Edwin
Calandro, Jr. and MELISSA CALANDRO, Plaintiffs,
against
Avalon Bay Communities, Inc. and J.P. HUNTER
ENTERPRISES, INC. D/B/A HUNTER INSULATION,
Defendants.
|
007864/12
Siben & Siben
Attorneys for Plaintiffs
90 East Main Street
Bay Shore, New York 11706
(631) 665-3400
Harrington, Ocko & Monk, LLP
Attorneys for Defendant/Third-Party Plaintiff
Avalon Bay Communities, Inc.
81 Main Street, Suite 215
White Plains, New York 10601
Lieberman, Strauss & Shrewsbury
Attorney for Defendant/Third-Party Defendant
JP Hunter Enterprises, Inc.
7 Skyline Drive
Hawthorne, New York 10532
Randy Sue Marber, J.
Upon the foregoing papers, the Third-Party Defendant/Fourth-Party Plaintiff, P.C.
Richard & Son's ("PC Richard"), motion (Mot. Seq. 04), pursuant to CPLR §
3212, seeking an Order granting it summary judgment dismissal of the Third-Party
Complaint, and all Cross-claims and Counterclaims as asserted against it; the Defendant,
J.P. Hunter Enterprises, Inc. d/b/a Hunter Insulation's ("JP Hunter"), motion (Mot. Seq.
05), pursuant to CPLR § 3212, seeking an Order [*2]granting it summary judgment dismissal of the Plaintiffs'
complaint in its entirety, and all Cross-claims and Counterclaims as asserted against it;
and the Defendant, Avalon Bay Communities, Inc.'s ("Avalon Bay"), Cross-motion (Mot.
Seq. 06), pursuant to CPLR § 3212, seeking an Order granting it summary
judgment dismissal of the Plaintiffs' Complaint in its entirety, and all Cross-claims and
Counterclaims as asserted against it, are determined as provided herein.
This action stems from an accident which occurred on August 5, 2011 in
which the Plaintiff, Edwin Calandro, claims that he tripped over an insulation hose while
in the process of delivering and installing a washing machine at an apartment at the
premises owned by the Defendant, Avalon Bay.
Specifically, in August 2011, Avalon Bay was in the process of constructing
a two building apartment complex in Rockville Centre with each building being three
stories high and containing approximately 210 and 139 units, respectively. The building
owner, Avalon Bay, was also the general contractor for the construction project.
On July 29, 2010, Avalon Bay entered into a contract with JP Hunter
pursuant to which JP Hunter agreed to install spray-applied insulation in the buildings'
attics. Pursuant to the terms of the contract, JP Hunter procured general liability
insurance naming Avalon Bay as an additional insured. The contract between Avalon
Bay and JP Hunter also contained an indemnification provision, pursuant to which JP
Hunter agreed to "defend, indemnify and save harmless OWNER (Avalon Bay)" from
any personal injury claims arising from JP Hunter's work.
At the time of this accident, the Plaintiff, in the course of his employment
with the Fourth-Party Defendant, G. Lamagna Trucking, Inc. ("Lamagna"), was
delivering appliances supplied by the Third-Party Defendant, P.C. Richard & Son,
to the apartment complex. Specifically, PC Richard retained non-party, Lipari Trucking,
to deliver and install the appliances at the Avalon Bay complex. Lipari Trucking, in turn,
subsequently subcontracted the appliance installation to Lamagna Trucking, the
Plaintiff's employer. Notably, these contracts and subcontracts are not provided to this
Court on these papers, infra.
At the time of his accident, the Plaintiff was working with Greg Lamagna,
the principal and owner of his employer company, Lamagna Trucking. The Plaintiff and
Greg Lamagna were carrying the washing machine with a strap provided by the
Defendant, Lamagna. At the time of his accident, the Plaintiff was walking backwards
toward the closet in which the appliance was to be installed. He testified at his
Examination Before Trial, that he stepped over the subject insulation hose with his left
foot and as he was stepping back with his right foot, he made contact with the insulation
hose causing him to trip and fall, which in turn, resulted in the washing machine falling
on top of him.
The Plaintiff testified that the insulation hose was blowing insulation into
the attic throughout the entire day of the Plaintiff's accident. The hose was installed by
the Defendant, JP Hunter, and measured three to four inches in diameter and ran through
the apartment where the Plaintiff was allegedly injured. Apparently, because other trades
also needed access to the area, Avalon Bay had advised JP Hunter of certain areas of the
building that it could and could not use for its work. Ultimately, the route of the hose was
determined by JP Hunter.
