Plaintiffs, JULIAN GARRETT and PAULINE GARRETT, (hereinafter "Plaintiffs"), move this Court for an Order to amend the complaint, amend the caption and extend the time to file the note of issue, Defendant CITY cross moves pursuant to CPLR 3041 and 3043 to strike portions of Plaintiffs' Bill of Particulars, for a protective order pursuant to CPLR 3103, and for an order compelling Plaintiffs to appear for supplemental depositions pursuant to CPLR 3101, and Defendant SKANSKA/PICONE JOINT VENTURE cross moves for an order denying Plaintiffs' motion to amend the complaint and for summary judgment dismissing the proposed causes of action pursuant to Labor Law sections 200, 240(1) and 241(6).

Upon reading the Notice of Motion by Gail S. Kelner, Esq., Attorney for Plaintiffs, JULIAN GARRETT and PAULINE GARRETT, dated July 25th, 2012 together with the Attorney's Affirmation of Gail S. Kelner, Esq., dated July 25th, 2012 and all exhibits annexed thereto; the Notice of Cross-Motion by Anthony P. Terranova, Esq., Attorney for Defendant/Third-Party Plaintiff/Third Third-Party Plaintiff, CITY OF NEW YORK, ("CITY"), dated October 1st, 2012, together with the Affirmation in Partial Opposition to Plaintiffs' Motion and in Support of Defendant CITY OF NEW YORK's Cross-Motion, dated October 1st, 2012 and all exhibits annexed thereto; the Cross-Motion for Summary Judgment by Jennifer R. Loyd, Esq., Attorney for Defendants/Third-Party Plainitffs/Third Third-Party Plainitffs, SKANSKA/PICONE JOINT VENTURE, ("SKANSKA"), dated October 24th, 2012, together with the Affirmation in Support of Cross-Motion for Summary Judgment and in Opposition to Plaintiffs' Motion to Amend the Complaint of Jennifer R. Loyd, Esq., dated October 24th, 2012 and all exhibits annexed thereto; the Affirmation in Partial Opposition to Plaintiffs' Motion and in Support of Co-Defendant's Cross-Motion by Louis E. Valvo, Esq., Attorney for Defendant/Second and Third Third-Party Defendant, ENVIRONMENTAL ENERGY ASSOCIATES, dated October 24th, 2012, and all exhibits annexed thereto; the Affirmation in Partial Opposition to Plaintiffs' [*2]Motion and in Support of Co-Defendant's Cross-Motion by Marc H. Pillinger, Esq., Attorney for Defendant/Second and Third Third-Party Defendant, ENVIRONMENTAL LABORATORIES, INC., dated December 6th, 2012; the Affirmation in Opposition of Allison H. Weinstein, Esq., Attorney for Defendant/Second and Third Third-Party Defendant, ENVIRONMENTAL LABORATORIES, INC., dated December 14th, 2012, and all exhibits annexed thereto; the Plaintiffs' Affirmation in Reply and in Opposition to Cross-Motion of Defendants, CITY OF NEW YORK and SKANSKA/PICONE, of Gail S. Kelner, Esq., dated December 19th, 2012, and all exhibits annexed thereto; the Affirmation in Opposition to SKANSKA/PICONE JOINT VENTURE's Cross-Motion for Summary Judgment by James A. Gazis, Esq., Attorney for Defendant/Second and Third Third-Party Defendants, ENVIRONMENTAL ENERGY ASSOCIATES, dated December 20th, 2012; the Reply Affirmation in Further Support of Defendant CITY OF NEW YORK's Cross-Motion of Anthony P. Terranova, Esq., dated January 9th, 2013; the Reply Affirmation in Further Support of Defendant SKANSKA's Cross-Motion of Jennifer R. Loyd, Esq., dated January 16th, 2013; and after argument of counsel and due deliberation thereon, Plaintiffs' motion to amend the complaint, amend the caption and extend the time to file the note of issue is granted in part and denied in part; Defendant CITY's cross motion pursuant to CPLR 3041 and 3043 to strike portions of Plaintiffs' Bill of Particulars, and for an order compelling Plaintiffs to appear for supplemental depositions pursuant to CPLR 3101 is granted in part and denied in part, and Defendant SKANSKA's cross motion for an order denying Plaintiffs' motion to amend the complaint and the proposed causes of action pursuant to Labor Law sections 200, 240(1) and 241(6) is granted in part and denied in part for the reasons set forth below.

