Upon the foregoing papers, St. Rose of Lima School (St. Rose) and Roman Catholic Diocese of Brooklyn (the Diocese) (collectively, defendants) move (a) to vacate the note of issue filed by Andrew Catania (plaintiff) or, alternatively, for a traverse hearing regarding that note of issue's service; (b) for leave to make a summary judgment motion; and (c) for an order granting summary judgment.

Plaintiff performed pest control for St. Rose, a Brooklyn parochial school operated under the Diocese, beginning in or around 1997. He made monthly visits to the school as well as extra trips, as needed, to address particular problems. Plaintiff visited St. Rose on May 4, 2011 and was asked to address the problem of a squirrel in a gymnasium soffit.^[FN1]

Mauricio Arias (Arias), St. Rose's porter, suspecting that the squirrel was inside a ventilation duct, ascended a 12-foot step ladder and removed a register on the soffit's bottom facet, approximately 13 feet above the gymnasium floor. Plaintiff then climbed the step ladder while Arias went out onto the building's roof to open a vent at the duct's [*2]other end. Arias's actions apparently startled one or more squirrels, which ran out of the duct opening above plaintiff, and plaintiff and the ladder then fell to the gymnasium floor. Consequently, plaintiff suffered, among other injuries, a compound fracture in his right wrist that required surgeries and physical therapy.

Plaintiff commenced this action on September 1, 2011 and argued that defendants were liable for his injuries through negligence as well as through violations of Labor Law §§ 200, 240 (1) and 241 (6), Occupational Safety and Health Administration (OSHA) regulations and the New York Industrial Code. The parties' discovery over the following year included plaintiff's October 3, 2011 bill of particulars, plaintiff's March 26, 2012 deposition and St. Rose principal Theresa Andersen's April 5, 2012 deposition. Defendants made an April 6, 2012 post-deposition demand for plaintiff's contract with St. Rose, authorization for access to certain of plaintiff's health records and documentation of plaintiff's lost income. Plaintiff responded on April 12, 2012 with a Health Insurance Portability and Accountability Act (HIPAA) authorization for release of his contract with St. Rose and HIPAA authorizations for release of the requested records from two of the three specified medical providers. Plaintiff also stated that authorization for the third medical provider and authorizations for his tax returns (as proof of lost income) were "not in current possession" and that they would be provided once "information obtained." Apparently, defendants additionally made a June 1, 2012 demand for disclosure of the cellular phone records of plaintiff and his wife.

The Honorable Johnny Lee Baynes issued a July 10, 2012 Central Compliance Part Order, which required responses to all outstanding discovery requests within 20 days, allowed plaintiff 60 days to inspect the site of the accident, required deposition of " Porter" (meaning Arias) before July 12, 2012, mandated performance of any independent medical examination of plaintiff before September 1, 2012 with medical reports exchanged within 30 days thereafter and required plaintiff to file a note of issue by October 6, 2012. Plaintiff did, in fact, depose Arias on July 12, 2012, and also served a notice of liability expert exchange dated July 18, 2012. Plaintiff then served defendants a note of issue and certificate of readiness, by mail, on July 19, 2012 and filed those documents on July 24, 2012. Despite this, plaintiff's and defendants' attorneys coordinated a site inspection that occurred on September 7, 2012. Plaintiff subsequently underwent an independent medical examination on September 27, 2012.

Defendants now move to vacate plaintiff's note of issue or, alternatively, for a traverse hearing regarding its service. They also seek leave to move for summary judgment and an order granting them summary judgment. Defendants assert that they never received the note of issue and did not learn that plaintiff had filed it until October 22, 2012. Defense counsel's two secretaries support this argument by submitting affidavits in which they state that they receive and distribute the office's mail and never received plaintiff's note of issue. Defendants also urge that plaintiff filed the note of issue while discovery was ongoing and that if they had previously been aware of the note of issue they would have moved to vacate it because the independent medical examination and responses to post-deposition demands were still outstanding. The belated motion to vacate the note of issue should be granted, defendants contend, because their lack of receipt constitutes good cause, vacating it would cause plaintiff no prejudice and their motion to vacate was further delayed by the effects of Hurricane Sandy.

