Supreme Court, Monroe County, May 18, 2022

Robert L. Voltz for plaintiff.

Alan J. De Peters for defendants.

This action was commenced on June 1, 2016, by way of the filing of a summons and complaint wherein plaintiff alleged that he sustained injuries as a result of defendants' negligence and violations of various provisions of the Labor Law. The genesis of the complaint derives from an incident where plaintiff, working as a commercial painter inside defendant Once Again Nut Butter's (OANB) facility, became dizzy and fell approximately six to eight feet from the bucket of a diesel-powered boom lift. More specifically, plaintiff contends that defendants permitted a dangerous condition within the work site premises; to wit: the use of a diesel fuel engine inside a building without adequate ventilation and without providing proper protection from the noxious paint fumes. Plaintiff now moves this court, pursuant to CPLR 3212, for an order granting summary{**77 Misc 3d at 464} judgment in his favor. Likewise, defendants cross-move for precisely the same relief, imploring this court to arrive at the opposite conclusion advanced by plaintiff.

By way of background, defendant OANB contracted with defendant DiMarco Constructors, LLC (DiMarco) to build a new facility. Plaintiff was an employee of nonparty Finger Lakes Painting and Wallcovering (Finger Lakes)—a subcontractor of DiMarco—whose duties included painting the steel beams at the ceiling of OANB's facility. DiMarco provided to plaintiff, and his partner, the diesel-powered 40-foot boom lift at issue (boom lift) to facilitate reaching the ceiling area where the spray-painting occurred.

Prior to the accident at issue, plaintiff had been on the job for approximately three days. At his deposition, plaintiff testified that he discussed the need for ventilation with Mr. Higley, one of the owners of Finger Lakes. Further, plaintiff stated that Mr. Higley inquired if he would like a respirator, to which he responded in the affirmative; however, Mr. Higley testified that he did not recall whether or not he provided plaintiff a respirator. Plaintiff indicated that he was only provided with paper masks.

Mr. Kosich, the project manager/superintendent for DiMarco, offered somewhat conflicting testimony in which he stated that he observed plaintiff wearing a respirator a few days before the fall. Mr. Wagner, plaintiff's painting partner, testified that there were no respirators on site and they were never told to wear one. He further stated that he never saw plaintiff wearing a respirator. Finger Lakes' foreman, Clayton Young, testified that he was provided a respirator, and further that Finger Lakes would provide them as needed.

On the days prior to his fall, plaintiff testified that he smelled the diesel fumes exhausted from the boom lift while he was working but he had not become dizzy. Plaintiff additionally stated that after a few days of work, he along with his partner were instructed to perform their work in the evening after the other trades left the building because of the smell of fumes from the boom lift and paint. Mr. Kosich likewise testified that the painters were told to work at night because of concerns relative to exposing other workers to fumes. Plaintiff stated that at no point were there any "tool talks" or other safety discussions in which he participated.

Plaintiff testified that on or about September 3, 2013, the date of the accident, he was utilizing the boom lift in order to{**77 Misc 3d at 465} reach the peak of the 30-foot ceiling while he sprayed paint on the structure. Mr. Kosich testified that his log indicated that on this date it was 88 degrees. Mr. Higley (from Finger Lakes) indicated that the boom lift's diesel engine exhausted in the area where it was running, and further described the facility where plaintiff was working as partially open insomuch as there were five or six bay doors not yet installed. Mr. Kosich described the area where plaintiff was painting as being the furthest away from the open loading dock doors. Finally, Mr. Wagner testified that the boom lift did not have anything that would allow it to exhaust outside of the structure.

According to the testimony of Mr. Kosich, there were approximately two to three box fans which had been provided to assist with ventilation nearby plaintiff. Mr. Wagner recalled seeing two fans, but was unsure if they were running. Mr. Higley did not recall any fans near the ceiling of the building to facilitate exhausting the air.

Plaintiff testified that he would try to shut the boom lift off when he would get to a position where he needed to paint for a while, but would have to fire it back up any time he had to move the lift or the boom. He further indicated that the diesel fumes "stunk like hell."