Plaintiffs bring this action to recover for injuries JULIAN GARRETT, ("Plaintiff"), sustained on September 24, 2008 while he was working inside a waste digester tank located at the New Town Creek Waste Treatment Facility in Greenpoint, Brooklyn.

Defendant CITY of NEW YORK, ("CITY"), is the owner of the facility where the accident occurred.

Defendant SKANSKA/PICONE JOINT VENTURE, ("SKANSKA"), was hired by the CITY to demolish certain waste treatment tanks at the facility and was the general contractor on the demolition project.

Jason Sellick, who was employed by SKANSKA/PICONE, was the hose attendant and was in charge of monitoring Plaintiff's work while Plaintiff was in the tank.

SYNAGRO was hired by SKANSKA to clean the tanks in preparation for their demolition. Plaintiff was an employee of SYNAGRO.Defendant ENVIRONMENTAL LABORATORIES, INC, ("ELI"), was a subcontractor of SKANSKA. Defendant ENVIRONMENTAL ENERGY ASSOCIATES ("EEA"), was hired by SKANSKA to provide air monitoring of confined spaces. Mike Nealis was employed by EEA as a tank attendant.

At the time of the accident, Plaintiff was hosing down sludge in the tank to empty it in preparation for it being demolished. [*3]

Plaintiff was working from the bottom of a tank which was approximately 60 feet high and 80 feet wide.Plaintiff got into the tank by descending a ladder which was resting on a pipe which was 8 feet off of the base of the tank. When he got to the base of the ladder, he was lowered by a winch which was affixed to a harness on his back, by Jason Sellick, roof attendant employed by SKANSKA.It is unclear from the papers submitted how tall the ladder was and whether it was attached to the side of the tank.

Plaintiff testified that if he wanted to exit the tank, he would advise the person watching him from above to winch him up. Sellick was watching Plaintiff from the top of the tank on the day of the accident.

Plaintiff states that the equipment he used was already in the tank when he was lowered in. He was operating a water hose to soften and liquify the solid waste in the tank so that it could be pumped out of the tank.

Plaintiff states that in the course of his work, a large section of sludge broke up and started to move toward him. He stated that he yelled for help but that Sellick was not at the top of the tank, and he stated he shook the cable attached to his back to try to get the attention of someone at the top of the tank. He tried to bend down and exit through a hatch in the side of the tank which was below knee level, but he was unable to get through the hatch because the harness he was wearing was still attached to a cable running up the inside of the tank. He states that he couldn't get more than his head into the hatch. He also stated that he ingested some of the sludge.

At some point Nealis tried to pull Plaintiff out of the tank by the cable but could not do so because Plaintiff was holding on to the lid of the hatch. When Sellick came back and saw that Plaintiff was holding on to the hatch, he told Nealis to stop pulling on the cable. The fire department came and was able to remove the Plaintiff through the hatch after four hours.

Plaintiffs' original complaint did not allege any violations of the New York State Labor Law. Plaintiffs did file a supplemental Bill of Particulars on April 6, 2011, alleging violations of Labor Law 241(6) and 200, and a further supplemental Bill of Particulars on September 27, 2012 alleging additional Industrial Code violations and a violation of Labor Law 240(1). Plaintiffs now seek leave to amend their complaint to assert claims pursuant to Labor Law sections 240(1), 241(6) and 200.

Defendant CITY cross moves to strike portions of Plaintiffs' Bill of Particulars and for an order compelling Plaintiffs to appear for supplemental depositions pursuant to CPLR 3101, Defendant SKANSKA cross moves for an order denying Plaintiffs' motion to amend the complaint and the proposed causes of action pursuant to Labor Law sections 200, 240(1) and 241(6), or to dismiss those proposed claims in the event the motion to amend is granted.

