FILED: NEW YORK COUNTY CLERK 05/17/2021 06:11 PM
`NYSCEF DOC. NO. 111
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`INDEX NO. 158546/2015
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`RECEIVED NYSCEF: 05/17/2021
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NEW YORK
`-----------------------------------------------------------------------X
`MILAGROS MUSSE,
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` Plaintiff,
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`-against-
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`Index No.: 158546/2015
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`TRIBOROUGH BRIDGE and TUNNEL AUTHORITY
`and PORT AUTHORITY OF NEW YORK and NEW
`JERSEY,
` Defendants.
`----------------------------------------------------------------------X
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`
`
`MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT ON
`BEHALF OF DEFENDANT, PORT AUTHORITY OF NEW YORK and NEW JERSEY
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`RUBIN FIORELLA FRIEDMAN
`& MERCANTE, LLP
`Attorneys for Defendant,
`PORT AUTHORITY OF NEW YORK and
`NEW JERSEY
`630 Third Avenue – 3rd Floor
`New York, New York 10017
`212.953.2381
`Our File No.: 1013.40676
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`
`
`
`Of counsel:
`Stewart B. Greenspan, Esq.
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`TABLE OF CONTENTS
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`INTRODUCTION ...........................................................................................................................1
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`ARUGUMENT ................................................................................................................................3
`POINT I
`AS PLAINTIFF’S INJURIES DID NOT INVOLVE A GRAVITY RELATED RISK,
`PLAINTIFF’S LABOR LAW §240(1) CLAIM MUST BE DISMISSED .....................................3
`POINT II
`DEFENDANT PANYNJ IS NOT AN OWNER, CONTRACTOR OR AGENT FOR
`PURPOSES OF LABOR LAW§§240(1); 241(6) AND 200 ...........................................................6
`POINT III
`EVEN ASSUMING, ARGUENDO, THAT PANYNJ WAS A PROPER LABOR LAW
`DEFENDANT IN THE CONTEXT OF THIS CASE, NONE OF THE INDUSTRIAL CODE
`PROVISIONS RELIED UPON BY PLAINTIFF HAS ANY APPLICATION TO THE FACTS
`OF THE ACCIDENT ALLEGED ................................................................................................11
`POINT IV
`PANYNJ MAY NOT BE HELD LIABLE UNDER LABOR LAW §200 SINCE IT NEITHER
`CREATED THE CONDITION ALLEGED, NOR HAD NOTICE OF IT, ACTUAL OR
`CONSTRUCTIVE ........................................................................................................................16
`POINT V
`AN OUT OF POSSESSION LANDOWNER SUCH AS PANYNJ CAN ONLY BE CHARGED
`WITH CONSTRUCTIVE NOTICE OF A HAZARDOUS CONDITION WHERE THE
`LANDOWNER RETAINED THE RIGHT TO RE-ENTER THE PREMISES, AND THE
