Allison Gammons v. City of New York

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This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 220
Allison Gammons,
Respondent,
v.
City of New York, et al.,
Appellants.
Michael Shender, for appellants.
David L. Kremen, for respondent.
New York State Trial Lawyers Association, amicus
curiae.
RIVERA, J.:
In this appeal concerning a police officer's personal
injury action against municipal defendants the City of New York
and the New York City Police Department, we conclude that Labor
Law § 27-a (3) (a) (1) of the Public Employee Safety and Health
Act sets forth an objective clear legal duty that may serve as a
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predicate for a claim under General Municipal Law § 205-e.
Therefore, the order of the Appellate Division should be affirmed
and the certified question answered in the affirmative.
I.
Plaintiff Allison Gammons was a police officer with the
New York City Police Department working on "barrier truck detail"
in Brooklyn, New York when she was injured during the course of
loading wooden police barriers onto a police flatbed truck.
According to plaintiff, she was standing at the rear of the truck
holding a barrier when another officer who was helping to load
the truck pushed the barrier into plaintiff's chest, causing her
to fall backwards and off the truck onto the street.
Plaintiff sued defendants City of New York and the New
York City Police Department seeking damages, asserting causes of
action for common law negligence and under General Municipal Law
("GML") § 205-e for failure to comply with Labor Law § 27-a,
known as the Public Employee Safety and Health Act ("PESHA"),
based, in part, on the alleged unsafe and dangerous condition of
the truck. At her deposition plaintiff stated the truck was too
short to accommodate the full length of the barriers being
loaded, the back was left open and unprotected, the side railings
were only three-feet high, and only one officer could comfortably
fit on the truck during the loading process. She claimed that on
the date of her injury, defendant Police Department,
nevertheless, had available newer trucks that were sufficiently
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long to accommodate the full length of the barriers without any
portion hanging off the back, were equipped with a tailgate, and
could hold two officers.
Defendants moved for summary judgment pursuant to CPLR
3212, claiming that General Obligations Law § 11-106 (1)1 barred
plaintiff's common law negligence cause of action, and the
general duty clause of Labor Law § 27-a (3) (a) (1) could not
serve as a statutory predicate to plaintiff's GML § 205-e cause
of action. As an alternative ground, defendants asserted that
plaintiff failed to establish the existence of a "recognized
hazard" within the meaning of section 27-a (3) (a) (1) because
plaintiff claimed her injury was due to the improper use of the
truck, rather than its inherent defective condition.
Plaintiff responded that the motion was unsupported by
the law and facts. Additionally, in a Supplemental Bill of
Particulars, she alleged that defendants violated section 29 CFR
1
Courts regularly refer to GOL § 11-106 (1) as the
"fireman's rule," originally, a "long-standing common-law rule
that firefighters injured while extinguishing fires generally
[could not] recover against the property owners or occupants
whose negligence in maintaining the premises occasioned the
fires" (Schiavone v City of New York, 92 NY2d 308, 313 n 2 [1998]
[citations omitted]). The rule has been extended to police
officer actions, and, as amended, GOL § 11-106 (1) is applied
only in actions against a police officer's or firefighter's
employer or co-employee.
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1910.23 (c) (1)2 by failing to equip the truck with a back
railing, and assert section 27-a (3) (a) (2) as a predicate for
this violation. Plaintiff further requested the court search the
record in accordance with CPLR 3212(b) and grant her summary
judgment on the question of liability under GML § 205-e.
As relevant to this appeal, Supreme Court denied the
motion in part, concluding Labor Law § 27-a (3) (a) (1) may serve
as a predicate for a violation of GML § 205-e.3 The Appellate
Division affirmed (109 AD3d 189) and granted defendants leave to
appeal on a certified question whether the court properly
affirmed the denial of defendants' summary judgment motion to
dismiss plaintiff's GML § 205-e claim.
On appeal to this Court, the parties reiterate their
arguments below. Defendants contend that Labor Law § 27-a does
2
29 CFR 1910.23 (c) (1) entitled "Protection of open-sided
floors, platforms, and runways" provides:
"Every open-sided floor or platform 4 feet or
more above adjacent floor or ground level
shall be guarded by a standard railing (or
the equivalent as specified in paragraph
(e)(3) of this section) on all open sides
except where there is entrance to a ramp,
stairway, or fixed ladder. The railing shall
be provided with a toeboard wherever, beneath
the open sides, (i) Persons can pass, (ii)
There is moving machinery, or (iii) There is
equipment with which falling materials could
create a hazard."
