Order, Supreme Court, New York County (Lucy Billings, J.), entered March 29, 2017, which, insofar as appealed from as limited by the briefs, denied defendants’ motion for summary judgment dismissing the Labor Law § 200 and common-law negligence claims, reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment in favor of defendants dismissing the complaint.
This personal injury action arises out of the death of Edward Bradley (decedent), an experienced elevator maintenance mechanic, who was electrocuted as a result of coming into contact with a transformer while servicing a malfunction in one of the building’s elevators. Decedent was working alone when he died; there is no evidence of how the accident occurred.
Defendant HWA 1290 III LLC (HWA) owns the building. Nonparty Schindler Elevator Corporation (Schindler), the building’s elevator maintenance contractor, employed decedent as the building’s resident or “stationary” elevator maintenance mechanic. Codefendant United Elevator Consultants Service, Inc. (United) is the elevator consultant retained by HWA to manage the building’s elevator modernization project and its machine rooms and to monitor Schindler’s performance under its elevator maintenance contract with HWA.
The accident occurred in the elevator motor room on the ninth floor where the elevator control cabinets and hoist motors are located. Decedent’s body was discovered hours after his death in the motor room. He was found lying partially inside the bottom of the #3 elevator control cabinet with his body slumped over the metal plate covering the transformers. The medical examiner determined that he was the victim of an apparent accidental electrocution. Photographs of the control cabinet and the decedent, taken after his body was lifted out of the cabinet, depicted rags on top of the transformers. Additionally, screws and wire nuts were found on the floor beneath the transformers, which are located at the bottom of the control cabinet.
FDNY Captain Jeffrey Facinelli responded to the 9-1-1 call. At the scene, Facinelli observed decedent “face down on the floor” with one of his arms “reaching into the cabinet” and his “right arm and right side of his chest were lying on top of a transformer inside of the control panel.”
Chief Elevator Inspector Douglas Smith from the New York City Department of Buildings (DOB) conducted a postaccident investigation. He testified that decedent was electrocuted when his right arm came into contact with the middle of the three transformers. With regard to how the accident might have happened, Smith’s report surmised that “ [i] t appears [decedent] was working at the bottom of the controller where the transformer was mounted and may have been reaching over and below the transformer when his arm and body made contact.” Smith testified that “maybe [decedent] dropped something, was reaching for something,” that there were many “possibilities,” but that all were “speculation.” Smith’s report further provided that “[decedent] appears to have been performing maintenance on the #3 elevator controller in the 9th floor motor room” based on the fact that the #3 elevator’s “fault log revealed a brake fault occurred at 1:30pm on 3/28/12, which appears to be the reason for the [decedent] trouble shooting the elevator’s controller.”
Plaintiffs commenced this wrongful death action alleging common law negligence and violations of the Labor Law. With regard to the common-law negligence and Labor Law § 200 claims, plaintiffs alleged that defendants were liable based on the claim that the lighting in the motor room was not adequate, and that the transformer on which decedent was electrocuted did not have a cover.
Defendants moved for summary judgment dismissing the complaint. The motion court, as is relevant on this appeal, denied in part defendants’ motion and allowed plaintiffs to pursue their common-law negligence and Labor Law § 200 claims insofar as such claims were based on the alleged inadequate lighting in the motor room and the alleged lack of a cover over the transformers because “[defendants fail[ed] to demonstrate that the uncovered transformers and the lighting did not create dangerous conditions readily observable to defendants.” We reverse.
Labor Law § 200 “codifies landowners’ and general contractors’ common-law duty to maintain a safe workplace” (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 505 [1993]). “Claims for personal injury under the statute and the common law fall into two broad categories: those arising from an alleged defect or dangerous condition existing on the premises and those arising from the manner in which the work was performed” (Cappabianca v Skanska USA Bldg. Inc., 99 AD3d 139, 143-144 [1st Dept 2012])- “Where . . . the accident arises . . . from a dangerous premises condition, a property owner is liable under Labor Law § 200 when the owner created the dangerous condition ... or when the owner failed to remedy a dangerous or defective condition of which he or she had actual or constructive notice” (Mendoza v Highpoint Assoc., IX, LLC, 83 AD3d 1, 9 [1st Dept 2011] [internal quotation marks omitted]).
