The following papers numbered 1 to 6 read on this motion:

Papers Numbered

Notice of Motion/Order to Show Cause/

Petition/Cross Motion and [*2]

Affidavits (Affirmations) Annexed1-2

Opposing Affidavits (Affirmations)3, 4, 5

Reply Affidavits (Affirmations)6

Affidavit (Affirmation)

Other Papers

Upon the foregoing papers, defendant KTS Development, Inc. (KTS) moves, pursuant to CPLR 3212, for summary judgment dismissing all causes of action and cross claims asserted against it or, in the alternative, for a default judgment, pursuant to CPLR 3215, against third-party defendant Americas General Contracting & Roofing Corp. (Americas General) or, in the alternative, for permission to discontinue the third-party action against Americas General without prejudice to recommencement upon a finding that the work performed at the Ebbets Field House by P & R Ironworks (P & R) and/or Americas General was a proximate cause of plaintiff Kevin Clarke's injury.

Plaintiff Kevin Clarke (plaintiff) was injured on December 17, 2006 while walking to his vehicle in the parking garage located at 220 Montgomery Street in Brooklyn, New York at the Ebbets Field apartment house complex where he resided, when a slab of concrete fell from the garage ceiling and struck him on the top of his head. The apartment houses and the parking garage were owned and managed by defendant Fieldbridge Associates (Fieldbridge). Prior to plaintiff's accident, Fieldbridge hired KTS to perform maintenance and repairs to both the garage structure and the concrete patio above the garage due to a long history of problems relating to the structure of the garage and water leaking from the patio. Plaintiff alleges that KTS negligently performed the maintenance and repair work and negligently hired, instructed and supervised subcontractors P & R and Americas General.

Kevin Clarke testified that he resided in an apartment at 220 Montgomery Street for almost 43 years. On December 17, 2006, he held parking space number 337, where he parked his van. That day, between 12:00 A.M. and 1:30 A.M., he was cleaning his van and the area around his parking space when a piece of the ceiling collapsed onto his head.^[FN1] Mr. Clarke did not recall work being performed on the garage prior to his accident. Before the accident, however, he had complained to the management of the building that "the ceiling always — in the area of where the garage is always leaking."

Mr. Benjamin Baum, the real estate agent for Fieldbridge, testified that Fieldbridge owns the Ebbets Field Housing Complex, which consists of seven buildings, including 220 Montgomery Street. The complex had an underground garage and 1300 apartments. The maintenance department was responsible for repairs and maintenance of the common areas and the tenants' apartments.

Between 2005 and 2006, Mr. Baum became aware of water leaking from the patio area through the ceiling onto the garage area above parking spot number 337, which he described as "little leaks" in three to five locations. According to Mr. Baum, "[i]t had to be very heavy rain that made [*3]its way down. It would be a drip in the garage. I wasn't compared to a busted pipe which would be a constant flow of water." In other words, "when it would rain heavily it would leak into the garage from the patio area." Mr. Baum testified that as of 2011 (when he was deposed), Fieldbridge constantly addressed the issue, that the leaking "comes and goes," is repaired, but is recurring. He further testified that there is a patio above the garage on which residents can walk, and that the patio encompasses the entire area above the garage.

Mr. Baum testified that the Fieldbridge/KTS contract was for work in the garage and waterproofing the patio deck above the garage. He was not aware of any parts of the ceiling of the garage ever having fallen, nor any violations having been issued regarding the ceiling in the garage before plaintiff's accident.

Mr. Shmaya Jacob Glick, president of KTS, testified that KTS was hired by Fieldbridge toward the end of 2005 or early 2006 for a two-phase construction project, which consisted of shoring up the columns and concrete in the underground garage and waterproofing the deck above the garage. Before entering into the contract with Fieldbridge. Mr. Glick examined the beam and slab in the garage, where he saw deteriorated concrete beams. When asked what caused the deterioration, he replied "[i]t looked like it was rusting, rusting metal, rusting beams." The first phase of the Fieldbridge-KTS contract called for:

a. the removal of loose concrete from the existing beams;

b. application of Sika repair system to finish;

c. installation of new steel post columns into slab;

d. installation of new steel beam framing;

e. grouting between the new steel and ceiling; and

f. staggered bolting of the new beams to the ceiling.

The second phase of the Fieldbridge-KTS contract called for:

a. the removal of existing concrete path at the patio;

b. removal of existing copper flashing and tar;

c. installation of new caulking at the expansion joint;

d. installing new waterproofing membrane;

e. installation of new rubber flashing;

f. Re-paving with new concrete.