Plaintiff's deposition testimony indicated that immediately prior to the accident, he was wearing a harness and was clipped to the basket while painting at the highest peak of the ceiling. [*2]He was wearing a paper mask. Shortly after he started painting, he began to feel dizzy and disoriented. He testified that he was wobbling back and forth, feeling confused and nervous, and prior to the fall, he started to lower the boom lift. When he started lowering himself, he was approximately 20 feet off the ground. Plaintiff's fall from the boom lift was unwitnessed and he has little memory of the events; however, when he was discovered, Mr. Wagner testified that the boom lift was off and elevated approximately six to eight feet off the ground. Mr. Wagner observed that plaintiff was still wearing his harness and the gate/door to the boom lift was closed. Plaintiff seemingly had become unclipped from the bucket. He testified that he had no memory of unclipping his harness or lanyard from the basket. He testified that when he started to feel dizzy, he was still hooked into the tie-in spot.

The crux of plaintiff's claims, in sum, is that he was overcome by the fumes and due to the inadequate ventilation of the structure and lack of protective equipment, he became infirm and ultimately fell from the boom lift.{**77 Misc 3d at 466}

Summary Judgment Standard

A party seeking summary judgment pursuant to CPLR 3212 must make a prima facie showing of entitlement to judgment as a matter of law and submit sufficient evidence to demonstrate the absence of any material issue of fact (William Iselin & Co. v Mann Judd Landau, 71 NY2d 420 [1988]). The court must view the evidence presented in the light most favorable to the nonmoving party (Russo v YMCA of Greater Buffalo, 12 AD3d 1089 [4th Dept 2004]). When faced with a motion for summary judgment, "a court's task is issue finding rather than issue determination," and thus the court "must view the evidence in the light most favorable to the party opposing the motion, giving that party the benefit of every reasonable inference and ascertaining whether there exists any triable issue of fact" (Esposito v Wright, 28 AD3d 1142, 1143 [4th Dept 2006] [emphasis added]). Further, a moving defendant must affirmatively demonstrate the merits of its defense and cannot meet its burden in moving for summary judgment by pointing to gaps in plaintiff's proof (George Larkin Trucking Co. v Lisbon Tire Mart, 185 AD2d 614 [4th Dept 1992]). If the proponent demonstrates entitlement to summary judgment, the opposing party must then demonstrate, generally by admissible evidence, the existence of an issue of fact requiring a trial (Zuckerman v City of New York, 49 NY2d 557 [1980]).

Labor Law § 240 (1)

Labor Law § 240 (1) imposes "a nondelegable duty and absolute liability upon owners and contractors for failing to provide safety devices necessary for workers subjected to elevation-related risks in circumstances specified by the statute," and in order to recover under Labor Law § 240 (1), a plaintiff "must have been engaged in a covered activity—the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure," and must have "suffered an injury as the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential" (Preston v APCH, Inc., 175 AD3d 850, 851 [4th Dept 2019], affd 34 NY3d 1136 [2020]).

Nevertheless, not every fall from an elevated height at a work site results in a Labor Law § 240 (1) violation. The fall must be due to a violation of Labor Law § 240 (1) and be the proximate cause of a plaintiff's injuries. As the Court of Appeals observed in Blake v Neighborhood Hous. Servs. of N.Y. City (1 NY3d 280 [2003]):{**77 Misc 3d at 467}

"[A]n accident alone does not establish a Labor Law § 240 (1) violation or causation. [*3]This Court has repeatedly explained that 'strict' or 'absolute' liability is necessarily contingent on a violation of section 240 (1). In Melber v 6333 Main St. (91 NY2d 759, 762 [1998]), we noted that 'we have held that the statute establishes absolute liability for a breach which proximately causes an injury.' In Zimmer (65 NY2d at 522), we found that 'a violation of section 240 (1) . . . creates absolute liability' and that '[t]he failure to provide any safety devices is such a violation.' Moreover, causation must also be established. As the Court held in Duda (32 NY2d at 410 [1973]), the 'plaintiff was obligated to show that the violation [of section 240 (1)] was a contributing cause of his fall.' " (Id. at 289.)

More than a decade later, the High Court again emphasized that Labor Law § 240 (1)

"[does] not encompass any and all perils that may be connected in some tangential way with the effects of gravity. . . Rather, liability remains contingent upon the existence of a hazard contemplated by [the section] and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein" (Nicometi v Vineyards of Fredonia, LLC, 25 NY3d 90, 97 [2015] [emphasis omitted], rearg denied 25 NY3d 1195 [2015]).

To that end, "the relevant and proper inquiry is whether the hazard plaintiff encountered . . . was a separate hazard wholly unrelated to the hazard which brought about the need for a safety device in the first place" (id. at 98 [citations and internal quotation marks omitted]).

