[*1]
Toney v Raichoudhury
2012 NY Slip Op 51154(U) [36 Misc 3d 1202(A)]
Decided on June 25, 2012
Supreme Court, Kings County
Silber, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on June 25, 2012
Supreme Court, Kings County


Shelia Toney, as Administratrix of the estate of Erwin Toney, Plaintiff,

against

Rajesh Raichoudhury, Remodeling by Arthur W. Lee, and J.L. Berkowitz & Co., L.L.C., Defendants.




167/08



Sacks & Sacks, LLP

150 Broadway, 4th Floor

New York, New York 10038

Attorneys for Plaintiff

The Law Offices of Edward Garfinkel

12 Metrotech Center, 28th Floor Brooklyn, New York 11201

Attorneys for M & M Metals

Kral Clerkin Redmond Ryan Perry & Van Etten, LLP

170 Broadway, Suite 500

New York, New York 10038

Attorneys for Remodeling by Lee

Debra Silber, J.



Third-party defendant M & M Metals, Inc. (M & M) moves for an order, pursuant to CPLR 3212, dismissing plaintiff's entire complaint and the third-party complaint.

Defendant/third-party plaintiff Remodeling By Arthur W. Lee (Lee Remodeling) also moves for an order, pursuant to CPLR 3212, dismissing the complaint, as well as any counterclaims by the third-party defendant in its answer to the third-party complaint, or, in the alternative, granting it summary judgment on its common-law indemnification and contribution claims against M & M.

FACTS AND PROCEDURAL HISTORY


This is an action for wrongful death, negligence and Labor Law violations brought on behalf of the heirs and estate of decedent, Erwin Toney (Toney or decedent). Toney was among the employees working for M & M, on a job to remodel a private residence located at 6 Wildwood Court in Lattingtown, New York (the subject premises). The subject premises was owned by defendant Rajesh Raichoudhury (Raichoudhury),[FN1] who retained defendant/third-party plaintiff Lee Remodeling as construction manager and/or general contractor for the project. Lee Remodeling, in turn, retained M & M to perform certain work on the project, including the installation of curtain wall framing and glass ("glazing"). Michael Collins (Collins) from Lee Remodeling was a carpenter and a foreman for the work site.

On January 9, 2006, at the time of his fatal accident, Toney was working with M & M employees Thomas Mantello (Mantello) and Mantello's son, Thomas J. Mantello Jr. (Mantello Jr.) to unload six wooden crates of double-insulated thermal glass which had just been delivered to the work site. The delivery of the crates was made by defendant J. E. Berkowitz, L.P. (Berkowitz).[FN2] Berkowitz delivered the crates to the work site on a flatbed trailer truck, which was parked on the public street in front of the residence. The cab of said truck was equipped with a crane, which was used to move the crates, one by [*2]one, to the driveway from the delivery truck. Photos of the truck and the driveway are included in plaintiff's papers in opposition to the motion.

To facilitate installation of the glass, the workers staged the crates, each containing multiple plates of glass, in a manner such that, when the crates were opened, the plates of glass would not fall out and the top glass sheet could be readily accessed. The workers would place two crates upright and parallel to each other on the driveway, then tilt them towards each other until the tops of the crates touched and supported each other, forming the letter "A." They would then use a screw gun to screw two wooden braces to the wooden crates, one on each side the pair, to form an "A", which braces served as crossbars to hold the crates in place. Based on the Occupational Safety and Health Administration (OSHA) accident investigation report, and the Fatality Assessment and Control Evaluation (FACE) report by the New York State Department of Health (annexed as Exhibits 2 and 3, respectively, to plaintiff's opposition papers), the larger crate involved in the accident measured 117" by 78" and weighed 1,943 pounds, and the smaller crate measured 110" by 78" and weighed 1,859 pounds.

The workers had already unloaded and placed or staged four of the crates and were in the process of unloading the last two crates when the accident occurred. As Mantello Jr. and Toney were tilting the crates towards each other, and Mantello was attempting to secure the horizontal braces on the "A," one of the crates began to shift, causing both crates to fall. The first falling crate fatally crushed Toney, who passed away several hours later. Neither crate was attached to the crane at the time of the accident. According to Mantello's affidavit and deposition testimony, Toney had left his position to the side of the crates and walked in front of the crates to "adjust" the crate that was "off." Mantello stated that he suspected that the toes of Toney's boots had become trapped under the crate as it moved towards him, which prevented him from being able to avoid the falling crate. There is no dispute that at the time the crates fell, they were not secured to each other with braces, they were no longer attached to the crane, and no "chocks" were placed on the ground to prevent them from tilting outward before the braces were secured. Plaintiff's papers in opposition include many photos of the crates, the truck, the braces and the location.

Plaintiff commenced this action against Raichoudhury, Lee Remodeling, and Berkowitz on or about January 3, 2008, alleging causes of action under Labor Law §§ 240 (1), 241 (6), and 200, as well as common-law negligence as well as wrongful death. In addition, plaintiff's widow asserts a derivative cause of action for loss of services. In the Bill of Particulars, plaintiff alleges that defendants' negligence consisted of the improper placement, construction, operation, packaging, delivery, and maintenance of the glass panels which fell on plaintiff and resulted in his demise, and that violations of the Labor Law occurred as a result of their failure to provide plaintiff with the proper safety devices to prevent him from injury caused by a height differential, and provide straps, chains or other devices to properly secure the crate. Plaintiff's Section 241 (6) [*3]claim is based on alleged violations of Industrial Code sections 23-1.5 through 23-1.7, 23-1.10, 23-1.15, 23-1.16, 23-2, 23-2.3, and 23-5.0 through 23-9.0.