Mr. Glick testified that the plans for the work were generated by co-defendant Philibert Engineering, P.C. (Philibert Engineering). Mr. Glick had spoken to Jack Philibert, of Philibert Engineering, who showed Mr. Glick what work was to done and how it was to be done. Mr. Philibert's plan encompassed Stage 1 of the project but Mr. Glick testified that "Stage 2 was remedial concrete work" and did not think that it required a construction permit ("You just pull up the sidewalk [and] put a new sidewalk down."

KTS hired two subcontractors to perform the work, P & R and Americas General. Mr. Glick explained that Fieldbridge initially attempted to retain P & R directly. However, because P & R was not licensed to work in New York, and could not obtain permits, Fieldbridge contacted KTS to hire P & R because Fieldbridge required a licensed contractor to obtain permits. According to the contract entered into between KTS and P & R, P & R was to perform the following work:

a. sound and remove all failing concrete as needed from beams as per the contractdrawings.

b. prepare the surfaces for mortar application as per the drawings and SikaSpecifications.

c. apply the bonding and corrosion agents.

d. install temporary shoring as necessary to complete the installation.

e. install permanent steel framing posts and beams to support slab above.

f. cover all steel with waterproofing.

The second phase of the work was subcontracted to Americas General by KTS, and consisted of work on the patio above the garage, as noted above. According to Mr. Glick, the first phase of the work (in the underground garage) was completed before the second phase (on the patio) because the engineer's immediate concern was stabilizing the structure. Stopping the leaks was a secondary concern. Mr. Glick testified that the leaks caused instability over a long period of time.

As part of its demolition work, Americas General used jack hammers to remove old concrete from the patio deck above the garage. Mr. Glick testified that when he was supervising Americas General, he observed its workers removing existing concrete paths and existing copper flashing and tar; installing new caulking at the expansion joint, new waterproof membranes, and rubber flashing; and repaving with new concrete. Americas General performed its work directly above the area where P & R had installed the steel below in the garage. Mr. Glick was unaware of any concrete falling from the ceiling of the underground garage during the time that Americas General was performing its work.

Mr. Glick testified that after both phases of the work had been completed, most of the leaks into the garage had been fixed. He did not know why all of the leaks had not been fixed, and did not know the source of the water which was causing the leaks. He testified that when he supervised [*5]phase 2 the project, no testing was done so ensure that phase 2 had been performed properly. In this regard, he testified "we just waited for it to rain, to see if it had worked," and that Mr. Baum complained about the continuing leaks, namely he asked Mr. Glick, "you did the work, why didn't you stop it?" Mr. Glick testified that he was paid in full for the second phase of the project. He did not become concerned when there still was some leaking, but testified that leaking can cause corrosion.

Mr. Paramdial Rambahal testified that he owned P & R, which was a construction firm which performed steel fabrication and installation. P & R has never been licensed or registered in New York State. Between 2005 and 2007, P & R had five employees, including Mr. Rambahal. Mr. Rambahal supervises the work performed by P & R by being at its work site on each job on a daily basis. P & R had been a subcontractor for KTS for 10 years.

P & R signed a contract with KTS to perform work at the site on December 20, 2005 for installation of steel support beams with columns around the perimeter of a building in the underground garage of the Ebbits Field Houses.^[FN3] Mr. Rambahal asked Mr. Glick for a detailed plan of the layout of the job. Instead, Mr. Glick gave him a sketch with ink, which "laid out the area where the beams would go," and told Mr. Rambahal where the beams were to be placed. Mr. Rambahal marked the areas where the beams were to be placed and P & R installed the beams in the area designated by Mr. Glick.

P & R also installed new steel used to support the concrete roof of the garage, because water was leaking through the roof. In Mr. Rambahal's opinion, the water leakage likely deteriorated the cement. While working at the site, he observed some areas of loose cement and cracks on the pre-existing main concrete beam. P & R worked on the perimeter of the northern and southern side of the garage. KTS directed where P & R and Mr. Rambahal did their work. While P & R was working at the site, Mr. Rambahal was present every day, and Mr. Glick came to see the progress of the job approximately twice a week, for two hours per day. According to Mr. Rambahal, the work being done at the site required a license, which was obtained by KTS.