With regard to the claimed inadequate lighting in the motor room, the dissent takes the position that a factual issue exists because “decedent was using a flashlight at the time of death” given that a flashlight was found near his body. Further, plaintiffs and the dissent rely on the testimony of Juan Melendez, a Schindler employee who, at one point in time prior to the accident, worked as decedent’s helper. He testified that the fluorescent lighting in the ninth floor motor room “wasn’t that good at all.” In addition, Dennis Olson, plaintiffs’ certified elevator inspector expert, states that “[p]oor lighting conditions would have created a safety hazard for [decedent] by impairing his ability to see his work area—including the uncovered transformers.” We respectfully disagree with this position for the following reason.
Melendez’s testimony is merely conclusory and fails to raise a factual issue as to whether the lighting in the motor room was up to code (see Cahill v Triborough Bridge & Tunnel Auth., 31 AD3d 347 [1st Dept 2006] [plaintiff failed to provide sufficient evidence to create an inference that the amount of lighting fell below the specific statutory standard by relying on conclusory and nonspecific assertions of witnesses stating that the area was “dark” or “a little dark”]; see also Carty v Port Auth. of N.Y. & N.J., 32 AD3d 732, 733 [1st Dept 2006], lv denied 8 NY3d 814 [2007] [“plaintiff’s vague testimony that the lighting was poor’ and the basement where he fell was ‘dark’ was ‘insufficient to create an inference that the amount of lighting fell below the specific statutory standard’ ”]), particularly in view of the fact that Olson, other than merely stating the obvious, namely, that “poor” lighting “would” have created a safety hazard, critically, failed to opine that the lighting in the motor room was not code compliant. This failure is fatal to plaintiffs’ claim given the testimony of Smith, who conducted the postaccident investigation, that the lighting in the motor room was up to code, and the absence from the record of any evidentiary proof of violations for inadequate lighting. Accordingly, defendants’ motion for summary judgment dismissing the claims based on inadequate lighting should be granted.
Plaintiffs’ Labor Law § 200 and common-law negligence claims are based on the alleged dangerous condition of a lack of a cover over the transformers on which the decedent was electrocuted. Indeed, Melendez testified that there was a threat that a person could touch one of the transformers and be electrocuted because none of the transformers had covers. Thus, the issue to be resolved is whether defendants demonstrated that they did not cause or create, or have actual or constructive notice of, the allegedly dangerous condition, so as to warrant summary judgment in their favor. For the reasons that follow, resolution of this issue is not dependent on how the accident occurred, and, as such, a proximate cause analysis is not warranted. Further, with regard to the alleged dangerous condition, the absence of any witnesses is of no moment (see German v Morales, 24 AD3d 246, 247 [1st Dept 2005] [plaintiff decedent’s expert raised an issue of fact as to whether defendant deviated from industry standards]; Detres v New York City Hous. Auth., 271 AD2d 309, 310 [1st Dept 2000] [plaintiff decedent proffered evidentiary and other materials to support the assertion that a dangerous condition existed]).
With regard to the issue of whether defendants caused or created a hazardous condition, there is no dispute that HWA and United did not design or manufacture the elevator control cabinet, or any of its electrical components, including the transformers, which was installed some time in 1997. HWA purchased the elevator system from nonparty O’Thompson Company, who designed and manufactured it during or prior to 1997. Plaintiffs proffer no challenge.