`HAZARD CONSTITUTED A SIGNIFICANT STRUCTURAL OR DESIGN DEFECT THAT
`IS CONTRARY TO A SPECIFIC STATUTORY SAFETY PROVISION ...............................17
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`TABLE OF AUTHORITIES
` CASES
`
`
`
`Abbatiello v. Lancaster Studio Assocs.,
`3 N.Y.3d 46, 52, 814 N.E.2d 784, 781 N.Y.S.2d 477 [2004])……………………………….. 7
`
`Becerra v. City of New York,
`261 A.D.2d 188, 690 N.Y.S.2d 52 (1" Dept. 1999)…………………………………………... 3
`
`Bland v. Manocherian,
`66 N.Y.2d 452, 488 N.E.2d 810, 497 N.Y.S.2d 880 (1985) …………………………………… 3
`
`Brown v. Christopher Street Owners Corporation,
`211AD2d 441, 442, 620 N.Y.S.2d 374 [1st Dept 1995] affd 87 NY2d 938, 663 N.E.2d 1251, 641
`N.Y.S.2d 221 2008 N.Y. Misc. LEXIS 7790, 2008 NY Slip Op 30421(U)[1996] ...............……..7
`
`Butler v. Rafferty,
`100 NY2d 265, 792 N.E.2d 1055, 762 N.Y.S.2d 567 [2003]…………………………………. 17
`
`Ceballos v. Kaufman,
`249 AD2d 40, 40, 671 N.Y.S.2d 229 [1st Dept 1998]…………………………………………. 7
`
`Chapman v. Silber,
`97 NY2d 9, 760 N.E.2d 329, 734 N.Y.S.2d 541 [2001]……………………………………….. 17
`
`Constantino v. Kreisler Borg Florman Gen. Constr. Co.,
`272 AD2d 361, 362, 707 NYS2d 487 [2000] …………………………………………………. 12
`
`Conte v. Frelen Assoc., LLC,
`51 AD3d 620 [2d Dept 2008] …………………………………………………………………. 20
`
`Cooke v. CRP/Extell Parcell I. LP,
`2012 N.Y. Misc. LEXIS 92, 2012 WL 760498 (NY Sup), 2012 NY Slip Op 30492[U]
`(Trial Order) [Sup Ct, NY County 2012] ……………………………………………………14, 15
`
`Copertino v. Ward,
`100 AD2d 565, 566, 473 N.Y.S.2d 494 [1984] ………………………………………………… 8
`
`Dahar v. Holland Ladder & Mfg. Co.,
`79 AD3d 1631, 1633, 914 N.Y.S.2d 817 [2010]) ………………………………………………. 8
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`Devlin v. Blaggards III Rest. Corp.,
`80 AD3d 497, 916 N.Y.S.2d 580 [1st Dept. 2011], lv. den.,16 N.Y.3d 713, 948 N.E.2d 929, 924
`N.Y.S.2d 322 [2011]) …………………………………………………………………………… 18
`
`Douglas v. Sherwood 48 Assoc., LP
`2017 NY Slip Op 31721[U] [Sup Ct, Bronx County 2017]) .................................................……4
`
`Flores v ERC Holding LLC,
`87 AD3d 419, 421, 928 N.Y.S.2d 7 [2011] ……………………………………………… 9, 10
`
`Guclu v. 900 Eighth Ave. Condominium, LLC,
`81 AD3d 592, 593, 916 N.Y.S.2d 147 [2011]…………………………………………………. 8
`
`Heim v. Trustees of Columbia Univ.,
`81 AD3d 507, 917 N.Y.S.2d 159 [1st Dept. 2011] ……………………………………………. 18
`
`Jean-Baptiste v. 153 Manhattan Ave. Housing Dev. Fund Corp.,
`124 AD3d 476, 2 N.Y.S.3d 441 [1st Dept. 2015] ……………………………………………… 18
`
`John v. Baharestani,
`281 AD2d 114, 118, 721 N.Y.S.2d 625 [1st Dept 2001] ………………………………………. 5
`
`Johnson v. Urena Service Center,
`227 AD2d 325, 642 N.Y.S.2d 897 [1st Dept. 1996] ……………………………………… 17, 18
`
`Jones v. Granite Constr. Northeast, Inc.,
`2011 NY Slip Op 31434[U] [Sup Ct, Queens County 2011] …………………………………. 14
`
`Kilimnik v. Mirage Rest.,
`223 AD2d 530 [2d Dept 1996 ………………………………………………………………… 20
`
`Lawyer v. Hoffman,
`275 AD2d 541, 542, 711 NYS2d 618 [2000] …………………………………………………. 12
`
`Lester v. JD Carlisle Dev. Corp.,