"[C]ontemplated hazards are those related to the effects of gravity where protective devices are called for either because of a difference between the elevation level of the required work and a lower level or a difference between the elevation level where the worker is positioned and the higher level of the materials or load being hoisted or secured" (Rocovich v Consolidated Edison Co., 78 NY2d 509, 514 [1991] [emphasis added]).

"In other words, Labor Law § 240 (1) was designed to prevent those types of accidents in which the scaffold, hoist, stay, ladder or other protective device proved inadequate to shield the injured worker{**77 Misc 3d at 468} from harm directly flowing from the application of the force of gravity to an object or person" (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [1993] [emphasis omitted]).

In this case, the defendants allege that plaintiff cannot make a showing that a necessary safety device, as contemplated by the statute, was "absent, inadequate or defective" (see Mohamed v City of Watervliet, 106 AD3d 1244, 1245 [3d Dept 2013]). To that end, defendants continue, inadequate ventilation is not a gravity-related risk, but rather a general workplace safety risk. Conversely, plaintiff contends that the boom lift falls squarely within the statute and that it was not "constructed, placed and operated [so] as to give proper protection" (see Labor Law § 240 [1]) insomuch as there was insufficient ventilation for the interior use of a diesel engine.

[1] Although a mechanical lift, such as the at-issue boom lift, may implicate liability pursuant to New York's scaffolding law (see generally Hojohn v Beltrone Constr. Co., 255 AD2d 658 [3d Dept 1998]; Klien v General Foods Corp., 148 AD2d 968 [4th Dept 1989]), in this case, it does not. In this court's view, air contaminated by noxious fumes falls beyond the purview of gravity-related hazards contemplated by the statute. Consider, by way of example, the litany of cases in which liability was determined based upon the placement of a safety device: the commonality in the analyses hinges upon the direct relationship between the injured person's fall and the physical placement of the safety device (see e.g. Cutaia v Board of Mgrs. of the 160/170 Varick St. Condominium, 38 NY3d 1037 [2022] [plaintiff [*4]injured after falling from ladder propped against wall in closed and unlocked position]; Klien, 148 AD2d 968 [plaintiff was injured when a stepladder, located in proximity to the elevated platform, slipped as he attempted to get down, causing him to fall]; Bland v Manocherian, 66 NY2d 452 [1985] [owners of apartment building were absolutely liable for full extent of damages proximately resulting from improper placement of ladder]; Wolf v Ledcor Constr. Inc., 175 AD3d 927 [4th Dept 2019] [the placement of the scaffold over the improperly covered drain hole was a proximate cause of the accident and thus plaintiff was entitled to summary judgment under the scaffolding law]). Such circumstances are to be contrasted here as the fumes exhausted from the diesel engine were an incidental consequence to the physical placement of the boom lift. As defendants correctly observe, plaintiff has failed to{**77 Misc 3d at 469} demonstrate that they breached their statutory duty to provide elevation-based safety devices. Conversely, there is no dispute that plaintiff was equipped with a safety harness and lanyard (clip) that were in proper working order. In sum, plaintiff's injuries were not caused by an elevation-related risk. Accordingly, this portion of defendants' motion is granted, and likewise, this portion of plaintiff's motion is denied.

Labor Law § 241 (6)

Labor Law § 241 (6) provides, in relevant part,

"[a]ll contractors and owners and their agents, . . . when constructing or demolishing buildings or doing any excavating in connection therewith, shall comply with the following requirements . . . 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" (Labor Law § 241 [6]).

It is well settled that this statute requires owners and contractors and their agents "to 'provide reasonable and adequate protection and safety' for workers and to comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor" (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501-502 [1993], quoting Labor Law § 241 [6]). Labor Law § 241 (6) creates

"a nondelegable duty of reasonable care upon owners and contractors to provide reasonable and adequate protection and safety to persons employed in, or lawfully frequenting, all areas in which construction, excavation or demolition work is being performed. In order to successfully establish the statutory cause of action, a plaintiff must show the applicability of a specific provision of the Industrial Code to the relevant work, a violation of the regulation, and that such violation constituted causally related negligence. Comparative negligence remains a cognizable affirmative defense to a section 241 (6) cause of action." (Copp v City of Elmira, 31 AD3d 899, 899-900 [3d Dept 2006] [citations and internal quotation marks omitted].)