As to whether defendants had notice of the alleged dangerous condition, Richard B. Wallace, the building’s property manager, testified that he was never informed that there was any problem with the elevator control cabinet or that the transformers lacked a proper cover either by the DOB or by United despite the fact that both DOB and United conducted inspections of the ninth floor motor room. Philip A. Garcia, United’s president, testified that a cover was not required on the transformers because the transformers were in an enclosed cabinet. Further, Smith testified that if a transformer is in a cabinet, such as these transformers, the cabinet itself operates as the cover for the transformer, and that such a transformer does not have a separate cover over them. Additionally, Jon B. Halpern, defendants’ licensed professional engineer expert, inspected the accident site, and provided the following opinion: “Any suggestion that the building owners HWA 1290 and its elevator consultant United Elevator Consultants—neither of which had any experience in elevator component design— should have recognized the absence of a barrier over the transformers in the 1997 manufactured O’Thompson control cabinet as a hazard to the Schindler mechanic is unsupportable. . . . It is the recognized custom in the elevator industry for the building owners and their elevator consultants to look to the New York City Department of Buildings CNYCDOB’) for concluding the safety of the design of elevator equipment in service in NYC. When this elevator was modernized in 1997 with the O’Thompson controller the NYCDOB approved the installation and found no problems with its design.”
Indeed, Halpern noted that “ [i] ollowing [the] accident, . . . the inspector who investigated [the] accident for the City did not issue a violation for the design of this controller—which would have carried a ‘hazardous/cease use’ directive—but rather opined in deposition that this control cabinet was safe because it had a closeable cabinet to protect non-professionals from the electrical hazards inside.”
Finally, Halpern stated that “[t]he 1997 O’Thompson controller met all the applicable codes and standards,” that it “was safe,” and that further barriers separating the transformers from the other components were “not required under any applicable standards back in 1997 when the subject control cabinet was designed and manufactured.”
Plaintiffs have failed to raise an issue of fact concerning actual or constructive notice. They have not proffered any evidence that any complaints were made to defendants by the decedent, Melendez, or anyone else that the lack of covers over the transformers was dangerous, or that defendants should have known that the absence of such a cover was dangerous and was in violation of a statute, ordinance or regulation. Nonetheless, plaintiffs and the dissent rely on Olson for the proposition that the lack of a cover over the transformer violated American National Standards Institute (ANSI) and is evidence that defendants had notice of the dangerous condition. For the following reasons, such reliance, respectfully, is misplaced.
Olson relies on ANSI A 17.5, § 5.2, which states as follows: “Barriers shall be installed to prevent contact with live parts if inadvertent contact with bare live parts during normal service and adjustment operation is considered probable. Note: Troubleshooting or the replacement of fuses is not considered a normal service adjustment operation with respect to control equipment, but the resetting of overload devices, repeated adjustment of timers or switches, etc., are considered normal service operations.”
Olson’s reliance on ANSI is not proper. To begin, the Environmental Testing Labs, an independent tester/certifier of products in the elevator industry, certified the elevator control cabinet as complying with the ANSI requirements. Even if the elevator control cabinet did not comply with the above ANSI standard because the transformers did not have a cover, plaintiffs have failed to establish that defendants were required by law to comply with the above ANSI standard. Indeed, the above ANSI standard has not been adopted by or incorporated into New York City’s elevator code and ANSI itself is not a statute, ordinance or regulation. Thus, a violation thereof is not evidence of negligence (see Gonzalez v City of New York, 109 AD3d 510, 512 [2d Dept 2013] [ANSI standards do not constitute statutes, ordinances, or regulations and not proper evidentiarily in determining proper standard of care]).
The dissent also relies on Olson’s statement that United “inspected the #3 control cabinet on numerous occasions in the 2 years prior to March 28, 2012 and thus knew, or should have known, that the transformers lacked this safety cover at that time” and his opinion that “with a reasonable degree of technical certainty, . . . that if the transformer had a safety cover then [decedent] would not have been electrocuted.”
Olson’s statements are speculative and conclusory, and fail to raise an issue of fact as to defendants’ actual or constructive notice of the alleged dangerous condition. Further, Olsen’s opinion that had there been a cover on the transformer decedent would not have been electrocuted is pure speculation. Again, plaintiffs fail to point to any past complaints about the transformers, any time when the transformers or the cabinet did not pass inspection, or any industry-wide problems or issues with this type of cabinet and transformers that would provide actual or constructive notice of a dangerous condition.
Accordingly, the motion court should have granted defendants’ motion to dismiss the claims related to the lack of a cover over the transformers.
Concur—Andrias, Kern, Oing, JJ.