Buono v. AvalonBay Communities, Inc.

Filing 48

OPINION & ORDER re: 39 MOTION for Summary Judgment: For the reasons stated above, Defendant's motion for summary judgment is granted in part and denied in part. The Clerk of Court is respectfully directed to close Dkt. No. 39. (Signed by Judge Lorna G. Schofield on 1/6/2021) (jwh)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------------------------------X
:
STEPHEN BUONO,
:
:
Plaintiff,
:
:
-against:
AVALONBAY COMMUNITIES, INC.,
:
Defendant. :
------------------------------------------------------------ X

19 Civ. 5413 (LGS)
OPINION & ORDER

LORNA G. SCHOFIELD, District Judge:
Plaintiff Stephen Buono alleges that Defendant AvalonBay Communities, Inc. has
violated New York Labor Law (“NYLL”) sections 240(1), 241(6) and 200, and committed
common law negligence. Defendant filed a motion for summary judgment, which for the
reasons below, is granted in part and denied in part.
I.

BACKGROUND 1
In December 2017, Defendant owned the premises located in Mamaroneck, New York

(the “Property”). Renovations were being performed at the Property, and Defendant retained
Applied Electrical to perform electrical work. Plaintiff was working for Applied Electrical at the
time of the accident. Applied Electrical provided Plaintiff all the equipment he used and
supervised his work. Defendant employed three onsite superintendents who managed the day-today coordination and scheduling of contractors.
On December 27, 2017, Plaintiff and his partner, a foreman, were running wires to
1

The facts are taken from Defendant’s Rule 56.1 statement and evidence submitted by both
parties on this motion. Plaintiff did not file a response to Defendant’s Rule 56.1 statement.
Plaintiff instead included a statement of facts in his memorandum of law in opposition, attaching
exhibits in support of those facts. While the facts in Defendant’s 56.1 statement could be
deemed admitted based on this deficiency, see Fed. R. Civ. P. 56(e) and S.D.N.Y. Local Rule
56.1(c), the Court has considered Plaintiff’s separate statement of facts to the extent supported by
the record, and these background facts do not appear to be disputed.

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connect temporary heaters in the amenities apartments of the Property. Plaintiff first entered a
room called the amenities space to install the temporary heaters. The wires for the heaters were
connected to a single panel in this room, and Plaintiff’s responsibility was to hook up the panel.
The foreman then pulled the wires from this first room into a second room, and Plaintiff
followed. In the middle of the second room was a six-foot A-frame ladder standing in an open
position. The ladder was owned by a different contractor and had been used earlier by other
workers. The foreman pulled the wire while walking about fifteen to twenty feet through the
second room and was about to enter a third room when the wire swept past the ladder. The wire
caught the bottom of the ladder, the ladder fell, and the top corner of the ladder struck Plaintiff’s
knee, causing Plaintiff to fall backward and hit his back and head. The accident occurred in the
middle of the room, which was dark and had piled debris pushed to the side. Plaintiff did not see
any workers return to the ladder before he left that day at six p.m.
II.

STANDARD
In this diversity action, removed from state court, Plaintiff opposes Defendant’s summary

judgment motion relying on the New York state summary judgment standard. The federal
summary judgment standard applies because it is procedural law. See Hanna v. Plumer, 380
U.S. 460, 465 (1965) (citation omitted) (A federal court sitting in diversity must apply state
substantive law and federal procedural law.); accord Capobianco v. Stop & Shop Supermarket
Co, No. 14 Civ. 6112, 2017 WL 1157173, at *2 (S.D.N.Y. Mar. 24, 2017) (applying the federal
summary judgment standard in removed diversity action).
Summary judgment is appropriate where the record establishes that “there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). “A genuine issue of material fact exists if ‘the evidence is such that a

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reasonable jury could return a verdict for the nonmoving party.’” Nick’s Garage, Inc. v.
Progressive Cas. Ins. Co., 875 F.3d 107, 113 (2d Cir. 2017) (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986)). When the movant properly supports its motion with evidentiary
materials, the opposing party must establish a genuine issue of fact by “citing to particular parts
of materials in the record.” Fed. R. Civ. P. 56(c)(1)(A). “[A] party may not rely on mere
speculation or conjecture as to the true nature of the facts to overcome a motion for summary
judgment.” Fed. Trade Comm’n v. Moses, 913 F.3d 297, 305 (2d Cir. 2019) (quotation marks
omitted). “Only admissible evidence need be considered by the trial court in ruling on a motion
for summary judgment.” Porter v. Quarantillo, 722 F.3d 94, 97 (2d Cir. 2013); accord Starr
Indem. & Liab. Co. v. Brightstar Corp., 388 F. Supp. 3d 304, 323 (S.D.N.Y. 2019).
III.

