[*1]
Mielnik v Demarest Mill Realty
2010 NY Slip Op 50085(U) [26 Misc 3d 1213(A)]
Decided on January 6, 2010
Supreme Court, Rockland County
Weiner, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected in part through March 2, 2010; it will not be published in the printed Official Reports.


Decided on January 6, 2010
Supreme Court, Rockland County


Mariusz Mielnik, deceased, by his Administratrix, Marzena Mielnik, Marzena Mielnik, Individually, Jessica Mielnik, a minor under the age of eighteen (18) years by her mother and natural guardian Marzena Mielnik and Dawid Mielnik, a minor under the age of eighteen (18) years by his mother and natural guardian MARZENA MIELNIK, Plaintiffs,

against

Demarest Mill Realty, Nikko Construction Corporation, Hess Architects, Hess Karl, John Doe Corporation 1 (name being fictitious and presently unknown - general contractor) John Doe Corporation 2 (name being fictitious and presently unknown - architect firm) John Doe Corporation 3 (name being fictitious and presently unknown - sub-contractor) John Doe Corporation 42 (name being fictitious and presently unknown), Defendants.



Demarest Mill Realty, Third-Party Plaintiff,

against

Rockland Bakery, Inc. and Nikko Construction Corporation, Third-Party Defendants.




4692/07



Slawek W. Platta, PLLC

Attorney for Plaintiffs

Lester Schwab Katz & Dwyer, LLP

Attorneys for Defendant

Demarest Mill Realty

Baxter Smith Tassan & Shapiro, P.C.

Attorneys for Defendant Rockland Bakery, Inc.

Barry McTiernan & Moore

Attorneys for Defendant

NIKKO Construction

Milber Makris Plousadis & Seiden LLP

Attorneys for Defendant

Hess Architects

Alfred Weiner, J.

RELEVANT FACTS



This wrongful death action against Demarest, Nikko Construction and Hess Architects alleges causes of action for negligence and violations of Labor Law §200, §240(1), and §241(6).

Decedent, Marius Mielnik, was employed by Rockland Bakery, a manufacturer and distributor of bakery products. He died at work on August 25, 2005 when he fell through an unguarded floor opening to the level below. The premises where the accident occurred was leased by Rockland Bakery from Defendant/Third-party Plaintiff Demarest.

In 2003, Rockland Bakery hired Defendant/Third-party Defendant Nikko to build an addition to the existing building. During construction of the new addition and after, Rockland Bakery employees would create an opening on the second floor of the new addition by removing the flooring. The opening would then permit them to more easily move materials from the second floor to the ground level. Nikko completed construction of the new addition in 2004. Defendant Hess was the architect.

On August 25, 2005, Decedent was assigned tasks that involved the bakery's retarder room located on the second floor of the new addition to the bakery. He was also directed to assist his co-workers, Pozniak and Klimek, who were working on the conveyor belt guides.[FN1] The retarder room is refrigerated and used to slow the aging of the dough for Rockland Bakery's bread products.

Prior to the accident, Decedent was inside the retarder room pushing the rack loaders/bakery racks ("racks"), which were placed on top of the conveyor belts, backwards to "...have clearance on the conveyor belt..." for Pozniak to weld guide bars to the conveyor belt. At some point while he was working, Decedent decided to leave the retarder room to put on warmer clothing. When he exited the south exit of the retarder room, he fell through an unguarded opening, approximately six-by-six feet square, to the floor below and died. The opening was directly in front of the door.

Analysis[*2]


On the respective motion and cross-motions for summary judgment, each proponent bears the burden to prove a prima facie case that would entitle it to judgment in its favor, without the need for a trial. CPLR §3212. Once the burden is met, the party opposing summary judgment must establish through admissible evidence existence of material issues of fact to preclude summary judgment. Zuckerman v. City of New York, 49 NY2d 557, 1980.Summary judgment will be granted only if there is no triable issue of fact, that issue finding, rather than issue determination, is the key to summary judgment, and that the papers on the motion should be scrutinized carefully in a light most favorable to the party opposing relief. Judice v. DeAngelo, 272 AD2d 583, 2nd Dept. 2000.

PLAINTIFF'S CLAIMS AGAINST DEMAREST




Liability under Labor Law § 240(1):

Under Labor Law §240 (1), owners and contractors have a non-delegable duty to provide certain safety equipment for workers engaged in the "...erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure." It is well settled that Labor Law §240(1) "...is to be construed as liberally as may be for the accomplishment of the purpose for which it was framed." Martinez v. City of New York 93 NY2d 322, 1999. However, "...the statutory language must not be strained in order to encompass what the Legislature did not intend to include." Karaktin v. Gordon Hillside Corp., 143 AD2d 637, 2nd Dept., 1988. Labor Law §240(1) protection is not limited to work performed on actual construction sites. Joblon v. Solow, 91 NY2d 457, 1998.

When determining whether the work performed constitutes "repair" within the meaning of Labor Law §240(1), or is simply routine maintenance, the courts evaluate the following factors: 1) whether the work "...involved replacing components that require replacement in the course of normal wear and tear", Esposito v. New York City Indus. Development Agency, 1 NY3d 526, 2003, and 2) whether the equipment being worked upon was inoperable or not functioning properly. Crossett v. Schofell, 256 AD2d 881, 3rd Dept. 1981.