In addition, defendants argue that sufficient good cause exists to permit a summary [*3]judgment motion even if the note of issue stands because they were not aware that it had been filed and because the 60-day period for a summary judgment motion ended before discovery had fully concluded. Assuming a summary judgment motion may be allowed, defendants argue that Labor Law § 240 (1) applies only to "erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure" and that plaintiff's pest control services fall outside that scope. Defendants similarly argue that Labor Law § 241 (6) encompasses only construction, demolition or excavation and thus also excludes plaintiff's activities. Finally, defendants argue that neither their building nor their ladder was defective and that they exercised no supervision or control over plaintiff. Defendants therefore assert that their summary judgment motion also warrants granting as to plaintiff's Labor Law § 200 and general negligence claims.

Defendants support their motion with the affidavit of Richard Robbins (Robbins), a New York-registered architect. Robbins adopts his own June 4, 2012 report, in which he notes that plaintiff, at the time of the accident, was using a 12-foot step ladder with rubber feet and opines that the ladder could safely support up to 300 pounds. Robbins recounts that the floor's manufacturer lists its coefficient of friction as .46, but that he measured the floor's coefficient of friction with a slip meter as .64. He further calculates that it would take a far greater load than plaintiff and the ladder to cause any floor deflection, and concludes, "with reasonable architectural certainty," that if plaintiff "had followed certain precautions, such as being alert, avoiding overreaching for an object, and wearing proper footwear . . . the accident would not have occurred."

Plaintiff, in opposition, first asserts that the note of issue should not be vacated because (a) his attorney properly served it by mail, thus creating a presumption of receipt, (b) defendants' motion is untimely and (c) all discoverable material has been furnished. Plaintiff acknowledges that he has not produced the requested cellular phone records, but contends that such records are unlikely to lead to admissible evidence because they could not conclusively prove whether plaintiff was on his phone at the moment the accident occurred. Plaintiff challenges the propriety of holding a traverse hearing for the service of a note of issue by mail, and urges that receipt is irrelevant as service was complete when the mailing occurred.

Plaintiff further urges that defendants lack good cause to make a late summary judgment motion given the note of issue's proper service, and then challenges the merits of defendants' motion. Labor Law § 240 (1), argues plaintiff, covers his activities at the time of the accident because he was "cleaning squirrels from the air vents" and such "cleaning" fell outside of plaintiff's regular maintenance. Plaintiff submits that defendants are liable under § 240 (1) because they placed the ladder on a "puff" in the gymnasium floor coating that rendered the ladder unstable and because they failed to provide plaintiff proper safety equipment, such as "slings, ropes, stays, and other devices." Such "puff," plaintiff asserts, had been present since the floor was installed, between eight months and one year before the accident.

Plaintiff similarly argues that defendants bear liability under Labor Law § 241 (6) because defendants failed to prove that no construction, excavation or demolition work was being performed at the school and because they also violated Industrial Code § 23-1.21 by permitting plaintiff to use the step ladder without a person securing it. Finally, plaintiff asserts that defendants were negligent and in violation of Labor Law § 200 because they created a dangerous condition by positioning the ladder on the "puff" before plaintiff's use and because they had either actual or constructive notice of the alleged [*4]floor defect for months beforehand.