Despite allegedly tripping over the hose, the Plaintiff admits to observing the
hose on several occasions prior to, and on, the date of the accident. In addition, it is
undisputed on this record that the Plaintiff walked over the hose 5 to 6 times without
incident before his alleged fall, [*3]was aware of the hose
at all times before the accident, stepped over it with one leg, warned his boss about it,
and failed to ask for any assistance in avoiding the hose, prior to allegedly tripping over
it. It is equally undisputed on this record that during the three weeks of work, JP Hunter
never received any complaints about the positioning of the hose, and had never observed
any workers trip over the hose, prior to the Plaintiff's accident.
The Plaintiffs commenced an action against Avalon Bay (the building owner
and general contractor) and JP Hunter (the insulation contractor and the owner of the
hose) advancing claims of Labor Law §§ 200, 240 (1), 241 (6), and common
law negligence.[FN1]
The Plaintiff, Melissa Calandro's claims are derivative in nature.
Avalon Bay, in turn, commenced a Third-Party suit against P.C. Richard
& Son (the appliance provider) seeking contribution and indemnification based
upon common law negligence and their contract.
P.C. Richard & Son, in turn, brought a Fourth-Party action against
Lamagna Trucking, Inc. (the Plaintiff's employer).
In its motion, Avalon Bay asserts three principal bases for summary
judgment. First, it asserts that the Plaintiffs' claims under Labor Law § 240 (1) are
not applicable to the case at hand as this accident does not involve any type of elevation
differential or elevation related risk so as to invoke the extraordinary protection of this
statute. Second, it asserts that the Plaintiffs' claims under Labor Law § 241 (6) are
also meritless as the Plaintiff cannot prove the applicability or violation of any Industrial
Code regulation and insofar as the Plaintiff relies upon Industrial Code § 23-1.7 (e)
(2), said regulation is inapplicable as the insulation hose was actively being used in the
construction and was "integral to the work being performed" and therefore does not
constitute a "tripping hazard" under the regulation. Lastly, it asserts that the Plaintiffs'
claims under Labor Law § 200 and the common law are meritless as the Plaintiff
was a workman who was "confronted with the ordinary and obvious hazards of his
employment and had at his disposal the time and other resources to enable him to
proceed safely, but elected to perform his job so incautiously as to injure himself."
JP Hunter advances five bases for its entitlement to summary judgment.
First, that Labor Law §§ 200, 240 (1) and 241 (6) do not apply to it as it is not
an owner, general contractor or statutory agent of the owner or subcontractor as defined
by the Labor Law. Second, Labor Law § 240 (1) is inapplicable as the alleged
incident did not arise from a fall from a height or from being struck by a falling object.
Third, Labor Law § 241 (6) is inapplicable as the Plaintiff is unable to prove a
violation of a specific and applicable Industrial Code provision. Fourth, the alleged
condition was open and obvious. Lastly, it asserts it was not negligent as a matter of law
and as there was no breach of contract between the parties, all cross-claims as asserted
against it should also be dismissed.
Finally, PC Richard asserts three bases for its entitlement to summary
judgment dismissal of the Third-Party Complaint which seeks common law contribution
and indemnification as well as contractual indemnification. First, it asserts it did not have
any duty to maintain the property and it did not create the alleged dangerous condition
causing the Plaintiff's fall; thus, there [*4]is no evidence
that it was negligent in any way such that Avalon Bay would be entitled to common law
indemnification or contribution. Second, it asserts it did not have any authority to
supervise or control the premises in which the Plaintiff was injured; thus it cannot be
held liable under Labor Law § 200 or the common law. Lastly, it asserts the incident
which gives rise to this lawsuit does not trigger the indemnification agreement contained
within the purchase order between Avalon Bay and PC Richard.
The standards for summary judgment are well-settled.
"On a motion for summary judgment, facts must be viewed in the light most
favorable to the non-moving party. Summary judgment is a drastic remedy, to be granted
only where the moving party has tender[ed] sufficient evidence to demonstrate the
absence of any material issues of fact, and then only if, upon the moving party's meeting
of this burden, the non-moving party fails to establish the existence of material issues of
fact which require a trial of the action. The moving party's [f]ailure to make [a] prima
facie showing [of entitlement to summary judgment] requires a denial of the motion,
regardless of the sufficiency of the opposing papers."
(Vega v. Restani
Constr. Corp., 18 NY3d 499, 503 [2012] [internal citations and quotation marks
omitted]).
Labor Law §§ 240 (1) and 241 (6) claims:
As noted above, the Plaintiffs "concede" that Labor Law § 240 (1) and
Labor Law § 241 (6) do not apply to the Defendant, JP Hunter. Indeed, counsel for
the Plaintiff states in his affirmation in opposition to JP Hunter's motion, that "...Hunter
was neither an owner, contractor and/or agent against whom either such cause of action
would lie. As such, the Plaintiff will not oppose the granting of summary judgment to
said Defendant, Hunter, dismissing the § 240 and § 241 (6) claims on that
particular ground" (Aff. In Opp., ¶ 69).