New York courts have found that replacement of a burnt-out light bulb, dilapidated plywood shelves and a leaking tube on a car wash machine was routine maintenance, while fixing a sign that was "operating improperly" and replacing a "no longer functional" fire alarm system constituted repair work under the statute. Wilson v. City of New York 89 F.3d 32,1996 (internal citations omitted) (discussing cases defining repair and routine maintenance under statute).

Plaintiff contends that the work the decedent was performing inside the retarder room [*3](i.e. moving bakery racks) could constitute "...erection," "repair," or "altering" based upon the overall work taking place inside the retarder room.

Demarest contends that Decedent's individual task (i.e. moving bakery racks) as well as the general work taking place inside the room (i.e. the welding of conveyor belt guides to conveyor belts) was merely routine maintenance work, which is not protected by the statute.

Based upon the record and legal standards articulated below, the Court finds that the evidence is sufficient to establish that decedent was engaged in "repair" work prior to his accident.

First, there is nothing in the record to suggest that the conveyor belts simply needed maintenance because the guides were worn due to "normal wear and tear;" rather according to the uncontroverted testimony of Pozniak, he was working on the conveyor belts because "...some of [the guides] were not welded correctly, some of them were missing, some of them we had to transform to our needs, to basic needs...some of them were too wide, some of them were too narrow." (Pozniak EBT, 36-37.)

Second, there is no genuine issue as to whether the conveyor belts were "not functioning properly." While the parties disagree as to whether or not the retarder room was "operational" and the degree to which the conveyor belt guides affected the overall performance of the conveyor belts, these issues are not material because the testimonial evidence establishes that the eight conveyor belts inside the room were not working in the manner in which they were intended to work. Based upon the testimony of Warner, Pozniak and Sal Battaglia, there was a problem with the conveyor belt guides located on both sides of the conveyors. Welding equipment, grinders, socket wrenches, c-clamps, welding rods and welding solder were being used to rectify the problem.

Finally, the Decedent is not excluded from statutory protection simply because he was inside the retarder room pushing bakery racks instead of fixing the conveyor belts. In Prats v. Port Authority of New York and New Jersey, 100 NY2d 878, 2003, the Court of Appeals stated:

[I]t is neither pragmatic nor consistent with the spirit of the statute to isolate the moment of injury and ignore the general context of the work. The intent of the statute was to protect workers employed in the enumerated acts, even while performing duties ancillary to those acts.

[*4]It is undisputed that Decedent was directed to assist Pozniak inside the retarder room and that Pozniak asked Decedent to move the racks so the guides could be fixed. Pozniak's work constitutes "repair" work under the statute, thus it follows, that Decedent, by assisting Pozniak, was also involved in "repair" work.

Having found that Decedent was engaged in one of the categories of work protected by Labor Law §240(1), the Court must next determine whether the retarder room in which such repairs were made constitutes an elevated work site withing the meaning of Labor Law §240(1).

The purpose of Labor Law §240 (1) is to protect workers from gravity-related hazards, such as falling from a height. Valensisi v. Greens at Half Hollow, LLC 33 AD3d 693, 2006. Courts have ruled that plaintiffs are entitled to statutory protection when the work requires the plaintiff to be in close proximity to a gravity-related hazard such as an opening in the floor. See, e.g. Brandi v. Ram Builders, Inc., 7 AD3d . 655, 2nd Dept. 2004); Godoy v. Baisley Lumber Corp., 40 AD3d 920,2nd Dept. 2004.

Demarest contends that the retarder room was not an elevated work site under the statute because the opening in the floor was outside of the retarder` room and thus wholly unrelated to Decedent's work inside the retarder room.

Plaintiffs contend that the opening in the floor was directly related to decedent's work inside the retarder room because of its close proximity to the room.

It is undisputed that the opening through which Decedent fell was directly outside of the retarder room door he exited and that Decedent had to travel over the opening. Accordingly, the Court finds that the retarder room was an elevated work site within the meaning of the statute. Consequently, Decedent's tasks inside the retarder room exposed him to a gravity-related risk.

Based upon the foregoing, the Court concludes that Demarest has failed to establish its prima facie entitlement to summary judgment on Plaintiff's Labor Law §240(1) claim or to raise a triable issue of fact in opposition to Plaintiff's cross-claim for summary judgment on this issue. Plaintiff established a prima facie entitlement to summary judgment on the issue of liability under§240(1) by submitting evidence that the Decedent was involved in work covered by the statute, that he fell through an uncovered opening, that no safety device was in place to protect him from the uncovered opening and that this violation was the proximate cause of the injuries he allegedly sustained.

[*5]Liability under Labor Law § 241(6):

Labor Law § 241(6) requires owners and contractors to "...provide reasonable and adequate protection and safety for workers and to adhere to and comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor." Ross v. Curtis-Palmer Hydro-Electric Co., 81 NY2d 494, 501-502, 1993. To prevail on a claim under this section, a plaintiff must prove: a) that the Defendant violated a specific code, rule or regulation, and (b) that the violation was the proximate cause of his injuries. Ross v. Curtis-Palmer Hydro-Electric Co., id. at 502.