`2016 NY Slip Op 31502[U] [Sup Ct, NY County 2016] ……………………………………… 14
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`Maggio v. 24 W. 57 APF, LLC,
`134 AD3d 621 [1st Dept 2015] ………………………………………………………………... 17
`
`Maragliano v. Port Auth. of NY & NJ,
`2012 NY Slip Op 30374[U] [Sup Ct, Queens County 2012] ………………………………….. 8
`
`Marchese v. Fresh Meadows Assocs.,
`207 A.D.2d 871, 616 N.Y.S.2d 767 [2nd Dept. 1994] ………………………………………. 19
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`Maynard v. DeCurtis,
`252 AD2d 908, 909, 676 NYS2d 340 [1998] ………………………………………………… 12
`
`McComish v. Luciano's Italian Rest.,
`56 AD3d 534 [2d Dept 2008] ……………………………………………………………… 19, 20
`
`McKee v. Great Atl. & Pac. Tea Co.,
`73 AD3d 872 [2d Dept 2010] ………………………………………………………………. 12
`
`Melber v. 6333 Main St., Inc.,
`91 NY2d 759, 763, 698 N.E.2d 933, 676 N.Y.S.2d 104 [1998] ……………………………. 5
`
`Mercorella v. Manmall, LLC,
`2008 NY Slip Op 32879[U] [Sup Ct, NY County 2008] ………………………………… 5, 6
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`Morra v. White,
`276 AD2d 536, 714 NYS2d 510 [2000] …………………………………………………….. 12
`
`Morton v. State of New York,
`15 NY3d 50, 50, 930 N.E.2d 271, 904 N.Y.S.2d 350 [2010] ……………………………….. 7
`
`Nielsen v. 300 East 76th Street Partners, LLC
`111 AD3d 414, 414, 974 N.Y.S.2d 246 [1st Dept. 2013] ......................................................……18
`
`Nieves v. Five Boro A. C. & Refrig. Corp.,
`93 NY2d 914, 915-916, 712 N.E.2d 1219, 690 N.Y.S.2d 852 [1999] ………………………. 6
`
`Peralta v. Henriquez,
`100 NY2d 139, 790 N.E.2d 1170, 760 N.Y.S.2d 741 [2003] ………………………………… 17
`
`Personius v. Mann,
`20 AD3d 616, 617, 798 N.Y.S.2d 195 [3d Dept],
`aff’d as mod 5 NY3d 857, 840 N.E.2d 1024, 807 N.Y.S.2d 11 [2005] ………………………. 7
`
`Porazzo v. City of New York,
`39 AD3d 731, 834 NYS2d 298 [2007]) ………………………………………………………. 12
`
`Reyes v. Morton Williams Associated Supermarkets, Inc.,
`50 A.D.3d 496, 858 N.Y.S.2d 107 [1st Dept. 2008] ………………………………………… 18
`
`
`Roberts v. Worth Constr., Inc.,
`21 AD3d 1074 [2d Dept 2005] ………………………………………………………………. 12
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`Rocovich v. Consolidated Edison Co.,
`78 NY2d 509, 513, 583 NE2d 932, 577 NYS2d 219 [1991] ………………………………… 3
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`Ross v. Betty G. Reader Revocable Trust,
`86 AD3d 419 [1st Dept 2011]) ………………………………………………………………. 19
`
`Ross v. Curtis-Palmer Hydro-Electric Company,
`81 NY2d 494, 618 N.E.2d 82, 601 N.Y.S.2d 49 [1993] ……………………………………… 11
`
`Runner v. New York Stock Exchange,
`13 N.Y.3d 599, 895 N.Y.S .2d 279, 922 N.E.2d 865 (2009) …………………………………. 4
`
`Runner v. NY Stock Exch., Inc.,
`13 NY3d 599 [2009] ……………………………………………………………………………. 3
`
`Sapp v. S.J.C. 308 Lenox Ave. Family L.P.,
`150 AD3d 525, 527, 56 N.Y.S.3d 32 [1st Dept. 2017] …………………………………………. 19
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`Scaparo v. Village of Ilion,
`13 NY3d 864, 866, 921 N.E.2d 590, 893 N.Y.S.2d 823 [2009] ………………………………. 8
`
`Silaco v. DeFoe Corp.