Plaintiff filed a Note of Issue on or about December 29, 2009, certifying that all discovery in the case was complete, but by order dated March 3, 2010, the court vacated that Note of Issue following defendants' motion to strike. Plaintiff re-filed the Note of Issue on September 7, 2010. Then, by order dated December 16, 2010, the Note of Issue was again stricken as disclosure was admitted to be incomplete. The Note of Issue was filed again April 10, 2012, and the case is now on the trial calendar. These motions were timely made under the second Note of Issue. They were adjourned many times before they were argued and submitted, in part for the preparation and submission of a sur-reply and sur-sur reply.

THE PARTIES' CONTENTIONS


Third-party defendant M & M moves for summary judgment dismissing the third-party action. They argue that Labor Law § 240 (1) does not apply to the instant facts because the falling crates involved in the accident were located at the same level as the work site and did not constitute an elevation-related risk. It also maintains that the Industrial Code provisions on which plaintiff's Labor Law § 241 (6) claim is based are not applicable or specific enough to support a claim under the statute. Finally, M & M contends that defendant and third-party plaintiff Lee Remodeling cannot be held liable under Labor Law § 200 or common-law negligence because there is no evidence that anyone other than M & M had any notice of or any supervision or control over the work that was being performed at the time of the accident, so there cannot be a third-party action for indemnification of Lee Remodeling for these causes of action.

Lee Remodeling also moves for summary judgment dismissing the plaintiff's compliant against it. They also argue that Labor Law § 240 (1) is inapplicable because Toney was located at ground level when the accident occurred, the two crates at issue were on the ground, and no appreciable height differential was involved. Defendant next claims that the alleged Industrial Code violations on which plaintiff's Section 241 (6) claim is based are either too general to support a cause of action or inapplicable to the facts at hand. Lee Remodeling then argues that Labor Law § 200 and the common-law negligence claims should be dismissed because Lee Remodeling did not supervise, direct or control any of the work performed by M & M or decedent. Additionally, defendant asserts that, as reflected in Mantello's affidavit as well as the affidavit of Michael Lee, the Vice President of Lee Remodeling, who acted as project manager for the work site, M & M was not even scheduled to be working on the date of the incident, and Lee Remodeling was not responsible for supervising, directing or controlling its work. Lee Remodeling also relies on Mantello's statement that the crate-staging work being performed at the time of decedent's accident followed the standard methods, customs and practices within the [*4]industry, and maintains that there was no notice to it of any defective condition or dangerous activity taking place.

Defendant also contends that the contract between property owner Raichowdhury and Lee Remodeling does not require any contractual or common-law indemnification by Lee Remodeling, and further argues that, in the event summary judgment is denied, it is entitled to common-law contribution and indemnification from M & M.

Finally, defendant seeks to recover attorneys' fees, because M & M alone supervised, controlled, and directed the work, and requests a hearing to determine a reasonable sum for its defense costs.

In opposition to both summary judgment motions, plaintiff submits the OSHA investigative report of the accident, the accident report created by the Nassau County Police Department in connection with Toney's death, statements in support of the police report by Mantello and Collins, and the affidavit of Daniel O'Brien (O'Brien), an experienced ironworker, foreman and rigger. He states that he has had 25 years of experience in the installation of curtain-wall glass. Plaintiff urges the court to conclude that, under relevant recent case law, including Wilinski v 334 E. 92nd House Dev. Fund Corp. (18 NY3d 1 [2011]), it is irrelevant whether a falling load or object is at the same level as the worker. Plaintiff further argues that defendants violated Labor Law § 240 (1) because the crates in question were inadequately secured, due to defendants' failure to brace and "chock" them while they were still attached to the crane and cable line.[FN3] With respect to Section 241 (6), plaintiff contends that the moving defendants have not met their burden of proving that they did not violate the Industrial Code Sections alleged in their Bill of Particulars. Specifically, plaintiff asserts, the facts demonstrate a violation of Industrial Code section 23-2.1 (a).

In partial opposition to Lee Remodeling's summary judgment motion, M & M supports Lee Remodeling's arguments relating to dismissal of the underlying complaint, but contends that common-law indemnity and an award of attorneys' fees against M & M are unwarranted because Lee Remodeling fails to demonstrate that M & M, the proposed indemnitor, was guilty of some negligence that contributed to the accident. It cites Mantello's affidavit stating that the manner in which the crates were stacked was a standard method, custom and practice within the window/glass installation industry, and claims OSHA's investigative report suggests this as well. M & M also avers that such relief would be premature in any event, because questions of fact exist as to whether M & M was in any way negligent.

In reply to their motion, M & M argues that Section 240 (1) is not applicable because no "physically significant elevation differential" was present, as both crates were resting on the ground when they fell. It also contends that, contrary to plaintiff's [*5]assertions, no triable issues of fact exist because the OSHA investigation did not result in any violations or citations regarding this incident. M & M further highlights the OSHA investigative report which indicates that OSHA contacted other glass installation companies who reported that it was an accepted practice to assemble multiple crates by tilting them towards each other and fastening supportive braces to form an "A."[FN4] Third-party defendant M & M then challenges O'Brien's affidavit because it does not state that O'Brien had ever performed any work similar to what Toney and his coworkers were doing at the time of the accident. With respect to the Labor Law § 241 (6) claim, M & M argues that Section 23-2.1 (a) (Storage of material or equipment) is inapplicable because Toney was injured while the crates were actively being unloaded, not "stored," and the driveway where the accident occurred was not a "storage area" at the work site nor a "thoroughfare" under the provision.