3
Supreme Court granted defendants' motion in part,
dismissing the common law negligence cause of action as barred by
the firefighter's Rule.
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not provide an injured worker for a private right of action, and,
instead, establishes a workplace inspection scheme under which
the Commissioner of Labor alone may determine a violation of the
statute. Therefore, section 27-a cannot serve as a predicate to
plaintiff's GML cause of action. Defendants further claim that,
regardless, plaintiff has failed to assert a cause of action
based on a physical and environmental workplace hazard, in
accordance with section 27-a (3) (a) (1). In contrast, plaintiff
argues that Labor Law § 27–a (3) (a) (1) contains a clear legal
duty and, thus, was a proper statutory predicate for her GML §
205–e cause of action, and that her fall from the truck was a
"recognized hazard". We agree with plaintiff that section 27-a
is sufficient to serve as a statutory predicate for her claim.
II.
General Municipal Law § 205-e contains a right of
action allowing police officers to sue for injuries sustained in
the line of duty
"as a result of any neglect, omission,
willful or culpable negligence of any person
or persons in failing to comply with the
requirements of any of the statutes,
ordinances, rules, orders and requirements of
the federal, state, county, village, town or
city governments . . ."
(GML § 205-e [1]). The Legislature enacted GML § 205-e to
overrule this Court's prior decision in Santangelo v State of New
York (71 NY2d 393, 396-98 [1988]), which had extended the
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"firefighter's rule" to police officers, thus barring common law
negligence actions for injuries sustained in the line of duty.
Thereafter, the Legislature would continue to abrogate judicial
decisions interpreting GML § 205-e restrictively (see Gonzalez v
Iocovello, 93 NY2d 539, 548 [1999]). After a decade of
legislative rebuffs, we acknowledged that "[e]ach enactment has
been promoted as being for the express purpose of clarifying and
emphasizing the legislative intent that General Municipal Law §
205-e be applied 'expansively' " (id., citing L. 1990, ch. 762;
L. 1992, ch. 474; L. 1994, ch. 664; L. 1996, ch. 703).
In prior cases this Court described how the 1992 and
1996 amendments were intended to enlarge a police officer's right
of action under GML § 205-e (see Giuffrida v Citibank Corp., 100
NY2d 72, 77-78 [2003]; Gonzalez, 93 NY2d 539; Schiavone v City of
New York, 92 NY2d 308 [1998]). Schiavone and Giuffrida noted
that in the 1992 amendment the Legislature rejected judicial
interpretations limiting a police officer's action under GML §
205-e to injuries related to safety and maintenance violations
concerning a "premises" (Schiavone, 92 NY2d at 314; Giuffrida,
100 NY2d at 77-78). Instead, the Legislature concluded that
because "police officers are required to confront dangerous
conditions under many and varied circumstances, there is a need
to ensure that a right of action exists regardless of where the
violation causing injury or death occurs" (L. 1992, ch. 474, § 1,
responding to Sciarrotta v. Valenzuela, 182 AD2d 443, 445 [1st
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Dept 1992] and Cooper v. City of New York, 182 AD2d 350, 351 [1st
Dept 1992], affd 81 NY2d 584 [1993]; see also Giuffrida, 100 NY2d
at 78; Schiavone, 92 NY2d at 314).
Giuffrida and Gonzalez both discussed how in 1996 the
Legislature again amended GML § 205-e to expand its scope and
application (Giuffrida, 100 NY2d at 78; Gonzalez, 93 NY2d at 548;
see L. 1996, ch. 703 § 2). Then, in Gonzalez, this Court pointed
out that the addition of subdivision (3) to permit liability even
in cases where the injury is due to a violation of a codified
common-law duty, constituted another rejection of a judicial
decision holding otherwise (93 NY2d at 549, discussing St.
Jacques v. City of New York, 215 AD2d 75 [1995], affd 88 NY2d 920
[holding overruled by the 1996 amendment]).