In this case, while plaintiff identifies several general regulations in his response to defendants' interrogatories, he specifies{**77 Misc 3d at 470} the following regulations within the instant motion papers as alleged violations of the Industrial Code which serve as the bases of the section 241 (6) causes of action:

1. "Confined space definition. As used in this section, a confined space means a room, a portion of a room or an enclosure having no means of natural ventilation other than one entrance opening and which room, portion of a room or enclosure is of such dimensions [*5]that a painter is required to work inside such room, portion of a room or enclosure. Such confined space may be a tank, an elevator car, a compartment, a closet, the upper area of a high ceiling room or a similarly enclosed space." (12 NYCRR 23-2.8 [a].)

2. "Paint spraying. Persons engaged in paint spraying operations and persons in such close proximity to such operations that they are exposed to the spray mists shall be provided with and shall use approved respirators. Operators of paint spraying equipment shall be provided with and shall use protective oil, grease or cream on the exposed parts of their bodies. Where such work is performed in tanks, vats and similar enclosed vessels, protection in addition to the required respirators shall be provided by means of mechanical exhaust ventilation." (12 NYCRR 23-2.8 [c].)

3. "Enclosed spaces. No stationary internal combustion engine shall be operated under any conditions which allow introduction of its exhaust gases into any occupied enclosed space. The operation of other internal combustion engines within such a space is prohibited except for the necessary entrance and departure of vehicles and except when such space is so ventilated as to assure an atmosphere free from exhaust gases in a concentration tending to injure health." (12 NYCRR 23-10.4.)^[FN1]

[2] As a threshold matter, "the failure to identify the specific [Industrial] Code provision allegedly violated in support of a Labor Law § 241 (6) cause of action either in the complaint or{**77 Misc 3d at 471} in the bill or supplemental bills of particulars is not necessarily fatal" (Galarraga v City of New York, 54 AD3d 308, 310 [2d Dept 2008]). In fact,

"[a] plaintiff may make an allegation of an Industrial Code violation in support of a Labor Law § 241 (6) claim for the first time in opposition to a motion for summary judgment if the allegation 'involve[s] no new factual allegations, raise[s] no new theories of liability, and cause[s] no prejudice to the defendants' " (Kowalik v Lipschutz, 81 AD3d 782, 783 [2d Dept 2011]).

Here, defendants were placed on sufficient notice that plaintiff's Labor Law § 241 (6) claims related to the alleged inadequate ventilation of OANB's structure and defendants' failure to provide proper protection/respirators, and their papers clearly identify the three above-indicated Industrial Code violations relied upon for the instant action. It is for this reason that the court declines to dismiss this cause of action based upon purported pleading insufficiencies.

[3] The court now turns to the merits of the parties' separate applications. Initially, and contrary to plaintiff's contention, the absence of mechanical ventilation does not constitute a violation of Labor Law § 241 (6) insomuch as plaintiff was not engaged in paint spraying inside a "tank[ ], vat[ ] [or] similar[ly] enclosed vessel[ ]" (12 NYCRR 23-2.8 [c]). To be certain, plaintiff erroneously interlards "confined space" (12 NYCRR 23-2.8 [a]) and "enclosed vessel[ ]" (12 NYCRR 23-2.8 [c]) by asserting that the former falls within the general class of the latter. [*6]Stated another way, plaintiff maintains that because the "upper area of a high ceiling" constitutes a "confined space," the linguistic and contextual likeness of "confined space" to "enclosed vessel" necessitates extension of the "mechanical ventilation" rule to high ceilings. Nevertheless, such an interpretation is belied by the statutory canons of ejusdem generis and expressio unius est exclusio alterius. Had the Department of Labor (DOL) intended the requirement of mechanical ventilation when paint spraying in a high ceiling area, it could have explicitly set forth such an affirmative obligation or referenced the definition of "confined space" within the statute (contrast 12 NYCRR 23-2.8 [d], [e] [explicit reference to confined spaces as applied to "brush work" and "coating removal" respectively]). Yet, the DOL did neither. It stands to reason the express mention of certain areas subject to the mechanical ventilation requirement implies the exclusion of{**77 Misc 3d at 472} high ceiling areas. Furthermore, "the upper area of a high ceiling room" (12 NYCRR 23-2.8 [a]) is not of the same class or kind as a "tank" or "vat" so as to fall within the intended purview of "similar[ly] enclosed vessel[ ]" (see 12 NYCRR 23-2.8 [c]). "[A] court cannot by implication supply in a statute a provision that it is reasonable to suppose the Legislature intended to omit" (Matter of Matzell v Annucci, 183 AD3d 1, 6 [3d Dept 2020]). Thus, under the circumstances presented in the instant matter, the absence of mechanical ventilation cannot substantiate plaintiff's Labor Law § 241 (6) claim thereby rendering a favorable summary judgment determination for defendants in this limited regard.