In its reply papers, Lee Remodeling submits deposition transcripts of various additional witnesses, as only one witness had been deposed at the time the initial summary judgment motion was served. Defendant further avers that the O'Brien "expert" affidavit submitted by plaintiff should not be considered because it was untimely provided, and further asserts that the witness does not set forth his qualifications as an expert or lay a foundation for his opinion.[FN5] Lee Remodeling then argues that plaintiff was unable to specify what type of protective devices could have been used to secure the crates, and that, unlike the falling pipes in Wilinski, the crates herein did not fall from a substantial height. Defendant also contends that plaintiff's reliance on Industrial Code section 23-2.1 (a) to support the Labor Law § 241 (6) claim is misplaced, as no passageway, walkway, stairway or other thoroughfare was present, and because the crates were in the process of being unloaded, rather than stored, at the time of the accident. Regarding the Labor Law § 200 and common-law negligence claims, defendant highlights deposition testimony from Mantello and Collins in support of its argument that M & M only, and not Lee Remodeling, was responsible for supervising the unloading and stacking of the crates from the delivery truck.

Defendant Lee Remodeling also points out that plaintiff did not oppose dismissal of the Labor Law § 200 and common-law negligence claims. Finally, defendant argues that any liability on its part would merely be vicarious, and emphasizes that, on the date of the accident, M & M was on the work site solely for the purpose of taking the delivery, [*6]and that Lee Remodeling was not expecting a delivery on that date. It avers that it had asked M & M to refrain from taking the delivery on that date because it did not have the funds to pay M & M, and that its understanding was that M & M had agreed to delay the delivery. It adds that, at the time of the delivery, Collins, as foreman of the worksite, was working at a different part of the house and did not see M & M and Berkowitz arrive. According to defendant, Collins was not present to give M & M permission to unload the glass nor did he give them any instructions.

Plaintiff submits a sur-reply, which the court granted permission for,[FN6] urging the court to grant plaintiff summary judgment under Section 240 (1) upon a search of the record, arguing that Wilinski does in fact extend to workers injured by falling objects at a construction site, even if the falling object was "on the same level as the plaintiff," and that the cases cited by the defendant and the third-party defendant pre-date Wilinski.Plaintiff contends that the accident was gravity-related and that the height differential was not de minimis because the crates measured 117" and 110" tall, respectively, or between nine and ten feet when erect (slightly less when tilted at an angle to form an "A"), and the tops of the crates extended well above Toney, who was 5'9" tall. Furthermore, plaintiff argues that the facts in Runner v New York Stock Exchange, Inc. (13 NY3d 599 [2009]) are analogous to those in the instant case because, like the plaintiff therein who was injured by a failed attempt to lower a 800-pound reel down a set of four steps, Toney was injured by two heavy crates weighing nearly 2000 pounds each. Additionally, plaintiff notes the inconsistent deposition testimony of Mantello, who believed that the crates had been secured by a single two by four at the time they fell, and Lee, who had been told by Collins that a piece of cedar was being used as the "angle brace to hold the skid that fell off," and further asserts that neither object, if either in fact was used, served to adequately secure the crates. Plaintiff also maintains that O'Brien's affidavit is adequate to demonstrate the violation of a statutory mandate and that O'Brien, as an experienced ornamental ironworker, is qualified to opine on whether the crates were adequately secured. Finally, plaintiff contests dismissal of the Labor Law § 241 (6) claim, based on evidence that the crates were not stored in a safe and orderly manner under Industrial Code section 23-2.1 (a).

In its sur-sur-reply, which the court also granted permission for,[FN7] Lee Remodeling maintains that Wilinski does not apply. First, defendant avers that plaintiff misleadingly states that the height of the crates was between nine and ten feet, failing to mention that the crates had been tilted on their longer sides at the time of the accident and were essentially the same height as the workers. Lee Remodeling also indicates that M & M had denied that the bracing was inadequate, that OSHA found that no standard applied for [*7]the type of work performed, and that M & M did not violate any statutes or engage in any unsafe practices. Defendant objects to plaintiff's characterization of the wood which was claimed to have been utilized for bracing, and also notes that the truck did not fit into the driveway and it's crane thus could not reach the area where the crates were being placed.[FN8] Finally, it argues that Wilinski and Runner both involved a height differential which created a significant amount of force based on the effect of gravity, and that they are factually inapplicable because no height differential existed here.

DISCUSSION


(a) Labor Law § 240 (1) Claim


The court finds that both defendant and third-party defendant fail to make a showing that decedent's accident was not proximately caused by a failure to provide adequate safety devices to protect against a risk arising from a significant height differential and the effects of gravity that results therefrom.

Labor Law § 240 (1), commonly called the "Scaffolding Law," provides in pertinent part that:
"All contractors and owners and their agents . . . 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 . . . and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed."


The statute imposes a non-delegable duty upon owners, contractors, and their agents to provide adequate safety measures at the work site and is liberally construed to accomplish its purpose of placing the ultimate responsibility for safety practices on the owner and general contractor rather than on individual workers who are "scarcely in a position to protect themselves from accident" (Zimmer v Chemung County Performing Arts, 65 NY2d 513, 520 [1985] [internal quotation marks and citation omitted], rearg denied 65 NY2d 1054 [1985]). This duty is "nondelegable and . . . an owner [or general contractor] is liable for a violation of the section even though the job was performed by an independent contractor over which it exercised no supervision or control" (see Gordon v Eastern Ry. Supply, 82 NY2d 555, 559 [1993] [internal quotation marks and citation omitted]).

