The following papers numbered 1 to24read on this motion by plaintiff for summary judgment in his favor pursuant to CPLR §3212; cross- motion by LSS Leasing LLC ("LSS"), Lefrak Organization, Inc. ("Lefrak"), Canfield Construction Corp. ("Canfield"), and MidState Management Corporation ("MidState") (collectively referred to herein as the "Lefrak defendants"), for summary judgment on their cross-claims for contribution, common-law and contractual indemnification from Rockledge Scaffold Corp. ("Rockledge"), and cross-motion by Rockledge for summary judgment in its favor pursuant to CPLR §3212.

Papers

Numbered

Notice of Motion - Affidavits - Exhibits........................................1 - 5

Notices of Cross Motions - Affidavits - Exhibits .........................6 - 16

Answering Affidavits - Exhibits....................................................17 - 22

Reply Affidavits.............................................................................23 - 24

Upon the foregoing papers it is ordered that the motion and cross motions are decided as follows: [*2]

Plaintiff in this negligence/labor law action seeks damages for personal injuries sustained on November 5, 2007, at 59-17 Junction Boulevard, in Queens, New York (premises), when the sidewalk bridge on which he was standing broke causing him to fall approximately ten to twelve feet to the concrete yard below. It is alleged that the wood plank of the sidewalk bridge on which plaintiff had been walking had deteriorated. At the time of the fall, plaintiff was working as a construction laborer performing construction, alteration, demolition, cleaning and/or pointing at the premises. LSS owns the property and Canfield was the general contractor for the project. Mid-State was the owner's agent on the job. At the time of the accident, Canfield had hired plaintiff's employer, ERC Restoration (ERC), to perform work involving replacing of the windows and restoring the facade of the twenty-story commercial building. Canfield had also hired Rockledge to install the sidewalk bridge/platform/scaffold. The sidewalk bridge was used as a scaffold/work platform/storage area/scaffold departure point.

Plaintiff moves for partial summary judgment on liability against all the defendants on his Labor Law § 240 (1) cause of action. Rockledge cross moves for summary judgment dismissing the complaint, arguing, inter alia, that it was not a person liable under Labor Law § 240 (1) and § 241 (6) since it was neither a contractor, an owner, nor an agent within the purview of the Labor Law. The Lefrak defendants also cross move for summary judgment on their cross claims for common-law and contractual indemnification from Rockledge.

Facts

Marc Burns ("Burns") testified, on behalf of LSS, as follows: Burns was employed by Mid-State and was responsible for the day-to-day operations of the building at the premises. On November 5, 2007, Burns was advised that one of the construction workers at the premises had been involved in an accident. When he arrived, he observed plaintiff lying on the sidewalk on his back. Burns testified that Canfield was hired by the building to oversee the construction work and that it was Canfield's responsibility to inspect the sidewalk bridge after it was completed. Burns was under the impression that Canfield approved the sidewalk bridge. Burn further clarified that the purpose of the sidewalk bridge was "to protect anyone walking underneath the facade as it was being worked on. . . The purpose of the bridge was not for tool storage or to be used as a lunch area for workers." After the accident, workers were instructed to stop walking along the roof of the sidewalk bridge.

Anthony Pemper ("Pemper") testified, on behalf of Canfield, to the following. Canfield was retained to perform a complete rehabilitation of the building. Pemper was the construction manager for the project. Canfield hired ERC to install spandrel glass and aluminum column covers. Rockledge was hired to install a sidewalk bridge. Pemper personally supervised the work of ERC. Pemper authorized payment to Rockledge after the sidewalk bridge was erected. The main purpose of the sidewalk bridge was to protect pedestrians.

Jeremiah Harrington, ("Harrington") on behalf of Rockledge, testified as follows: The sidewalk bridge was erected beginning on September 2, 2005 to prevent material from falling [*3]onto pedestrians who would be walking underneath it on the sidewalk. He was never advised as to the exact type of work being undertaken at the building and was only hired to erect a sidewalk bridge. Harrington was never made aware that a hanging scaffold would be rested on top of the sidewalk bridge. He further testified that netting was installed on the inside of the sidewalk bridge when it is not tied to the building to prevent material from bouncing out onto the sidewalk. The netting was on the underside of the sidewalk bridge to the ground. Harrington acknowledged that, on occasion, wooden planks could rot and consequently would be replaced, upon customer request. Harrington went to the site after the accident and observed changes to the sidewalk bridge, namely that wood had been removed from the sidewalk bridge and used to make tables which were sitting atop the sidewalk bridge. There was also a ladder going onto the sidewalk bridge which was also made out of planking which looked like the planking which had been removed from the sidewalk bridge. According to Harrington's deposition testimony, Rockledge erected the bridge beginning on September 2, 2005. It was not hired to maintain or repair the bridge during the course of the construction work or to supervise and control ERC's workers in their use of the bridge during the repair.