`2011 NY Slip Op 32282[U] [Sup Ct, Suffolk County 2011]……………………………………19
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`Whelen v. Warwick Valley Civic & Social Club,
`47 NY2d 970, 971, 393 N.E.2d 1032, 419 N.Y.S.2d 959 [1979] ……………………………… 7
`
`Yadegar v. Intl. Food Mkt.,
`37 AD3d 595 [2d Dept 2007 …………………………………………………………………… 19
`
`Zimmer v. Chemung County Performing Arts, Inc.,
`65 N.Y.2d 513, 482 N.E.2d 898, 493 N.Y.S.2d 102 (1985) ………………………………….. 3, 4
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`STATUTES
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`C.P.L.R. §3212 .....................................................................................................................1
`Labor Law § 200 ...................................................................................................2,6,7,8,16, 20
`Labor Law §200[1] ................................................................................................…………8
`Labor Law § 240 ..................................................................................................................5,7,8
`Labor Law § 240(1) ......................................................................................…………2,3,4,5,6,8
`Labor Law § 241 ..................................................................................................................7,8
` Labor Law § 241(6) ............................................................................................ 2,6,8,11,12,14,20
`12 NYCRR § 23-1.4(b) (32) .................................................................................................15
`12 NYCRR § 23-1.7(e)………………………………………………………...11, 12, 13, 14, 15
`12 NYCRR § 23-5.18 ...........................................................................................................15
`12 NYCRR § 23-5.3(g) (2) ...................................................................................................11,15
`12 NYCRR §23-1.7 (e) (1) ........................................................................................... 11,12,13,14
`12 NYCRR §23-1.7(e)(2) .....................................................................................................11,14
`12 NYCRR §23-5.18(h) .......................................................................................................11
`12 NYCRR §23-5.3 ..............................................................................................................15
`12 NYCRR §23-1.7(d),…………………………………………………………………11, 12,13
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`INTRODUCTION
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`RELIEF SOUGHT
`This Memorandum of Law is submitted in support of the within motion, for an order
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`pursuant to C.P.L.R. §3212, granting summary judgment dismissing plaintiff’s complaint and all
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`cross-claims against defendant, PORT AUTHOPRITY OF NEW YORK & NEW JERSEY
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`(“PANYNJ”). As will be shown, at the time of the accident alleged, the only nexus which existed
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`between PANYNJ and plaintiff, is the fact that PANYNJ was the owner/lessor of the premises
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`where her accident is alleged to have occurred. At the time she was injured, plaintiff, a journeyman
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`ironworker, was working for Tutor-Perini. Tutor-Perini had won the bid for a project which
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`involved the replacement of the upper deck of the Verrazano-Narrows Bridge. The bid package
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`had been let out by Triborough Bridge & Tunnel Authority (“TBTA”), the owner of the bridge.
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`As part of its contract with TBTA, Tutor-Perini was to furnish and install certain steel decking
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`members. The decking was manufactured in China and shipped by boat to Red Hook Container
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`Terminal in Brooklyn, New York (“RHCT”). Once received there, the decking was off loaded
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`from the vessel and stored at locations inside the terminal as designated by Tutor-Perini.
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`PANYNJ, which owns the premises located at 70 Hamilton Avenue, Brooklyn, New York,
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`leased portions of it to RHCT pursuant to an Operating Agreement. Pursuant to the terms of that
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`agreement, RHCT was responsible for all care, maintenance, and repair inside the Terminal Space,
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`including, specifically, any required paving.
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`Although initially assigned to work on the bridge itself, there came a time, prior to the date
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`of her accident, that plaintiff was assigned by her employer, Tutor-Perini, to perform certain work
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`at RHCT. It was her assigned task both at the time of the accident and for a number of days before,
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`to grind the bevels of the panels so they could take them to the bridge.
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`In order to grind the steel decking, it was necessary for plaintiff to work from a portable
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`(mobile) scaffold. The scaffold would need to be moved from time to time in order that access
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`could be gained across the entire length of a piece of decking. Plaintiff claims that the particular
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`scaffold she was assigned to work from was not equipped with wheels, although that was its design.
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`At the time of the accident, plaintiff was dragging the scaffold along the paved terminal space,
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`when she claims that one of its posts became stuck in a depression. The accident is alleged to have
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`happened when, as plaintiff was pulling on the scaffold, she slipped on a puddle of motor oil or
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`grease that lay in her path. Although she slipped, plaintiff managed to recover her balance and did
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`not fall. She claims, however, that she strained her back in an effort to prevent herself from falling.
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`Plaintiff initially sued only TBTA as the owner of the Verrazano-Narrows Bridge. She later
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`amended her complaint to add PANYNJ as a direct defendant. The two actions have been
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`consolidated.
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`Plaintiff’s complaint is comprised of two separate causes of action: the first sounding in
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`common law negligence and the second, for violations of Labor Law sections 200, 240(1) and
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`241(6). As will be demonstrated herein, none of these causes of action have any merit as against
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`PANYNJ, as applied to the uncontroverted facts of this case.