Building owners and general contractors under this provision are thus absolutely [*8]liable when a violation of Section 240 (1) proximately causes a worker's injuries attributable to falls from ladders, scaffolding, or other elevation related devices that do not provide proper protection against such "harm directly flowing from the application of the force of gravity to an object or person" (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [1993] [internal quotation marks and citation omitted]). Liability under Section 240 (1) requires risks to the plaintiff not from ordinary construction hazards but from "the relative elevation at which the task must be performed or at which materials or loads must be positioned or secured" (Rocovich v Consolidated Edison Co., 78 NY2d 509, 514 [1991]). A plaintiff thus must prove that the statute was violated and that the violation was a proximate cause of the injuries sustained (see Camilca v Hansson, 40 AD3d 796, 797 [2007]; Zimmer, 65 NY2d at 519).

It is well-settled that a plaintiff cannot prevail on a summary judgment motion for liability under Labor Law § 240 (1) if a jury could find that defendant's violation was not a proximate cause of the plaintiff's accident (see Zimmer, 65 NY2d at 524). Summary judgment must also be denied when there are factual questions as to whether a plaintiff's own actions were the sole proximate cause of the accident (see Weininger v Hagedorn & Co., 91 NY2d 958, 960 [1998], rearg denied 92 NY2d 875 [1998]; see also Blake v Neighborhood Hous. Servs. of NY City, 1 NY3d 280, 290 [2003]). Proximate cause is established only where a "defendant's act or failure to act as the statute requires was a substantial cause of the events which produced the plaintiff's injuries" (Gordon, 82 NY2d at 561-562 [internal quotation marks and citation omitted]; Ekere v Airmont Indus. Park, 249 AD2d 104, 105 [1998]; Rodriguez v Forest City Jay St. Assoc., 234 AD2d 68, 69 [1996]). Additionally, although a plaintiff's alleged contributory or comparative negligence is not a defense to absolute liability under Labor Law § 240 (1) (see Zimmer, 65 NY2d at 521), such a cause of action will not stand where the plaintiff's own conduct was the sole proximate cause of his or her injuries (see Blake, 1 NY3d at 289-290; see also Tweedy v Roman Catholic Church of Our Lady of Victory, 232 AD2d 630, 630 [1996], lv denied 90 NY2d 810 [1997]).

Applying these principles to this "falling object" case, "the single decisive question is whether [Toney's] injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential" (Runner v New York Stock Exch., Inc., 13 NY3d 599, 603 [2009]). Plaintiff alleges that the accident was proximately caused by defendant's failure to brace and chock the crates while they were still attached to the crane and cable line, or to otherwise adequately secure the crates. Lee Remodeling and M & M argue that Toney's accident was not elevation or gravity-related because Toney and the crates which fell on him were located at the same level, and because no "physically significant height differential" was present.

The case law cited by Lee Remodeling and M & M, including Misseritti v Mark IV Constr. Co. (86 NY2d 487 [1995]), pre-dates Wilinski, and cannot support dismissal of [*9]the Labor Law § 240 (1) claim. In Wilinski, the plaintiff was injured when a nearby wall that was being demolished fell into two 10-foot-high unsecured metal pipes, causing them to topple onto him. The Court of Appeals therein denied summary judgment to both parties, holding that an issue of fact existed as to whether the worker's injury resulted from the absence of a safety device statutorily prescribed under Labor Law § 240 (1). The court also rejected the categorical denial of recovery under Labor Law § 240 (1) for injuries caused by falling objects located on the same level as plaintiff, which had been the approach of some courts interpreting Misseritti. Similarly herein, the court cannot grant summary judgment to defendant based solely on the fact that the crates were resting on the ground on which Toney was standing at the time of the accident.

The court also rejects Lee Remodeling and M & M's contentions that Labor Law § 240 (1) does not apply because the crates did not fall an appreciable distance before striking Toney. The parties dispute whether the crates were laid lengthwise or with their shorter side touching the ground. Mr. T. Mantello testified that the longer sides were on the ground (EBT page 72). As reflected in the record, the subject crates measured 78" (or 6'6") by 117" (or 9'9") and 78" by 110" (or 9'2"). Defendant and third-party defendant rely on the OSHA investigative report to argue that the crates were laid lengthwise, with their short sides extending 78" (or 6'6") vertically, and that the crates were barely taller than decedent, who was 5'9" tall (or 69", according to the autopsy report annexed to plaintiff's sur-reply). However, OSHA was not on the scene immediately, although they did come the same day, and other witnesses claim the shorter sides were resting on the ground, and the crates were thus some nine feet tall. See affirmation of Scott Singer, Sur-Reply Paragraph 8. However, the determination that 240(1) was violated does not rest on this issue, so whether the unsecured 4,000 pounds of glass were 6' 6" or 9' 9" tall is of no consequence. These huge and heavy crates were left in the driveway, 6" apart according to Mr. Mantello's affidavit (Exhibit E to the motion) and leaned towards each other, then braced. No A frame on wheels was used, as OSHA recommended, and no chocks were placed before the crane was removed. This constitutes a violation of Labor Law 240(1). Placing 4000 pounds of material in motion by tilting, with no equipment to secure it, is clearly creating a risk from the effects of gravity.

As the workers' intention was to position the glass for installation with the least effort or change in position, it is clear to the court, after reviewing the testimony, that since the glass was to be vertical after installation, the crates would have been placed vertically and not horizontally, as was assumed by OSHA. After all, each sheet of glass weighed approximately 400 pounds, if one credits the testimony that there were five sheet per crate, and approximately 300 pounds each if there were seven sheets per crate.

Defendant and third-party defendant argue that Wilinski is inapposite because, whereas the pipes in Wilinski fell at least four feet before striking the plaintiff, here, the crates which fell on Toney were at most nine inches taller than him.