In his deposition, plaintiff testified that, at the time of the accident, ERC workers were cleaning up the construction debris from "cutting for the framing of the windows" and "perforating the walls of the building", which was described as "breaking the walls so large screws can be put in which are put in part of the frame." ERC was to replace all of the windows of the 20 floor building. Plaintiff had been working at the building installing the windows for a continuous year and four months before the accident happened. He was never told "to use any other type of safety equipment while [he was] actually on top of the bridge . . . [or] to use any harnesses or tie offs while [he] was on the sidewalk bridges." There would have been no place to tie off. When he arrived at work on the date of the accident, he gathered metal cutters and the harnesses his hard hat and tools, including a hammer, and brought them, in a shopping cart, toward where the bridge was, pursuant to his foreman's instructions. After sweeping and picking up materials which were on the ground and placing them in a garbage bag, plaintiff climbed the ladder to get on the top of the sidewalk bridge to access the garbage bags that were on top thereof. It was plaintiff's intention to bring the garbage bags located on top of the sidewalk bridge to the ground. After ascending the ladder and getting onto the sidewalk bridge, he obtained the empty bags which he intended to throw down to his co-worker. At the time of the incident, plaintiff weighed approximately 170 pounds, and the bags he was carrying weighed no more than three (3) pounds. The accident occurred when plaintiff "stopped to throw down the bags. [Lopez] put one foot in front of [him], and something broke and [he] fell" through the broken board onto the concrete approximately ten to twelve feet below. According to plaintiff, he and his crew used the sidewalk bridge as a staging area, and to keep tools, equipment and materials. The bridge was also used to enter onto ERC's scaffold, which was stored on the bridge, as were ERC's tools.

Rockledge's own structural design specifications, filed with the New York City Buildings Department ("Buildings Department"), show that the sidewalk bridge was to be a "heavy duty sidewalk bridge." The bridge was to comply with LL 33-91 and BSA No. 351-74-SM, and was [*4]required to be a "HEAVY DUTY LOADING TYPE (300 LB PER SQ. FT. CAPACITY). The heavy-duty sidewalk bridge erected by Rockledge failed to support 300 pounds per square foot.Also, the plans submitted to the Buildings Department called for a "corrugated steel deck" to be installed under the wood deck. Although corrugated steel decking was under portions of the wooden deck, it did not extend to the decking planks which stuck out in the area where the accident occurred. Furthermore, there is same evidence that Rockledge may have known or should have known that the bridge would be used by the workers as a scaffold/storage area or an area used for traversing by the workers, although this fact is disputed by Rockledge.

Discussion

Labor Law § 240 (1), commonly referred to as the "scaffold law" (Gordon v Eastern Ry. Supply, 82 NY2d 555, 559 [1993]), insofar as pertinent, states:

"All contractors and owners . . . in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or a 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."

As against the Lefrak defendants, plaintiff makes out a prima facie case of liability under Labor Law § 240 (1) by the fact that the wood planks of a sidewalk bridge collapsed as he walked on it, causing him to fall and sustain injuries (see, Jablonski v Everest Constr. & Trade Corp., 264 AD2d 381 [1999]; Ageitos v Chatham Towers, 256 AD2d 156 [1998]; Birbilis v Rapp, 205 AD2d 569 [1994]). The fee owner of the building was defendant LSS. Defendant Mid State Management Corporation was in charge of the repair being done on the building, and Canfield hired ERC and paid for the work and was responsible for inspecting the bridge after its installation. Thus, for purposes of Labor Law § 240 (1), these Lefrak defendants are all considered "owners" and are therefore liable for any statutory violation.

No issues of fact exist as to whether plaintiff was authorized to use the sidewalk bridge or [*5]whether his conduct was the sole proximate cause of the accident (see Morales v Spring Scaffolding, Inc., 24 AD3d 42, 48-49 [2005]). That the Lefrak defendants and Rockledge may have had an understanding that the bridge was meant only to protect pedestrians and workers on the ground level from falling debris, and was not to be used as a work platform, does not undermine plaintiff's showing that the Lefrak defendants knew from the outset that the bridge would be used by workers to access scaffolds.