Thus, this Court has recognized that these amendments,
enacted on the heels of judicial decisions constricting the
application of GML § 205-e, manifest the Legislature's
determination to bring courts in line with the legislative goal
of providing a cause of action for police officers for negligent
noncompliance with the law. Indeed, the legislative history of
the 1996 amendments sets the record straight that by amending the
statute our state elected officials
"intended to ensure once and for all that
section 205–e of the general municipal law is
applied by the courts in accordance with its
original legislative intent to offer an
umbrella of protection for police officers,
who, in the course of their many and varied
duties, are injured by the negligence of
anyone who violates any relevant statute,
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ordinance, code, rule and/or regulation"
(L. 1996, ch. 703 § 1; see also Giuffrida, 100 NY2d at 78). Any
doubt as to the legislative directive to the judiciary were laid
to rest in Williams v City of New York, wherein this Court stated
that this "series of amendments to section 205-e teaches us that
we should apply this provision 'expansively' so as to favor
recovery by police officers whenever possible" (2 NY3d 352, 364
[2004], citing Gonzalez, 93 NY2d at 548).4
III.
With this understanding of the legislative intent to
give broad application to GML § 205-e, we turn to defendants'
challenge to plaintiff's cause of action for damages. To succeed
on their summary judgment motion, defendants must establish “a
prima facie showing of entitlement to judgment as a matter of
law, tendering sufficient evidence to demonstrate the absence of
any material issues of fact” (Alvarez v. Prospect Hosp., 68 NY2d
320, 324 [1986]; see also CPLR 3212 [b]). For the reasons we
discuss, defendants have failed to meet their burden.
In order to assert a claim under GML § 205-e, a
plaintiff "must [1] identify the statute or ordinance with which
the defendant failed to comply, [2] describe the manner in which
the [police officer] was injured, and [3] set forth those facts
4
Additional amendments in 1994 and 1999 extended the time
in which certain actions may be brought on behalf of injured or
deceased police officers (see L. 1994, ch. 664; L. 1999, ch.
466).
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from which it may be inferred that the defendant's negligence
directly or indirectly caused the harm" (Williams, 2 NY3d at 363,
quoting Giuffrida, 100 NY2d at 79 [internal quotation marks
omitted]). Defendants allege plaintiff cannot satisfy the first
requirement because the Labor Law may not serve as a basis for
her cause of action. We disagree.
As a predicate to her GML damages cause of action
plaintiff relies specifically on Labor Law § 27-a (3) (a) (1),
which provides that
"[e]very employer shall: (1) furnish to each
of its employees, employment and a place of
employment which are free from recognized
hazards that are causing or are likely to
cause death or serious physical harm to its
employees and which will provide reasonable
and adequate protection to the lives, safety
or health of its employees."
Defendants counter that because PESHA lacks a private right of
action plaintiff cannot base her GML § 205-e claim on section 27-
a. However, that is exactly what GML § 205-e permits and what
the Legislature intended. While it is true that PESHA does not
contain an express private right of action (Hartnett v New York
City Tr. Auth., 86 NY2d 438, 442 [1995]), GML § 205-e does not
require that the predicate for a police officer's action contain
an existing right to sue. We do not read nonexisting
requirements into legislation for
" '[a] court cannot by implication supply in
a statute a provision which it is reasonable
to suppose the Legislature intended
intentionally to omit' because 'the failure
of the Legislature to include a matter within
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the scope of an act may be construed as an
indication that its exclusion was intended'
(McKinney's Cons Laws of NY, Book 1, Statutes
§ 74). In other words, we cannot read into
the statute that which was specifically
omitted by the legislature"
(Commonwealth of N. Mariana Is. v Can. Imperial Bank of Commerce,
21 NY3d 55, 62 [2013]). Furthermore, reading such requirement
into GML § 205-e would be antithetical to the recognized
legislative goal that this provision "offer an umbrella of
protection for police officers" for violations of "any relevant
statute, ordinance, code, rule and/or regulation" (L. 1996, ch.
703 § 1).
To the extent defendants argue that as a matter of law
a general duty clause, such as that contained in section 27-a,
cannot serve as a predicate for GML § 205-e liability, we find
that argument without support in the General Municipal Law or our
prior decisions. In order to recover under GML § 205-e "the
police officer must demonstrate an injury resulting from
negligent noncompliance with a requirement found in a
well-developed body of law and regulation that imposes clear
duties" (Williams, 2 NY3d at 364, citing Galapo v. City of New
York, 95 NY2d 568, 574 [2000] [internal quotation marks
omitted]). If a statute that provides for a general duty
satisfies this requirement it may serve as a basis for a GML §
205-e cause of action (id.).
