Plaintiffs Raul Vega (plaintiff) and Nova Vega move, pursuant to CPLR 3212 (e), for partial summary judgment as to liability on their claims pursuant to Labor Law §§ 240 (1) and 241 (6). Defendants Metropolitan Transportation Authority and New York City Transit Authority cross-move for partial summary judgment dismissing the complaint with respect to the Labor Law §§ 200 and 241 (6) claims, and dismissing an allegation attributed to plaintiffs, that plaintiff developed complex regional pain syndrome (CRPS), also known as reflex sympathetic dystrophy (RSD), as a result of a co-worker causing concrete debris to fall onto plaintiff's hand, causing a crush injury to the bones and nerves of his left index finger.

The complaint alleges the following three causes of action: (1) common-law negligence; (2) violation of Labor Law §§ 200, 240 (1), and 241 (6); and (3) a derivative claim by plaintiff Nova Vega.

At the time of the accident, plaintiff was employed by non-party Citnalta Construction as a laborer, working on the renovation of the 96th Street subway station at Broadway, between West 94th and West 96th Streets. On April 7, 2009, the day that plaintiff was injured, he was working with non-party Salvatore Sferrazza, also a Citnalta employee, who was using a rubber tire excavator (a machine similar to a backhoe) to move excavated debris into a nearby dumpster. Insofar as is relevant here, the work required Sferrazza to position the canvas bag filled with concrete debris, attached to the boom of the excavator, on the edge of the dumpster. Plaintiff, who was standing on planking at the side of the dumpster, thereupon unfastened the two straps at the bottom of the bag, thus allowing the debris bag to open as it was lifted. After receiving a voice or gestural signal that it was safe to proceed, Sferrazza would rapidly raise the canvas bag, causing the debris to fall out of the bag and into the dumpster. Plaintiff was injured when Sferrazza lifted the bag before plaintiff had moved away from the dumpster.

Defendants argue that plaintiffs are collaterally estopped from claiming that plaintiff contracted RSD, by virtue of a prior ruling by a Workers' Compensation Board law judge (Law Judge) that denied plaintiff's application to amend his "Notice and Causal Relationship" (NACR) to include RSD as an injury arising out of his accident. See Sondhi [*2]affirmation, exhibit I. It is well-established that collateral estoppel applies to a party's claim only where the issue that the party seeks to litigate is identical to an issue that was necessarily decided in an earlier action, and where the party against whom the doctrine is raised had "a full and fair opportunity to contest the prior determination." Kaufman v Eli Lilly & Co., 654 NY2d 449, 455 (1985); see also Simmons-Grant v Quinn Emanuel Urquhart & Sullivan, LLP, 981 NYS2d 89, 2014 NY Slip Op 01407 (1st Dept 2014). In general, quasi-judicial decisions of administrative bodies, as well as court decisions, are accorded collateral estoppel effect. Auqui v Seven Thirty One Ltd. Partnership, 22 NY3d 246, 255 (2013). In Auqui, the Court reaffirmed that "some degree of overlap" between the issue litigated and the one sought to be litigated does not suffice for estoppel. The issues must be "identical." Id. at 256. Here, the issues not only are not identical; they do not even overlap. Neither the complaint, nor plaintiffs' bills of particulars, mention RSD. The relevant paragraph of the relevant bill of particulars lists several physical sensations, including "tingling paralysis of finger, hand and entire left arm," as well as neuropathy, a dysfunction of the nerves, and radiculopathy, a dysfunction of a nerve root. Thus, even had the Law Judge found, as a matter of fact, that plaintiff does not suffer from RSD, such a finding would not support defendants' argument here. The Law Judge's decision, however, was not a finding of fact, but solely a ruling on the sufficiency of the evidence presented to him to support an amendment of plaintiff's NACR to add RSD. Here, no such issue is raised. (Defendants' reference to the mention of RSD in paragraph 17 of plaintiffs' counsel's affirmation is misplaced; that mention merely quotes defendant's notice of motion.)

Moreover, CPLR 3212 (e) provides that summary judgment may be granted "as to one or more causes of action, or part thereof." Defendants' cross motion, insofar as it bears on RSD, seeks to dismiss not a part of any cause of action alleged by plaintiffs, but a nonexistent factual allegation. Accordingly, this branch of defendants' cross motion is denied.

