author: Graffeo, J.

text:
    [8 NE3d 797, 985 NYS2d 422]
    Union Square Park Community Coalition, Inc., et al., Appellants, v New York City Department of Parks and Recreation et al., Respondents.
    Argued January 14, 2014;
    decided February 20, 2014

      POINTS OF COUNSEL

      Quinn Emanuel Urquhart & Sullivan, LLP, New York City CSanford I. Weisburst and Yelena Konanova of counsel), Super Law Group, LLC (Reed W. Super and Alexander I. Hankovszky of counsel), and Albert K. Butzel Law Offices (Albert K. Butzel of counsel), for appellants.
    I. Courts must apply the public trust doctrine de novo, without deference to the city. (Friends of Van Cortlandt Park v City of New York, 95 NY2d 623; Williams v Gallatin, 229 NY 248; Miller v City of New York, 15 NY2d 34; Williams v Hylan, 126 Misc 807; Matter of Torsoe Bros. Constr. Corp. v Board of Trustees of Inc. Vil. of Monroe, 49 AD2d 461; New York Tel. Co. v City of Amsterdam, 200 AD2d 315; Albany

      Area Bldrs. Assn. v Town of Guilderland, 141 AD2d 293; 795 Fifth Ave. Corp. v City of New York, 15 NY2d 221.) II. The proposed restaurant is not a park use. (Friends of Van Cortlandt Park v City of New York, 95 NY2d 623; Williams v Gallatin, 229 NY 248; 795 Fifth Ave. Corp. v City of New York, 13 AD2d 733; Blank v Browne, 217 App Div 624; 795 Fifth Ave. Corp. v City of New York, 40 Misc 2d 183, 20 AD2d 850, 15 NY2d 221; Williams v Hylan, 126 Misc 807; Gushee v City of New York, 42 App Div 37; Port Chester Yacht Club v Village of Port Chester, 123 AD2d 852; Incorporated Vil. of Lloyd Harbor v Town of Huntington, 4 NY2d 182; Aldrich v City of New York, 208 Misc 930.) III. The agreement between the City of New York and Chef Driven Market, LLC is a lease rather than a license. (Miller v City of New York, 15 NY2d 34; Williams v Hylan, 126 Misc 807; Garza v 508 W. 112th St., Inc., 22 Misc 3d 920, 71 AD3d 567; Nextel of N.Y. v Time Mgt. Corp., 297 AD2d 282; Gushee v City of New York, 42 App Div 37; Williams v Gallatin, 229 NY 248; Kirke La Shelle Co. v Armstrong Co., 263 NY 79; Layton v A. I. Namm & Sons, Inc., 275 App Div 246; Pocher v Hall, 50 Misc 639; Slutzky v Cuomo, 114 AD2d 116.)

      Michael A. Cardozo, Corporation Counsel, New York City (Deborah A. Brenner, Leonard Koerner and Amy McCamphiU of counsel), for respondents.
    I. As a matter of law, the Appellate Division correctly found that the restaurant is an acceptable park use. (Friends of Van Cortlandt Park v City of New York, 95 NY2d 623; Gushee v City of New York, 42 App Div 37; Williams v Gallatin, 229 NY 248; Port Chester Yacht Club v Village of Port Chester, 123 AD2d 852; Capruso v Village of Kings Point, 34 Misc 3d 1240[A], 2009 NY Slip Op 52829[U]; 795 Fifth Ave. Corp. v City of New York, 40 Misc 2d 183, 20 AD2d 850, 15 NY2d 221; 795 Fifth Ave. Corp. v City of New York, 15 AD2d 457, 11 NY2d 918; Blank v Browne, 217 App Div 624; Williams v Hylan, 223 App Div 48.) II. The restaurant concession agreement constitutes a revocable license, not a lease. (John B. Stetson Co. v Joh. A. Benckiser GmbH, 81 AD3d 559; Taussig v Clipper Group, L.P., 13 AD3d 166; Miller v City of New York, 15 NY2d 34; Matter of Terrell v Moses, 4 AD2d 171; Williams v Hylan, 223 App Div 48; Feder v Caliguira, 8 NY2d 400; Slutzky v Cuomo, 114 AD2d 116; Trustees of Town of Southampton v Jessup, 162 NY 122; Lordi v County of Nassau, 20 AD2d 658, 14 NY2d 699; Layton v A. I. Namm & Sons, Inc., 275 App Div 246, 302 NY 720.)

      Shapiro, Arato & Isserles LLP, New York City (Marc E. Isserles and Chetan A. Patil of counsel), for Liz Krueger and others, amici curiae.
    I. The State Legislature must be involved in any decision to alienate the pavilion. (Friends of Van Cortlandt Park v City of New York, 95 NY2d 623; Williams v Gallatin, 229 NY 248; Potter v Collis, 156 NY 16; Gewirtz v City of Long Beach, 69 Misc 2d 763.) II. The Court should not defer to the New York City Department of Parks and Recreation’s determination that the proposed restaurant is a park use. (Friends of Van Cortlandt Park v City of New York, 95 NY2d 623; Matter of Ackerman v Steisel, 104 AD2d 940.) III. The State Legislature fairly considers city proposals to alienate parkland. (Friends of Van Cortlandt Park v City of New York, 95 NY2d 623.)

      Friedman Kaplan Seiler & Adelman LLP, New York City (Eric Seiler, Jeffrey R. Wang and Pearline M. Hong of counsel), for Union Square Partnership and others, amici curiae.
    I. The Commissioner of the New York City Department of Parks and Recreation’s decision is supported by a substantial segment of the Union Square Park Community and is entitled to the wide deference that New York City’s Charter provides. (795 Fifth Ave. Corp. v City of New York, 40 Misc 2d 183, 15 NY2d 221; Kaskel v Impellitteri, 306 NY 73; Williams v Gallatin, 229 NY 248; Friends of Van Cortlandt Park v City of New York, 95 NY2d 623.) II. The Commissioner of the New York City Department of Parks and Recreation’s approval of the proposed restaurant is reasonable. (795 Fifth Ave. Corp. v City of New York, 40 Misc 2d 183; Friends of Van Cortlandt Park v City of New York, 95 NY2d 623.)

      Carter Ledyard & Milburn LLP, New York City (Christopher Rizzo and Holly Leicht of counsel), for New Yorkers for Parks, amicus curiae.
    The license between the City of New York and Chef Driven Market, LLC meets the requirements of the public trust doctrine. (Friends of Van Cortlandt Park v City of New York, 95 NY2d 623; Williams v Gallatin, 229 NY 248; Miller v City of New York, 15 NY2d 34; 795 Fifth Ave. Corp. v City of New York, 40 Misc 2d 183.)

      Pace Environmental Litigation Clinic, Inc., White Plains (Daniel E. Estrin of counsel), for Raritan Baykeeper, Inc. and another, amici curiae.
    Purported common-law park use “findings” and/or “determinations” by municipalities should be subject to de novo review by New York courts. (Brooklyn Park Commrs. v Armstrong, 45 NY 234; Friends of Van Cortlandt Park v City of New York, 95 NY2d 623; Williams v Gallatin, 229 NY 248; Aldrich v City of New York, 208 Misc 930; Miller v City of New York, 15 NY2d 34; Matter of Ackerman v Steisel, 104 AD2d 940, 66 NY2d 833; Chatham Green v Bloomberg, 1 Misc 3d 434; Matter of Powell v City of New York, 16 Misc 3d 1113[A], 2007 NY Slip Op 51409DJ]; Tobin v Hennessy, 129 Misc 756, 220 App Div 695; Matter of Gruber [New York City Dept. of Personnel—Sweeney], 89 NY2d 225.)
   OPINION OF THE COURT

Graffeo, J.

Plaintiffs challenge an agreement by the New York City Department of Parks and Recreation to allow the operation of a restaurant in Union Square Park. We conclude that plaintiffs fail to state a claim for a violation of the public trust doctrine and therefore affirm the Appellate Division order dismissing the complaint.

Union Square Park occupies approximately 3.6 acres in Lower Manhattan. Dating back to the early 1800s, the park has been the site of various public gatherings, protests and marches, and was designated as a national historic landmark by the United States Department of the Interior. A colonnaded pavilion, the structure at issue on this appeal, stands in the paved plaza at the northern end of the park. In 2008, as part of a citywide restoration initiative, the New York City Department of Parks and Recreation (the Department) renovated portions of the park, including the pavilion area. The project included the future use of the pavilion as a restaurant to replace Luna Park, a café that had operated in a space adjacent to the pavilion from 1994 until 2007.