DISCUSSION
Defendant argues that it is entitled to judgment as a matter of law. As explained below,

Defendant’s motion for summary judgment is granted as to all claims except the NYLL section
200 and common law negligence claims.
1. NYLL Section 240(1) Claim
Defendant moves for summary judgment on the section 240(1) claim. This statute states
in relevant part that contractors and owners and their agents engaged “in the erection, demolition,
repairing, altering, painting, cleaning or pointing of a building or structure” must provide
“scaffolding, hoists, stays, ladders, [etc.] and other devices which shall be so constructed, placed
and operated as to give proper protection to a person so employed.” N.Y. Lab. Law § 240(1).
The statute “impose[s] absolute liability on ‘[a]ll contractors and owners and their agents’ for
any breach of a statutory duty to provide safety measures that proximately cause injury.”
Albanese v. City of New York, 833 N.E.2d 1213, 1214 (N.Y. 2005); accord Lincho v. Nat’l R.R.

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Passenger Corp., 338 F. Supp. 3d 343, 351 (S.D.N.Y. 2018). “Although the statute is meant to
be liberally construed to accomplish its intended purpose, absolute liability is contingent upon
the existence of a hazard contemplated in section 240(1) and the failure to use, or the inadequacy
of, a safety device of a kind enumerated therein.” O’Brien v. Port Auth. of New York & New
Jersey, 74 N.E.3d 307, 310 (N.Y. 2017) (quotation marks omitted). Defendant is granted
summary judgment on this claim because, based on the undisputed evidence and drawing all
inferences in favor of Plaintiff, no reasonable juror could find that Plaintiff’s injuries arose from
the type of risk covered by the statute.
The New York Court of Appeals has held that the scaffold law “evinces a clear
legislative intent to provide ‘exceptional protection’ for workers against the ‘special hazards’ that
arise when the work site either is elevated or is positioned below the levels where ‘materials or
load [are] hoisted or secured.’” Ross v. Curtis-Palmer Hydro-Elec. Co., 618 N.E.2d 82, 85 (N.Y.
1993) (quoting Rocovich v. Consol. Edison Co., 583 N.E.2d 932 (N.Y. 1991)); accord Harris v.
City of New York, 923 N.Y.S.2d 2, 5 (1st Dep’t 2011). More recently, the Court of Appeals held
that courts have read the statute too narrowly. See Runner v. New York Stock Exch., Inc., 922
N.E.2d 865, 867 (2009) (explaining that “[t]he breadth of the statute’s protection has . . . been
construed to be less wide than its text would indicate.”). Still, the protective reach of the statute
is “limited to . . . specific gravity-related accidents [such] as . . . falling from a height or being
struck by a falling object that was improperly hoisted or inadequately secured.” Wilinski v. 334
E. 92nd Hous. Dev. Fund Corp., 959 N.E.2d 488, 492 (N.Y. 2011) (quotation marks omitted).
Such hazards “do not encompass any and all perils that may be connected in some tangential
way with the effects of gravity.” Ross, 618 N.E.2d at 85 (emphasis in original); accord Simmons
v. City of New York, 85 N.Y.S.3d 462, 465 (2d Dep’t 2018). Rather, “liability may . . . be