Labor Law § 200 is a codification of a property owner's or general contractor's common-law duty to provide a safe workplace. Where a claim of physical injury arises from "the manner and means of the work, including the equipment used, the owner or general contractor is liable [only] if it exercised supervisory control over the injury-producing work." Cappabianca v Skanska USA Building Inc., 99 AD3d 139, 144 (1st Dept [*3]2012); see also Suconota v Knickerbocker Props., LLC, __AD3d__, 2014 Slip Op 02515 1st Dept 2014) . Plaintiffs have made no showing of such control by defendants, and, indeed, plaintiffs do not oppose dismissal of this claim.

Labor Law § 241 (6) imposes a nondelegable duty on owners to comply with regulations of the New York State Industrial Code that set forth specific standards of conduct. St. Louis v Town of N. Elba, 16 NY3d 411, 413-414 (2011), citing Ross v Curtis-Palmer Hydro Elec. Co., 81 NY2d 494, 501-502 (1993). Labor Law § 241 (6) provides, in relevant part:

"[a]ll areas in which construction, excavation or demolition work is being performed shall be so constructed, . . . 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 . . . owners . . . shall comply therewith."

Plaintiffs rely on Industrial Code § 23-9.4 (h) (5), which pertains to power shovels and backhoes used for material lifting, and provides that "[c]arrying or swinging suspended loads over areas where persons are working or passing is prohibited." The standards set forth in Industrial Code § 23-9.4 have been held to be sufficiently specific to serve as the basis of a claim where one has been injured by an accident caused by a backhoe, or analogous equipment, in the process of "lifting or hoisting" a load. St. Louis, 16 NY3d at 414-415; see also Leszczynski v Town of Neversink, 107 AD3d 1183 (3d Dept 2013).

Here, Sferrazza testified at his deposition that once plaintiff undid the bottom straps, he "swing over into the [dumpster] a little bit and once I boom up the bottom of the bag opened up and the debris would fall out." Sondhi affirmation, exh F, Sferrazza tr at 32. He explained, "You have to keep lifting the bag up so the bottom of the bag keeps opening so the debris can come out" (id. at 65-66) and that "[o]nce ... I think it's emptied I would just shake [it] a little bit to make sure whatever is in the bag is out . . . whatever may have stuck in the bag and whatever may have hit Mr. Vega I don't know, I didn't see it." Id. at 66. Sferrazza also testified that he heard plaintiff scream while the bag was still being emptied. "When I went to lift [the bag] and shake the bag out, the next thing I know . . . I hear Raul Vega screaming." Id. at 38-39. Thus, it cannot be disputed that plaintiff was injured by the emptying out of a debris bag above him.

However, while plaintiff testified at his deposition that Sferranza "had to wait until I go into the intersection in the street for clearance to lift up the bag" (Sondhi affirmation, exhibit D, Sferrazza tr at 28), Sferrazza testified that plaintiff "gave me the signal. If it was verbally or with the [gestural] boom up signal, I don't recall." Id. at 38. Accordingly, a jury may find that plaintiff gave Sferrazza a signal to proceed without having moved to a safe location. Because there is a genuine issue as to plaintiff's possible own negligence, plaintiffs are not entitled to summary judgment on this claim. See Harinarain v Walker, 73 AD3d 701 (2d Dept 2010); [*4]Baumann v Metropolitan Life Ins. Co., 17 AD3d 260 (1st Dept 2005).

Labor Law § 240 (1), the Scaffold Law, imposes strict liability upon owners and contractors, other than certain owners of one and two-family dwellings, where an elevation-related construction accident occurs. In Runner v New York Stock Exch., Inc. (13 NY3d 599 [2009]), the Court of Appeals held that the Scaffold Law applied even where a worker did not fall from a height, and was not struck by an object falling from a height. "[T]he single decisive question," the Court stated, "is whether plaintiff's injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential." Id. at 603. In that case, one of three workers who were functioning as counterweights while a reel of wire was rolled down four stairs by means of a rope anchored above the top stair, injured his hands when he was pulled up to the reel. Here, plaintiff was injured when a piece of concrete fell on his hand from a physically significant height. However, plaintifs are not entitled to summary judgment because they have not shown how plaintiff could have been protected from the risk that he would be injured by a falling piece of debris.

That question, among others, remains for trial.

Accordingly, it is hereby

ORDERED that the motion of plaintiffs Raul Vega and Nova Vega for partial summary judgment as to liability is denied; and it is further

ORDERED that defendants' cross motion for partial summary judgment is granted to the extent that plaintiffs' claim under Labor Law § 200 is dismissed and the cross motion is otherwise denied.

Dated: April 28, 2014

New York, New York

ENTER:

_____/s/________________

J.S.C.