In 2012, the Department executed a written “License Agreement” with Chef Driven Market, LLC (CDM), which permitted CDM to operate a seasonal restaurant in the pavilion for a term of 15 years. The restaurant would be open from mid-April to mid-October each year, from 7:00 a.m. until midnight on a daily basis. In return, CDM agreed to pay the City an annual license fee of $300,000 in the first year (increasing to about $450,000 in the final year) or 10% of annual gross receipts, whichever amount was greater. The agreement further obligated CDM to outlay at least $700,000 in specified capital improvements.

The Department retained extensive control over the daily operations of the restaurant under the terms of the agreement. For example, the Department “must approve in advance and in writing all plans, schedules, services, hours of operation, menu items and prices as well as all changes to services, menu items, merchandise, and any increase in fees and prices.” The preapproved menu must include breakfast items ranging from $1.95 to $15.95; brunch options costing $2.95 to $19.95; and lunch and dinner sandwiches and entrees at prices of $8.95 to $33.95. Outdoor seating would remain open to the public as well as paying customers. The agreement also required CDM to use Union Square Park Greenmarket vendors as suppliers and to offer a number of community programs, including free weekly educational programs; at least 10 annual charity fundraising events; and culinary internships for local students. Finally, the agreement contains a broad termination clause in favor of the Department:

“[T]his License is terminable at will upon written notice by the Commissioner at any time; however, such termination shall not be arbitrary and capricious. Such termination shall be effective twenty-five (25) days after the date of such written notice ... In addition, in the event this License Agreement is terminated, [the Department] will not reimburse Licensee’s unamortized capital improvement cost.”

Plaintiffs Union Square Park Community Coalition, Inc. and several individuals brought this action against the Department, its Commissioner, the City of New York and CDM (collectively, the Department) seeking a declaratory judgment and injunctive relief restraining the Department from altering the park pavilion to accommodate the restaurant under the public trust doctrine. As relevant to this appeal, plaintiffs asserted two claims: (1) the restaurant constituted a. nonpark purpose and was unlawful absent legislative approval and (2) the agreement between the Department and CDM constituted a lease, not a license, thereby amounting to an improper alienation of parkland. Plaintiffs moved for a preliminary injunction and the City cross-moved to dismiss the complaint under CPLR 3211 (a) (1) and (7). The City contended that the restaurant served a valid park purpose by providing a unique, reasonably-priced dining experience that would promote park safety during evening hours when the park would otherwise be less heavily trafficked, and that the documentary evidence demonstrated that the agreement was a valid license.

Supreme Court granted plaintiffs’ request for a preliminary injunction and denied the City’s cross motion to dismiss (38 Misc 3d 1215[A], 2013 NY Slip Op 50110[U] [2013]). The Appellate Division reversed, denied the motion for a preliminary injunction and granted dismissal of the complaint, concluding that the seasonal restaurant did not violate the public trust doctrine and that the concession agreement was a revocable license terminable at will, not a lease (107 AD3d 525 [1st Dept 2013]). We granted plaintiffs leave to appeal (21 NY3d 1070 [2013]).

Under the public trust doctrine, dedicated parkland cannot be converted to a nonpark purpose for an extended period of time absent the approval of the State Legislature (see Friends of Van Cortlandt Park v City of New York, 95 NY2d 623, 630 [2001]). Plaintiffs, supported by various amici curiae, acknowledge that it is possible for a restaurant to serve a park purpose, but assert that each food establishment must be assessed on a case-by-case basis under a flexible, multifactor analysis. They contend that the relevant factors in this case indicate that the pavilion restaurant proposed by the Department would not serve valid park purposes because Union Square Park is too small to host a restaurant; there are already a number of restaurants in the immediate vicinity; the menu offerings are too expensive; and the pavilion area could be put to better neighborhood use, e.g., as a site for public speaking and discourse, or dance and yoga classes.

Plaintiffs’ position, however, is inconsistent with 795 Fifth Ave. Corp. v City of New York (15 NY2d 221 [1965]), our most recent precedent involving a challenge to the placement of a restaurant in a city park under the public trust doctrine. In that case, plaintiffs brought suit to enjoin construction of a restaurant in Central Park, asserting that the public trust doctrine would be violated because the new structure would result in the destruction of 22,000 acres of rural area; there were numerous eating and drinking establishments in the vicinity; the corner was already heavily congested; and the proposed restaurant would principally serve pedestrians entering from the adjacent street rather than park patrons. Following a bench trial, the trial court rejected plaintiffs’ claims and concluded that the restaurant served a legitimate park purpose. In reaching its decision, the trial court relied on a number of considerations, including that the undeveloped area was unused and unsightly; the menu prices were reasonable; and the restaurant would be housed in an attractive glass-enclosed pavilion, which would “enhance the beauty and natural appeal of the southeast corner of Central Park” (40 Misc 2d 183, 190 [Sup Ct, NY County 1963]).

When 795 Fifth Ave. reached us on appeal, we affirmed, but on broader grounds. We began by acknowledging that the “Park Commissioner is vested by law with broad powers for the maintenance and improvement of the city’s parks” and that judicial interference would be “justified only when a total lack of power is shown” (15 NY2d at 225 [internal quotation marks and citation omitted]). In other words, although it is for the courts to determine what is and is not a park purpose, we recognized that the Commissioner enjoys broad discretion to choose among alternative valid park purposes. Observing that restaurants have long been operated in public parks, we rejected plaintiffs’ public trust claim, holding that they could show only a “difference of opinion” as to the best way to use the park space and that this “mere difference of opinion [was] not a demonstration of illegality” (id.). Without showing the “type and location of the restaurant to be unlawful,” we concluded, plaintiffs could not prevail (id. at 226). We therefore found it unnecessary to consider the myriad factors the trial court had relied upon, including whether the building was well-designed and would replace a neglected area of the park.

Although there are significant differences in the size, characteristics and uses of Central Park and Union Square Park, we perceive no meaningful distinction between 795 Fifth Ave. and the case before us in the application of the public trust doctrine. Plaintiffs ask us to apply a flexible standard that takes into consideration a number of fact-specific criteria in deciding whether a given restaurant serves a park purpose, yet we eschewed that approach in 795 Fifth Ave. Even accepting as true the allegations in plaintiffs’ complaint, their claims are substantially similar to the ones we found insufficient in 795 Fifth Ave. Plaintiffs have a different view of the best use of Union Square Park and its pavilion in particular, but this difference of opinion, without more, does not demonstrate the illegality of the Department’s plan. Put differently, plaintiffs have not demonstrated that the “type and location” of the restaurant are unlawful. While we leave open the possibility that a particular restaurant might not serve a park purpose in a future case, we conclude that the restaurant here does not run afoul of the public trust doctrine for lack of a park purpose.

Alternatively, plaintiffs argue that the restaurant plan is unlawful even if it serves a park purpose because the agreement between the Department and CDM is a lease rather than a license. They assert that the document in question, though denominated a license, is in reality a lease—an illegal alienation of parkland. The Department responds that, read as a whole, and particularly in light of the broad termination clause, the agreement evinces a valid license, not a lease.

We have stated that parkland cannot be leased, even for a park purpose, absent legislative approval (see Van Cortlandt Park, 95 NY2d at 630; see also General City Law § 20 [2] [providing that “the rights of a city in and to its . . . parks . . . are hereby declared to be inalienable”]). The Department may, however, execute a license or permit for a park purpose without violating the public trust doctrine (see Miller v City of New York, 15 NY2d 34, 37 [1964] [“Since the property was as a park impressed with a trust for the public it could not without legislative sanction be alienated or subjected to anything beyond a revocable permit”]). The decisive question on plaintiffs’ second claim, therefore, is whether the agreement between the Department and CDM constitutes a lease or a license.

A document is a lease “if it grants not merely a revocable right to be exercised over the grantor’s land without possessing any interest therein but the exclusive right to use and occupy that land” (id. at 38). It is the conveyance of “absolute control and possession of property at an agreed rental which differentiates a lease from other arrangements dealing with property rights” (Feder v Caliguira, 8 NY2d 400, 404 [1960]). A license, on the other hand, is a revocable privilege given “to one, without interest in the lands of another, to do one or more acts of a temporary nature upon such lands” (Trustees of Town of Southampton v Jessup, 162 NY 122, 126 [1900]; see also Lordi v County of Nassau, 20 AD2d 658, 659 [2d Dept 1964], affd without op 14 NY2d 699 [1964] [“Generally, contracts permitting a party to render services within an enterprise conducted on premises owned or operated by another, who has supervisory power over the method of rendition of the services, are construed to be licenses”]). That a writing refers to itself as a license or lease is not determinative; rather, the true nature of the transaction must be gleaned from the rights and obligations set forth therein. Finally, a broad termination clause reserving to the grantor “the right to cancel whenever it decides in good faith to do so” is strongly indicative of a license as opposed to a lease (Miller, 15 NY2d at 38).