Although courts have found that no elevation-related risk exists where the object [*10]falls from a "minuscule height" (see e.g. Cambry v Lincoln Gardens, 50 AD3d 1081 [2008]; Perron v Hendrickson/Scalamandre/Posillico (TV), 22 AD3d 731 [2005]), an "elevation differential . . . cannot be viewed as de minimis [when one considers] the weight of the object and the amount of force it [is] capable of generating, even over the course of a relatively short descent" (Runner, 13 NY3d at 605; see also Wilinski, 18 NY3d at 10). Moreover, "[t]he sufficiency of an elevation differential and a fall from a height for purposes of [liability under the scaffolding law] cannot be reduced to a numerical bright-line test or an automatic minimum/maximum quantification" (Mann v Meridian Ctr. Assoc., LLC, 17 AD3d 1143, 1144 [2005], quoting Amo v Little Rapids Corp., 301 AD2d 698, 701 [2003]). In this regard, courts have found injuries to be within the purview of Section 240 (1) when caused by: an assembled scaffold carrying 450 to 550 pounds of equipment which broke and fell forward onto the plaintiff (McCallister v 200 Park, 92 AD3d 927 [2d Dept 2012]); a one-ton concrete slab which fell three or four feet while being lowered (Harris v City of New York, 83 AD3d 104 [1st Dept 2011]); a 300-pound motor which fell three feet while workers were attaching it to a pipe (Pritchard v Tully Constr. Co., Inc., 82 AD3d 730 [2d Dept 2011]); and a 1300-pound rail which fell 12 to 16 inches while being lifted by workers (Gutman v City of New York, 78 AD3d 886 [2d Dept 2010]).

Following this reasoning, the distance which the crates fell before hitting decedent cannot be described as "de minimis" in light of the crates' substantial weight (nearly a ton each) and the considerable force they were capable of generating (Wilinski, 18 NY3d at 10; Runner, 13 NY3d at 605). Lee Remodeling and M & M thus fail to meet their prima facie burden of establishing that the crates did not present an elevation-related risk inherent in the work being performed or that Labor Law § 240 (1) is not applicable to the instant facts. Insofar as they present Mantello's affidavit and deposition testimony stating that Toney stepped in front of one of the crates to adjust its position, such evidence is insufficient to demonstrate that Toney's actions constituted the sole proximate cause of the accident, in the absence of adequate safety devices to secure these exceedingly heavy crates, and does not warrant summary judgment in their favor (see Serrano v Popovic, 91 AD3d 626 [2012] [where worker's decision to climb onto roof of main house was sole proximate cause of his injuries, given the lack of safety equipment on the main roof and the fact that worker had been instructed to work only on garage roof]). As movants have both failed to sustain their prima facie burden, it is unnecessary to consider the sufficiency of plaintiff's opposition papers (see Shay v Mozer, Inc., 80 AD3d 687, 688 [2011]). The court concludes that decedent's accident resulted from the type of gravity-related hazard that the statute was designed to protect against and was indeed within the scope of Labor Law § 240 (1). Accordingly, plaintiff's Section 240 (1) claim survives dismissal.

Further, the court finds that plaintiff was not the sole proximate cause of his injuries, and therefore, after consideration of plaintiff's papers and a search of the record, [*11]exercises its discretion pursuant to CPLR 3212(f) and grants plaintiff summary judgment on his Labor Law § 240(1) claim. See Henningham v Highbridge Community Hous. Dev. Fund Corp., 91 AD3d 521 (1st Dept 2012); Schaeffer v Goldman Sachs Headquarters LLC, 2012 NY Slip Op 30753U (Sup Ct NY Co).

"[T]he Labor Law does not require a plaintiff to have acted in a manner that is completely free from negligence'" (Kielar v Metropolitan Museum of Art, 55 AD3d 456, 458, [1st Dept 2008][citations omitted]). It is well-settled that once a plaintiff has established that a violation of the statute is a proximate cause of his injury, the worker's "contributory negligence is not a defense to a Section 240 (1) claim." Ernish v City of New York, 2 AD3d 256, 257 [1st Dept 2003]; see also Tavarez v Weissman, 297 AD2d 245, 247, [1st Dept 2002]. Furthermore, "[I]f a statutory violation is a proximate cause of an injury, the plaintiff cannot be solely to blame for it" Blake v Neighborhood Hous. Servs. of NY City, 1 NY3d 280, 290, 803 N.E.2d 757, 771 NYS2d 484 [2003]. The court finds that plaintiff has established that the violation of Labor Law § 240(1) was the proximate cause of his injury, that the crates were not properly secured (or braced/chocked) before the crane line was released, and that the falling crates are within the purview of 240(1) due to their size and weight, as discussed above.

(b) Labor Law § 241 (6) Claim


Defendant and third-party defendant have met their burden of showing that none of the Industrial Code regulations alleged to have been violated are sufficient to support a Labor Law § 241 (6) cause of action.

Labor Law § 241 (6) provides in pertinent part that:
"All 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 statute, enacted to provide workers engaged in construction, demolition, and excavation work with reasonable and adequate safety protections, places a non-delegable duty upon owners and contractors to comply with the specific safety regulations set forth in the New York State Industrial Code regulations (12 NYCRR § 23 et seq) (Ross, 81 NY2d at 501-502). Thus, a plaintiff supports a Labor Law § 241 (6) cause of action by demonstrating that his or her injuries were proximately caused by a violation of an Industrial Code rule applicable to the circumstances of the accident which sets forth a concrete standard of conduct rather than a mere reiteration of common-law principles (Ross, 81 NY2d at 502; Ares v State of New York, 80 NY2d 959, 960 [1992]; see also Adams v Glass Fab, 212 AD2d 972, 973 [1995]). [*12]