Similar to Labor Law § 240(1), the obligations under Labor Law §241(6) are nondelegable; liability is not limited to accidents on actual construction sites; and "repair" work is covered.

In support of his claim under Labor Law §241(6), Plaintiffs contend that Demarest violated section 23.1.7(b)(1) of the Industrial Code which provides specific instructions regarding the protection of individuals engaged in work near hazardous openings.

Based upon the facts discussed, supra , the Court finds that Plaintiffs have established their prima facie entitlement to judgment as a matter of law under Labor Law §241(6) claim and Demarest failed to establish a triable issue of fact. Decedent fell through the hazardous opening while engaged in "repair" work, the hazardous opening was in close proximity to Decedent's work, and the opening was not protected by the safety measures mandated by section 23-1.7(b)(1).

Liability under Labor Law §200 and common-law negligence:

It is well settled that 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. Liability under the statute is governed by common-law negligence principles.

If the worker's injuries arise out of the condition of the premises, a property owner is liable under the statute when the owner created the dangerous condition causing an injury or when the owner failed to remedy a dangerous condition of which he or she had actual or constructive notice. Chowdhury v. Rodriguez, 57 AD3d 121, 2nd Dept., 2008.

In this case, Demarest contends that the flooring "only became a potential hazard when it was opened by Rockland Bakery's personnel without following the procedures put in place by Rockland Bakery, including pinning the door and placing the warning signs or tape or hav[ing] a guard present." (Demarest Aff.) [*6]

Plaintiffs contend that Demarest had constructive and actual notice of the dangerous condition.

While the Court finds that there is sufficient evidence to establish that Demarest had, at the very least, constructive notice that Rockland Bakery employees were opening the floor grating, there are material questions of fact about whether Rockland Bakery had "safety procedures" in place with regard to the opening the floor and if so, whether Demarest had constructive or actual notice that Rockland Bakery employees were opening the floor without following Rockland Bakery's "safety procedures," thereby creating a dangerous condition on the premises. Accordingly, the Court denies Demarest's motion and Plaintiff's cross-motion for summary judgment on this issue.



PLAINTIFF'S CLAIMS AGAINST NIKKO AND HESS

Based upon the record and legal standards hereinbefore set forth, Defendants Nikko and Hess have established, prima facie, their entitlement to judgment as a matter of law on the plaintiff's Labor Law §§200, 240(1), 241(6), and common-law negligence causes of action. Movants demonstrated their entitlement with evidence that another entity created the hazardous condition in issue, that they had no authority to enforce safety standards, that they did not hire any subcontractors, that they did not supervise or control the work, and that they provided no equipment to Decedent. See, e.g., Huerta v. Three Star Const. Co., Inc. 56 AD3d 613 2nd Dept., 2008; Aversano v. JWH Contr., LLC, 37 AD3d 745.

Having established a prima facie showing of its entitlement to summary judgment, "the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action". Garnham & Han Real Estate Brokers v. Oppenheimer, 148 AD2d 493,1989; see also Zuckerman, Id. at 562. The Court finds that Plaintiffs have failed to do so. Accordingly, the Court grants Nikko and Hess' motions for summary judgment and hereby dismisses all actions against Nikko and Hess.



DEMAREST'S MOTION FOR INDEMNIFICATION

AGAINST ROCKLAND BAKERY

Paragraph 6.C. of the June 1, 1995 lease between Demarest, as landlord of the premises where the accident occurred, and Third-Party Defendant Rockland Bakery, as tenant, provides, in relevant part, that: [*7]
"Notwithstanding Tenant's obligation to provide and maintain insurance, Tenant shall defend, indemnify and hold harmless Landlord, ... from and against all claims, damages, costs, expenses, liabilities, actions, suits fines and penalties ... of any kind or nature whatsoever, suffered or incurred by any of such indemnified parties, based upon or arising out of any claim for personal injury (including death), suffered by any person (including employees of Tenant)...proximately caused by or arising out of Tenant's use or occupancy of the Premises..."


The language contained in the indemnity clause of the lease agreement between Demarest and Rockland Bakery is clear and unambiguous and, as a consequence, the Court finds that Demarest is entitled to contractual indemnity over and against Rockland Bakery since the accident arose out of Rockland Bakery's "...use and occupancy of the Premises". Demarest's motion for indemnification is, therefore, granted.

Plaintiff's negligence claim against Demarest is hereby severed from this action. All other requests for relief that have not been specifically addressed in this decision are denied, in the Court's discretion.

The parties are advised that this matter has been scheduled for trial on the issue of damages. A conference on Plaintiff's negligence claim against Demarest will be held at the same time.

Dated: New City, NY

January 6, 2010

ENTER:

________________________

HON. ALFRED J. WEINER

Justice of the Supreme Court

Footnotes


Footnote 1: The conveyor belt guides make sure that the rack wheels are straight when the rack moves along the conveyor belt rather than going in different directions.