accident which requires the cleaners to drop water on the floor. Therefor Plaintiffs’ claims cannot be maintained because Ahmed was injured by the instrumentality inherent to and part of his employment.28 Next, Defendant claims that Plaintiffs failed to properly plead Labor Law §§200, 240, and 241 in their Notice of Claim. Specifically, Defendant contends that Plaintiffs failed to plead the applicable Labor Law sections and failed to allege the specific theories of liability and therefore asserts that the Court should not consider Plaintiffs’ Labor Law causes of action.29 As to the merits, Defendant argues that Plaintiffs’ Labor Law §200 claim is inapplicable because Ahmed slipped and fell on the floor that he and his partner were cleaning, and de-waxing and Ahmed only speculates that his partner may have spilled some stripper since it is the only thing that would make someone slip.30 Defendant further asserts that it did not create the alleged dangerous slippery condition; nor did it have actual or constructive notice of said condition.31 Defendant further argues that Labor Law §240 is inapplicable since Ahmed’s slip and fall accident did not involve a fall from a height, or an object falling from an elevated position.32 Lastly, Defendant notes that Labor Law §241 (6) is inapplicable as Ahmed was not engaged in construction, excavation, or demolition work at the school.33 Defendant highlights that Ahmed must show that, at the time of the accident, he was performing work connected to construction, excavation, or demolition work, as defined in the Industrial Code for Labor Law §241 (6), and that routine maintenance of a building is not within the ambit of the statute.34 Defendant maintains that the cleaning and de-waxing of two floors at the school cannot be described as anything other than routine maintenance.35 In opposition, Plaintiffs contend that Defendant’s motion is premature as pertinent discovery remains outstanding.36 Specifically, the deposition of material witness Alex is still outstanding. Alex’s testimony is fundamentally material as he was responsible for supervising, designing, and implementing the wax removal and application project.37 Plaintiffs contend that as the sole potential witness to Ahmed’s accident, and the person who either negligently applied or accidentally spilled the highly slippery solvent in the area where Ahmed fell, his testimony is both material and exclusively within the control of Defendant requiring the denial of the instant motion as premature.38 Plaintiffs further contend that material issues of fact exist which require the denial of the instant motion. In support of their argument, Plaintiffs’ annex the affidavit of Vincent Pici (Pici), a professional engineer.39 In his affidavit, Pici asserts that “[s]trip and wax, or strip and finish…are among the most hazardous due to the nature of the chemicals involved…and [the] process leaves the floor slippery and requires that proper precautions are implemented through the process.”40 Pici avers that the work area should be set up with safety barriers, mats and absorbent strips should be placed outside of the immediate work area, and cleaning personnel should be provided with either proper footwear or appropriate shoe coverings compatible with the stripping chemical being used.41 Plaintiffs assert that Defendant failed to provide a safe place for Ahmed to work as the evidence establishes that Ahmed fell on highly slippery stripper solvent in an area where it was not supposed to be.42 Plaintiffs note that the hazard at issue is not the exceptionally slippery, dangerous stripper solvent itself, but rather its application in the wrong area.43 Additionally, Plaintiffs contend that Defendant’s argument that the Notice of Claim did not sufficiently place Defendant on notice is unpersuasive as Plaintiffs’ Notice of Claim contains sufficient allegations to enable Defendant to conduct a proper investigation to assess the merits of their claims.44 Lastly, Plaintiffs conclusively assert that the instant accident is under the purview of Labor Law §241 (6) as there are violations of the Industrial Code. Specifically, Plaintiffs argue that there is undisputed evidence establishing that Industrial Code §§23-1.7 (d), 23-1.7 (e) (1), and 23-1.7 (e) (2) were violated. In reply, Defendant first notes that Plaintiffs’ certification of compliance with the word count limit is erroneous as the affirmation in opposition actually contains 7,760 words. In any event, Plaintiffs’ statement that their affirmation in opposition contains 5,336 words is in excess of the word limit set out in 22 NYCRR 202.8-b (a) (ii).45 Additionally, Defendant contends that Ahmed does not and cannot dispute that his duties involved using the floor stripper in order to remove wax from the floor.46 Defendant argues that Plaintiffs failed to lay a foundation as to how Ahmed reached the conclusion that either the stripper liquid was misapplied or that Alex negligently spilled it