The court agrees that all of the Industrial Code regulations alleged to have been violated are indeed too general to support a cause of action (Industrial Code section 23-1.5) (see McNabb v Oot Bros., Inc., 64 AD3d 1237, 1239 [2009]) or are inapplicable to the facts herein (Industrial Code sections 23-1.6 [employees' responsibilities], 1.7 [overhead, falling, drowning, slipping, tripping hazards, vertical passage, air- contaminated or oxygen deficient work areas, corrosive substances], 1.10 [hand tools], 1.15 [safety railings], 1.16 [safety belts, harnesses, tail lines, lifelines], 2.3 [structural steel assembly], 2.5 [scaffolds], 2.6 [material hoists], 2.7 [personnel hoists], 2.8 [cranes and derricks], and 2.9 [power-operated equipment]). The court also notes that any alleged violations of OSHA regulations do not provide a basis for liability under Section 241 (6) (see Shaw v RPA Assoc., 75 AD3d 634 [2010]; Cun-En Lin v Holy Family Monuments, 18 AD3d 800 [2005]).

In fact, plaintiff challenges dismissal of the Labor Law § 241 (6) only as premised on a violation of Industrial Code section 23-2.1 (a) regarding storage of material or equipment. Industrial Code regulation 23-2.1 (a) provides, in pertinent part: "All building materials shall be stored in a safe and orderly manner. Material piles shall be stable under all conditions and so located that they do not obstruct any passageway, walkway, stairway or other thoroughfare." The parties dispute whether the provision is applicable, as plaintiff asserts that the building materials were not "stored in a safe and orderly manner" and "material piles" were not placed so as to be "stable under all conditions," while defendants and third-party defendant claim that the crates which fell on Toney were being actively unloaded and stacked rather than "stored." The court finds this section does not apply to the facts of this case because the crates were not being stored on the driveway, but were instead being unloaded from a delivery truck, the glass shortly to be placed on the building, one sheet at a time. The crates did not constitute "material piles" located in any thoroughfare (see Ryan v Freidman Decorating Co., 2005 WL 1802861 [SDNY 2005], citing Castillo v Starrett City, Inc., 4 AD3d 320, 321 [2004] [Industrial Code section 23-2.1 (a) (1) found inapplicable because material that caused the plaintiff to fall was not being "stored" but was in use]; McCombs v Cimato Enter., Inc., 20 AD3d 883, 884-885 [2005] [Industrial Code section 23-2.1 (a) (2) did not apply because plaintiff not injured by material or equipment "placed or stored," but rather "by concrete block that was being unloaded directly from a delivery truck into the trench"]).

Additionally, it is clear that alleged violations of OSHA standards cannot form the basis for liability under the statute (see Cun-En Lin, 18 AD3d at 802). In its investigative report, OSHA concluded that defendants and third-party defendant did not any violate any OSHA regulations, declined to issue any citations, and determined that it was not appropriate to invoke the general duty clause under the Occupational Safety and Health Act. However, they made several prudent recommendations to protect against the hazard of being crushed by falling crates of glass panes that are to be tilted for easy removal. [*13]Those recommendations were:

1) Ensure that a crane is used to stage large and heavy crates of glass and keep the crates attached to the crane until they are stabilized and chocked;

2) Ensure that the employees always chock and brace the tilted crates to prevent them from kicking back and collapsing;

3) Conduct a job hazard analysis during the planning phase of a glass installation project to identify potential hazards and develop and implement appropriate control measures to protect workers; and

4) Develop written standard operating procedures (SOP) for the safe handling and staging of glass crates and provide employee training and supervision.

Although staging the crates in an "A"formation is a common practice in the glass installation industry, the existing provisions of the New York State Industrial Code do not contemplate the risks posed by this manner of positioning such crates. In light of the OSHA findings and recommendations for safer, better practices, the court stresses the need for the New York State Commissioner of Labor to promulgate Industrial Code regulations regarding the proper manner to unload and secure such materials, in accord with OSHA's recommendations.

Herein, the court is constrained to grant the defendants' motions for relief from plaintiff's Labor Law § 241 (6) claims, as predicated under a variety of inapplicable Industrial Code sections, including section 23-2.1 (a) (1) regarding the storage of materials. Accordingly, plaintiff's Labor Law § 241 (6) claims must be dismissed.

(c) Labor Law § 200 and Common-Law Negligence Claims


Defendant Lee Remodeling successfully demonstrates that they are entitled to summary judgment on the Labor Law § 200 and common-law negligence causes of action, as they did not have any responsibility to supervise, direct, or control the work that led to Toney's accident, and did not exercise any such authority. Plaintiff also did not oppose this branch of the motion.

Labor Law § 200 codifies the common-law duty placed upon owners and contractors to provide employees with a safe place to work (Yong Ju Kim v Herbert Constr. Co., 275 AD2d 709, 712 [2000]). Imposing liability on an owner or contractor under a Labor Law § 200 and/or common-law negligence cause of action requires some evidence that the owner or contractor either controlled and supervised the manner in which the underlying work was performed, or that the owner or contractor created or had actual or constructive notice of the alleged dangerous condition which caused the [*14]accident (Bradley v Morgan Stanley & Co., Inc., 21 AD3d 866, 868 [2005]; Aranda, 4 AD3d at 316; Dennis v City of New York, 304 AD2d 611, 611 [2003]; Akins v Baker, 247 AD2d 562, 563 [1998]). Specifically, "[w]here a premises condition is at issue, property owners [and contractors] may be held liable for a violation of Labor Law § 200 if the owner either created the dangerous condition that caused the accident or had actual or constructive notice of the dangerous condition that caused the accident" (Ortega v Puccia, 57 AD3d 54, 61 [2008]).