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`ARGUMENT
`POINT I
`AS PLAINTIFF'S INJURIES DID NOT INVOLVE A GRAVITY RELATED RISK,
`PLAINTIFF'S LABOR LAW § 240(1) CLAIM MUST BE DISMISSED
`Labor Law § 240(1) applies in all cases in which the work involves risks related to
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`differences in elevation and gravity related risks. See Becerra v. City of New York, 261 A.D.2d
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`188, 690 N.Y.S.2d 52 (1" Dept. 1999). Furthermore, Labor Law §240(1) mandates that defendants
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`be held strictly liable to workers who sustain injuries proximately caused by failures on the part of
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`owners and general contractors to provide or erect proper ladders, scaffolds and other safety
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`devices necessary to give proper protection to a worker. See Zimmer v. Chemung County
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`Performing Arts, Inc., 65 N.Y.2d 513, 482 N.E.2d 898, 493 N.Y.S.2d 102 (1985). Moreover, the
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`implications of strict liability provide that any fault, negligence, or carelessness on the part of the
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`plaintiff, which may have contributed to his injuries, are not to be considered. See Bland v.
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`Manocherian, 66 N.Y.2d 452, 488 N.E.2d 810, 497 N.Y.S.2d 880 (1985).
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`Whether a plaintiff is entitled to recovery under Labor Law §240(1) requires a
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`determination of whether the injury sustained is the type of elevation-related hazard to which the
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`statute applies (see Rocovich v. Consolidated Edison Co., 78 NY2d 509, 513, 583 NE2d 932, 577
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`NYS2d 219 [1991] ["violation of the statute cannot establish liability if the statute is intended to
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`protect against a particular hazard, and a hazard of a different kind is the occasion of the injury".
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`In order to recover under Labor Law §240(1), an injured plaintiff must suffer harm that "flow[s]
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`directly from the application of the force of gravity…” (Rocovich, 78 NY2d at 514). Indeed, it has
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`been held that the single decisive question is “whether plaintiff's injuries were the direct
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`consequence of a failure to provide adequate protection against a risk arising from a physically
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`significant elevation differential" (Runner v. NY Stock Exch., Inc., 13 NY3d 599 [2009]).
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`Even when the facts are viewed in the light most favorable to plaintiff, based on her own
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`description of how the accident happened, she admittedly did not fall, and certainly did not fall as
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`the result of an elevation differential. Accordingly, based on the mechanics of the accident alone,
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`Labor Law §240(1) simply does not apply to the facts of this case as alleged.
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`The facts of this case are strikingly similar to those in Douglas v. Sherwood 48 Assoc., LP,
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`2017 NY Slip Op 31721[U] [Sup Ct, Bronx County 2017]). In Douglas, plaintiff was directed to
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`cut sheetrock and move a mobile scaffold that her co-workers were perched on top of. At the time
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`of the accident, plaintiff was in the process of moving the mobile scaffold, by walking backwards
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`and pulling it towards her with both hands. Plaintiff alleges that as she was pulling the scaffold
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`towards herself, she stepped back with her left foot, and the heel of her left foot went into a hole
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`or trench, so that her left heel and the back part of her left foot from the heel to the mid arch were
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`wedged at the bottom of the trench and the rest of her foot and the toe of her work boot were
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`"sticking out" of the trench.
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`Plaintiff in Douglas claimed that the wheel of the scaffold also went into the trench and it
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`pinned her foot into the hole, although she was able to successfully remove her foot from the hole
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`or trench after pushing the scaffold.
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`In a Decision and Order of Supreme Court, Bronx County (Guzman, J.), the Court
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`dismissed plaintiff’s Labor Law §240(1) claim, noting that, “[i]t cannot be said that the act of
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`pulling a mobile scaffold and stepping into a trench is a gravity related risk contemplated by Labor
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`Law § 240(1). See Runner v. New York Stock Exchange, 13 N.Y.3d 599, 895 N.Y.S .2d 279, 922
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`N.E.2d 865 (2009). Like the facts here, it did not appear in Douglas that plaintiff's feet ever left
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`the ground. As plaintiff's injuries did not involve a gravity related risk, plaintiff's Labor Law
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`§240(1) claim was dismissed.