However, plaintiff fails to make out a prima facie case of liability under Labor Law §240(1) against defendant Rockledge. Rockledge, hired by Canfield to erect a sidewalk bridge prior to the start of construction, is neither a contractor nor an owner. Nor is it an agent of an owner or contractor because, not being permanently present at the construction site and lacked the ability to control the workplace. Thus, Rockledge is not subject to the Labor Law (see Russin v Louis N. Picciano & Son, 54 NY2d 311 [1981]). As Russin held:

"Although sections 240 and 241 now make nondelegable the duty of an owner or general contractor to conform to the requirement of those sections, the duties themselves may in fact be delegated. When the work giving rise to these duties has been delegated to a third party, that third party then obtains the concomitant authority to supervise and control that work and becomes a statutory agent' of the owner or general contractor. Only upon obtaining the authority to supervise and control does the third party fall within the class of those having nondelegable liability as an agent' under sections 240 and 241. To hold otherwise and impose a nondelegable duty upon each contractor for all injuries occurring on a job site and thereby make each contractor an insurer for all workers regardless of the ability to direct, supervise and control those workers would lead to improbable and unjust results and would directly contravene the express legislative history accompanying the 1969 amendments to these provisions" (id. at 317-318 [citations omitted]; see also Kopacz v Airco Carbon, Div. of Airco, Inc., 104 AD2d 722 [1984]).

Plaintiff's common-law negligence claim and its statutory counterpart, Labor Law

§ 200, against Rockledge are properly sustained, there being issues of fact as to whether the bridge, which appears not to have been built to code, was negligently constructed and whether it was foreseeable that workers would use it (see Espinal v Melville Snow Contrs., 98 NY2d 136, 139-141 [2002]). If, as Rockledge acknowledges, the bridge was partly meant to protect [*6]pedestrians from falling tools, it must have been anticipated that tools would fall from the bridge, and that workers would walk on the bridge, including the overhang, to retrieve the tools. Further, as the record shows, there is evidence that the bridge violated Rockledge's own design specifications submitted to the Buildings Department, which called for a "Heavy Duty Sidewalk Bridge " intended to have a "300 PSF [pounds per square foot] Live Load" capacity, and required steel under beams. Rockledge also violated Industrial Code (12 NYCRR) 23-1.11 titled "Lumber and nail fastenings" Industrial Code 23-1.11 (a), provides:

The lumber used in the construction of equipment or temporary structures

required by this Part (rule) shall be sound and shall not contain any defects such as ring shakes, large or loose knots or other defects which may impair the strength of such lumber for the purpose for which its is to be used.

"Every sidewalk shed shall be designed and constructed to carry a live load of

at least three hundred psf (pounds per square foot). However a live load of one-hundred fifty psf may be permitted for buildings less than one hundred feet in height provided there is no storage thereon."

That branch of the cross-motion by the Lefrak defendants which is for contribution from Rockledge is conditionally granted upon a find of liability against defendant Rockledge (see Linares v United Management Corp., 16 AD3d 382 [2005]; Sutherland v Hallen Constr. Co., 183 AD2d 887 [1992]). The Lefrak defendants are not entitled to summary judgment on their contractual indemnification claims, there being issues as to whether they were negligent, and, if so, contributed to the accident (see Mannino v J.A. Jones Constr. Group, LLC, 16 AD3d 235 [2005]). Since it has not yet been determined whether any party's negligence contributed to the accident, a finding of common-law indemnity is premature (see Taylor v Lehr Constr. Corp., 15 AD3d 242 [2005]; Reilly v DiGiacomo & Son, 261 AD2d 318 [1999]).

Conclusion

The motion by plaintiff for summary judgment as against the Lefrak defendants pursuant to Labor Law §240 (1), is granted.

The branches of the cross-motion by Rockledge which are to dismiss plaintiff's claims pursuant to Labor Law §§240 (1) and 241 (6), are granted. The branch of the cross-motion by Rockledge which is to dismiss plaintiff's claim pursuant to Labor Law §200 and common law negligence is denied.

The branch of the cross-motion by the Lefrak defendants which is for contribution from Rockledge is granted. The branch of the motion by the Lefrak defendants for summary judgment [*7]on their cross claim for contractual indemnification is denied on the merits. The branch of the motion by the Lefrak defendants which is for common law indemnification is denied, without prejudice, as premature.

Dated: January 9, 2012___________________________

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