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imposed under the statute only where the ‘plaintiff’s injuries were the direct consequence of a
failure to provide adequate protection against a risk arising from a physically significant
elevation differential.’” O’Brien, 74 N.E.3d at 310 (emphasis added) (alteration in original)
(quoting Nicometi v. Vineyards of Fredonia, LLC, 30 N.E.3d 154, 158 (N.Y. 2015)).
The undisputed evidence shows that Plaintiff was not injured as a result of a physically
significant elevation differential. To constitute a “gravity-related risk” arising from a “physically
significant elevation differential,” the falling object need not be elevated. See Wilinski, 959
N.E.2d at 494. However, “[c]ourts must take into account the practical differences between the
usual and ordinary dangers of a construction site,” and the “extraordinary elevation risks”
envisioned by the statute. See Ortiz v. Varsity Holdings, LLC, 960 N.E.2d 948, 950 (N.Y. 2011)
(quotation marks omitted) (contrasting a prior holding that the risk of falling four to five feet
from a flatbed trailer or similar surface is not covered by section 240(1), citing Toefer v. Long Is.
R.R., 828 N.E.2d 614 (2005)). Relevant considerations include the amount of force generated by
the falling object in light of the object’s characteristics and manner of descent. See Wilinski, 959
N.E.2d at 494. For example, in Wilinski, the Court of Appeals held that injury from freestanding
ten-foot tall pipes that fell after being struck by debris from demolition of a nearby wall
constituted harm flowing directly from a risk arising from a physically significant elevation
differential. See id. The pipes stood at the same level as the injured worker, but the elevation
differential was not “de minimis.” See id. The “amount of force the pipes were able to generate”
was significant because of the four-inch diameter of the metal pipes, the ten-foot height of the
pipes and the at-minimum four-foot fall prior to striking Plaintiff. See id. (citations and
alterations omitted). Here, Plaintiff was injured by a six-foot A-frame ladder left open and
unused. The ladder fell after being struck by wires pulled by Plaintiff’s partner. Plaintiff

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testified that he was standing about two feet away when the top of the ladder hit Plaintiff’s knee,
causing Plaintiff to fall backward. Plaintiff testified that he believed the ladder was made of
aluminum and plastic, and he was able to move the ladder off to the side after he fell. Plaintiff
was injured by the operation of gravity, but the amount of force generated by the ladder’s
composition, height and descent cannot constitute a physically significant elevation differential
or an “extraordinary elevation risk” encompassed by the statute. See, e.g., Rodriguez v.
Margaret Tietz Ctr. for Nursing Care, Inc., 602 N.Y.S.2d 640, 642 (2d Dep’t 1993), as amended
(Oct. 27, 1993), rev’d, 640 N.E.2d 1134, 1135 (N.Y. 1994) (Court of Appeals reversed judgment
in favor of plaintiff whose knee was struck while placing a 120-pound beam onto the ground
from seven inches above his head with the help of co-workers, because Plaintiff was “exposed to
the usual and ordinary dangers of a construction site” and not a risk encompassed by the statute);
Oakes v. Wal-Mart Real Estate Bus. Tr., 948 N.Y.S.2d 748, 755 (3d Dep’t 2012) (no
extraordinary elevation risk where 10,000-pound truss, at approximately the same height or
slightly shorter than the plaintiff, was struck by forklift causing truss to tip over and hit the
plaintiff). Cf., e.g., Runner, 922 N.E.2d at 868 (elevation differential presented by move of 800pound reel of wire down four stairs not de minimis “particularly given the weight of the object
and the amount of force it was capable of generating, even over the course of a relatively short
descent”). Any elevation-related risk here was de minimis, and no reasonable jury could find
otherwise.
Plaintiff argues that, because a ladder is a protective device enumerated in the statute, any
injury arising from a failure to secure a ladder or from a defect in the ladder is covered by the
statute. The cases Plaintiff relies upon for the proposition that ladders are required to be secured
are distinguishable, because the ladder in this case was not being used, and no work was being