Here, the language of the agreement confirms that it is what it purports to be—a revocable license. The Department retained significant control over the daily operations of the restaurant, including the months and hours of operation, staffing plan, work schedules and menu prices. Moreover, CDM’s use of the premises is only seasonal, and is not exclusive even in the summer, as outdoor seating is required to be available to the general public (with the exception of an area reserved for the service of alcoholic beverages) and CDM is obligated to open the pavilion to the public for community events on a weekly basis. The agreement also contains numerous environmental and community-based provisions. Aside from complying with extensive environmental standards, CDM is required, for example, to use Greenmarket vendors, offer culinary internships and host charitable events. More importantly, the agreement broadly allows the Department to terminate the license at will so long as the termination is not arbitrary and capricious. Consequently, despite the 15-year term and payment structure, we agree with the Department that it entered into a valid license arrangement with CDM.

In sum, the Department’s grant of a license to CDM to operate a seasonal restaurant in the Union Square Park pavilion, without legislative approval, was lawful under our precedents.

Accordingly, the order of the Appellate Division, insofar as appealed from, should be affirmed, with costs.

Chief Judge Lippman and Judges Read, Smith, Pigott, Rivera and Abdus-Salaam concur.

Order, insofar as appealed from, affirmed, with costs.

      . Plaintiffs brought a third claim against the Department and Urban Space Holdings, Inc. relating to the use of another section of Union Square Park for a holiday market. Plaintiffs do not press this claim on appeal and we therefore do not address it.

        . It is undisputed that the Department did not obtain legislative authorization for the restaurant.


source: Caselaw Access Project

author: Pigott, J. Chief Judge Lippman

license: Public Domain

text:
    [8 NE3d 791, 985 NYS2d 416]
    Richard Fabrizi, Respondent, v 1095 Avenue of the Americas, L.L.C., et al., Appellants, and Verizon New York, Inc., et al., Defendants. (And Other Actions.)
    Argued January 9, 2014;
    decided February 20, 2014

      POINTS OF COUNSEL

      London Fischer LLP, New York City (Daniel Zemann, Jr., and David B. Franklin of counsel), for appellants.
    I. The circumstances giving rise to plaintiffs injury are outside the scope of Labor Law § 240 (1). (Rocovich v Consolidated Edison Co., 78 NY2d 509; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494; Narducci v Manhasset Bay Assoc., 96 NY2d 259; Misseritti v Mark IV Constr. Co., 86 NY2d 487; Wilinski v 334 E. 92nd Hous. Dev. Fund Corp., 18 NY3d 1; Marin v AP-Amsterdam 1661 Park LLC, 60 AD3d 824; Garcia v DPA Wallace Ave. I, LLC, 101 AD3d 4151; Outar v City of New York, 286 AD2d 671, 5 NY3d 731; Quattrocchi v F.J. Sciame Constr. Corp., 11 NY3d 757, 44 AD3d 377; McLean v 405 Webster Ave. Assoc., 98 AD3d 1090.) II. Plaintiffs injury was caused solely by his misuse of the supports of the conduit by disconnecting them. (Robinson v East Med. Ctr., LP, 6 NY3d 550; Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280; Broggy v Rockefeller Group, Inc., 8 NY3d 675; Outar v City of New York, 286 AD2d 671, 5 NY3d 731.) III. All issues raised in the instant appeal are properly before this Court. (Hecker v State of New York, 92 AD3d 1261;
      Misseritti v Mark IV Constr. Co., 86 NY2d 487; Narducci v Manhasset Bay Assoc., 96 NY2d 259.)

      Pollack Pollack Isaac & DeCicco, LLP, New York City (Brian J. Isaac, Michael H. Zhu and Kenneth J. Gorman of counsel), and Block O’Toole & Murphy for respondent.
    I. Defendants are not entitled to summary judgment because plaintiff has a cognizable Labor Law § 240 (1) claim; in fact, plaintiff is entitled to partial summary judgment because the protective device provided to him at the site proved inadequate to shield him from harm directly flowing from the application of the force of gravity to the conduit pipe. (Long v Forest-Fehlhaber, 55 NY2d 154; Haimes v New York Tel. Co., 46 NY2d 132; Koenig v Patrick Constr. Corp., 298 NY 313; Bush v Goodyear Tire & Rubber Co., 9 AD3d 252; Bland v Manocherian, 66 NY2d 452; Quigley v Thatcher, 207 NY 66; Naughton v City of New York, 94 AD3d 1; Outar v City of New York, 5 NY3d 731; Quattrocchi v F.J. Sciame Constr. Corp., 11 NY3d 757; Rzymski v Metropolitan Tower Life Ins. Co., 94 AD3d 629.) II. Arguments regarding foreseeability and sole proximate cause are unpreserved for review by this Court; in any event, the risk of injury was foreseeable for purposes of applying the statute and plaintiffs conduct was not the sole proximate cause. (Merrill v Albany Med. Ctr. Hosp., 71 NY2d 990; Lichtman v Grossbard, 73 NY2d 792; Matter of Shannon B., 70 NY2d 458; Rentways, Inc. v O’Neill Milk & Cream Co., 308 NY 342; Wilson v Galicia Contr. & Restoration Corp., 10 NY3d 827; Matter of Salino v Cimino, 1 NY3d 166; People v Robinson, 88 NY2d 1001; Matter of Yeshivath Shearith Hapletah v Assessor of Town of Fallsburg, 79 NY2d 244; Bingham v New York City Tr. Auth., 99 NY2d 355.)
   OPINION OF THE COURT

Pigott, J.

Plaintiff, an electrician employed by Forest Electric Corp. (Forest), sustained injury when a 60-80 pound conduit pipe fell on his hand. Forest had been hired by defendant J.T. Magen Construction Company, Inc. (Magen) to overhaul the electrical system in offices leased by defendant Dechert, LLP (Dechert) from the building owner, defendant 1095 Avenue , of the Americas, L.L.C. (1095).

As part of the overhaul, Forest was responsible for the installation of conduit piping through the building’s floors. The conduit enabled telecommunication wires to run from the building’s sub-cellar through each floor’s respective telecommunication closet. The run of conduit on each floor contains a “pencil box” that provides access to the telecommunication wire.

On the day of the incident, plaintiff was relocating a pencil box that Forest had installed the previous week. The pencil box was situated between, and affixed to, two pieces of conduit that were four inches in diameter. The top section of conduit was 8 to 10 feet long and ran vertically from the top of the pencil box to the ceiling; the lower section ran vertically from the bottom of the pencil box to the floor. The top conduit was connected to a similar horizontal conduit near the ceiling by a four-inch compression coupling.

The pencil box proper was secured by a metal “Kindorf support.” Because the pencil box was obstructing conduit that was to he installed adjacent to the box, plaintiff had to move it, which required him to drill holes in the floor to relocate the Kindorf support. Before drilling the holes, however, plaintiff cut through the conduit just above and below the pencil box. He then removed the pencil box leaving the top conduit dangling by the compression coupling near the ceiling. Plaintiff knelt on the floor to begin drilling. Approximately 15 minutes later, while plaintiff was drilling, the top conduit fell, striking plaintiff on the hand.

Plaintiff thereafter brought this action against defendants and others, asserting, as relevant here, that defendants violated Labor Law § 240 (1). That statute provides that

“[a]ll contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.”

After joinder of issue and completion of discovery, defendants 1095 and Magen moved for summary judgment dismissing the section 240 (1) cause of action. Plaintiff opposed the motion and cross-moved for partial summary judgment on liability against 1095, Magen and Dechert, claiming, in reliance on plaintiff’s deposition testimony, that a more secure “set screw coupling,” rather than the purportedly inadequate compression coupling, should have been used to secure the top conduit. Supreme Court granted plaintiffs motion for partial summary judgment on liability, and denied defendants’ motion seeking to dismiss the section 240 (1) claim, holding that the conduit, being attached to the ceiling by a compression coupling that failed, was not properly secured so as to afford plaintiff protection (2011 NY Slip Op 31529[U] [2011]).