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`This is not a case where no safety devices were provided to protect plaintiff from an
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`elevation-related risk, which would establish a violation of Labor Law §240 as a matter of law
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`(see, Zimmer v. Chemung County Performing Arts, 65 NY2d 513). The scaffold at issue, if it was
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`defective at all, was only defective due to the fact that it was not erected with wheels in a situation
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`where it was contemplated that the scaffold would be moved. The presence or absence of wheels
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`on this scaffold did not render it any more or less safe as a means of elevating plaintiff above the
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`ground.
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`In Mercorella v. Manmall, LLC, 2008 NY Slip Op 32879[U] [Sup Ct, NY County 2008],
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`plaintiff laid out light fixtures and conduit markings on the floor, as preparation for suspending
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`lights from the ceiling. Plaintiff kept his tools in a lock box about four feet high and three feet
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`wide, with caster wheels, weighing from 250 to 300 pounds. Plaintiff stated that he looked around
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`before he pushed his lock box and saw nothing on the ground to impede his progress. Plaintiff
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`started to push his box to the part of the floor where he would work next. As plaintiff pushed his
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`lock box, the front right wheel got caught in a chunk of cement, and the box stopped dead, causing
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`plaintiff to be jerked backwards. Plaintiff states that his back was seriously hurt. The chunk of
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`cement which the lock box ran over was size of a grapefruit or softball.
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`Defendant, Structure Tone contended that Labor Law §240(1) did not apply to the case.
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`Labor Law §240(1), also known as the Scaffold Law, was designed to prevent those accidents in
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`which the scaffold or other protective device proves inadequate to prevent the worker from
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`sustaining an injury directly flowing from the application of the force of gravity to an object or
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`person (John v. Baharestani, 281 AD2d 114, 118, 721 N.Y.S.2d 625 [1st Dept 2001]). While the
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`Scaffold Law protects workers against the hazards of falling from heights or being struck by falling
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`objects (Melber v. 6333 Main St., Inc., 91 NY2d 759, 763, 698 N.E.2d 933, 676 N.Y.S.2d 104
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`[1998]), it does not encompass every danger that may be connected in some tangential way with
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`the effects of gravity (Nieves v. Five Boro A. C. & Refrig. Corp., 93 NY2d 914, 915-916, 712
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`N.E.2d 1219, 690 N.Y.S.2d 852 [1999]). Even assuming the truth of plaintiff's assertion in
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`Mercorella that an object that fell from a height caused his accident, his injury did not directly
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`flow from the application of gravity to his person or to the object that fell. The chunk of concrete
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`did not fall on plaintiff. Nor did plaintiff fall from a height or otherwise, and he was not pulled or
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`lifted. His injury did not fall within the purview of the Scaffold Law. The cause of action predicated
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`upon the Scaffold Law was dismissed.
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`Clearly, if the facts in Mercorella did not bring the case within the ambit of Labor Law
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`§240(1), where it was claimed that the concrete chunk upon which the wheels of plaintiff’s lock
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`box got stuck fell from a height, then §240(1) certainly does not apply to a situation where the leg
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`of a pipe scaffold becomes stuck in a hole or depression in the paved surface along which it was
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`being pulled.
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`Putting aside for the moment the question of whether defendant, PANYNJ is even a proper
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`Labor Law defendant, the facts of this case simply do not support the application of Labor Law
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`§240(1).
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`POINT II
`DEFENDANT PANYNJ IS NOT AN OWNER, CONTRACTOR OR AGENT FOR
`PURPOSES OF LABOR LAW §§240(1); 241(6) and 200
`Even assuming, arguendo, that the facts of this case do bring it within the ambit of the
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`Labor Law, defendant, PANYNJ is not a proper Labor Law defendant. PANYNJ’s only
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`involvement in this case is that it is and was the owner of the property from which RHCT is
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`operated, and where plaintiff’s accident is alleged to have occurred. PANYNJ did not contract for
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`the work in the course of which plaintiff was injured. Rather, PANYNJ merely leased space to
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`6
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`13 of 29
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`non-party RHCT, pursuant to an Operating Agreement to operate a container terminal, a copy of
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`which is annexed to the supporting affirmation at Exhibit “J”.