on the floor.47 Defendant notes that Plaintiffs did not rule out other possibilities, including Ahmed himself tracking the stripping agent from the former classroom or bumping into the bucket of liquid himself causing the spill.48 Thus, Defendant asserts there can be no question that Plaintiff was injured by a risk inherent in the performance of his duties.49 Defendant further argues that Plaintiffs’ contention that the liquid on which Ahmed slipped was “undetectable” is unavailing. While there was testimony that the subject liquid was clear, Defendant notes there was no testimony that it was “undetectable” or that it could not be seen when a person is working with it on the floor.50 Finally, Defendant highlights that Plaintiffs do not oppose the portion of Defendant’s motion seeking dismissal of Plaintiffs’ Labor Law §240 claim and fail to address how the instant case passes the threshold question of Labor Law §241 (6), whether Plaintiff was engaged in construction, excavation, or demolition work.51 Discussion Word Count As an initial matter, the Court accepts Plaintiffs’ opposition papers, even though they exceed the permitted word and/or page counts in accordance with 22 NYCRR 202.8-b. CPLR §2001 provides that “[a]t any stage of an action…if a substantial right of a party is not prejudiced, [a] mistake, omission, defect or irregularity shall be disregarded…” Plaintiffs’ word count error should be disregarded as it did not result in any prejudice to Defendant (CPLR §2001; see generally Anuchina v. Marine Transport Logistics, Inc., 216 AD3d 1126 [2d Dept 2023]). Notice of Claim Defendant’s argument that Plaintiffs failed to properly plead violations of the Labor Law in the Notice of Claim is without merit. The General Municipal Law requires that a Notice of Claim sets forth “the nature of the claim and the time when, the place where and the manner in which the claim arose” (A.A. v. City of New York, 219 AD3d 1473, 1474 [2d Dept 2023]; see General Municipal Law §50-e [2]). “The test of the sufficiency of a notice of claim is whether it includes information sufficient to enable the public entity to locate the place, fix the time, and understand the nature of the accident” (Id.). “Whether the notice of claim substantially complies with the requirements of the statute depends on the circumstances of each case” (id.; Vallejo-Bayas v. New York City Transit Authority, 103 AD3d 881 [2d Dept 2013]). “A court determining a motion to dismiss a complaint on the ground that the notice of claim is insufficient, in addition to examining the four corners of the notice of claim, may consider the testimony provided during an examination pursuant to General Municipal Law §50 — h, as well as any other evidence properly before it” (id.; D’Alessandro v. New York City Transit Authority, 83 NY2d 891 [1994]). “The purpose of the statutory notice of claim requirement is to afford the public corporation an adequate opportunity to investigate the circumstances surrounding the claim and to explore the merits of the claim while information is still readily available” (Harrison v. City of New York, 197 AD3d 630, 630 [2d Dept 2021] [internal quotations omitted]; Carroll v. City of New York, 149 AD3d 1026 [2d Dept 2017]). “[T]he requirements of the statute are met when the notice describes the claim with sufficient particularity so as to enable the Defendant to conduct a proper investigation thereof and to assess the merits of the claim” (id.). “The Legislature did not intend that the claimant have the additional burden of pleading causes of action and legal theories, proper for the pleadings, in the notice of claim [and] General Municipal Law §50-e was not meant as a sword to cut down honest claims, but merely as a shield to protect municipalities against spurious ones” (id.; Se Dae Yang v. New York City Health & Hosps. Corp., 140 AD3d 1051, 1052 [2d Dept 2016]). “As such, a claimant need not state a precise cause of action in haec verba in a notice of claim” (id.). Here, the Notice of Claim complied with General Municipal Law §50-e [2]. The Notice of Claim stated the nature of the claim, time, place, and manner in which Ahmed’s claim arose, specifically stating that “[o]n June 30, 2018…at William E Grady High School…while claimant was employed at school by custodial employer, and doing construction/repairs/maintenance…claimant was caused to slip and fall due to liquid/debris on floor, and slippery condition…”52 Additionally, it stated that the nature of the claim was “[p]ersonal injury, resulting from premises negligence and failure to provide safe place to work (NYS Labor Law Violations).”53 The Court finds Plaintiffs’ Notice of Claim sufficient to enable Defendant to conduct a proper investigation and assess the merits of the claim and the relevant applicable law does not require Plaintiffs to allege specific theories of liability in the Notice of Claim (Baker v. Town of Niskayuna, 69 AD3d 1016 [3d Dept 2010] [failure to reference