Nevertheless, with respect to the remaining alleged Industrial Code violations, in this court's view, there exists genuine issues of material fact precluding summary judgment for both parties. Initially, plaintiff has demonstrated a prima facie showing that Industrial Code § 23-2.8 (c) was violated as there is no contest by defendants that plaintiff was not provided a respirator while paint spraying. However, a violation of the Industrial Code regulations does not, by itself, establish liability pursuant to section 241 (6) "as a matter of law[,] but is merely some evidence to be considered on the question of a defendant's negligence" (Fazekas v Time Warner Cable, Inc., 132 AD3d 1401, 1404 [4th Dept 2015] [citations and internal quotation marks omitted]).

[4, 5] Notwithstanding a violation of 12 NYCRR 23-2.8 (c), the record before the court is indeterminate as to whether the absence of a respirator constituted a substantial factor in bringing about the effects that produced plaintiff's injury. Likewise, the same question is presented with respect to the purported inadequate ventilation of OANB's facility. In other words, there is a dispute as to whether defendants' violation of 12 NYCRR 23-2.8 (c) and alleged violation of 12 NYCRR 23-10.4^[FN2] were proximate causes of plaintiff's injuries either [*7]individually or in{**77 Misc 3d at 473} conjunction with one another. Plaintiff was injured as a result of his fall from the basket of the mechanical lift; however, as his fall was unwitnessed and his recollection of events is fragmented, it is not clear as to how he became untethered from the basket and if there is a viable nexus between the untethering event and the absence of a respirator, insufficient ventilation, or a combination of both. It should further be noted that the temperature within the OANB facility exceeded approximately 80 degrees, and it is uncertain what, if any, part this factor played in the concatenation of events leading to plaintiff's injuries. While plaintiff has failed to tender sufficient evidence so as to establish proximate cause, defendants likewise have failed to demonstrate its absence so as to entitle them to summary judgment insomuch as the circumstantial evidence on the record before the court lends credence to plaintiff's theory of causation. Hence, the genesis of the factual dispute. It is for the afore-stated reasons that, with respect to plaintiff's section 241 (6) claims, his motion for summary judgment is denied, and the balance of defendants' motion is denied.

Labor Law § 200

Plaintiff also asserts that defendants were negligent under common-law theories and under Labor Law § 200, arguing, in sum, that defendants permitted a dangerous condition, namely, the failure to provide a respirator and the use of a diesel-fueled engine inside a building without adequate ventilation. In other words, plaintiff asserts the workplace was not reasonably safe.

Labor Law § 200 "is a codification of the common-law duty imposed upon an owner or general contractor to maintain a safe construction site" (Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 352 [1998]). To establish liability under these theories of recovery, it must be established that the owner or contractor had the "authority to control the activity bringing about the injury to enable it to avoid or correct an unsafe condition" {**77 Misc 3d at 474}(Biafora v City of New York, 27 AD3d 506, 507-508 [2d Dept 2006] [citations omitted]).

Here, while plaintiff has sufficiently established that DiMarco had supervisory authority over the work site, summary judgment is nevertheless unavailable for either party. Insomuch as this court has previously determined that genuine issues of material fact exist pertinent to proximate cause, it is for precisely the same reason that the relief sought by both parties in their respective applications is unavailable. Accordingly, with respect to the branches of plaintiff's and defendants' motions pertaining to section 200, both motions are denied.

Based upon the foregoing, it is hereby ordered and adjudged that defendants' motion for summary judgment pursuant to CPLR 3212 is granted in part and denied in part, insomuch as plaintiff's third and fourth causes of action are dismissed; and it is further ordered that plaintiff's motion for summary judgment pursuant to CPLR 3212 is denied in its entirety.

Any prayers for relief not specifically addressed herein are denied.

Furthermore, assuming arguendo the upper area of the ceiling where plaintiff was spray-painting constitutes an "enclosed space," there are viable issues of fact as to the sufficiency of the ventilation insomuch as a portion of the facility was open to the outdoors and there were fans placed nearby plaintiff to facilitate the dissipation of exhaust.