A divided Appellate Division modified the order of Supreme Court by denying plaintiff’s motion for summary judgment, holding that plaintiff failed to establish as a matter of law that defendants’ failure to provide a protective device, i.e., a set screw coupling, was a proximate cause of his accident, but otherwise affirmed the order (98 AD3d 864, 865 [1st Dept 2012]). The dissenting Justice contended that the coupling did not constitute a statutory safety device of the kind enumerated in section 240 (1) and therefore defendants should have been granted summary judgment (id. at 876 [Tom, J., dissenting]). The Appellate Division certified the following question to this Court: “Was the order of the Supreme Court, as modified by this Court, properly made?” We answer the certified question in the negative.

Labor Law § 240 (1) as cited above requires owners and contractors to provide proper protection to those working on a construction site (see Rocovich v Consolidated Edison Co., 78 NY2d 509, 513 [1991]). It imposes absolute liability where the failure to provide such protection is a proximate cause of a worker’s injury (see Wilinski v 334 E. 92nd Hous. Dev. Fund Corp., 18 NY3d 1, 7 [2011]).

In order to prevail on summary judgment in a section 240 (1) “falling object” case, the injured worker must demonstrate the existence of a hazard contemplated under that statute “and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein” (Narducci v Manhasset Bay Assoc., 96 NY2d 259, 267 [2001], citing Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [1993]). Essentially, the plaintiff must demonstrate that at the time the object fell, it either was being “hoisted or secured” (Narducci, 96 NY2d at 268), or “required securing for the purposes of the undertaking” (Outar v City of New York, 5 NY3d 731, 732 [2005]; see Quattrocchi v F.J. Sciame Constr. Corp., 11 NY3d 757, 759 [2008]). Contrary to the dissent’s contention, section 240 (1) does not automatically apply simply because an object fell and injured a worker; “[a] plaintiff must show that the object fell . . . because of the absence or inadequacy of a safety device of the kind enumerated in the statute” (Narducci, 96 NY2d at 268 [second emphasis supplied]).

The Appellate Division properly concluded that plaintiff had not established entitlement to summary judgment on liability. It erred, however, in denying summary judgment to defendants 1095 and Magen, because they established as a matter of law that the conduit did not fall on plaintiff due to the absence or inadequacy of an enumerated safety device.

The compression coupling, which plaintiff claims was inadequate, is not a safety device “constructed, placed and operated as to give proper protection” from the falling conduit. Its only function was to keep the conduit together as part of the conduit/ pencil box assembly. The coupling had been installed a week before the incident and had been serving its intended purpose until a change order was issued and plaintiff dismantled the conduit/pencil box assembly. Plaintiff’s argument that the coupling itself is a safety device, albeit an inadequate one, extends the reach of section 240 (1) beyond its intended purpose to any component that may lend support to a structure. It cannot be said that the coupling was meant to function as a safety device in the same manner as those devices enumerated in section 240 (1).

It follows that defendants’ failure to use a set screw coupling is not a violation of section 240 (1)’s proper protection directive. A set screw coupling, utilized in the manner proposed by plaintiff, is not a safety device within the meaning of the statute. Plaintiff concedes that compression and set screw couplings are “basic couplings” that serve identical purposes, namely, to function as support for the conduit/pencil box assembly, not to provide worker protection. Given that either coupling would have served the purpose, it is of no moment that defendants utilized compression couplings rather than set screw couplings as part of the assembly.

Accordingly, on the appeal by defendants 1095 and Magen, the order of the Appellate Division should be reversed, with costs, the motion by defendants 1095 and Magen for summary judgment dismissing the section 240 (1) claims against them should be granted, and the certified question answered in the negative. The appeal, insofar as taken by Dechert, should be dismissed, without costs.

Chief Judge Lippman

(dissenting). It seems clear to me that plaintiff has established his entitlement to summary judgment by demonstrating that his gravity-related injury was proximately caused by the defendants’ failure to provide an adequate safety device. Therefore, I dissent.

Plaintiff, an electrician, was injured in the course of repositioning a “pencil box” that served as an access point for telecommunication wires. Plaintiff was assigned this task pursuant to a “change order” intended to remedy an error committed by his employer. Specifically, upon its original installation approximately a week earlier, the pencil box had been positioned in such a way that it threatened to obstruct part of the building infrastructure yet to be installed.

To accomplish the task, plaintiff disconnected the box from a structure known as a “Kindorf support,” which anchored the box to the floor and the wall, and also from two sections of conduit pipe running above and below the pencil box, respectively. After the pencil box was disassembled from its supports, a considerable length of galvanized steel conduit, weighing 60-80 pounds, was left hanging above plaintiff as he knelt below to drill. The conduit was connected to another section of pipe near the ceiling by a compression coupling, which is essentially a cylindrical metal sleeve that tightens around the ends of two pipes to secure them together. Next, plaintiff drilled holes in the concrete floor in preparation for relocating the Kindorf. When he commenced the drilling, the suspended conduit came loose from its coupling and plummeted to the floor, crushing plaintiffs right thumb.

Section 240 (1) of the Labor Law imposes absolute liability on certain contractors, owners and their agents when their failure to provide an adequate safety mechanism caused a worker’s injury in a gravity-related accident. Our recent precedent in this area makes it clear that, in determining whether section 240 (1) applies, “ ‘the dispositive inquiry . . . does not depend upon the precise characterization of the device employed’ ” (Wilinski v 334 E. 92nd Hous. Dev. Fund Corp., 18 NY3d 1, 10 [2011], quoting Runner v New York Stock Exch., Inc., 13 NY3d 599, 603 [2009]). It follows that the availability of statutory protection here should not depend on whether couplings can be characterized as safety devices under section 240 (1), or whether they should be considered part of a building’s permanent infrastructure.

“ ‘Rather, the single decisive question is whether plaintiffs injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential’ ” (id. [emphasis omitted]). Accordingly, the crucial legal questions arising from the face of this record are whether the task of repositioning the pencil box entailed an elevation-related risk that triggered defendants’ duty to supply adequate safety devices, and whether the failure to do so caused the accident.

Clearly, plaintiff was exposed to a gravity-related hazard within the meaning of the statute. Kneeling on the floor to drill, he was situated several feet below a 60-to-80-pound segment of conduit pipe made of galvanized steel. The conduit was attached to the pipe above by only a compression coupling whose grip was inadequate to withstand the vibrations of drilling. “The elevation differential here involved cannot be viewed as 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” (Runner, 13 NY3d at 605).

As to the question of proximate cause, the record evidence shows that the absence of an effective safety device caused plaintiffs injury. It requires little imagination to conclude that a tool capable of stabilizing the conduit pipe—whether brace, clamp, coupling, or otherwise—would be precisely the sort of device contemplated by section 240 (1). Without such a device, however, the pipe was insufficiently secure and plaintiff incurred injury as a result. As the motion court aptly summarized, “the conduit was disconnected from the Kindorft ] support and only attached to the ceiling by a compression coupling, and because it fell, it was not secured as to give plaintiff proper protection” (Fabrizi v 1095 Ave. of the Americas, L.L.C., 2011 NY Slip Op 31529[U], *11 [Sup Ct, NY County 2011]).

By focusing myopically on whether couplings fall under the statute, the majority loses sight of defendants’ burden on summary judgment. To prevail, it is not enough for defendants to argue that a particular alternative device can be sensibly distinguished from those enumerated in the statute. Instead, they must demonstrate either the absence of a gravity-related risk or, where the risk posed by the elevation differential is readily apparent, a deficient causal nexus between the failure to provide a safety device and plaintiffs injury.

Defendants did raise a challenge with regard to causation in arguing that plaintiffs method of performing the work unnecessarily created the risk. According to defendants, as well as the dissent in the Appellate Division, plaintiff singlehandedly caused the accident by dismantling the pencil box prior to drilling holes in the floor. However, there was no evidence presented that this modus operandi constituted anything but standard procedure in the trade. Plaintiff made a prima facie showing that he had performed the same task four or five times in the course of his career and had routinely undertaken it in an identical manner. In opposition, defendants failed to raise a triable issue of fact as to whether plaintiffs own conduct was the proximate cause of the accident (see e.g. McCallister v 200 Park, L.P., 92 AD3d 927, 929 [2d Dept 2012]; Kempisty v 246 Spring St, LLC, 92 AD3d 474, 474-475 [1st Dept 2012]; cf. Quattrocchi v F.J. Sciame Constr. Corp., 11 NY3d 757, 759 [2008] [triable issue of fact as to whether plaintiff caused the accident where he was warned not to enter the accident área]).

