On Friday we started to talk about a case in which a construction worker suffered electrical shock and fell 150″ to his death.  The professionals in the case won dismissal, leaving the land owner and others to defend their actions.  Today, we look at the land owner in Mulhall v Archdiocese of N.Y.  2015 NY Slip Op 31378(U)  July 24, 2015  Supreme Court, New York County  Docket Number: 151656/12  Judge: Ellen M. Coin.

“On October 13, 201 l, Janusz Wojciech Zdybel (Zdybel) died while working for third-party
defendant West NY in a church on the upper west side. Along with his colleague, Ruslan
Brianyk (Brianyk), Zdybel was working from a ladder placed on a catwalk in the attic of the
church. Brianyk and Zdybel were installing safety equipment for a renovation job on the
church’s roof. More specifically, they each held one end of a bracket that they were trying to
drive through the roof (Brianyk dep at 115-118). A metallic sheathed electrical cable leaned
against the ladder as they worked (id. at 122, George Grenier aff, if 17). While Brianyk held
onto a beam next to the ladder with one hand and the bracket with the other, Zdybel held the
bracket with one hand and in the other he held a pipe that he used to hammer the bracket into
place (Brianyk dep. at 118). When Zdybel’s end of the bracket suddenly shifted into place, both
men received an electric shock (id. at 119). While Brianyk remained on the ladder, Zdybel was
convulsed, let go of everything, and fell to the floor 150 feet below (id. at 119 – 120, 142;
Complaint¶3 at 2 ). ”

“The roof renovation project that led to Zdybel’s death arose from an agreement between
the Church and West NY entitled “The Church of Saint Paul the Apostle Church Building, Phase
2, Roof Areas Restoration Project” (Ex W to the Affirmation of Cruz M. Williams dated Nov. 3,
2014). The Church owns the subject property. The Archdiocese, ABC, and the Finance Council
are affiliated with the Church. Old Structures provided structural engineering services to the
Church for exterior renovation. ”

“Labor Law § 200 “is a codification of the common-law duty imposed upon an owner or
general contractor to provide construction site workers with a safe place to work” (Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 877 [ 1993 ]). Cases under Labor Law § 200 fall into two broad categories: those involving injury caused by a dangerous or defective condition at the worksite, and those caused by the manner or method by which the work is performed (Urban v No. 5 Times Sq. Dev., LLC, 62 AD3d 553, 556 [1st Dept 2009]).
Where, as here, the defect arises from a dangerous condition at the work site, instead of
the methods or materials used by plaintiff and his employer, an owner or contractor “is liable
under Labor Law§ 200 when [it] created the dangerous condition causing an injury or when [it] failed to remedy a dangerous or defective condition of which [it] had actual or constructive
notice” (Mendoza v Highpoint Assoc., IX, LLC, 83 AD3d 1, 9 [1st Dept 2011] [internal quotation marks and citation omitted]; see also Minorczyk v Dormitory Auth. of the State of NY, 74 AD3d 675, 675 [1st Dept 2010]). Constructive notice is generally found when the dangerous condition is visible and apparent, and exists for a sufficient period to afford a defendant an opportunity to discover and remedy the condition. A defendant demonstrates lack of constructive notice by producing evidence of its maintenance activities on the day
of the accident, and specifically that the dangerous condition did not exist when the area was last inspected or cleaned before plaintiff fell (Ross v Betty G. Reader Revocable Trust, 86 AD3d 419, 421 [1st Dept 2011] [citations omitted]).

Here, Zdybel’s accident arose from the Church’s faulty electrical system. The Church
argues for a narrow view of the defect; specifically, it contends that Zdybel’s accident arose from a defective light junction box that electrified a cable leaning against Zdybel’ s ladder.
If the defect is viewed broadly as the Church’s faulty electrical system, there is at least a
question of fact as to whether the Church had actual notice. In response to Stivale’s April 19,
2011 email expressing concerns about electrical problems in “vault areas” of the church,
Martinez, the pastor, referred to his own concern relating to the electrical system as a whole:
“Thank you for your comments about the electrical system. We have been aware of this problem for some time … A review of our electrical system is a very high priority for us in coming months” (Ex 2 to the Schacht Aff.). If the defect is viewed narrowly, as a defective light junction box, then the Church fails to make a prima facie showing that it did not have constructive notice of the defect. The Church fails to provide any evidence that it inspected the attic area where Zdybel was working and that, upon inspection, the defective light box was not apparent. Indeed, the Church fails to provide any evidence that it upheld its duty to inspect (see McLean v 405 Webster Ave. Assoc., 98 AD3d 1090, 1093 [2d Dept 2012] [“The owner’s duty to provide a safe place to work encompasses the duty to make reasonable inspections, and the question of whether the danger should have been apparent upon visual inspection is generally a question of fact”] [internal quotation marks and citation omitted]; see also Urban, 62 AD3d at 55 [holding that a property owner’s duty to provide a safe workplace “encompasses the duty to make reasonable inspections to detect unsafe conditions”]). In light of the failure of the Church defendants to make a prima facie showing of entitlement to judgment on this issue, the branch of their motion seeking dismissal of plaintiffs Labor Law § 200 and common-law negligence claims as against the Church is denied.

Plaintiff argues that the court, under CPLR 3212 (b ), should grant it summary judgment
as to liability under Labor Law § 241 ( 6) based on the violation of 12 NYC RR § 23-1.13 and 12
NYCRR § 23-1.21 (b) (7). Here, the applicability and violation of 12 NYCRR § 23-1.13 is so
clear as to warrant use of the court’s power under CPLR 3212 (b ). 12 NYCRR § 23-1.13 (b) ( 4),
“Electrical hazards, Protection of Employees,” provides, in a relevant part, that: No employer shall or permit an employee to work in such proximity to any part of an electric power circuit that he may contact such circuit in the course of his work unless the employee is protected against electric shock by de-energizing the circuit and grounding it or by guarding such circuit by effective insulation or other means.   12 NYCRR § 23-1.13 (b) ( 4) is sufficiently specific to serve as a predicate for liability under Labor Law § 241 (6) (De/Rosario v United Nations Fed. Credit Union, 104 AD3d 515, 516 [1st Dept 2013]). Moreover, it is plain that the Church violated this provision by failing to protect Zdybel from an electrical power circuit. While the Church defendants suggest that there may be an issue of fact as to comparative negligence, nothing in the record suggests that Zdybel was negligent. As such, plaintiff is entitled to summary judgment as to liability on his Labor Law § 241 ( 6) claim against the Church.”