Plaintiff states that because the sludge was not secured so as to prevent its collapse, and because he did not have a means of exiting the tank, the Defendants are liable pursuant to the New York Labor Law for violations of sections 200, 240(1) and 241(6).

Plaintiff argues that he has a valid 240(1) claim because his work was not routine maintenance but was incidental to the demolition of the tanks and his injury was gravity related as he was injured when sludge fell on him. He argues that the ladder which did not reach to the base of the tank was an insufficient safety device under Labor Law section 240(1).

Plaintiffs also argue that they have a valid 241(6) claim because Industrial Code 12 NYCRR 23-1.7(f) was violated as there was no ladder or other safe means of egress from the tank. Plaintiffs further allege a violation of section 12 NYCRR 12-1.9 because Sellick, the safety monitor who was supposed to be supervising Plaintiff's work, was not at the top of the tank when the Plaintiff needed assistance and there was not a second worker, in addition to the safety monitor, at the tank to aid Plaintiff.

Defendant CITY argues that Plaintiffs' complaint should not be amended because Plaintiffs' proposed claims are time barred, and because Defendants would be prejudiced if the proposed claims were asserted at this stage as Defendants did not anticipate these claims when preparing to defend this action. The CITY also argues that Plaintiff's accident does not fall within the scope of the Labor Law because he was engaged in routine maintenance.

Defendant SKANSKA argues that Plaintiffs should not be permitted to amend their complaint as Plaintiff was engaged in a routine maintenance activity and therefore is not protected by the Labor Law section 240(1), and that Plaintiffs have failed to cite an applicable Industrial Code violation to sustain a claim pursuant to Labor Law 241(6). SKANSKA alternatively argues that if Plaintiffs are permitted to amend their complaint, that the Labor Law sections 240(1) and 241(6) should be dismissed for the same reasons. SKANSKA also argues that and that Plaintiffs' Labor Law 200 and common law negligence claims should be dismissed as SKANSKA did not supervise, direct or control the methods of Plaintiff's work.

Defendant ELI and EEA argue that Plaintiffs' request to amend is time barred by the statute of limitations and that the new claims do not relate back to the original claims asserted. They note that the Plaintiffs specifically stated in their bill of particulars that they would not pursue a claim pursuant to Labor Law section 240(1). They further argue that discovery has been conducted based upon the original complaint and therefore there is prejudice to the Defendants, as they did not contemplate having to defend against the proposed labor law claims.

Applications for leave to amend pleadings under CPLR 3025 (b) should be freely granted unless the proposed amendment (1) would unfairly prejudice or surprise the opposing party, or (2) is palpably insufficient or patently devoid of merit, and that the [*5]sufficiency or underlying merit of the proposed amendment is to be examined no further. Maldonado v Newport Gardens, Inc, 91 AD3d 731, 937 NYS2d 260 (2nd Dept 2012). RCLA, LLC v 50-09 Realty, LLC, 48 AD3d 538, 852 NYS2d 211 (2nd Dept 2008).

Amendment at this point would not prejudice the Defendants as the note of issue has not been filed and only the Plaintiff has been deposed. Plaintiff can be required to submit to a further EBT as to the permitted additional causes of action.

Even though more than three years have passed since Plaintiff's accident, asserting Labor Law causes of action at this time is not barred by the statute of limitations because such claims relate back to the original complaint, which was filed timely. Plaintiffs do not seek to add any new defendants or claims based on new facts.

CPLR 203(f), provides that "(a) claim asserted in an amended pleading is deemed to have been interposed at the time the claims in the original pleading were interposed, unless the original pleading does not give notice of the transactions, occurrences, or series of transactions or occurrences, to be proved pursuant to the amended pleading." See Rende v Cutrofello, 226 AD2d 694, 641 NYS2d 689 (2d Dept 1996), D & D Knits, Ltd. v Grand Morgan Realty Corp., 213 AD2d 372, 622 NYS2d 982 (2d Dept 1995).In this case Plaintiffs do not seek to amend the pleadings to allege any additional facts as to how the accident occurred, but rely on the facts asserted in the original pleadings, and therefore the claims relate back to the original pleadings.