On the other hand, when a Labor Law § 200 and/or common-law negligence claim involves "injuries occasioned by the use of dangerous or defective equipment at the job site" an owner "will only be liable . . . if it was charged with the authority to supervise or control the work" (see Pilato v 866 U.N. Plaza Assoc., LLC, 77 AD3d 644, 646 [2010]; Ortega, 57 AD3d at 61). "A defendant has the authority to supervise or control the work for purposes of Labor Law § 200 when that defendant bears the responsibility for the manner in which the work is performed" (Id. at 62). Where the alleged defect or dangerous condition arises from the subcontractor's methods, and the owner and general contractor exert no supervisory control over the work, no liability attaches to the owner or general contractor pursuant to Labor Law § 200 or under the common-law (see Ruccolo v City of New York, 278 AD2d 472, 474 [2000], citing Comes v New York State Elec. & Gas Corp., 82 NY2d 876 [1993]). Moreover, an owner or general contractor's general supervisory authority for the purpose of overseeing the progress of the work and inspecting the work product is insufficient to impose liability (see LaRosa v Internap Network Servs. Corp., 83 AD3d 905, 909 [2011]); McKee v Great Atl. & Pac. Tea Co., 73 AD3d 872, 873-874 [2010]; Dos Santos v STV Engrs., Inc., 8 AD3d 223, 224 [2004]).

Here, the alleged negligence relates to the manner in which the crates which fell on Toney were unloaded and placed or staged, and an examination of the manner of such work is relevant for assessing liability. In this regard, Lee Remodeling presents (1) the affidavit of Michael Lee stating that Lee Remodeling did not supervise, direct or control the M & M employees' work, nor was it responsible to do so, and (2) Mantello's affidavit confirming that the only workers who participated in the work that led to Toney's injuries were from M & M. Lee Remodeling also submits M & M's subcontracting agreement, which provides that M & M would be responsible for the installation activities, including furnishing the materials (i.e., glass and its protective crates) to be installed. Defendant further indicates that there was no basis for stopping the work at issue because, as Manello's affidavit demonstrates, the staging activities which the workers were participating in at the time of the accident were a standard method and custom or practice in the industry. Also, Lee Remodeling submits Mantello's affidavit and the OSHA investigative report, establishing lack of notice of any defective condition or dangerous activity taking place that day, and stating that Lee Remodeling did not create any defective condition or dangerous activity that caused the accident. Finally, Collins [*15]testified that he did not supervise, direct or control M & M's work.

The court finds this showing sufficient to demonstrate prima facie that, aside from Toney's employer, M & M, neither Lee Remodeling nor any other entity supervised, directed or controlled the work which led to Toney's fatal injuries. The court also notes that the contract between property owner Raichoudhury and Lee Remodeling, which was submitted in support of Lee Remodeling's motion, does not state that Lee Remodeling assumed any supervisory authority over the subcontractor, and any general supervisory authority Lee Remodeling had over the project is not sufficient for imposing liability (see Enos v Werlatone, Inc., 68 AD3d 712, 713 [2009]). In opposition, plaintiff fails to present any evidence sufficient to raise a triable issues of fact. Accordingly, summary judgment dismissal is appropriate with respect to plaintiffs' Labor Law § 200 and common-law negligence claims.

(d) Common-Law Indemnification and Attorneys' Fees Claims


The last branch of Lee Remodeling's motion seeks common-law contribution and indemnification from M & M. The principle of common-law or implied indemnification permits one who has been compelled to pay for the wrong of another to recover from the wrongdoer the damages it paid to the injured party (see Curreri v Heritage Prop. Inv. Trust, Inc., 48 AD3d 505, 507 [2008]). "If, in fact, an injury can be attributed solely to the negligent performance or nonperformance of an act solely within the province of the contractor, then the contractor may be held liable for indemnification to an owner" (id.). It is well-settled that a party seeking common-law indemnification must prove its own lack of negligence, as well as actual negligence on the part of the proposed indemnitor, or in the absence of such negligence, that the proposed indemnitor directed, supervised, and controlled the work giving rise to the injury (see Campoverde v Fabian Builders, LLC, ___ AD3d ___, 2012 NY Slip Op 03973 [2012], citing McCarthy v Turner Constr., 17 NY3d 369, 376-378 [2011]). Moreover, as a general proposition, "an award of summary judgment on a claim for common-law indemnification is appropriate only where there are no triable issues of fact concerning the [relative] degree of fault attributable to the parties" (Mendelsohn v Goodman, 67 AD3d 753, 754 [2009]).

As a preliminary matter, Lee Remodeling correctly notes that indemnification is not precluded by Workers' Compensation Law § 11 because Toney's death constitutes a "grave injury" under the statute [FN9] (see Rubeis v Aqua Club Inc., 3 NY3d 408 [2004]). Lee Remodeling then successfully establishes, prima facie, that it is entitled to "full [*16]indemnification from the party wholly responsible for the accident" (McCarthy, 17 NY3d at 274, quoting Kelly v Diesel Constr. Div. of Carl A. Morse, Inc., 35 NY2d 1, 6 [1974]). First, Lee's affidavit states that Lee Remodeling did not supervise, direct or control the work that led to Toney's accident, and that it played no active role during the performance of such work (see Cahn v Ward Trucking, Inc., ___ AD3d ___, 2012 NY Slip Op 03534 [2012]). Defendant also submits the deposition testimony of Collins, Lee Remodeling's foreman on site, stating that he was working on a different part of the building and did not witness M & M's arrival or give the M & M workers any instructions. Lee Remodeling further demonstrates that M & M, as the proposed indemnitor, actually exercised supervision over the unloading and securing of the crates that led to the accident (see McCarthy, 17 NY3d 369) by submitting Mantello's affidavit, OSHA investigative report, and the police report reflecting that the only persons involved in the work were from M & M and that such persons were given instructions on how to unload and handle the crates only by M & M. Similarly, Mantello's deposition testimony confirms that only workers from M & M, and not Lee Remodeling, supervised the work that gave rise to the accident, including where and how to place the crates and how to steady the crates while they were suspended in midair by the crane. Moreover, the court rejects M & M's contentions that Lee Remodeling must prove that M & M was negligent; Lee Remodeling instead meets its burden by showing that its liability would be statutory and vicarious only, and that M & M "exercised actual supervision over the injury-producing work" (Naughton v City of New York, 94 AD3d 1, 10 [2012]). Accordingly, M & M is the only party who could be actively at fault, and a finding that Lee Remodeling is entitled to common-law indemnification from M & M is not premature. See Hart v Commack Hotel, 85 AD3d 1117 (2d Dept 2011). As Lee Remodeling is entitled to full indemnification, the issue of contribution is not relevant herein.