Plaintiff supports his opposition with the affidavit of Nicholas Bellizzi (Bellizzi), a civil engineer, accident reconstructionist and licensed professional engineer. Bellizzi notes that the gymnasium flooring's manufacturer rates its coefficient of friction as .46, which the "Occupational and Safety Health Administration [sic]" (among other organizations) classifies as "slippery," and he opines that defendants were required "by generally accepted safe industry standards and practices" to install an anti-skid floor. Bellizzi further opines that the ladder "did not provide reasonable and adequate protection to [plaintiff]" and that a scissor lift or scaffold, a person holding and stabilizing the ladder or a safety harness would have provided plaintiff "proper protection." Finally, Bellizzi asserts that plaintiff's use of the ladder violated Industrial Code § 23-1.21 because that rule required a person or mechanism to secure the ladder while plaintiff worked and because the ladder "was not placed on a firm level footing." Bellizzi concludes that "[t]he gym floor's slippery condition, the owner of the site's failure to properly follow Industrial Code Rule 23-1.21(e)(3) and their failure to follow NYS Labor Law Section 240(1) . . . were each individually and in combination with each other substantial contributing factors in the cause of this accident."

Defendants reply that they have rebutted the presumption of proper service of the note of issue by showing that plaintiff "continued to seek discovery and act as if discovery was still ongoing" after the purported service. They contend that plaintiff's HIPAA authorizations are improper and thus still outstanding and that the cellular phone records of plaintiff and his wife are "necessary to our defense" in that they could evince plaintiff's comparative negligence. Defendants reiterate their contention that plaintiff was not engaged in cleaning when he fell and characterize Bellizzi's affidavit as conclusory. Labor Law § 241 (6) is inapplicable, assert defendants, and any potential Industrial Code violations moot, because plaintiff's work did not constitute construction, demolition or excavation. Defendants again argue that they are not liable under Labor Law § 200 or common-law negligence because neither the floor nor ladder were defective and they did not control plaintiff's work.

"A motion to vacate the note of issue and certificate of readiness made more than 20 days after their filing will be granted only where a material fact in the certificate of readiness is incorrect or upon good cause shown" (Torres v Saint Vincents Catholic Med. Ctrs., 71 AD3d 873, 873 [2010] [internal quotation marks omitted]; see also Witherspoon v Surat Realty Corp., 82 AD3d 1087, 1088 [2011]; Ferraro v North Babylon Union Free School Dist., 69 AD3d 559, 561 [2010]). Here, the certificate of readiness represented that physical examinations had been completed and medical reports exchanged, though, in fact, the independent medical examination of plaintiff did not occur until more than two months after the certificate of readiness's filing. It further stated that "[d]iscovery proceedings now known to be necessary [were] completed" and that "[t]here [were] no outstanding requests for discovery," whereas defendants have shown that there are, in fact, still outstanding discovery requests (e.g., defendant's request for proper HIPAA authorizations and cellular phone records). Plaintiff's contention that discovery is now complete except for requests that he considers improper does nothing to rectify the material inaccuracy of the certificate of readiness. The July 24, 2012 note of issue must therefore be vacated, and defendants' summary judgment motion may be considered.

A summary judgment movant must show prima facie entitlement to judgment as a matter of law by producing sufficient admissible evidence demonstrating the absence of any material factual issues (CPLR 3212 [b]; Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Failing to make such a showing requires denying the motion regardless of the sufficiency of any opposition (Vega v Restani Constr. Corp., 18 NY3d 499, 502 [2012]). Making a prima facie showing justifying a grant of summary judgment shifts the burden to the opponent to introduce "evidentiary proof in admissible form sufficient to require a trial of material questions" (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

Considering a summary judgment motion requires viewing the evidence in the light most favorable to the motion opponent (Vega, 18 NY3d at 503). Nevertheless, "mere conclusions, expressions of hope or unsubstantiated allegations are insufficient" to defeat a summary judgment motion (Zuckerman, 49 NY2d at 562). "The court's function on a motion for summary judgment is to determine whether material factual issues exist, not to resolve such issues" (Ruiz v Griffin, 71 AD3d 1112, 1115 [2010] [internal quotation marks omitted]).

Labor Law § 240 (1) states, in relevant part:

"All contractors and owners and their agents . . . in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed."