DOES the Labor Law apply to Plaintiff's work?

There are instances where certain work, which would otherwise not be protected activity pursuant to the Labor Law, is covered by virtue of the fact that it is part of a larger project which is covered by the Labor Law.

The removal and replacement of subway track, that otherwise would have been considered "routine maintenance", was covered under the Labor Law as it was part of a larger demolition project. Medina v City of New York, 87 AD3d 907, 908, 929 N.Y.S.2d 582 (1st Dept 2011).

The Second Department in Reyes v Arco Wentworth Mgt. Corp, 83 AD3d 47, 53-54, 919 NYS2d 44 (2nd Dept 2011) found that plaintiff's grass cutting would be deemed routine maintenance that would be outside the scope of Labor Law §241(6) but for the fact that plaintiff raised a triable issue of fact as to whether the maintenance was part of a broader construction, project which included removing and replacing multiple railroad ties of a retaining wall.Where a plaintiff was merely replacing damaged cable and such work was not related to any broader renovation or construction project, and the work had no physical impact upon the structural integrity of the plant, the Labor Law did not apply. Lavigne v Glens Falls Cement Co, Inc, 92 AD3d 1182, 1183, 939 NYS2d 172 (3d Dept 2012).

In this case, SYNAGRO was hired to remove sludge from digester tanks. Plaintiffs submit a contract dated February 8, 2008 between SKANSKA and SYNAGRO which provides that SYNAGRO was to clean certain tanks which were scheduled for [*6]demolition. While the cleaning of the tanks by itself would not constitute activity covered pursuant to Labor Law, because the cleaning of the tanks was being performed in preparation of the the demolition of the tanks, it is protected activity for the purposes of the Labor Law.

240(1)

Absence of ladder that reached the bottom of the tank

Plaintiffs seek to add a cause of action pursuant to Labor Law 240(1). They state that since the bottom of the ladder was 8 feet off of the bottom of the tank, it failed as a safety device as Plaintiff could not use it to climb out of the tank when the sludge fell and the tank began to fill with liquified sludge.

Plaintiffs cite several cases where a ladder failed and caused a worker to fall. Prats and Prats v. The Port Authority of New York and New Jersey, 100NY2d 878, 768 NYS2d 178 (2003); Smith v Innovative Dynamics, Inc, 24 AD3d 1000, 809 NYS2d 216 (3rd Dept 2005); Destefano v. City of New York, 39 AD3d 581, 835 NYS2d 275 (2nd Dept 2007); Cabri v Icon Corporation of America, 240 AD2d 456, 658 NYS2d 646 (2nd Dept 1997).

However, these cases are not applicable as Plaintiff here did not fall from the ladder and was not on the ladder at the time of his injury.

Plaintiffs also cite Naughton v City of New York, 94 AD3d 1, 940 NYS2d 21 (1st Dept 2012) for the proposition that the absence of a ladder is sufficient to sustain a claim pursuant to Labor Law 240(1). The Plaintiff in Naughton was working at an elevated height, 25 feet on top of a truck, unloading bundles of wall panels. One of the bundles that was being unloaded swung toward him, and even though he tried to retreat, he could not get off of the truck because there was no ladder. The bundle hit him and knocked him to the ground. The Court held that "the absence of a ladder was a proximate cause of the accident". Id, at 8.

Here, unlike Naughton, the absence of a ladder did not cause Plaintiff to fall, and did not result in a gravity related injury. Thus, the absence of a ladder in this situation did not constitute a violation of Labor Law section 240(1).

Falling sludge

Plaintiff also argues that he was injured by sludge falling to the bottom of the tank which he asserts is a gravity related injury. Plaintiff testified in his deposition that as he was hosing down the sludge, a large amount of sludge shifted and started to fall toward him, causing the level of the sludge to rise. Plaintiff tried to escape the tank through the hatch, but because he was harnessed, could only get his head into the hatch but could not exit.