specific Labor Law sections in the Notice of Claim does not warrant dismissal if sufficient information is asserted to alert defendant of potential causes of action asserted against it]; see also Harrison, 197 AD3d at 631). Summary Judgment Defendant’s motion should not be denied as premature. CPLR §3212 (f) provides that “should it appear from affidavits submitted in opposition…that facts essential to justify opposition may exist but cannot then be stated, the court may deny the motion or may order a continuance…” “A party who contends that a summary judgment motion is premature is required to demonstrate that discovery might lead to relevant evidence or that the facts essential to justify opposition to the motion were exclusively within the knowledge and control of the movant” (Elfe v. Roman, 219 AD3d 1304, 1305 [2d Dept 2023]). “The mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is insufficient to deny the motion” (McCalla v. Piris-Fraser, 221 AD3d 800 [2d Dept 2023]). Here, Plaintiffs failed to demonstrate that discovery might lead to relevant evidence or that the facts are exclusively within Defendant’s knowledge or control. First, Plaintiffs have the facts essential to submit opposition to the motion and mere hope or speculation that Alex will testify, if at all, will not defeat a prima facie showing of entitlement to summary judgment (Doe v. City of New York, 67 AD3d 854, 857 [2d Dept 2009] [the claim of incomplete discovery did not defeat a prima facie showing of entitlement to summary judgment as plaintiff failed to offer an evidentiary basis to suggest further discovery may lead to relevant evidence wherein plaintiff filed a note of issue]). Second, the record reflects that Alex is not under Defendant’s control since he is not Defendant’s or a municipal employee. Third, Plaintiffs filed a Note of Issue on April 13, 2023, certifying that all discovery was complete, and that the case was ready for trial. Thus, Plaintiffs’ arguments are unavailing since Plaintiffs have the facts essential to oppose the motion and the failure to depose Alex, who is not under Defendant’s control, is not sufficient to claim that the instant motion is premature (Hamilton v. National Amusements, Inc., 177 AD3d 449, 450 [2d Dept 2019] [plaintiff's claim that defendant's summary judgment motion should be denied as premature is unavailing as plaintiff filed a note of issue certifying that all discovery was complete and cannot cite her own inaction as justification to deny the summary judgment motion]). Labor Law §200/Common-Law Negligence “Labor Law §200 is a codification of the common-law duty imposed on property owners, contractors, and their agents to provide construction site workers with a safe place to work” (Sanchez v. BBL Constr. Servs., LLC, 202 AD3d 847, 849 [2d Dept 2022]). “The duty does not extend to hazards that are part of, or inherent in, the very work the employee is to perform or defects the employee is hired to repair” (Serpas v. Port Authority of New York and New Jersey, 218 AD3d 620, 621 [2d Dept 2023]; Gasper v. Ford Motor Co., 13 NY2d 104 [1963]). “Nor does any duty rest upon an owner to secure the safety of a worker against a condition, or even defects, risks or dangers that may be readily observed by the reasonable use of the senses, having in view the age, intelligence and experience of the worker” (id.). Here, the alleged hazard is inherent in the very work Ahmed was performing and readily observable by the reasonable use of his senses, in view of his age, intelligence and experience and is thus not actionable under Labor Law §200 (Monahan v. New York City Dept. of Educ., 47 AD3d 690 [2d Dept 2008] [dismissing plaintiff's complaint when plaintiff, a physical education teacher, sustained injuries while performing a task inherent to her employment when she fell and twisted her ankle while adjusting a volleyball net that was improperly set up by another physical education teacher]; Consalvo v. City of New York, 53 AD3d 521 [2d Dept 2008] [the removal of a dead cat from a public roadway by a sanitation worker who was struck and killed by a hit-and-run driver was a readily observable risk]; Marku v. Moore Capital Mgt., 7 AD3d 443 [1st Dept 2004] [dismissing maintenance workers claim for an injury suffered from slipping on substance that they were hired to remove]). Ahmed testified he cleaned classrooms, hallways, and spaces at the school, and was removing old wax and putting new wax on classroom floors on the date of the accident. Ahmed further testified that he was wearing nonslip work shoes. Gentile testified that in the summer, they remove the wax and then rewax to clean up so that the school is ready to receive students in September and that as part of the process, “[they] drop the water on the floor to strip the floor, that is what [they] do.”54 Defendant has demonstrated that Ahmed was confronted with an obvious and ordinary hazard related to his annual summer cleaning of the school which consisted