The following papers numbered 1 to 23 were read on this: (1) motion by the plaintiff, pursuant to CPLR 3212, for summary judgment on the issue of the liability of the defendants based upon common-law negligence and violations of Labor Law §§ 200, 240[1] and 241[6]; (2) cross motion by the defendant Bovis Lend Lease, LMB, Inc, f/k/a Lehrer McGovern Bovis, Inc. and Bovis Lend Lease LMB, Inc., s/h/a Lehrer McGovern Bovis Construction Management Corp., pursuant to CPLR 3212, for summary judgment dismissing the complaint; and, (3) cross motion by the defendant The City of New York, pursuant to CPLR 3212, for summary judgment dismissing the complaint or, in the alternative, for summary judgment on its cross claim seeking contractual or common-law indemnification.

Papers Numbered

——————————— ———————————— 1;————————-

Notice of Motion - Affidavits - Exhibits ........................ 1-4

Notice of Cross Motion - Affidavits - Exhibits .............. 5-8

Notice of Cross Motion - Affidavits - Exhibits ............. 9-10

Answering Affidavits - Exhibits ................................... 11-19

Reply Affidavits ............................................................ 20-23

Upon the foregoing papers it is ordered that the motion and cross motions are determined as follows:

I. The Relevant Facts

On March 30, 2001, the plaintiff Miroslaw Linkowski (Linkowski) was working at a Department of Sanitation Facility owned by the defendant The City of New York (City). The City hired Linkowski's employer, Rapid Demolition Company, Inc. (Rapid), to perform asbestos abatement and demolition work. The City also hired Bovis Lend Lease, LMB, Inc, f/k/a Lehrer McGovern Bovis, Inc. and Bovis Lend Lease LMB, Inc., s/h/a Lehrer McGovern Bovis Construction Management Corp. (Bovis) as construction manager, for the construction of garages after the abatement and demolition work was completed.

Pursuant to Article AD3d of the City/Bovis contract, Bovis, as consultant, agreed to indemnify the City for all claims and damages resulting from the negligence of Bovis in the performance of the contract. The City/Rapid contract is not part of the record.

It is undisputed that Linkowski was injured when he slipped and fell from a wet concrete stairwell platform into an orange plastic safety netting which replaced a section of stairwell railing. The netting failed, causing his fall to the garage floor below.

Linkowski commenced this action seeking damages based upon common-law negligence and violations of Labor Law §§ 200, 240[1], and 241[6]. In response, the City and Bovis cross-claimed against one another seeking contribution and common-law or contractual indemnification. In addition, Bovis commenced a third-party action against Rapid seeking the same relief.

During his examination before trial (EBT), Linkowski stated that he was a Rapid foreman and oversaw other Rapid employees. At the time of his accident, he was cleaning out a storage room containing asbestos gear protection. He removed and threw out empty boxes by bringing them to the wet stairway platform and tossing them over the orange plastic netting. It was his understanding that asbestos abatement would occur before demolition, and that Rapid would perform the demolition.

Rapid used water to spray down areas where asbestos was removed, and then the contaminated materials were placed in special bags. A week prior to his accident, asbestos abatement was performed in the garage area and on the same floor where his accident occurred. It had been raining for many days and the pipes in the building did not drain the water. The area in which his accident occurred was on the platform on the stairs leading to the garage, and he slipped because the platform was wet. In connection with asbestos abatement, he attended safety meetings with his Rapid supervisors and Bovis inspectors who monitored air quality. He did not know who installed the safety netting. He never dealt with anyone from the City.

During his EBT, a Bovis representative stated that at the time of the accident, the only company performing work at the premises was Rapid, and the remainder of the project had not been designed. The City hired Rapid to perform environmental abatement and demolition of the building before a new building was constructed.

Bovis ensured only that Rapid was in compliance with any approvals obtained from the Department of Environmental Protection. He was on site daily, as was a Bovis environmental consultant. Basically, he filed monthly reports based on daily submissions by Rapid. The work was done in two phases, the first being abatement and demolition by Rapid, and there was no on-site general contractor for that work. There were several roof leaks and water was also used to wash down contaminated areas. If he saw a barrier or rail missing, he could direct the contractor to install a rail.

