In Koba Mushkudiani v. Racanelli Construction Group, Inc.,
et al., an Appellate Division of the New York Supreme Court (“the Court”) affirmed
summary judgment against the owner, general contractor, and developer of a construction
project for violation of multiple New York Labor Laws. 2023 WL 5064219. Koba
Mushkudiani (“Plaintiff”) was working on a construction site as a laborer for a
window subcontractor when he sustained injuries after falling through an
interior hole on the eighteenth floor of a construction site.
While preparing to load windows onto a dolly, Plaintiff
stepped on a piece of plywood that covered a ventilation hole, which subsequently
collapsed and caused injury to Plaintiff. Plaintiff brought a claim for
personal injuries against X & Y Development Group, LLC (“X&Y”), the
owner, Fleet Financial Group, Inc., (“Fleet”) the developer, and Racanelli
Construction Group, Inc. (“Racanelli”), the general contractor (collectively, “Defendants”).
Plaintiff alleged common law negligence and violations of New York Labor Law §§
200, 240(1), and 241(6) and moved for summary judgment on all counts.
Summary judgement was granted against the Defendants in regard
to Labor Law §§ 240(1) and 241(6). Labor Law § 240(1) requires owners,
contractors, and their agents to provide workers with adequate protection from hazards
related to elevation. Defendants argued Plaintiff was provided with proper
protection, as Plaintiff had been given a harness to anchor himself to the
structure and had been instructed on multiple occasions to use the harness. The
Court disagreed with Defendants, stating that Plaintiff’s failure to attach his
harness was not the sole proximate cause of his injuries, and Defendants
provided no evidence showing that Plaintiff was required to use the harness in
the interior area where the accident occurred.
The Court also addressed Labor Law § 241(6), which requires
a construction site be constructed, guarded, operated, and conducted as to
provide reasonable and adequate protection to persons therein. The Court relied
on prior case law which established that in order to prevail on an action based
on Labor Law § 241(6), “…a plaintiff must establish a violation of a specific
safety regulation promulgated by the Commissioner of the Department of Labor.” Davies
v. Simon Prop. Group, Inc., 174 A.D. 3d at 853, 107 N.Y.S. 3d 341; see
Ross v. Curtis–Palmer Hydro–Elec. Co., 81 N.Y. 2d 494, 505, 601 N.Y.S.
2d 49, 618 N.E. 2d 82.
The Court noted Plaintiff’s cause of action was premised upon
the violation of Industrial Code (12 NYCRR) § 23–1.7(b)(1)(i), which requires
any hazardous opening which a person may step on or fall into shall be guarded by a
substantial cover fastened in place or by a safety railing. The opening which
Plaintiff fell through was covered only by a piece of plywood which was not fastened
in place or protected by a safety railing, thus providing a basis for summary judgment
against Defendants.
Although Defendants lost in regards to Labor Law §§ 240(1) and 241(6), the
Court reversed summary judgment in regard to liability on the Labor Law § 200, a codified common law
duty to provide a safe workplace, and common law negligence causes of action.
The Court stated, to be held liable under § 200, the owner or general
contractor must have had control over the work site and either created the dangerous
condition which caused the injury or knew of the dangerous condition and failed
to remedy it while having actual or constructive notice. Rodriguez v. HY 38
Owner, LLC, 192 A.D. 3d at 841, 143 N.Y.S 3d 411. Here, Plaintiff presented
no evidence showing any Defendant had control of the work site or that any Defendant
improperly covered any hole which Plaintiff fell through.
To avoid similar liability, New York Owners and General Contractors must be aware of all applicable labor laws and safety codes. Second, they must ensure their subcontractors are also aware of the applicable labor laws and safety codes. Third, they must take proper action to ensure the applicable labor laws and safety codes are complied with throughout the course of a Project.