This statute "imposes a nondelegable duty upon owners, contractors, or their agents to provide proper protection to a worker performing certain types of construction work" (Esteves-Rivas v W2001Z/15CPW Realty, LLC, 104 AD3d 802, 803 [2013]; Martinez v Ashley Apts. Co., LLC, 80 AD3d 734, 735 [2011]). Section 240 (1) does not only apply to work performed on a construction site, but "its central concern is the dangers that beset workers in the construction industry" (Dahar v Holland Ladder & Mfg. Co., 18 NY3d 521, 524-25 [2012]; see also Martinez v City of New York, 93 NY2d 322, 326 [1999]). "The critical inquiry in determining coverage under the statute is what type of work the plaintiff was performing at the time of injury'" (Panek v County of Albany, 99 NY2d 452, 457 [2003], quoting Joblon v Solow, 91 NY2d 457, 465 [1998]). Consequently, injuries suffered by a person not engaged in activities within § 240 (1)'s scope do not enable a § 240 (1) cause of action (see Martinez v City of New York, 93 NY2d at 326; Vanderwiele v Steiglehner, 17 AD3d 958, 959 [2005]).

The Appellate Division, Third Department, held, in one of the only appellate decisions considering § 240 (1)'s applicability to pest control activities, that spraying insecticide onto a building did not constitute "cleaning" for § 240 (1) purposes (Vanderwiele, 17 AD3d at 959). The Vanderwiele Court noted, in reaching this conclusion, that "there was no larger cleaning project under way at defendant's building and the extermination work being performed by plaintiff was not incidental or necessary to any other activity enumerated in the statute" (id.). A year before the Vanderwiele decision, however, the Third Department held that an exterminator's work on a roof to prevent bats from reentering a building constituted "repairs," covered by § 240 (1) (Davidson v Ambrozewicz, 12 AD3d 902, 902-03 [2004]). [*6]

Considering whether a particular task falls within the ambit of § 240 (1) often necessitates examining whether plaintiff's work qualified as "routine maintenance" (see Konaz v St. John's Preparatory Sch., 105 AD3d 912, 913-14 [2013]; Gonzalez v Woodbourne Arboretum, Inc., 100 AD3d 694, 696-97 [2012]; Garcia-Rosales v Bais Rochel Resort, 100 AD3d 687, 687 [2012], lv denied 20 NY3d 858 [2013]). The Appellate Division, First Department, has recently offered the guidance, regarding routine maintenance, that "[a] factor to be taken into consideration is whether the work in question was occasioned by an isolated event as opposed to a recurring condition" (Dos Santos v Consolidated Edison of NY, Inc., 104 AD3d 606, 607 [2013]).

Types of activity that courts have found to constitute routine maintenance (rather than one of the types of work encompassed by § 240 [1]) include patching holes in a gutter pipe that an animal had used to borrow into a building (Azad v 270 5th Realty Corp., 46 AD3d 728, 729-30 [2007], lv denied 10 NY3d 706 [2008]), using a ladder to dust a store's shelf (Soto v J. Crew Inc., 95 AD3d 721, 721 [2012]), fixing a door (Owens v City of New York, 72 AD3d 775, 775 [2010]; Thompson v 1701 Corp., 51 AD3d 904, 904 [2008]), cutting a tree branch (Radoncic v Independence Garden Owners Corp., 67 AD3d 981, 981-82 [2009]) and repairing a light fixture (Konaz, 105 AD3d at 913-14; but cf. Nowakowski v Douglas Elliman Realty, LLC, 78 AD3d 1033, 1033-34 [2010] [holding removing a light fixture to repair it within § 240 (1)]).

Here, plaintiff argues that his attempt to remove a squirrel from a ventilation duct constituted "cleaning" covered by § 240 (1). Plaintiff's efforts to remove the squirrel went beyond the scope of his monthly visits, and therefore cannot be viewed as routine maintenance. Nevertheless, plaintiff's work could fall within only the most expansive definition of cleaning, and bears little resemblance to the construction work the hazards of which § 240 (1) aims to ameliorate. The Davidson decision illustrates that a pest control contractor's work may sometimes fall within § 240 (1), but that case must be distinguished as Davidson was engaged in making physical modifications to a building's roof, which the Court held to constitute repairs. Nothing in this case suggests that plaintiff was making any physical alterations to the school or that his work was incidental to any undertaking covered by § 240 (1). Defendants must, therefore, be granted summary judgment on the § 240 (1) claim.