This Court held as much in Gonzalez v Iocovello. In
Gonzalez we concluded that a GML § 205-e cause of action could be
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predicated upon violation of Vehicle and Traffic Law ("VTL") §
1104(e), which imposed a duty that drivers of authorized
emergency vehicles drive with due regard for the safety of all
persons, and without reckless disregard for the safety of others
(93 NY2d at 551). In the companion case of Cosgriff v City of
New York, we similarly found the predicate basis for plaintiff's
GML § 205-e cause of action in the New York City Charter §
2903(b)(2) requirement that the Commissioner of the New York City
Department of Transportation shall "have charge and control of .
. . repairing public roads [and] streets" and the Administrative
Code § 7-201 requirement that the City receive prior written
notice of a defective sideway in order to be held liable (93 NY2d
539, 553). In both matters we found that the relevant provisions
imposed clear legal duties, and reiterated that a proper
predicate may contain "either a particularized mandate or a clear
legal duty" (id. at 551; cf. Desmond v City of New York, 88 NY2d
455, 464 [1996]; see also Hayes v. City of New York, 264 AD2d 610
[duty imposed upon building owners to keep buildings in good
repair pursuant to Multiple Dwelling Law § 78 was a valid
predicate for section 205-e]).
The question then is whether section 27-a contains a
clear legal duty, expressed in a well-developed body of law and
regulation (Williams, 2 NY3d at 364; Gonzalez, 93 NY2d at 551).
We find that it does.
The Legislature enacted PESHA "to provide individuals
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working in the public sector with the same or greater workplace
protections provided to employees in the private sector under"
the federal Occupational Safety and Health Act ("OSHA")
(Williams, 2 NY3d at 367, quoting Hartnett, 86 NY2d at 442). The
provisions contained in PESHA are modeled on OSHA, and are
intended to ensure the common goal of these federal and state
statutes, i.e. a safe workplace. In fact, New York State has
adopted OSHA's workplace safety standards (12 NYCRR 800.3; see
Williams, 2 NY3d at 367). These regulations cover a broad
spectrum of safety issues (see e.g. Electrical Safety-Related
Work Practices, 55 FR 46052; Occupational Exposure to Bloodborne
Pathogens, 56 FR 64004; Concrete and Masonry Construction Safety
Standards, 55 FR 42306). Thus, PESHA like OSHA, has an
established regulatory scheme.
Within this statutory framework, section 27-a (3) (a)
(1) imposes on employers a duty to provide a safe workplace "free
from recognized hazards," . . . [and] reasonable and adequate
protection to the lives, safety or health of its employees."
This duty, albeit general, is sufficiently clear to provide a
basis to determine liability. Notably, as in Gonzalez, the
standard is set forth in a statute, here in PESHA, in Gonzalez,
in VTL § 1104. Also, the mandate that employers provide a
workplace "free from recognized hazards" sets a standard at least
as sufficient to define the duty of care as the "reckless
disregard" duty of care incorporated into VTL § 1104, which we
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referenced approvingly in Gonzalez.5 To the extent defendants
contend that this standard is no more specific than a general
common law duty of care, the Legislature has made clear that a
police officer has a right of action "regardless of whether the
injury . . . is caused by the violation of a provision which
codifies a common-law duty" (GML § 205-e [3]). Therefore, the
statute and its regulations are a "well-developed body of law and
regulations that impose clear duties" (Williams, 2 NY3d at 364).
The decision in Williams supports our conclusion here.
In Williams this Court left open the question whether PESHA may
serve as a statutory predicate to a GML § 205-e cause of action,
deciding only that the Williams plaintiffs failed to establish a
violation of Labor Law § 27–a because that provision "does not
cover the special risks faced by police officers because of the
nature of police work" (id. at 368). As a point of clarity,
Williams contrasted the Second Department's decision in Balsamo v
City of New York (287 AD2d 22 [2d Dept 2001]), finding that the
injuries in that case arguably came within PESHA because they
were the type of "occupational injuries" that "PESHA is designed
to prevent," rather than "risks unique to police work" which fall
outside the statute (Williams, 2 NY3d at 368). Thus, Williams
suggested that given the proper circumstances, PESHA could
5
Section 27-a's mandate is also no less sufficient to
define a duty of care than the duty set forth in Administrative
Code § 27-127 requiring all buildings "be maintained in a safe
condition" as suggested by Williams (2 NY3d at 368).
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certainly serve as a predicate to a GML § 205-e suit.
Here, plaintiff alleges that she suffered an injury
involving an improperly equipped police truck while in the line
of duty. Plaintiff's claim does not involve the type of special
risks faced by police officers that Williams found were outside
the scope of PESHA, which involved life and death decisions.