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`It is well settled that to recover under Labor Law §§200, 240 and 241 as a member of the
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`special class for whose protection these provisions were adopted, a plaintiff must establish two
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`criteria: (1) that he was permitted or suffered to perform work on a structure and, (2) that he was
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`hired by the owner, the general contractor or an agent of the owner or general contractor (Brown
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`v. Christopher Street Owners Corporation, 211AD2d 441, 442, 620 N.Y.S.2d 374 [1st Dept 1995],
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`affd 87 NY2d 938, 663 N.E.2d 1251, 641 N.Y.S.2d 221 2008 N.Y. Misc. LEXIS 7790, 2008 NY
`
`Slip Op 30421(U)[1996]; Whelen v. Warwick Valley Civic & Social Club, 47 NY2d 970, 971, 393
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`N.E.2d 1032, 419 N.Y.S.2d 959 [1979]; Personius v. Mann, 20 AD3d 616, 617, 798 N.Y.S.2d 195
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`[3d Dept], aff’d as mod 5 NY3d 857, 840 N.E.2d 1024, 807 N.Y.S.2d 11 [2005][Labor Law causes
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`of action dismissed in absence of proof that owner defendants contracted for work or had any
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`notice that plaintiff was on their property until after the accident]; Ceballos v. Kaufman, 249 AD2d
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`40, 40, 671 N.Y.S.2d 229 [1st Dept 1998] [where it was clear that none of the defendants hired, or
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`even knew of the retention of the cable television contractor in whose employment plaintiff was
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`at the time of the accident, summary judgment dismissing the Labor Law causes of action was
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`properly granted].
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` “[O]wnership of the premises where the accident occurred - standing alone - is not enough
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`to impose liability under [the] Labor Law . . . where the property owner did not contract for the
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`work resulting in the plaintiff's injuries. Rather [there must be] some nexus between the owner and
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`the worker" (Morton v. State of New York, 15 NY3d 50, 50, 930 N.E.2d 271, 904 N.Y.S.2d 350
`
`[2010]; Abbatiello v. Lancaster Studio Assocs., 3 N.Y.3d 46, 52, 814 N.E.2d 784, 781 N.Y.S.2d
`
`477 [2004]).
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`7
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`FILED: NEW YORK COUNTY CLERK 05/17/2021 06:11 PM
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`Here, it is clear that PANYNJ did not contract for the work at issue, nor did it have any
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`notice whatsoever that plaintiff was on its premises until after the accident. In fact, under the
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`Operating Agreement between PANYNJ and RHCT, RHCT is and was responsible for all
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`structural and non-structural repairs, maintenance, and costs. PANYNJ did not employ anyone to
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`supervise any work on the property. As no nexus has been shown to have existed between
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`PANYNJ and plaintiff in this case, PANYNJ cannot be charged with the duty of providing the safe
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`working conditions contemplated by Labor Law §§240(1); 241(6) and 200. Thus, PANYNJ is
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`entitled to summary judgment dismissing plaintiff's Labor Law claims.
`
`In Maragliano v. Port Auth. of NY & NJ, 2012 NY Slip Op 30374[U] [Sup Ct, Queens
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`County 2012], plaintiff allegedly sustained injuries as a result of violations of Labor Law §§200,
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`240(1), 241(6), and common-law negligence. Plaintiff alleged that while he was working at
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`premises owned by defendant, Zano Industries, Inc. (Zano), he was injured when plywood fell on
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`him. Plaintiff was employed as a helper by nonparty Maracap Construction, Inc. (Maracap). The
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`Port Authority hired Maracap to act as the general contractor for repair work performed on a ramp
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`to the George Washington Bridge (GWB). Maracap leased storage space from Zano at the premises
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`and used that space to prepare materials for its work under the contract with the Port Authority.