At some point after P & R signed the contact with KTS, Mr. Glick requested that P & R remove any loose concrete it observed (i.e. which was visible) on the existing concrete beams to prevent it from falling, although Mr. Rambahal testified that P & R's work at the site did not include any type of concrete repair or patching to the existing concrete beams in the garage. Mr. Rambahal was shown a photograph of concrete debris in the garage.^[FN4] Mr. Rambahal testified that the debris was concrete - not Sika grout which P & R had used at the project. He identified it as cement because he saw that it contained aggregate (gravel, stone, sand), which Sika did not contain. He also testified that the retaining bars in the photograph marked as Plaintiff's Exhibit 5 were concrete, and that the photograph marked as Plaintiff's Exhibit 6 depicted steel rebars in concrete. Although Mr. Rambahal had never used Sika grout before, he used it at the project because Mr. Glick had ordered it. [*6]

Mr. Rambahal identified a document which was a layout of the parking garage at Ebbets Field. He drew a line where P & R installed beams, which was in the area of plaintiff's parking spot. P & R began its work at the site on December 2005 and finished at the end of January, 2006.

Plaintiffs commenced this action in 2007 against Fieldbridge, P & R, Mr. Rambahal, and Philibert Engineering. By amended summons and amended complaint, KTS was added as a defendant in 2009. In February, 2010, KTS interposed its answer, and served various disclosure demands upon plaintiff, including a bill of particulars and a demand for expert witness information. P & R interposed its answer asserting several cross claims against KTS. Plaintiffs served a verified bill of particulars in response to the demand of KTS, but have not responded to KTS' demand for expert witness information. To date, Fieldbridge has not served its answer or any cross claims upon KTS. Afer depositions were obtained, KTS commenced a third-party action against Americas General, which has not interposed an answer. Plaintiffs filed the note of issue on or about March 19, 2012. Subsequently, KTS moved for summary judgment, which motion is presently before this court.

"Generally, a party who retains an independent contractor, as distinguished from a mere employee or servant, is not liable for the independent contractor's negligent acts'" (Brothers v New York State Elec. & Gas Corp., 11 NY3d 251, 257-258, quoting Kleeman v Rheingold, 81 NY2d 270, 273 [1993]). "The primary justification for this rule is that one who employs an independent contractor has no right to control the manner in which the work is to be done and, thus, the risk of loss is more sensibly placed on the contractor'" (id.). "Thus, control of the method and means by which the work is to be done is the critical factor in determining whether one is an independent contractor or an employee for the purposes of tort liability" (Calandrino v Town of Babylon, 95 AD3d 1054, 1055 [2012]). "The numerous exceptions to this rule, which, for the most part, are derived from public policy concerns, fall roughly' into three basic categories: where the employer is negligent in selecting, instructing or supervising the independent contractor; where the independent contractor is hired to do work which is inherently dangerous'; and where the employer bears a specific, nondelegable duty" (Saini v Tonju Assocs., 299 AD2d 244, 245 [2002], citing, inter alia, Kleeman, 81 NY2d at 274).

Here, KTS has made a prima facie showing, through the deposition testimony, that it merely exercised incidental control over the defendant subcontractors and that it did not direct and control the means or methods of their work. At most, the record reveals that KTS provided P & R with Sika grout and a sketch indicating where the beams were to be placed in the garage ceiling, and told P & R's principal where the work was to be done. Moreover, is undisputed that KTS was only on the work site twice a week for two hours each day, exercising only general supervision (see Leeds v D.B.D. Servs., 309 AD2d 666 [2003]; Davies v Contel of NY, 187 AD2d 898 [1992]).

As to whether any exception to the general rule of nonliability applies, KTS has made a prima facie show that it did not engage in the negligent hiring, retention and supervision of the subcontractors because there is no evidence in the record that it knew or should have known that the subcontractors had a propensity for conduct which would have caused plaintiff's injury (Schiffer v Sunrise Removal, Inc., 62 AD3d 776, 779 [2009]). In this regard, Mr. Glick testified that he had previously worked with P & R in 2005, that he had also worked with him for "several years," and that he had never had any problems with P & R's work. Moreover, Mr. Glick testified that prior to [*7]December, 2005, he had never been personally involved with a project who purpose was to repair deteriorated beams and concrete (phase 1) or waterproofing a walkway (phase 2).