Finally, the court finds that Lee Remodeling's common-law right of indemnification against M & M includes attorneys' fees, costs and disbursements incurred in connection with defending the main action brought by plaintiff, but not those incurred in connection with the third-party action. See Creamer v Amsterdam High School, 277 AD2d 647, 651 [3d Dept 2000], citing Chapel v Mitchell, 84 NY2d 345, 347-348 [1994]; Siago v Garbade Constr. Co., 262 AD2d 945, 946 [4th Dept 1999].

In Chapel, 84 NY2d at 347, the Court of Appeals unambiguously stated:

"The first question to be addressed is whether defendant is entitled to recover the legal expenses incurred in defending the main action. It is well settled that an owner who is only vicariously liable under the Labor Law may obtain full indemnification from the party wholly at fault. This common-law right of indemnification against the party actually at fault encompasses the right to recover attorneys' fees, costs, and disbursements incurred in connection with defending the suit brought by the injured party. In this case, the nature of defendant's liability is vicarious and its predicate purely statutory. Accordingly, [*17]defendant is entitled to recover as part of its indemnification award the legal expenses for defending plaintiff's action" (citations omitted).

However, the Court of Appeals holds in Chapel that this is not applicable to the attorneys' fees related to the third party action for common law indemnification. "This case requires us to decide whether an indemnitee may recover from an indemnitor the legal expenses incurred in prosecuting a common-law indemnification claim. We conclude that such legal expenses are not recoverable."

Therefore, Lee Remodeling is entitled to be reimbursed for all attorneys' fees, costs and disbursements expended in the defense of the Labor Law action, but not, as is clearly explained in Chapel, for prosecuting the third-party action for indemnification.

IT IS THEREFORE ORDERED that a hearing shall be held to determine the costs, disbursements and attorneys' fees which Lee Remodeling is entitled to, and it is further

ORDERED that this issue is severed, and referred to a Special Referee to hear and report with recommendations, except that, in the event of and upon the filing of a stipulation of the parties, as permitted by CPLR 4317, the Special Referee, or another person designated by the parties to serve as referee, shall determine the aforesaid issues; and it is further ORDERED that counsel for Lee Remodeling shall, within 30 days from the date of this order, serve a copy of this order with notice of entry, together with the Special Referee Order, upon the Special Referee Clerk, at Supreme Court, 360 Adams Street, Brooklyn, New York, who is directed to place this matter on the calendar of the Special Referee's Part for the earliest convenient date. The court has considered the parties' remaining contentions and finds them to be without merit.

Accordingly, it is

ORDERED that third-party defendant M & M's summary judgment motion is granted only to the extent of dismissing plaintiff's claims against Lee Remodeling under Labor Law §§ 241 (6) and 200 and common-law negligence; and it is further

ORDERED that defendant/third-party plaintiff Lee Remodeling's summary judgment motion is granted insofar as (1) dismissing the plaintiff's claims under Labor Law §§ 241 (6) and 200 and common-law negligence, and (2) awarding Lee Remodeling common-law indemnification, including attorneys' fees, costs and disbursements against M & M as described above, and it is further.

ORDERED that, after a search of the record, the court grants partial summary judgment to plaintiff on the issue of liability under Labor Law § 240(1) against the sole remaining defendant, Remodeling by Arthur W. Lee, Ltd., as the action was previously [*18]discontinued against other two direct defendants.

The foregoing constitutes the decision and order of the court.

ENTER,

Hon. Debra Silber, A.J.S.C.

Footnotes


Footnote 1: The action as against Raichoudhury was discontinued by stipulation dated January 10, 2011.

Footnote 2: The action as against Berkowitz was discontinued by stipulation dated January 16, 2008.

Footnote 3: "Chocking" is the placement of a block or wedge between the ground and the bottom of the crate at the opposite side of the crate's inward tilt.

Footnote 4:However, OSHA also indicates that (Exhibit L to motion, page 6) the practice included placing chocks at the bottom of the crates, and "no evidence of chocks [were found] during the investigation."

Footnote 5:The expert affirmation was not untimely, as the Note of Issue had been vacated prior to the submission of the motion. His 25 years of experience in the installation of curtain wall glass qualifies him as an expert the custom and practice in this trade.

Footnote 6:Interim order dated March 1, 2012.

Footnote 7:Interim order dated March 1, 2012.

Footnote 8:This is contradicted by Collins' affidavit wherein he states that the crates were lowered from the truck with a "boom." In Mr. Mantello's affidavit (Exhibit E to M & M's motion, he says the cab separated from the trailer and the cab and "its crane transported the crates...up to the driveway...using a sling hoist" (¶4).

Footnote 9:Nor would this statute have barred a claim by plaintiff against M & M as a direct defendant for defendant's alleged negligence.