Plaintiff claims that the injury was gravity related because the sludge fell and caused the hazardous situation which prompted his attempt to escape the tank. [*7]

The Court of Appeals has held that the decisive question in evaluating a claim pursuant to Labor Law section 240(1) is whether a plaintiff's injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential.Wilinski v 334 E. 92nd Hous. Dev. Fund Corp., 18 NY3d 1 (2011); Runner v New York Stock Exch., Inc., 13 NY3d 599 [2009].

In Wilinksi, that Court of Appeals held that a section 240(1) claim was not barred by the fact that pipes which fell on plaintiff were on the same level as he was. The Court of Appeals distinguished the facts in Wilinski from situations where the kinds of protective devices prescribed by section 240(1) are inapplicable to the circumstances of the injury, (Id at 11, 558, citing Misseritti v Mark IV Const. Co., Inc., 86 NY2d 487 (1995)), and where the objects that injured the plaintiff were themselves the target of demolition when they fell, (Id at 11, 558, citing Brink v Yeshiva Univ., 259 AD2d at 265, 686 NYS2d 15 (1st Dept 1999)).

Plaintiff's work was to apply water to the sludge to liquify it so that it could be pumped out of the tank. In the process of Plaintiff's work cleaning the tank,

Plaintiff would change the consistency of the sludge in the tank from a solid to a slurry by adding water to the sludge to liquify it so it would run to the bottom of the tank and be of a consistency that could be pumped out of the tank. Therefore, there was no enumerated device that could have been employed to prevent the sludge from falling which would not have rendered Plaintiff's task impossible.

Here the purpose of the work was to liquify the sludge so it could be pumped out, which necessarily involves the sludge moving from the sides of the tank to the bottom of the tank.

Since the movement of the sludge was inherent in the task of liquifying it, failure to secure it does not constitute a violation of section 240(1).

241(6)

Plaintiffs also seek to amend the complaint to add a claim pursuant to Labor Law 241(6). Plaintiffs allege that Defendants violated Industrial Code sections 23-1.7(f), and 12 NYCRR 23-1.7(g).

Industrial Code 12 NYCRR 23-1.7(f) provides,

(f) Vertical passage. Stairways, ramps or runways shall be provided as the means of access to working levels above or below ground except where the nature or the progress of the work prevents their installation in which case ladders or other safe means of access shall be provided.

A violation of Industrial Code 12 NYCRR 23-1.7(f) has been held to be sufficient to sustain a claim of a violation of Labor Law section 241(6). Seepersaud v City of New York, 38 AD3d 753, 754 835 NYS 199 (2d Dept 2007).

The ladder in the tank was resting on a pipe eight feet above the base of the tank and did [*8]not reach the bottom of the tank. Accordingly, Plaintiff had to be lowered down the last 8 feet or so by a winch which was attached to a harness he was wearing. Plaintiff had no means to reach the ladder from the bottom of the tank.

Had a ladder been properly provided and placed, Plaintiff would have been able to climb out of the tank without being injured.

The lack of a ladder to provide access to the work level would be a violation of Industrial Code 12 NYCRR 23-1.7(f). Thus, while it would not constitute a violation of Labor Law 240(1), it would constitute a violation of 241(6).

Additionally, 12 NYCRR 23-1.7(g), which applies to "unventilated confined areas" such as tanks, requires air testing of a tank, and also provides that such areas shall be subject to Industrial Code Rule 12.

While SKANSKA argues it was not responsible for monitoring or testing air quality in the tank, it does not deny that the tank was an unventilated confined area. Plaintiffs' claim here is not that the air was not tested, but rather that several requirements of Part 12 of the Industrial Code were not met.

12NYCRR 12-1.9(c)(1) requires a safety monitor to be present. Plaintiff testified that there was a safety monitor on site but that the safety monitor had abandoned his position when the pile of sludge moved toward the Plaintiff, in violation of 12 NYCRR 12-1.9.

Further, subsection (a)(2) of 12 NYCRR 12-1.9 requires

Whenever a confined space is to be entered, a person who has been designated as a safety monitor shall function as required by this Part (rule). A confined space shall not be entered unless there is at least one other person in addition to the required safety monitor ready to render assistance in an emergency when alerted. Such additional person shall be located within 100 feet unobstructed walking distance from and not more than one floor above or one floor below the access opening of such confined space. The assigned duties of such additional person shall be such that they will not prevent him from responding immediately to an emergency when alerted.