KTS, however, has failed to make a prima facie showing that the work performed by the subcontractors was not inherently dangerous.^[FN5] "[T]his exception, which has long been recognized by New York State, applies when it appears both that the work involves a risk of harm inherent in the nature of the work itself [and] that the employer recognizes, or should recognize, that risk in advance of the contract" (Saini, 299 AD2d at 246 [internal quotation marks and citations omitted]). Examples include blasting, certain types of construction, and working with high tension wires (id). The exception has been applied in other similar circumstances (Rosenberg v Equitable Life Assurance Soc., 79 NY2d 663, 669-670 [1992], citing Wright v Tudor City Twelfth Unit, 276 NY 303 [1938][employer liable where danger to pedestrians inherent in work involving placing mats on sidewalk and cleaning them with soap and water]; Rohlfs v Weil, 271 NY 444[1936][work of independent contractor performing work on scaffolding on outside of building inherently dangerous when warning signs are not placed on sidewalk below]; Besner v Central Trust Co., 230 NY 357[1921] [employer liable for negligence of contractor's employee because it was inherently dangerous to request independent contractor to install fireproof doors to elevator shaft while elevator was still being used by tenants]; State of New York v Schenectady Chems., 103 AD2d 33, 38 [1984][disposal of hazardous waste may be considered as inherently dangerous]). "Whether the work is inherently dangerous is normally a question of fact to be determined by the jury" (id. at 670).

Here, in support of its position that the work performed by the subcontractors was not inherently dangerous, KTS relies upon cases in which courts have held that accidents by independent contractors occurred as a result of ordinary negligence, as opposed to the inherent danger of their work. KTS then asserts that "assuming arguendo that the piece of concrete fell as plaintiff alleges, such an occurrence is not inherent in the nature of the work which [its] subcontractors performed months earlier prior to the accident," namely the installation of steel beams and waterproofing of a patio deck.

Aside from its conclusory statement noted above, KTS has failed to point to any evidence in the record, nor has it submitted any expert affidavit supporting its argument that either the installation of the beams and posts in the garage during the first phase of the project or the repaying of the walkway, including jack hammering, which took place on the patio above the garage during the second phase of the project were not inherently dangerous (see Rosenberg, 79 NY2d at 669-670; Klein v Beta I, LLC, 10 AD3d 509 [2004] [excavation work adjacent to an existing building]; Tytell v Battery Beer Distrib., 202 AD2d 226 [1994] [construction of a sidewalk bridge extending over an area frequented by pedestrians]), was completed "months prior to the accident." The court notes in this regard that neither the deposition testimony nor the documentary evidence establishes when the second phase of the work performed by Americas General was completed.Specifically, Mr. Glick testified that after P & R finished the first phase of the project (in January, 2006), Americas General started the second phase of the project several months later. However, there was no testimony elicited from Mr. Glick as to when Americas General completed its work. Similarly, KTS asserts that the engineer signed off on the project with the Department of Buildings (DOB) on July 13, 2006, [*8]as indicated by a DOB "Letter of Completion." However, the job number on this letter only references the work performed on the ceiling of the garage, not the waterproofing on the patio. KTS, "as the proponent of a summary judgment motion, was required to make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Luksik v 27 Prospect Park W. Tenants Corp., 19 AD3d 557 [2005]). KTS has failed to meet its burden as it has not demonstrated that the work performed by the subcontractors was not inherently dangerous or that the work, including the jack hammering on the patio, was completed months before plaintiff's accident occurred. Accordingly, KTS it is not entitled to summary judgment dismissing the complaint insofar as asserted against it. "Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

In the alternative, KTS seeks a default judgment against Americas General. In support of KTS's unopposed motion pursuant to CPLR 3215, KTS submitted proof of service of copies of the summons and third-party complaint upon the Americas General, of the facts constituting the claim, and of Americas General's default in appearing or answering the complaint. Further, there is no evidence in the record that Americas General made timely appearances or answered the complaint, as KTS's counsel affirms. Accordingly, KTS's unopposed motion for leave to enter judgment against Americas General on the issue of liability upon its default in appearing or answering the third-party complaint and to set the matter down for an inquest on the issue of damages is granted (see Okeke v Ewool, 66 AD3d 978 [2009]).

Finally, P & R requests that the court search the record and award it summary judgment dismissing all clams and cross claims against it. It is well settled that on a motion for summary judgment, the court may search the record and grant such relief where warranted with respect to causes of action which are the subject of the motions before the court (Dunham v Hilco Constr. Co., 89 NY2d 425, 429-430, [1996]). Here, the issue of P & R's negligence was not the subject of the motion of KTS. Moreover, the proof in the record, as a whole, at best presents a triable issue as to causation. Accordingly, the court denies the application of P & R to search the record and award it summary judgment dismissing all clams and cross claims against it.

The court has considered the parties' remaining claims and finds them to be without merit.

This constitutes the decision and order of the court.

E N T E R

J. S. C.