In sum, defendants’ proof failed to rebut plaintiff’s prima facie showing that his injury resulted from the absence of a safety device capable of guarding against the gravity-related risk. Accordingly, I would grant summary judgment to plaintiff. In reaching a contrary result, the majority imposes an undue burden on plaintiff that serves only to frustrate the Labor Law’s salutary purpose of ensuring worker protection.

Judges Graffeo, Read and Smith concur with Judge Pigott; Chief Judge Lippman dissents in an opinion in which Judge Rivera concurs; Judge Abdus-Salaam taking no part.

On appeal by defendants 1095 Avenue of the Americas, L.L.C. and J.T. Magen Construction Company, Inc., order reversed, with costs, motion by those defendants for summary judgment dismissing the Labor Law § 240 (1) claim as against them granted and certified question answered in the negative. Appeal, insofar as taken by defendant Dechert, LLR dismissed, without costs, upon the ground that it is not a party aggrieved (CPLR 5511).

      . Dechert did not move for summary judgment.

      . A set screw coupling has two screws on both sides that are placed into the conduit and are tightened with either a ratchet or screwdriver, thereby locking the conduit in place.

      . The Appellate Division erroneously stated that plaintiff had “requested a set screw coupling to secure the pipe to prevent the pipe from falling during the disassembly” when he had been directed to move the pencil box (98 AD3d at 865). The record demonstrates that plaintiff requested a set screw coupling a week before the incident for a task unrelated to the one at issue.

      . Since Dechert did not move for summary judgment and the Appellate Division denied plaintiffs motion for summary judgment, Dechert was not aggrieved by the Appellate Division order.


author: Rivera, J. Pigott, J.

text:
    [8 NE3d 317, 985 NYS2d 202]
    Glenford Morris, Respondent, v Pavarini Construction et al., Appellants.
    Argued January 9, 2014;
    decided February 20, 2014

      POINTS OF COUNSEL

      London Fischer LLP, New York City (David B. Franklin and Daniel Zemann, Jr., of counsel), for appellants.
    I. 12 NYCRR 23-2.2 (a) can only be sensibly applied to completed forms which are serving as a mold for liquid concrete. (Mueller v PSEG Power N.Y., Inc., 83 AD3d 1274; McCormick v 257 W. Genesee, LLC, 78 AD3d 1581; People v Giordano, 87 NY2d 441; Rocovich v Consolidated Edison Co., 78 NY2d 509; Matter of Albano v Kirby, 36 NY2d 526.) II. The First Department’s opinion ignores this Court’s instructions and sets forth an unworkable standard. (Allen v Cloutier Constr. Corp., 44 NY2d 290; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494.) III. The language of comparable code provisions underscores that 12 NYCRR 23-2.2 (a) is only intended to apply to completed forms. (Nostrom v A.W. Chesterton Co., 15 NY3d 502.)

      Hill & Moin LLP, New York City (Cheryl Eisberg Moin of counsel), for respondent.
    This Court rejected the argument that 12 NYCRR 23-2.2 (a) may not as a matter of law apply to uncompleted forms; the uncontradicted testimony supports the sensibility of applying the regulation at bar. (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494; Zimmer v Chemung County Performing Arts, 65 NY2d 513; Kane v Coundorous, 293 AD2d 309; Amato v State of New York, 241 AD2d 400, 91 NY2d 805; Mueller v PSEG Power N.Y., Inc., 83 AD3d 1274; McCormick v 257 W. Genesee, LLC, 78 AD3d 1581.)
   OPINION OF THE COURT

Rivera, J.

Defendants Pavarini Construction and Vornado Realty Trust appeal, pursuant to leave granted by the Appellate Division, from an order of that court that reversed, on the law, a Supreme Court order granting their motion for summary judgment dismissing plaintiff Glenford Morris’ Labor Law § 241 (6) claim, which is predicated upon a violation of 12 NYCRR 23-2.2 (a). Upon a search of the record, the court granted summary judgment to plaintiff (98 AD3d 841 [2012]). The Appellate Division would later certify the following question to this Court: “Was the decision and order of this [c]ourt, which reversed the order of the Supreme Court, properly made?” We affirm the Appellate Division order and answer the certified question in the affirmative.

This is the second time the matter is before us, the Court having rendered a decision in this case in July 2007 reversing and remitting the matter to Supreme Court so that the parties could develop a fuller record on which to decide plaintiffs section 241 (6) claim (see 9 NY3d 47 [2007]).

L

Plaintiff is a carpenter who was working at a building construction site in Manhattan when a large, flat object fell on and injured his hand. He commenced this personal injury action against defendants, the construction manager and owner of the building, alleging common-law negligence and violations of Labor Law §§ 200, 240, and 241 (6). As relevant to this appeal, in support of his section 241 (6) claim plaintiff alleged to Supreme Court that the object that fell on his hand was a “form” subject to specific safety requirements under Industrial Code (12 NYCRR) § 23-2.2 (a). A form refers to a mold used in the shaping and solidification of concrete. Defendants countered that the object was not a “form” within the meaning of the Industrial Code because it was only one side of an as-yet uncompleted form; in other words a component of an unfinished form.

Supreme Court denied defendants’ motion to dismiss plaintiff’s section 241 (6) claim. The Appellate Division reversed, granted the motion and dismissed the claim, holding that 12 NYCRR 23-2.2 (a) did not apply to plaintiffs section 241 (6) claim because “the form at issue was still in the process of being created” (30 AD3d 177, 178 [2006]).

We granted plaintiffs motion for leave to appeal (8 NY3d 801 [2007]), reversed the Appellate Division order, and remitted the matter for further proceedings (9 NY3d at 51). We held that while the first sentence of section 241 (6) reiterates a common-law standard of care, the second sentence requires owners and contractors to comply with the Commissioner of Labor’s rules (9 NY3d at 50), and where such a rule or regulation imposes a “specific, positive command[ ],” owners and contractors are subject to a nondelegable duty (id., quoting Allen v Cloutier Constr. Corp., 44 NY2d 290, 297 [1978]). We found a specific requirement in section 12 NYCRR 23-2.2 (a) which mandates that “forms” be “braced or tied together so as to maintain position and shape” (9 NY3d at 50).

We concluded that the Appellate Division should not have granted summary judgment based on the record as then developed. While the interpretation of the regulation presented a question of law, we determined that “the meaning of specialized terms in such a regulation is a question on which a court must sometimes hear evidence before making its determination” (id. at 51, citing Millard v City of Ogdensburg, 274 AD2d 953, 954 [4th Dept 2000]), and remitted the matter to Supreme Court for a framed-issue hearing on whether “the words of the regulation can sensibly be applied to anything but completed forms” (9 NY3d at 51).

At the hearing before Supreme Court, the parties introduced expert testimony on how forms are assembled, and how component parts and completed forms are stabilized and secured at construction sites. Defendants introduced the testimony of a structural engineer, with 30 years’ experience, who described a concrete form as “an assembly of all kinds of components” including form panels, and defined a brace as “a structural element” used to hold “the form in place so it won’t move and shift.” He also testified that a form wall must be secured in order to resist the impact of wind loads. On cross-examination, he testified that in addition to wind loads, forms must resist other types of impact, including human contact like being bumped by a worker. He admitted that the first side of a form that is put up, called the back component of the form, could be braced in order to prevent it from falling, and that braces can be installed when the back wall is raised.

Plaintiff introduced testimony of two experts, one a civil engineer with a Master’s degree in transportation engineering, and the other, a carpenter with over 20 years of experience working on construction involving concrete form work. Plaintiff’s engineer testified that it was important to brace forms because they needed support to withstand the impact of wind loads that might “turn the wall over,” and that bracing was necessary to resist the impact of vibrations common to construction sites. He testified that once a form wall goes up “you would have to brace it because it could be inherently unstable at that point,” because of blowing wind, bumping, and vibrations. In describing bracing during the assembly process, he testified that as a wall goes up it is braced, and the bracing “would run from the wall of the form . . . diagonally] down to the ground.” Plaintiffs carpenter expert testified that a brace ensures that a wall does not fall over, and that braces could run from the top of the form and be bolted or nailed to concrete blocks. At the conclusion of the expert’s testimony, the court permitted plaintiff to testify briefly about the nature of the object that fell on his hand, which he described as 30 feet by 30 feet.