Instead, her claim is strikingly similar to the claim in Balsamo,
which involved an alleged physical injury to a police officer
when his knee hit a sharp protruding edge of a computer mounted
off the floor of his police vehicle (287 AD2d 22). As we stated
in Williams, PESHA arguably covers such claim as an occupational
injury involving an "improperly equipped vehicle" (Williams, 2
NY3d at 368).
Defendants additionally argue that Labor Law § 27-a
cannot serve as a predicate because that statute establishes a
regulatory scheme under which the Commissioner of Labor has sole
authority over enforcement for violations of the statute.
According to defendants, permitting private actions would
undermine the Commissioner's role and upset regulatory
enforcement because PESHA's detailed statutory scheme does not
vest courts with jurisdiction to determine whether a PESHA
violation has occurred. We are also unpersuaded by this
argument.
First, the Commissioner is empowered to investigate
allegations of existing workplace hazards, and enforce violations
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where an employer fails to cure noncompliance with PESHA (see
Labor Law § 27-a [5] and [6]). Therefore, the Commissioner's
enforcement powers are unrelated to and distinct from plaintiff's
action against her employer for damages incurred as a result of
an injury caused by a recognized hazard. We find no support for
defendants' argument that the Commissioner's role to ensure a
safe workplace is adversely affected by permitting an injured
employee to seek relief for harm caused by a violation of PESHA.
Second, defendants' claim that judicial consideration of PESHA's
coverage will undermine the Commissioner's duties is belied by
the fact that under GML § 205-e courts may consider noncompliance
with the statute and its regulations as evidence of negligence
(GML § 205-e ["failing to comply with the requirements of any of
the statutes, ordinances, rules, orders and requirements of the
federal, state, county, village, town or city governments"]).
We reject defendants' invitation to read GML § 205-e so
as to foreclose plaintiff's action for doing so would ignore
years of legislative enactments decrying just such a result.
Based on the legislative intent to provide police officers with a
right to sue in torts against their employers, and the
Legislature's mandate that the courts expansively apply section
205-e, we hold that PESHA's general duty clause serves as a
predicate to plaintiff's GML § 205-e cause of action for damages.
Therefore, we reject defendants' contention that as a matter of
law Labor Law § 27-a (3) (a) (1) cannot serve as a statutory
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predicate.
IV.
With respect to defendants' alternative argument that
plaintiff has failed to assert a violation of the duty set forth
in section 27-a (3) (a) (1) because she has not established that
her injury was due to a "recognized hazard", the Appellate
Division properly concluded defendants failed to support this
allegation in its summary judgment motion. A plaintiff must
establish both a statutory predicate for the GML § 205-e claim as
well as a statutory violation (Williams, 2 NY3d at 365). Here,
plaintiff claims the truck was too short and lacked the proper
railings for the task of barrier loading. Plaintiff's claim is
thus premised on her allegation that she suffered an injury while
working on an improperly equipped truck, which Williams stated
could be treated as an occupational injury covered by PESHA.
Defendants failed to satisfy their threshold summary judgment
burden by providing proof of their assertion that plaintiff's
injury was not due to a recognized hazard within the meaning of
the statute (see Johnson v Culinary Inst. of Am., 95 AD3d 1077,
1078 [2d Dept 2012]).
Accordingly, the order of the Appellate Division,
insofar as appealed from, should be affirmed, with costs, and the
certified question answered in the affirmative.
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Allison Gammons v City of New York, et al.
No. 220
PIGOTT, J.(dissenting):
Because, in my view, Labor Law § 27-a (3) (a) (1), by
itself, is too general to serve as a predicate for a General
Municipal Law § 205-e cause of action, I respectfully dissent.
We explained in Williams v City of New York (2 NY3d 352
[2004]) that "as a prerequisite to recovery [under GML § 205-e],
a police officer must demonstrate injury resulting from negligent
noncompliance with a requirement found in a well-developed body
of law and regulation that imposes clear duties" (id. at 364
[citations omitted] [emphasis supplied]; see Desmond v City of
New York, 88 NY2d 455, 463-464 [1996] [stating that section 205-e
"was not enacted to give police officers an unrestricted right to
recover for all negligently caused line-of-duty injuries. Nor
was it intended to give police officers a right to sue for
breaches of any and all governmental pronouncements of whatever
type and regardless of how general or specific those
pronouncements might be"]). Section 27-a (3) (a) (1) requires
every employer to "furnish to each of its employees, employment
and a place of employment which are free from recognized hazards
that are causing or are likely to cause death or serious physical
harm to its employees and which will provide reasonable and
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adequate protection to the lives, safety or health of its