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performed on the ladder during the accident. Plaintiff relies on other case law in support of the
proposition that the statute covers injuries caused by falling defective parts of safety devices
enumerated in the statute. However, in those cases, the safety device was either in use or there
was a physically significant elevation differential, neither circumstance of which is present here.
Defendant’s motion for summary judgment is granted on the section 240(1) claim.
2. NYLL Section 241(6) Claims
Plaintiff also brings claims pursuant to NYLL section 241(6), which requires that owners
and contractors “provide reasonable and adequate protection and safety” to their workers. See
N.Y. Lab. Law § 241(6). To establish liability under NYLL section 241(6), a plaintiff must
demonstrate that his injuries were proximately caused by a violation of an applicable New York
Industrial Code provision. See Rodriguez v. 250 Park Avenue, LLC, 76 N.Y.S.3d 107, 109 (2d
Dep’t 2018); accord Ortega v. Puccia, 866 N.Y.S.2d 323, 328 (2d Dep’t 2008) (“[C]auses of
action invoking that statute must be based upon violations of specific codes, rules, or regulations
applicable to the circumstances of the accident.”). “The interpretation of [an Industrial Code]
regulation presents a question of law.” See Morris v. Pavarini Const., 874 N.E.2d 723, 726
(N.Y. 2007); accord Pruszko v. Pine Hollow Country Club, Inc., 52 N.Y.S.3d 442, 444 (2d Dep’t
2017). In his opposition, Plaintiff alleges a violation of sections 23-1.7(e) and 23-2.1(a) of the
New York Industrial Code, as codified in the New York Code, Rules, and Regulations
(“N.Y.C.R.R.”) and effectively abandons his claim that Defendant violated the various other
provisions previously alleged.
Defendant’s motion for summary judgment with respect to Plaintiff’s claim predicated on
a violation of section 23-1.7(e) is granted, because that regulation is inapplicable to the
circumstances of Plaintiff’s accident. Section 23-1.7(e) applies where a plaintiff is injured

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because of a tripping hazard. See, e.g., Zastenchik v. Knollwood Country Club, 955 N.Y.S.2d
640, 642 (2d Dep’t 2012) (Industrial Code section 23-1.7(e) inapt where the plaintiff did not slip
or trip but became injured when his foot became stuck in mud); Urbano v. Rockefeller Ctr. N.,
Inc., 937 N.Y.S.2d 194, 195 (1st Dep’t 2012) (testimony regarding debris in working area
insufficient to deny summary judgment on NYLL section 241(6) claim predicated on Industrial
Code section 23-1.7(e), where plaintiff “did not slip or trip on this debris, nor did it cut him”);
Wallace v. Nat’l R.R. Passenger Corp., 5 F. Supp. 3d 452, 470 (S.D.N.Y. 2014) (granting
summary judgment on NYLL section 241(6) claim predicated on Industrial Code section 231.7(e), because there was no evidence that plaintiff tripped). There is no evidence in the record
that Plaintiff tripped or slipped. The undisputed facts are that Plaintiff was injured by a falling
ladder. Plaintiff argues that the regulation is applicable to “accidents caused by the slipping or
tripping of objects,” but there is also no evidence in the record that the ladder fell and
subsequently injured Plaintiff because of a tripping hazard contemplated by the Industrial Code,
like collected debris. Cf. Sergio v. Benjolo N.V., 562 N.Y.S.2d 476 (1st Dep’t 1990) (carelessly
stored materials fell under wheels of tool box causing it to stop suddenly and throw plaintiff to
ground); Scotti v. Fed’n Dev. Corp., 734 N.Y.S.2d 573 (2d Dep’t 2001) (ladder fell to side as a
result of uneven flooring or debris and materials left at base of ladder). Rather, the undisputed
facts show that the ladder fell because it was struck by wire.
Defendant’s motion for summary judgment with respect to Plaintiff’s claim predicated on
section 23-2.1(a) is granted because this provision does not apply to the site of Plaintiff’s
accident. The second subpart of that regulation, section 23-2.1(a)(2), is clearly inapt as the
ladder was not placed “close to any edge of a floor, platform or scaffold.” The first subpart of
that regulation, section 23-2.1(a)(1), similarly does not apply as it concerns conditions in