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`PANYNJ argued that it was not liable to plaintiff under the Labor Law because it does not
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`own the premises where the accident occurred. "Labor Law §§ 200, 240, and 241 apply to owners,
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`general contractors, or their 'agents'" (Labor Law § 200[1]; §240 [1]; §241; Guclu v. 900 Eighth
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`Ave. Condominium, LLC, 81 AD3d 592, 593, 916 N.Y.S.2d 147 [2011]). "[T]he term 'owner' is
`
`not limited to the titleholder of the property where the accident occurred and encompasses a person
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`'who has an interest in the property and who fulfilled the role of owner by contracting to have work
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`performed for his [or her] benefit'" (Scaparo v. Village of Ilion, 13 NY3d 864, 866, 921 N.E.2d
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`8
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`590, 893 N.Y.S.2d 823 [2009], quoting Copertino v. Ward, 100 AD2d 565, 566, 473 N.Y.S.2d
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`494 [1984]; see Dahar v. Holland Ladder & Mfg. Co., 79 AD3d 1631, 1633, 914 N.Y.S.2d 817
`
`[2010]).
`
`Plaintiff testified that the accident occurred at Maracap's rented storage space on Zano's
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`property. He further testified that he was working on steel beams that were approximately 20 feet
`
`long, 2 feet high and 1foot wide, which Maracap had stored at Zano's property and that he was
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`preparing the beams for later use at the construction site at the GWB. He testified that, after his
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`co-workers used a backhoe to lift a steel beam onto a table, his job was to drill holes using a
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`magnetic drill into the beams, through which screws would be placed. Plaintiff testified that at the
`
`time of the accident, he had finished drilling holes through a beam when a co-worker lifted the
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`beam from the table using a backhoe and that the beam came into contact with a pallette loaded
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`with plywood, which knocked the plywood over and caused it to fall on him.
`
`An assistant resident engineer for the Port Authority testified that the Port Authority had
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`an agreement with Maracap to rehabilitate the 178 Street ramp deck to the GWB, and that in order
`
`for Maracap to perform its work it had to fabricate some steel by modifying it. He further testified
`
`that, although this fabrication work did not take place at the construction site located at the GWB,
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`he did not know where it took place, and that he had never been to Zano's property. Margolis,
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`Maracap's president, testified that Maracap's employees were at Zano's property on the date of the
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`accident to fabricate steel beams that were to be used at the GWB project and that Zano was hired
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`to transport the steel beams to the GWB.
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`It was undisputed in the record that the Port Authority owned the GWB at the time of the
`
`incident, that it had an agreement with Maracap to repair a ramp to the bridge and that the Port
`
`Authority's representatives did not give instructions to plaintiff and were not present at the location
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`9
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`of the accident. The record demonstrated that while the Port Authority, in fact, contracted for the
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`work that ultimately led to plaintiff's injury, it did not have any interest in the property which
`
`would allow it to have any measure of control over Maracap's storage space (see Scaparo v Village
`
`of Ilion, 13 NY3d at 866; Flores v. ERC Holding LLC, 87 AD3d 419, 421, 928 N.Y.S.2d 7 [2011]).
`
`Therefore, the Court held the Port Authority had demonstrated, under the circumstances, that it
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`was not an "owner" as contemplated by the Legislature under the Labor Law.
`
`Clearly, if PANYNJ was not an owner for purposes of the Labor Law in circumstances
`
`where it owned the GWB at the time of the incident and where it had an agreement with Maracap
`
`to repair a ramp to the bridge, by extension, it cannot be deemed an “owner” where it neither
`
`owned the Verazzano-Narrows Bridge, nor contracted for the work in the course of which plaintiff
`
`was injured. The fact that PANYNJ owns RHCT is not the least bit dispositive of whether it is
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`subject to liability under the Labor Law, where it did not contract for the work and, where it did
`
`not manage, direct, supervise or control the work plaintiff was engaged in at the time of the
`
`accident.
`
`Again, PANYNJ’s only involvement here is that it leased out space to RHCT pursuant to
`
`an operating agreement (Exhibit “J” to supporting affirmation). Section 15(d) of the Operating
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`Agreement reads, in part:
`
`Section 15. Maintenance and Repair
`Subject to the provisions of Section 19(a) of this Agreement, throughout the Term,
`the Operator shall assume the entire responsibility for, and shall relieve the Port
`Authority from all responsibility from, all care, maintenance and repair whatsoever
`in the Terminal Space, whether such care, maintenance or repair be ordinary or
`extraordinary, partia