Supreme Court thereafter granted defendants’ summary judgment motion and dismissed plaintiffs section 241 (6) claim. The court concluded that the back form wall was part of an entire form, and as such did not come within the coverage of the regulation or section 241 (6). Plaintiff appealed.

The Appellate Division, with one Justice dissenting, reversed on the law, and, upon a search of the record, granted summary judgment to plaintiff (98 AD3d at 841). According to the majority, the expert testimony showed that the regulation could apply to forms as they were being constructed, and that a back form must be braced to maintain its position. The majority held that erection of the back form wall is the first step in the process of bracing and/or tying a form, such that it would defy common sense to maintain that the entire form could be structurally safe and maintain its “position and shape” pursuant to 12 NYCRR 23-2.2 (a) without a proper brace (id. at 842). Justice Presiding Tom dissented, and argued, inter alia, that the focus of 12 NYCRR 23-2.2 (a) “is the structural integrity of the form during the placement of concrete” (id. at 845), and that the expert testimony was consistent with this interpretation. Defendants now appeal pursuant to leave granted by the Appellate Division (2013 NY Slip Op 60455[U] [1st Dept 2013]).

IL

Labor Law § 241 (6) states that

“[a]ll areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places. The commissioner may make rules to carry into effect the provisions of this subdivision, and the owners and contractors and their agents for such work, except owners of one and two-family dwellings who contract for but do not direct or control the work, shall comply therewith.”

The legislative intent of section 241 (6) is to ensure the safety of workers at construction sites (Nagel v D & R Realty Corp., 99 NY2d 98, 102 [2002] [“That the Legislature sought to protect workers from industrial accidents specifically in connection with construction, demolition or excavation work is, therefore, patent”]). As we stated in our 2007 opinion, the statute sets forth the common-law standard of care and mandates compliance with the Commissioner of Labor’s rules, including any nondelegable duty imposed on owners and contractors set forth in those rules (9 NY3d at 50). We found such nondelegable duty in the mandate set forth in 12 NYCRR 23-2.2 (a) that “forms” be “braced or tied together so as to maintain position and shape” (id.), and concluded the record needed further development to determine the applicability of the regulation to plaintiffs case (id. at 51).

On this appeal, following the framed-issue hearing and opinions of Supreme Court and the Appellate Division on the legal question of the applicability of 12 NYCRR 23-2.2 (a) to plaintiff’s case, defendants reassert their argument with renewed vigor that the regulation applies only to completed forms, and not to the back form wall which caused plaintiffs injuries. According to defendants, the operative regulatory language that imposes more than a general duty of care requires that forms “shall be properly braced or tied together to maintain position and shape,” and the expert testimony established that this requirement cannot sensibly be applied to one side of a form standing on its own because it has no shape to maintain. Defendants contend this is the only plausible reading of 12 NYCRR 23-2.2 (a) because the regulation is intended to address the dangers associated with the “blow out” or collapse of a form containing liquid concrete. Plaintiff, in turn, argues no less vigorously that the experts made clear that the bracing required by 12 NYCRR 23-2.2 (a) may be applied to a single form wall for purposes of ensuring worker safety and to maintain the form wall’s position and shape. Any other reading, plaintiff argues, is nonsensical because of the danger posed to workers from the hoisting of a single form wall to a vertical position during the assembly of the form, and the wall’s vulnerability to collapse from a variety of construction site events.

The testimony adduced at the framed-issue hearing establishes that the object that fell on plaintiff was a back wall panel, which was a component of a form under assembly at the time of the injury, and that the back wall is the type of component which can be subjected to the requirements of 12 NYCRR 23-2.2 (a). The experts testified that a back wall must be braced once it is hoisted up to a vertical position in order to withstand the impact of external as well as internal conditions on the wall. They testified that a brace could be installed when a back wall is hoisted in order to stabilize it specifically against collapse from the external condition of wind loads. Defendants’ expert testified that wind loads are “part of the loads that the form assembly has to resist,” and that braces could be installed when the first wall (the back wall) is put up. He further testified that once the wall is raised it could maintain this position by placement of a brace that prevents the back wall from falling.

Plaintiffs engineer testified that a form wall must be braced otherwise it topples over, and that the only way to prevent a wall from turning over from a wind load blowing on it is “by having a brace.” He also testified that once the back wall goes up it is braced, and that both walls did not need to be in place to install a brace. Moreover, he testified that, once up, the wall may be standing for some period, possibly up to days at a time, before the form is completed, a reality of construction work also admitted by defendants’ expert. Plaintiffs carpenter expert reiterated the importance of bracing before the front wall is attached, in order to keep the wall from falling.

Despite the expert testimony supporting the application of the regulation to other than completed forms, defendants argue that the regulation’s subdivision (b), titled “Inspection,” which requires that certain designated persons make continuous inspections to ensure “the stability of all forms, shores and re-shores including all braces and other supports during the placing of concrete,” similarly limits the mandatory bracing and tying requirement of subdivision (a) to completed forms (12 NYCRR 23-2.2 [b] [emphasis added]). Defendants’ argument is unpersuasive. The ongoing inspection requirement contained in subdivision (b), applicable only to periods of the “placing of concrete,” merely recognizes that during this stage of concrete work, the stability of the form is specially vulnerable and requires particular attention, as noted by its other requirement that “[a]ny unsafe condition shall be remedied immediately” (id.). Interpreting the regulation as defendants suggest would result in diminished protections for workers during the assembly of forms, as compared with the concrete pouring process stage of the work, a reading of the regulation that runs counter to its text and undermines the legislative intent to ensure worker safety.

The expert testimony supports the conclusion that the language of 12 NYCRR 23-2.2 (a) can sensibly be applied to other than a completed form, and may apply to a wall component. Therefore, the Appellate Division properly reversed Supreme Court’s order and, moreover, did not abuse its discretion as a matter of law by granting summary judgment to plaintiff (see generally Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106, 111 [1984]; see also CPLR 3212 [b]).

Accordingly, the order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative.

Pigott, J.

(dissenting). Plaintiffs Labor Law § 241 (6) claim hinges on defendants’ alleged violation of 12 NYCRR 23-2.2 entitled “concrete work” and specifically subdivision (a) thereof, which states, as relevant here, that “[f]orms . . . shall be structurally safe and shall be properly braced or tied together so as to maintain position and shape.” When this case was before us in 2007 (9 NY3d 47 [2007]), we concluded that the words “braced or tied together so as to maintain position and shape” were specific enough to establish liability under section 23-2.2 (a), but that a “more complete record” was necessary concerning “the nature of the object that caused the injury and the opinions of those expert in the construction of concrete walls as to whether the words of the regulation can sensibly be applied to anything but completed forms” (id. at 50-51).

The testimony at the “framed issue” hearing was clear that a form was just that, a completed form; and that the regulation could not be reasonably interpreted as applying to anything but completed forms. For that reason, I dissent and would answer the certified question in the negative.

On its face, the aim of the regulation at issue is to ensure the structural integrity of “forms” that have been assembled as part of the concrete work. Even plaintiffs expert conceded that forms are constructed by erecting a “form wall,” placing rebar in the middle, erecting a back form wall and then tying it together. He further explained that whenever concrete is poured, it must be poured into a form.

It is of no moment that both sides’ experts agreed that a form “wall” should be braced before the form is completed to ensure that it does not tip over during the process of constructing the form. The issue is not whether such bracing should be used to support a form “wall” or whether such bracing could be utilized as such support but, rather, whether section 23-2.2 (a) was designed to address the bracing of a form wall in the first place. In my view, the majority’s interpretation expands the reach of the regulation to include the bracing of an object, i.e., a form “wall” that is absent from the regulation, which directs that “forms” (and not a form wall) “be properly braced or tied together.”

Simply put, although plaintiff may have been struck by a form “wall,” he was not injured by a “form” and, more specifically, was not the victim of a type of accident this section was designed to prevent. Had the regulation required that a form “wall” be braced “so as to maintain position and shape”—as the majority claims it should be interpreted—then that interpretation would be consistent with the regulation’s directives. But a cursory glance at the regulation provides the answer: “Forms . . . shall be properly braced or tied together so as to maintain position and shape.” Once the forms are erected, they are ready for a concrete pour, but that does not necessarily mean that the concrete will be ready for pouring at that moment. The regulation is there to ensure that such forms maintain their position and shape both before and during the pour, which can be done through either bracing or tying together. 12 NYCRR 23-2.2 (b) underscores that the regulation as a whole applies to completed forms, as it provides that “the stability of all forms . . . including all braces and other supports” must be continuously inspected “during the placing of concrete.” Indeed, section 23-2.2 (b) and section 23-2.2 (a) can be read in tandem as applying to completed forms; the latter provision requires that forms be braced or tied together even before the concrete pour (so as to protect against wind loads and vibrations), while the former provision affords protection to workers against the increased load on the forms by the liquid concrete. Because the majority interprets section 23-2.2 (a) in an extremely broad manner that finds no support in the testimony presented by the experts, I respectfully dissent.