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“passageway[s], walkway[s], stairway[s] or other thoroughfare[s].” See 12 N.Y.C.R.R. § 232.1(a)(1); accord Prevost v. One City Block LLC, 65 N.Y.S.3d 172, 177 (1st Dep’t 2017)
(Section 23-2.1(a)(1) concerns the “safe and orderly” storage of materials to ensure that “they do
not obstruct any passageway, walkway, stairway or other thoroughfare.”); see also Kocurek v.
Home Depot, 730 N.Y.S.2d 74, 77 (1st Dep’t 2001) (holding section 23-2.1(a)(1) inapplicable
where site of accident was neither a storage area nor a “passageway, walkway, stairway or other
thoroughfare” as contemplated by the regulation). While the term “passageway” is not defined
in the Industrial Code, “courts have interpreted the term to mean a defined walkway or pathway
used to traverse between discrete areas as opposed to an open area.” See Prevost, 65 N.Y.S.3d at
177 (quotation marks omitted).
It is undisputed that at the time of the accident, the ladder was in the middle of the second
room that was being renovated. There is no evidence that the ladder was blocking the path that
Plaintiff’s partner took when he walked the fifteen to twenty feet before the accident occurred.
Rather, the evidence shows that all debris was pushed to the side. Accordingly, the ladder did
not “obstruct any passageway, walkway, stairway or other thoroughfare,” and the provision does
not apply. See, e.g., Burkoski v. Structure Tone, Inc., 836 N.Y.S.2d 130, 135 (1st Dep’t 2007)
(Industrial Code sections 1.7(e)(1) and 2.1(a)(1) do not apply where injury occurred while
walking across a room measured 18 feet by 20 feet); Wiley v. Marjam Supply Co., 87 N.Y.S.3d
675, 679 (3rd Dep’t 2018) (sheetrock that fell and caused the plaintiff’s injury was stored in
corner of a second-floor room and did not “obstruct any passageway, walkway, stairway or other
thoroughfare”).
Plaintiff argues that the room in which the accident occurred is a thoroughfare, because
he crossed it to reach the third room. Merely walking through a location is insufficient to raise

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an issue of fact as to whether the location is a thoroughfare. See, e.g., Canning v. Barney’s New
York, 734 N.Y.S.2d 116, 120 (1st Dep’t 2001) (accident occurred in “work area” not
“passageway” where the location was a “floor” where plaintiff was required to “pass” in the
course of his work). While Plaintiff testified that the work area was “not an open area,” while
clarifying that the rooms were separated by sheetrock in some places, no reasonable jury could
find that the room was a defined walkway or pathway on that testimony alone. Defendant’s
motion for summary judgment as to the NYLL section 241(6) claim is granted.
3. NYLL Section 200 Claim & Common Law Negligence
Lastly, Plaintiff brings NYLL section 200 and common law negligence claims. NYLL
section 200 is a codification of the common-law duty imposed on owners or contractors to
maintain a safe place to work. See Rizzuto v. L.A. Wenger Contracting Co., 693 N.E.2d 1068,
1073 (N.Y. 1998). “[C]ourts generally analyze claims brought under both § 200 and the
common law simultaneously.” See, e.g., Kiss v. Clinton Green N., LLC, No. 17 Civ. 10029,
2020 WL 4226564, at *5 (S.D.N.Y. July 23, 2020). “Cases involving Labor Law § 200 fall into
two broad categories: namely, those where workers are injured as a result of dangerous or
defective premises conditions at a work site, and those involving the manner in which the work
is performed.” Boody v. El Sol Contracting & Constr. Corp., 116 N.Y.S.3d 586, 587 (2d Dep’t
2020). Here, there is a factual issue as to whether the ladder constitutes a dangerous or defective
premises condition or whether the injury arose from defects or dangers in the methods or
materials of the work. Different liability standards apply to the two categories. Accordingly,
Defendant is entitled to summary judgment only if the evidence entitles it to judgment as a
matter of law as to each liability standard.
Courts have held that injury from placed equipment or materials can constitute an injury