of stripping and re-waxing the floor. Ahmed knew or should have known that the risk of slipping on a wet substance was inherent in the very work he was performing. Plaintiffs failed to raise a triable issue of fact. Accordingly, Plaintiffs’ Labor Law §200 and common law negligence claims are dismissed. Labor Law §241 (6) “Labor Law §241 (6) imposes a nondelegable duty of reasonable care upon an owner or general contractor to provide reasonable and adequate protection to workers on the premises” (Venezia v. State, 57 AD3d 522, 522 [2d Dept 2008]). “[T]o establish liability under Labor Law §241 (6), a [plaintiff] is required to establish a breach of a rule or regulation of the Industrial Code which gives a specific, positive command” (id.). However, “[l]iability under this statute is limited to accidents where the work being performed involves construction, excavation or demolition work” (Peluso v. 69 Tiemann Owners Corp., 301 AD2d 360, 360 [1st Dept 2003]). Courts have generally held that the scope of Labor Law §241 (6) is governed by 12 NYCRR 23 — l.4 (see Ricottone v. PSEG Long Island, LLC, 221 AD3d 1032 [2d Dept 2023]; see also Vernieri v. Empire Realty Co., 219 AD2d 593 [2d Dept 1995]). Under 12 NYCRR 23-1.4 (b) (13), “construction” work includes “[a]ll work of the types performed in the construction, erection, alteration, repair, maintenance, painting or moving of buildings or other structures” (Ricottone, 221 AD3d at 1032). “Although maintenance work performed in connection with construction, demolition, or excavation work is included under Labor Law §241 (6), routine maintenance is not within the ambit of Labor Law §241 (6)” (id.; Washington-Tatum v. City of New York, 205 AD3d 976 [2d Dept 2022]; Garcia-Rosales v. Bais Rochel Resort, 100 AD3d 687 [2d Dept 2012]). “Generally, courts have held that work constitutes routine maintenance where the work involves replacing components that require replacement in the course of normal wear and tear” (Washington-Tatum, 205 AD3d at 977). Here, Defendant established its prima facie burden that Ahmed was merely performing routine maintenance work which does not fall within the ambit of Labor Law §241 (6) (see Byrnes v. Nursing Sisters of Sick Poor, Inc., 170 AD3d 796, 787 [2d Dept 2019]). Gentile testified that in the summers, they routinely did a complete cleaning which involved cleaning the furniture, moving the furniture out of the room, scrubbing, waxing, and putting the furniture back in the classrooms.55 Additionally, Ahmed testified at his 50-H hearing and deposition that he was hired to clean classrooms, hallways, and spaces.56 Based on the submitted evidence, Defendant established that Ahmed was performing routine maintenance and not engaged in construction, demolition, or excavation work within the meaning of Labor Law §241 (6). Plaintiffs failed to raise a triable issue of fact. Thus, the branch of Defendant’s motion for summary judgment dismissing Plaintiffs’ Labor Law §241 (6) claim is granted (see Retamal v. Miriam Osborne Memorial Home Ass’n, 256 AD2d 506, 507 [2d Dept 1998 [plaintiff, injured when he slipped from an exterior second-story window ledge while cleaning exterior windows, was not involved in the construction, demolition, or excavation of a building]; Byrnes, 170 AD3d at 787 [performing annual seasonal start-up of a cooling tower on an HVAC system that required reinstallation of a circulation pump previously removed for the winter constituted routine maintenance]; see also Quintanilla v. United Talmudical Academy Torah V’yirah, Inc., 38 Misc 3d 1215(A) [Sup Ct, Kings County 2013] [plaintiff, injured while cleaning snow and water from a roof, was performing work not connected with construction, demolition, or excavation work]). Labor Law §240 (1) That branch of Defendant’s motion seeking to dismiss Plaintiffs’ Labor Law §240 (1) claim is also granted. Labor Law §240 (1) imposes a nondelegable duty on owners, general contractors, and their agents to provide safety devices to protect against height-differential hazards on construction sites (see Blake v. Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 287-288 [2003]). Here, as Ahmed’s slip and fall accident happened on the same floor level and involved no elevation related risk, Labor Law §240 (1) is not applicable herein. As noted earlier, Plaintiffs do not oppose this aspect of Defendant’s motion. Accordingly, Plaintiffs’ Labor Law §240 (1) claim is dismissed. Conclusion All arguments raised and all evidence submitted by the parties in connection to the instant motion have been considered by this Court, regardless of whether they are specifically discussed herein. Accordingly, Defendant’s motion for summary judgment dismissing Plaintiffs’ claims of Labor Law §§240 (1), 241 (6), 200, common law negligence, and loss of consortium is granted in its entirety. Plaintiffs’ complaint is dismissed with prejudice. This constitutes the Decision and Order of the Court. Dated: February 10, 2024