Chief Judge Lippman and Judges Graffeo, Read, Smith and Abdus-Salaam concur with Judge Rivera; Judge Pigott dissents in an opinion.

Order affirmed, with costs, and certified question answered in the affirmative.

      . Supreme Court granted defendants’ motion to dismiss plaintiffs section 200 and common-law negligence claims, and plaintiff agreed by stipulation to discontinue his section 240 claim.

      . Our dissenting colleague argues that the regulation does not apply here because the framed-issue hearing testimony establishes that a “form” commonly refers to a completed form. However, in 2007 we stated that the object that injured plaintiff “was not a completed form, but was part or all of one of a form’s sides” (9 NY3d at 49). We remitted for a framed-issue hearing not to determine whether the object constitutes a completed form, but to determine whether the regulation could “sensibly be applied to anything but completed forms” (id. at 51). Upon reviewing the testimony of the framed-issue hearing, we believe that it can.

       Plaintiff asserted another cause of action under the Labor Law that may have been more appropriate, but he stipulated to its discontinuance (see Labor Law § 240).


author: Read, J. Chief Judge Lippman

text:
    [8 NE3d 324, 985 NYS2d 209]
    The People of the State of New York, Respondent, v Luis Guaman, Appellant.
    Argued January 9, 2014;
    decided February 25, 2014

      POINTS OF COUNSEL

      Dechert LLP, New York City (James M. McGuire of counsel), and Steven Banks, The Legal Aid Society (Lawrence T. Hausman of counsel), for appellant.
    Because no facts establishing a forcible touching were alleged, the information was jurisdiction-ally defective. (Matter of DaimlerChrysler Corp. v Spitzer, 7 NY3d 653; Matter of Riefberg, 58 NY2d 134; 242-44 E. 77th St., LLC v Greater N.Y. Mut. Ins. Co., 31 AD3d 100; We’re Assoc. Co. v Cohen, Stracher & Bloom, 65 NY2d 148; People v Nuruzzaman, 8 Misc 3d 356; People v Chiddick, 8 NY3d 445; People v Bac Tran, 80 NY2d 170; People v Dethloff, 283 NY 309; People v Gowdy, 38 Misc 3d 143[A], 2013 NY Slip Op 50263[U]; People v Guinn, 37 Misc 3d 28.)

      Cyrus R. Vance, Jr., District Attorney, New York City (Yuval Simchi-Levi and Alan Gadlin of counsel), for respondent.
    The criminal court information was facially sufficient to charge defendant with forcible touching. (People v Suber, 19 NY3d 247; People v Allen, 92 NY2d 378; People v Kalin, 12 NY3d 225; People v Henderson, 92 NY2d 677; People v Jackson, 18 NY3d 738; People v Casey, 95 NY2d 354; People v Love, 306 NY 18; People v Bartlett, 89 AD3d 1453, 18 NY3d 881; People v Pardew, 20 Misc 3d 129[A], 2008 NY Slip Op 51383[U], 11 NY3d 792; People v Powell, 19 Misc 3d 364.)
   OPINION OF THE COURT

Read, J.

Around 4:25 p.m. on April 8, 2009, inside the subway station at Lexington Avenue and E. 42nd Street, defendant Luis Guarnan rubbed his exposed penis against another man’s buttocks. A Transit Division police officer observed this take place and arrested defendant. The unwitting victim confirmed to the police officer that he had not consented to defendant’s sexual advance.

Defendant was charged with third-degree sexual abuse (Penal Law § 130.55), forcible touching (Penal Law § 130.52) and public lewdness (Penal Law § 245.00). The accusatory instrument, a misdemeanor complaint dated April 9, 2009 and attested to by the arresting officer, stated as relevant to this appeal that

“the defendant subjected another person to sexual contact without the latter’s consent; in that the defendant intentionally, and for no legitimate purpose, forcibly touched the sexual and other intimate parts of another person for the purpose of degrading and abusing such person, and for the purpose of gratifying the defendant’s sexual desire; . . .
“[Djeponent observed the defendant (i) approach and stand directly behind [the victim], (ii) defendant then removed defendant’s penis from defendant’s pants exposing defendant’s penis to open and public view, and (iii) rubbed defendant’s groin area and exposed penis against [the victim’s] buttocks. Deponent further states that deponent is informed by [the victim], of an address known to the District Attorney’s Office, that [the victim] did not consent to defendantfs] touching [him] in any manner.”

In a supporting deposition dated April 16, 2009, the victim swore to his lack of consent, thus converting the accusatory instrument into an information by providing a nonhearsay basis for the allegation that the touching was nonconsensual.

On October 21, 2009, after a hearing, the judge denied defendant’s motion to suppress identification evidence and statements. The next day defendant pleaded guilty to forcible touching in full satisfaction of the information. Section 130.52 of the Penal Law defines this crime as follows:

“A person is guilty of forcible touching when such person intentionally, and for no legitimate purpose, forcibly touches the sexual or other intimate parts of another person for the purpose of degrading or abusing such person; or for the purpose of gratifying the actor’s sexual desire.
“For the purposes of this section, forcible touching includes squeezing, grabbing or pinching.”

The judge sentenced defendant to a conditional discharge with three days of community service in lieu of 30 days in jail.

Defendant appealed, arguing that the information was jurisdictionally defective because simply stating that he “rubbed” his groin and exposed penis against the victim’s intimate parts did not fulfill the forcible component of the crime. Defendant took the position that rubbing did not entail force as called for by the statute because it was not akin to the statutory examples of “squeezing, grabbing or pinching.”

In a decision and order dated June 27, 2012, the Appellate Term unanimously affirmed the judgment (36 Misc 3d 128[A], 2012 NY Slip Op 51203[U] [App Term, 1st Dept 2012]). The court concluded that “ ‘given a fair and not overly restrictive or technical reading,’ ” the information’s factual allegations were “sufficient for pleading purposes to establish reasonable cause to believe and a prima facie case that defendant committed the crime of forcible touching” (id. at *1, quoting People v Casey, 95 NY2d 354, 360 [2000]). Further, “[a]t the pleading stage, the sworn allegation that the victim did not consent to any sexual contact is ‘sufficiently evidentiary in character’ to support the lack of consent element of the charged crime” (id., citing People v Allen, 92 NY2d 378, 385 [1998]). On October 4, 2012, a Judge of this Court granted defendant leave to appeal (19 NY3d 1102 [2012]). We now affirm.

To be facially sufficient, the allegations in the factual portion of a misdemeanor complaint, together with any accompanying supporting depositions, must provide “ ‘reasonable cause’ to believe that the defendant committed the charged offense” (People v Kalin, 12 NY3d 225, 228 [2009]; see CPL 100.40 [4] [b]). Additionally, “an information must set forth ‘nonhearsay allegations which, if true, establish every element of the offense charged and the defendant’s commission thereof’ ” (Kalin at 228-229, quoting People v Henderson, 92 NY2d 677, 679 [1999]). This is known as the “prima facie case requirement,” which is not nearly so stringent as the burden of proof beyond a reasonable doubt required to convict or even the legally sufficient evidence necessary to survive a motion to dismiss (id. at 229-230; CPL 100.40 [1] [c]). Rather, as the Appellate Term noted, we have held that “[s]o long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading” (Casey, 95 NY2d at 360).

Here, defendant claims that the information does not meet even these minimal standards because the factual allegation that he “rubbed” his groin and exposed penis against the victim’s buttocks does not establish the kind or level of force required by Penal Law § 130.52. This is so, he argues, because “squeezing, grabbing or pinching,” the statutory examples, “share a common core”; namely, “[i]n all three, a sexual or intimate part of the victim is compressed between two objects.” And while a squeeze, grab, or pinch “can be so gentle as to entail virtually no manual pressure,” these acts are more likely to result in “pain or at least non-trivial physical discomfort.” By contrast, he contends, rubbing does not involve compression and is unlikely to cause pain or nontrivial physical discomfort.