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arising from a premises defect or defects or dangers in the methods or materials of the work,
depending on the circumstances. For example, injury caused by leftover construction material
was considered an injury from the manner in which the work was performed when the material
was situated “as a result of, and during the course of, ongoing work at the construction site.” See
Cody v. State, 919 N.Y.S.2d 55, 58 (2d Dep’t 2011) (injury from a piece of lumber placed during
course of ongoing construction work constituted injury from manner in which work was
performed and the owner was not liable). On the other hand, injury from misplaced equipment
constituted a premises condition when it “was not part of the . . . work at the time of the accident,
but was mere consequence of it after the day’s work had been completed.” See Slikas v. Cyclone
Realty, LLC, 908 N.Y.S.2d 117, 121 (2d Dep’t 2010) (crowbar used and left in doorway by other
workers constituted a premises condition and the owner was denied summary judgment on the
issue of liability). Here, a reasonable jury could infer that an open ladder left in the same
position following use constituted the product of ongoing construction work. Drawing all
reasonable inferences in Plaintiff’s favor, a reasonable jury alternatively could find that the
ladder was no longer a part of the ongoing construction work and abandoned in the middle of the
room, since Plaintiff testified that he did not see any workers use the ladder after the accident. 2
A reasonable jury could further find that the six-foot ladder -- left open and unattended in the
middle of a dark room -- presented an inherently dangerous condition that caused Plaintiff’s

2

By affidavit, Lucas Edsall, the project manager, asserts that he can “conclude with certainty
that any materials, including ladders, that were present in the [Property] at [the] time were
actively being used in the construction” because “[d]uring each work day, ladders were actively
being used in the [Property].” Plaintiff requests that the Court disregard the entire declaration,
because as stated at Mr. Edsall’s deposition, Mr. Edsall was not on the premises on the date of
the accident. Mr. Edsall’s assertion appears to be an unexplained conclusory claim, but the
Court need not rule on Plaintiff’s request to reject the entire declaration. As to this issue,
Plaintiff’s contrary deposition testimony that he never saw any workers return to the ladder raises
a triable issue of material fact for the jury.
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injury.
Because a reasonable jury could find either that the ladder was a dangerous or defective
premises condition or that the injury arose from defects or dangers in the methods or materials of
the work, summary judgment can be granted on this claim only if Defendant is entitled to
judgment as a matter of law on the liability standards applicable to either theory. A property
owner can be held liable for an accident related to a dangerous or defective premises condition
for either creating the condition or having actual or constructive notice of the condition. See
Bradley v. HWA 1290 III LLC, 70 N.Y.S.3d 464, 467 (1st Dep’t 2018), aff’d, 111 N.E.3d 322
(N.Y. 2018). By contrast, when an accident arises from the manner in which work is performed,
no liability attaches to the property owner absent evidence that the owner had the authority to
supervise or control the performance of the work. See O’Sullivan v. IDI Const. Co., 855 N.E.2d
1159, 1159 (N.Y. 2006). Here, Defendant cannot be liable for this claim based on a theory that
the injury arose out of the manner in which the work was performed, because the evidence
adduced reflects Defendant’s general oversight only. See Boody, 116 N.Y.S.3d at 587 (“[M]ere
general supervisory authority at a work site for the purpose of overseeing the progress of the
work and inspecting the work product is insufficient to impose liability under Labor Law §
200.”).
However, Defendant is not entitled to judgment as a matter of law on the claim based on
a dangerous or defective premises theory, because Plaintiff has adduced sufficient evidence
creating a triable issue of fact as to whether there was constructive notice. “To constitute
constructive notice, a defect must be visible and apparent and it must exist for a sufficient length
of time prior to the accident to permit defendant’s employees to discover and remedy it.” See
Gordon v. Am. Museum of Nat. History, 492 N.E.2d 774, 775 (N.Y. 1986); accord Schick v. 200

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Blydenburgh, LLC, 930 N.Y.S.2d 604, 607 (2d Dep’t 2011). Plaintiff testified that he last saw
workers use the ladder at around eleven a.m. and that the accident occurred between two p.m.
and three p.m. Drawing all reasonable inferences in favor of Plaintiff, a jury could find that the
ladder was abandoned for at least a few hours and determine this was a sufficient length of time
for discovery of the defect. Defendant is not entitled to summary judgment on the NYLL section
200 and common law negligence claims.
IV.

CONCLUSION
For the reasons stated above, Defendant’s motion for summary judgment is granted in

part and denied in part.
The Clerk of Court is respectfully directed to close Dkt. No. 39.
Dated: January 6, 2021
New York, New York

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