II. Motion and Cross Motions

Linkowski moves for partial summary judgment against the City and Bovis contending that: (1) the orange netting failed, to provide him with proper protection; (2) there was a violation of Industrial Code 12 NYCRR 23-1.7[b] [1], 23-1.7[d] and 23-1.7[e]; and, (3) Bovis and the City created or had actual and constructive notice of the slippery condition and roof leaks.

Bovis cross-moves for summary judgment dismissing the complaint, contending that: (1) it is not liable under any theory as it lacked any contractual relationship with Rapid, it did not act as general contractor, and it did not supervise or control Linkowski's work; (2) in any event, Linkowski fell off of a stairwell which was a permanent structure so Labor Law § 240[1] does not apply; and, (3) the Industrial Code provisions relied upon by Linkowski are inapplicable, as there was no hazardous opening and the stairwell platform was not a work site.

The City cross-moves for summary judgment dismissing the complaint, based on the same arguments made by Bovis, adding that Linkowski was not engaged in any of the enumerated activities covered by the Labor Law, and it lacked actual or constructive notice of any dangerous condition. In the alternative, it contends that it is entitled to common-law and/or contractual indemnification from Bovis and Rapid, and it is entitled to breach of contract damages from Bovis and Rapid based upon their failure to procure insurance.

Bovis replies, inter alia, that there is no evidence that the accident was solely the result of its negligence, and it procured an annexed insurance policy.

Linkowski replies, inter alia, that: (1) Bovis is liable as construction manager; (2) he should be permitted to supplement his bill of particulars to add additional Industrial Code violations; and, (3) he is protected by the Labor Law even though he was not performing asbestos abatement at the time of the injury. [*2]

III. Decision

A. General Liability of Bovis

With respect to the liability of Bovis, Bovis was hired as construction manager and was present at the site during Rapid's work only to monitor air quality and compliance with the permits obtained by Rapid. There is no evidence that it acted as general contractor overseeing Rapid's work. Thus, Bovis established that it was not a general contractor or statutory agent of the City subject to liability under any of the theories interposed in the complaint (see Walls v Turner Constr. Co., ___ NY3d ___ 2005 NY LEXIS 1091 [5/505]; Lazarou v Turner Constr. Co., AD3d , 2005 NY App Div LEXIS 5800 [lst Dept 5/31/05]; cf. Aranda v Park E. Constr., 4 AD3d 315 [2004]).

As a result, the branches of Linkowski's motion seeking summary judgment against Bovis are denied, and Bovis' cross motion seeking summary judgment dismissing the complaint interposed against it is granted.

B. Labor Law § 240 [1]

With respect to the City, Labor Law § 240 [1] provides special protection to those engaged in the "erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure" (see Prats v Port Auth. of NY & N.J., 100 NY2d 878, 880 [2003]). The intent of the statute is to protect workers employed in the enumerated acts, even while performing duties ancillary to those acts (see Prats, supra at 882).

Moreover, the statute is directed solely at elevation-related hazards, and is not applicable where the injury sustained results from other types of hazards, even if proximately caused by the absence of an adequate scaffold or other required safety device (see Georaopulos v Gertz Plaza, Inc., 13 AD3d 478 [2004]). Where the statute applies, it imposes liability upon an owner and general contractor for failing to provide proper protection against elevation-related hazards, whether or not the owner or contractor actually exercised supervision or control over the work (see Perri v Gilbert Johnson Enters, Ltd., 14 AD3d 681 [2005]).

Contrary to the City's claim, although Linkowski was not performing asbestos abatement at the time of his injury, he was undertaking a task ancillary to Rapid's asbestos work and was only at the site solely in his capacity of foreman for Rapid. As a result, Linkowski was involved in the cleaning of a building or structure within the meaning of the statute (see Prats, supra at 881-882; Danelewski v Realty Co., LLC, 2 AD3d 666 Campisi v Epos Contr. Corp., 299 AD2d 4 [2002]).

Nonetheless, at the time of his injuries Linkowski was not exposed to any elevation-related risk for which Labor Law § 240[1] liability would result (see Rocovich v Consolidated Edison Co., a normal appurtenance to the building, and did not constitute a safety device designed to protect [*3]Linkowski from an elevation-related risk (see Parsuram v I.T. Barain Stores, Inc. 16 AD3d 471 [2005]; Avelino v 26 R.R. Ave. Inc., 252 AD2d 912 [1998]; Williams v City of Albany, 245 AD2d 16 [1997] appeal dismissed, 91 NY2d 957 [1998]; cf. Griffin v New York City Transit Auth, 16 AD3d 202 [2005]).