Additionally, defendant protests that if the act of rubbing constitutes a forcible touch, the distinction between the crimes of forcible touching, a class A misdemeanor, and third-degree sexual abuse, a class B misdemeanor, is effectively obliterated and someone who commits third-degree sexual abuse with the purpose of gratifying the actor’s sexual desire may be prosecuted for forcible touching at the whim of the prosecutor. In defendant’s view, then, “forcibly touches” is the same as “any touching” unless the former is limited to contact that compresses the victim’s sexual or intimate parts between two objects and is likely to cause pain or at least nontrivial physical discomfort, the common threads he finds in the statutory examples of “squeezing, grabbing or pinching.” Absent this proposed limitation, defendant urges, the “at best quixotic result” would be that any conduct establishing the “lesser offense” of third-degree sexual abuse would necessarily also establish “the essential elements of the forcible touching offense, even though the latter offense is a more serious crime.”

In making this argument, defendant does not adequately take into account the mens rea element of third-degree sexual abuse. Specifically, to be guilty of third-degree sexual abuse, the actor must “subject[ ] another person to sexual contact without the latter’s consent” (Penal Law § 130.55); and, as relevant to the mens rea element, the term “sexual contact” is defined as

“any touching of the sexual or other intimate parts of a person for the purpose of gratifying sexual desire of either party. It includes the touching of the actor by the victim, as well as the touching of the victim by the actor, whether directly or through clothing, as well as the emission of ejaculate by the actor upon any part of the victim, clothed or unclothed.” (Penal Law § 130.00 [3] [emphasis added].)

Because third-degree sexual abuse criminalizes nonconsensual sexual touching for purposes of either party’s sexual gratification, the People are not required to plead or prove whether the touching is for the actor’s or the recipient’s sexual gratification Csee CJI2d[NY] Penal Law § 130.55).

Additionally, defendant presupposes a fundamental relationship between the two statutes which does not, in fact, exist. Rather, third-degree sexual abuse is part of a family of crimes that also includes second- and first-degree sexual abuse, where punishment is elevated if additional factors are present. In short, third-degree sexual abuse is not “the lesser crime” as compared to forcible touching, and we do not conflate the two crimes if we fail to adopt defendant’s proposed limitation.

In any event, the People dispute defendant’s argument that “forcibly touches,” unless limited as he proposes, is no different than “any touching.” They point out that “force” is commonly defined as “strength or energy exerted or brought to bear” (see Merriam-Webster Online Dictionary, http://www.merriamwebster.com/dictionary/force); and “rub” (as an intransitive verb) “to move along the surface of a body with pressure, ” or (as a transitive verb) “to subject to or as if to the action of something moving especially back and forth with pressure and friction” (see Merriam-Webster Online Dictionary, http:// www.merriam-webster.com/dictionary/rub [emphasis added]). And “[s]ince the use of ‘pressure’ or ‘friction’ obviously brings strength or energy to bear,[] the act of ‘rubbing’ qualifies as a forcible touch.” Moreover, the People add, the information here was plainly sufficient even under defendant’s alternative construction of “forcibly touches.” Specifically, “by rubbing his groin and exposed penis against the victim’s buttocks without . . . consent, defendant could certainly have caused the victim ‘non-trivial physical discomfort’ [and f]or that matter, [defendant] also clearly compressed his penis between his body and the victim’s body.” Because the crime of forcible touching requires the application of some level of pressure to the victim’s sexual or other intimate parts, the People continue, the actus reus for this crime differs from the actus reus for third-degree sexual abuse, which may only entail bringing a bodily part into fleeting contact with another’s sexual or intimate parts.

We agree with the People and conclude that “forcibly touches” is not restricted in the way defendant advocates. Indeed, we understand the examples set out in the statute (i.e., “squeezing, grabbing or pinching”) as intended by the legislature to signal a low threshold for the forcible component of this crime’s actus reus. Accordingly, we hold that, when done with the relevant mens rea, any bodily contact involving the application of some level of pressure to the victim’s sexual or intimate parts qualifies as a forcible touch within the meaning of Penal Law § 130.52. The allegation in the information here easily meets this test.

Legislative history supports our broad construction of the statutory language. The legislature enacted the crime of forcible touching as part of the Sexual Assault Reform Act of 2000. This legislation was designed to update the state’s laws dealing with sexual assault for the first time in 30 years and to assist victims in their efforts to recover psychologically from these crimes. It was a compromise measure introduced by message of necessity in both houses of the legislature on June 22, 2000, on the wane of the legislative session. The “impetus” for the new crime of forcible touching, which did not appear in the several earlier versions of a reform bill passed by the Senate, but not the Assembly, was “a notorious series of forcible touchings of the sexual parts of women walking through Central Park” that took place less than two weeks before the legislature acted (see William C. Donnino, Practice Commentary, McKinney’s Cons Laws of NY, Book 39, Penal Law § 130.52 at 234; see also Budget Report on Bills, Bill Jacket, L 2000, ch 1 at 3 [remarking that the creation of the new crime of forcible touching was a “response to the recent Central Park ‘Wilding’ ”]). The victims of these public sexual attacks generally were physically unhurt (see C. J. Chivers & Kevin Flynn, 35 Scary Minutes: Women Tell Police of Assaults in Park, NY Times, June 13, 2000, cited in the Practice Commentary). Given this context, it is hard to believe that the legislature meant for “forcibly touches” to cover only contact that compresses and is painful or physically discomforting.

Accordingly, the order of the Appellate Term should be affirmed.

Chief Judge Lippman

(concurring). I agree with the result, but not the majority’s proposed rule. The primary question in this case is whether the factual allegations in the misdemeanor information gave defendant adequate notice to prepare a defense and were detailed enough to prevent him from being tried twice for the same offense (see People v Casey, 95 NY2d 354, 360 [2000]). I would hold simply that the information was sufficient under the circumstances.

The majority goes far beyond what is necessary and delineates the entire realm of forcible touching by defining “forcible touch” under Penal Law § 130.52 as “any bodily contact involving the application of some level of pressure to the victim’s sexual or intimate parts” (at 684). To the extent the test is a rejection of defendant’s argument that the touching must consist of compression of a victim’s sexual or intimate parts between two objects, I agree. If the test means that there is some requisite level of pressure, but the Court declines to provide any guidance, I find it unhelpful. If, however, the test intends “some level of pressure” to mean “any pressure,” I disagree.

To define “forcible” as “any pressure” reads “forcible” out of the statute, abolishing an important distinction between forcible touching, an A misdemeanor, and sexual abuse in the third degree, a B misdemeanor, where the touching is performed for sexual gratification. “A person is guilty of sexual abuse in the third degree when he or she subjects another person to sexual contact without the latter’s consent” (Penal Law § 130.55). “Sexual contact” is defined as “any touching of the sexual or other intimate parts of a person for the purpose of gratifying sexual desire of either party” (Penal Law § 130.00 [3] [emphasis added]).

The legislature evidently has made a distinction between “any touching” and “forcible touching” with regard to sex crimes. This distinction would be artificial under the majority’s test because any touching inherently involves the application of “some level of pressure.” The contention that the actus rei of forcible touching and third-degree sexual abuse are distinct because the latter encompasses “fleeting contact” is but a strained attempt to differentiate the critical elements of the two crimes as defined by the majority (at 684). “Fleeting” describes only the transitory nature of the contact, which is irrelevant under the statute.

Judges Graffeo, Smith, Pigott and Rivera concur with Judge Read; Chief Judge Lippman concurs in result in an opinion; Judge Abdus-Salaam taking no part.

Order affirmed.

      . Lack of consent is an element of every sexual offense in article 130 of the Penal Law, and, with respect to the crime of forcible touching, results from “any circumstance[ ] ... in which the victim does not expressly or impliedly acquiesce in the actor’s conduct” (Penal Law § 130.05 [2] [c]).

      . Similarly, the first definition given in the Oxford English Dictionary for “rub” as a transitive verb is “[t]o subject (a surface or substance) to the action of something (as a hand, a cloth, etc.) moving over it, or backwards and forwards upon it, with a certain amount of pressure and friction”; and, as an intransitive verb, “[t]o exert or employ friction accompanied by pressure; to move and at the same time press upon or against something” (14 Oxford English Dictionary 189, 190 [2d ed 1989]).

      . “Pressure” is commonly defined as “the weight or force that is produced when something presses or pushes against something else” (see Merriam-Webster Online Dictionary, http://www.merriam-webster.com/dictionary/ pressure).