Plaintiff alleges that there was no second person, other than the safety monitor, within 100 feet of the tank, in violation of Rule 12-1.9(a)(2). It is unclear from the papers submitted whether Mike Nealis of EEA was fulfilling the role of the second person available to render assistance to Plaintiff. There is at a minimum a question of fact as to whether Rule 12-1.9(a)(2) was violated.

As Plaintiff has made out a colorable claim of violations of Industrial Code 12 NYCRR 23-1.7(f) and 12 NYCRR 23-1.7(g), that portion of his motion to amend the complaint to include a 241(6) claim should be granted.

Labor Law §200 and Negligence

Although the original complaint did not assert a claim pursuant to Labor Law section 200, [*9]it asserted a claim of negligence against Defendants CITY and SKANSKA. SKANSKA moved for summary judgment dismissing the proposed Labor Law 200 claim as well as the claim of negligence against them.

Common law and §200 impose a duty upon employers to provide their employees with a safe place to work. It also applies to owners, contractors, or their agents, who controlled or supervised the work, or who created the dangerous condition. Kim v Herbert Construction. Co., 275 AD2d 709, 713 NYS2d 190 (2nd Dept 2000).

To establish liability against an owner or general contractor pursuant to Labor Law § 200, it must be established that the owner or general contractor exercised supervision and control over the work performed at the site, or had actual or constructive notice of the allegedly unsafe condition. Dennis v City of New York, 304 AD2d 611, 304 NYS2d 611 (2nd Dept 2003).In this case, SKANSKA was apparently aware of the absence of a ladder at the bottom of the tank, as its employee Sellick, lowered Plaintiff to the bottom of the tank with a winch. Further, it was SKANSKA's employee who is alleged to have abandoned his position monitoring Plaintiff at the time of the incident. These allegations are evidence that SKANSKA was supervising Plaintiff's work and had assumed responsibility for his safety. They provide a sufficient basis for asserting a claim against SKANSKA pursuant to Labor Law section 200, and for denying SKANSA summary judgment dismissing Plaintiff's complaint.

By reason of the foregoing, Plaintiffs have alleged sufficient facts to make out a colorable claim pursuant to Labor Law 241(6) for alleging violations of Industrial Code provisions 12 NYCRR 23-1.7(f), 12 NYCRR 23-1.7(g), as well as Labor Law 200 for negligence for failing to ensure a safe work place. However, Plaintiffs have failed to allege facts sufficient to make out a claim pursuant to Labor Law 240(1), and therefore leave to amend to add a claim pursuant to Labor Law 240(1) is not warranted.

Finally, as Plaintiffs have demonstrated a basis for adding causes of action pursuant to Labor Law 241(6) and 200, that part of Defendant CITY's motion to strike Plaintiffs' Bill of Particulars is moot, and that part of CITY's motion to compel the further deposition of the Plaintiff should be granted.

WHEREFORE, Plaintiffs' motion to amend the complaint is granted to the extent of permitting them to add claims pursuant to Labor Law 241(6) and 200 but denied as to adding a cause of action pursuant to Labor Law section 240(1); Defendant SKANSKA's motion for summary judgment is denied; Plaintiffs' motion to extend the time to file the note of issue is granted, that portion of Defendant CITY's motion to strike portions of Plaintiffs' Bill of Particulars is denied, that portion of Defendant CITY's motion to compel Plaintiffs to appear for supplemental depositions is granted, it is therefore,

Ordered that Plaintiffs are granted leave to serve and file an amended complaint in accord with this Decision and Order within 30 days, and it is further

Ordered that Plaintiffs' time to file the note of issue is extended until February 20, 2014, and it is further

Ordered that Plaintiff appear for a supplemental deposition on or before December 5th, 2013. [*10]

The foregoing shall constitute the decision and order of this court.

E N T E R,

______________________________

J S C