employees." This provision is a general one, and we have
previously referred to it as the "general duty" clause (Williams,
2 NY3d at 367).
Plaintiff claims that she is entitled to recover under
the general duty clause because the truck from which she fell was
dangerous and defective, i.e., it was too short to accommodate
the barriers she was asked to load. Relying on the companion
cases Gonzalez v Iocovello and Cosgriff v City of New York (93
NY2d 539 [1999]), the majority claims that this section provides
a "clear legal duty, expressed in a well-developed body of law
and regulation" (majority op, at 10-11). The provisions in those
cases, however, were plainly more specific and set forth legal
duties that were more clear than section 27-a (3) (a) (1)'s
requirement that employers provide a safe workplace (see
Gonzalez, 93 NY2d at 550 [holding that Vehicle & Traffic Law §
1104 (e) could serve as a predicate for liability because it did
not absolve operators of emergency vehicles of liability for
"reckless disregard for the safety of others"]; Cosgriff, 93 NY2d
at 552-553 [holding that sections of the New York City Charter
and Administrative Code of City of New York concerning repairs of
defective sidewalks could serve as a predicate for GML § 205-e
liability]). In each of those cases, we were asked to examine
laws or regulations that dealt with clear legal duties, whereas,
in contrast, although the general duty clause here may impose
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some abstract "duty" to provide a safe workplace, it could hardly
be said that it is the type of "clear legal duty" mentioned in
Williams.
That does not mean, however, that a police officer or
firefighter could never utilize Labor Law § 27-a (3) (a) (1) as a
predicate, only that in order to do so, they should be required
to cite to a specific regulation that they claim was violated.
It is not insignificant that Labor Law § 27-a requires the
Commissioner of Labor to not only "adopt all safety and health
standards promulgated under the United States Occupational Safety
and Health Act of 1970" (Labor Law § 27-a [4] [a]), but also to
"promulgate rules and regulations recommended to him by . . .
[the state occupational safety and health abatement board] which
establish standards whenever such board finds" either that no
federal standard exists or that a federal standard exists but
that conditions in public workplaces require a different standard
(Labor Law § 27-a [4] [b] [i], [ii]). These standards promote
section 27-a (3) (a) (1)'s goal of providing a safe workplace,
and it is not coincidental that section 27-a (3) (a) (2) requires
every public employer to "comply with the safety and health
standards promulgated under [section 27-a]."
In this respect, I would employ the same analysis to
the claims made by police officers and firefighters under the
general duty clause that we employ in in our analysis of a Labor
Law § 241 (6) cause of action. With respect to the latter claim
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-- which is routinely brought by a construction worker against a
contractor and owner -- we have required the worker to identify
the specific rule or regulation promulgated by the Commissioner
of Labor that the contractor or owner allegedly violated (see
Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501-502; see
also Labor Law § 241 [6]). The rule or regulation alleged to
have been violated must be a "specific" and "positive command"
rather than a mere reiteration of a common law standard of care
that would do little more than incorporate "the ordinary tort
duty of care into the Commissioner's regulations" (Ross, 81 NY2d
at 504).
Here, the majority claims that the common law standard
of care -- the duty to provide a safe workplace -- by itself, may
serve as a predicate for a GML § 205-e claim. In my view, a
plaintiff must do more than just cite to a common law duty of
care in order to recover under GML § 205-e while utilizing the
general duty clause as a predicate; the plaintiff should also be
required to cite to at least one of the hundreds of thousands of
regulations either adopted or promulgated by the Commissioner of
Labor.
Plaintiff has done so in this case, asserting, in
addition to her claim under the general duty clause, that
defendants violated 29 CFR § 1910.23 (c) (1), which is an OSHA
provision. Neither the Appellate Division nor Supreme Court
addressed whether this provision applied to the facts of this
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case. Therefore, I would remand to Supreme Court to consider the
applicability of that federal regulation to plaintiff's GML §
205-e cause of action.
* * * * * * * * * * * * * * * * *
Order, insofar as appealed from, affirmed, with costs, and
certified question answered in the affirmative. Opinion by Judge
Rivera. Chief Judge Lippman and Judges Smith and Abdus-Salaam
concur. Judge Pigott dissents in an opinion in which Judge Read
concurs.
Decided December 18, 2014
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