Labor Law § 241 (6) provides:

"All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places. The commissioner may make rules to carry into effect the provisions of this subdivision, and the owners and contractors and their agents for such work . . . shall comply therewith."

Where a plaintiff's work is classified as maintenance unrelated to construction, excavation or demolition, § 241 (6) permits no recovery (see Esposito v New York City Indus. Dev. Agency, 1 NY3d 526, 528 [2003]; Konaz, 105 AD3d at 914; Deoki v Abner Props. Co., 48 AD3d 510, 511 [2008]). Hence, summary judgment must also be granted to defendants on plaintiff's § 241 (6) claim.

Labor Law § 200 "codifies the common law duty of an owner or employer to provide employees with a safe place to work" (Jock v Fien, 80 NY2d 965, 967 [1992]; Zastenchik v Knollwood Country Club, 101 AD3d 861, 863 [2012]; McLean v 405 Webster Ave. Assoc., 98 AD3d 1090, 1093 [2012]). Labor Law § 200 plaintiffs fall into two categories: those injured by a dangerous or defective condition on the work site and those injured as a result of a dangerous [*7]manner of working (McLean, 98 AD3d at 1093; Reyes v Arco Wentworth Mgt. Corp., 83 AD3d 47, 50-51 [2011]). An owner may bear liability under the dangerous or defective condition category "only if it had control over the work site and either created the dangerous condition or had actual or constructive notice of it" (McLean, 98 AD3d at 1093 [internal quotation marks omitted]; see also Sotomayer v Metropolitan Transp. Auth., 92 AD3d 862, 864 [2012]; Reyes, 83 AD3d at 51).

Here, plaintiff asserts that the gymnasium floor's "puffing" and its low coefficient of friction caused the accident. Robbins, defendants' expert, opines that neither the floor nor the ladder were defective and that they did not cause plaintiff's accident, but he fails to eliminate all factual questions in that his measure of the floor's coefficient of friction at 0.64 significantly differs from the manufacturer's specification of .46, which Bellizzi explains is classified as "slippery." Furthermore, even if defendants had made a prima facie showing on this cause of action, plaintiff raises a triable factual question whether there was a "puff" in the floor beneath the ladder. Summary judgment must, therefore, be denied on plaintiff's § 200 and common-law negligence claims.

"OSHA does not provide a private right of action" (Jelenic v Campbell Plastics, 159 F3d 1347 [2d Cir 1998] [table; text at 1998 WL 538024, *2, 1998 US App LEXIS 32076, *6 (1998)]; see also Matter of Eighth Jud. Dist. Asbestos Litig., 12 Misc 3d 936, 940 [Sup Ct, Erie County 2006]; Donovan v Occupational Safety & Health Review Commn., 713 F2d 918, 926 [2d Cir 1983]). Therefore, summary judgment must be granted to defendants on plaintiff's cause of action alleging violation of that act.

Section 23 of the Industrial Code, which plaintiff cites as regulating, among other work, ladder usage, applies only to owners or employers "in construction, demolition and excavation operations" (12 NYCRR 23-1.3; see also 12 NYCRR 23-1.21). The Industrial Code's reach thus mirrors Labor Law § 241 (6)'s coverage, and, consequently, summary judgment must also be granted to defendants on plaintiff's Industrial Code cause of action. Accordingly, it is

ORDERED that defendants' summary judgment motion is granted as to the third, Labor Law § 240 (1) cause of action, the fourth, Labor Law § 241 (6) cause of action, the fifth, OSHA violation cause of action and the sixth, Industrial Code violation cause of action, and defendants' motion is otherwise denied.

This constitutes the decision and order of the court.

E N T E R,

J. S. C.