As a result, the branch of the motion by Linkowski seeking summary judgment on the issue of the liability of the City for a violation of Labor Law § 240[1] is denied, and the branch of the cross motion by the City for summary judgment dismissing that cause of action is granted.

C. Labor Law § 241 [6]

Labor Law § 241[6] imposes liability on owners and general contractors for failure to comply with the specific provisions of the Industrial Code, even in the absence of control or supervision of the work site (see Perri, supra ; Norton v Park Plaza Owners Corp., 263 AD2d 531 [1999]).

Here, Linkowski demonstrated that the stairwell platform was in a slippery condition due to the presence of water and that a handrail was missing. The evidence reveals several possible sources for the water condition such as rain, leaking pipes, roof leaks or Rapid's containment work. Thus, although Linkowski demonstrated a prima facie violation of 12 NYCRR 23-1.7[d], the evidence creates issues of fact for trial concerning the duration and source of the water condition at issue, whether the water was a "foreign substance" within the meaning of that Industrial Code provision or whether it was part of Rapid's work, and whether the failure to remove or otherwise treat the water condition constitutes negligence (see O'Brien v Triborouah Bride & Tunnel Auth., AD3d 793 NYS2d 24 [2005]; Earl v Starwood Ceruzzi Saratoga, LLC., 9 AD3d 879 [2004]; Ventura v Lancet Arch Inc., 5 AD3d 1,053 [2004])

Otherwise, Linkowski failed to demonstrate the applicability of 12 NYCRR 23- 1.7[e], requiring the removal of tripping hazards from passageways and working areas (see Roman v Hudson Tel. Assocs., 15 AD3d 227 [2005]), or of 12 NYCRR 23- 1.7[b] [1], applicable to hazardous openings into which a person may step or fall (see Wells v British Am. Dev. Corp., 2 AD3d 1141 [2003]).

As a result, the branches of Linkowski's motion and the City's cross motion seeking summary judgment on the Labor Law § 241[6] cause of action are denied.

D. Labor Law § 200 and Common-law Negligence

Finally, Labor Law § 200 codifies the common-law duty of an owner or employer to provide employees with a safe place to work (see Linares v United Mqmt. Corn., AD3d , 791 NYS2d 165 [2005]) Section 200 applies, inter alia, to owners and contractors who either created a dangerous condition or had actual or constructive notice of it, and/or those who direct and control the work (see Linares, supra ; Amaxes v Newmaker & Co. Real Esate, Inc., 15 AD3d 321 [2005]).

Although the City established that it did not direct or control Linkowski's work, there is an issue [*4]of fact with respect to whether the City created or had actual or constructive notice of the dangerous water condition. As a result, the branches of the motion by Linkowski and the cross motion by the City seeking summary judgment on the Labor Law § 200 cause of action are denied.

In view of the grant of Bovis' cross motion for summary judgment dismissing the complaint interposed against it, the City's alternative request for relief as against Bovis is denied as academic. As neither the City/Rapid contract nor any counterclaim or cross claim by the City against Rapid forms part of the record, the branch of the City's cross motion seeking alternative relief against Rapid is denied. Linkowski's request to amend his bill of particulars to add additional Industrial Code violations is denied.

IV. Conclusion

Based upon the papers submitted to the court and the determinations set forth above, it is

ORDERED that the motion by the plaintiff, pursuant to CPLR 3212, for summary judgment on the issue of the liability of the defendants based upon common-law negligence and violations of Labor Law §§ 200, 240[1], and 241[6] is denied; and it is further

ORDERED that the cross motion by the defendant Bovis Lend Lease, LMB, Inc., f/k/a Lehrer McGovern Bovis, Inc. and Bovis Lend Lease LMB, Inc., s/h/a Lehrer McGovern Bovis Construction Management Corp. for summary judgment dismissing the complaint is granted, and the complaint interposed against that defendant is dismissed; and it is further

ORDERED that the cross motion by the defendant The City of New York for summary judgment dismissing the complaint or, in the alternative, for summary judgment on its cross claim seeking contractual or common-law indemnification is granted to the extent that The City of New York is granted summary judgment dismissing the Labor Law § 240[1] cause of action, that cause of action interposed against that defendant is dismissed and, otherwise, the cross motion is denied.

Date: June 13, 2005