Accordingly, the Defendant, JP Hunter's motion (Mot. Seq. 05) seeking
summary judgment dismissing the Plaintiffs' Labor Law §§ 240 (1) and 241
(6) claims is GRANTED. Said claims are dismissed as against JP Hunter.
Notably, the Plaintiff's Labor Law § 240 (1) claims as against Avalon
Bay are also DISMISSED.
Labor Law § 240 (1) provides, in pertinent part, as follows:
All contractors and owners and their agents, *** who contract for but do not
direct or control the work, in the erection, demolition, repairing, altering, painting,
cleaning or pointing of a building or structure, shall furnish or erect, or caused to be
furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders,
swings, 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.***
The statute mandates the imposition of "absolute liability" and is deemed to
create a statutory cause of action unrelated to questions of negligence (Striegel v.
Hillcrest Hgts. Dev. [*5]Corp., 100 NY2d 974, 977
[2003]; Zimmer v. Chemung County Performing Arts, 65 NY2d 513, 522
[1985]).
The statute was ordinarily read to be impliedly limited to those
accidents and injuries that arose from elevation-related hazards where the plaintiff was
exposed to "extraordinary elevation risks" of the kind that safety devices listed in the
Labor Law § 240 (1) protect against (Broggy v. Rockefeller Group, Inc., 8 NY3d 675, 681
[2007]; Toefer v. Long Is. R. R., 4 NY3d 399 [2005]) and not just usual and
ordinary dangers of a construction site. In other words, the statute ordinarily protected
against only specific gravity related accidents as falling from a height or being
struck by a falling object that was improperly hoisted or inadequately secured (Ross
v. Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494 [1993]; Rocovich v.
Consolidated Edison, Co., 78 NY2d 509 [1991]).
In 2009, however, the Court of Appeals in Runner v. New York Stock
Exchange, Inc., 13 NY3d 599 [2009], determined that prior cases read Labor
Law § 240 (1) too narrowly and explained that "[t]he breadth of the statute's
protection has...been construed to be less wide than its text would indicate" (Runner
v. New York Stock Exchange, Inc., supra at 603). As a result, the Court of Appeals
in Runner v. New York Stock Exchange, Inc., supra, re-framed and reiterated the
applicable rule in Labor Law § 240 (1) stating as follows:
"[T]he dispositive inquiry. . . does not depend upon the precise
characterization of the device employed or upon whether the injury resulted from a fall,
either of the worker or of an object upon the worker. Rather, the single decisive
question is whether plaintiff's injuries were the direct consequence of a failure to provide
adequate protection against a risk arising from a physically significant elevation
differential " (Id. at 603 [Emphasis Added]).
The Court of Appeals thus turned the inquiry of the "single decisive
question" into whether the elevation differential was "physically significant" versus "de
minimis" instructing that in determining whether an elevation differential is "physically
significant," "the weight of the [falling] object and the amount of force it was capable of
generating, even over the course of a relatively short descent," must be taken into
account (Id. at 605; see Wilinski v. 334 East 92nd Housing Development
Fund Corp., 18 NY3d 1, 10 [2011]).
In addition the Court of Appeals in Runner also ruled that liability
under the statute in a falling object case "does not ...depend upon whether the object has
hit the worker"; it determined that the "relevant inquiry" in that case is "whether the harm
flows directly from the application of the force of gravity to the object" (Runner v.
New York Stock Exchange, Inc., supra at 604).
Notably, despite the more expansive reading of Labor Law § 240 (1),
the Runner Court did not overturn the core holdings of Ross and
Rocovich which held that "Labor Law § 240 (1) [is] aimed only at elevation
related hazards" (Wilinski v. 334 East 92nd Housing Development Fund Corp.,
supra at 7). Rather, as explained above, the Runner Court clarified the law in two
respects. First, the statute's reach is not to be limited to falling worker cases or falling
object cases in which the object directly strikes the worker (Runner v. New York
Stock Exchange, Inc., supra at 604). And, second, the weight and force of the object
during descent must be considered in determining whether a height differential is de
minimis (Id. at 605). Indeed, the Runner Court never held that a height
differential could never be de minimis when an accident was "gravity related"; nor did
the Court overturn its prior cases finding height differentials to be insufficient to sustain
liability despite harm flowing directly from application of the force of gravity to an
object. It merely created [*6]a third breed of cases
protected under Labor Law § 240 (1); in addition to falling worker and (traditional)
falling object cases, it now expanded Labor Law § 240 (1) protections to include
those scenarios where a worker is caused to fall as a result of a falling object.
Significantly, in 2011, the Court of Appeals in Wilinski v. 334 East 92nd
Housing Development Fund Corp., supra, reaffirmed its holding in Runner.
The Court of Appeal's reasoning that the scope of Labor Law § 240 has "evolved"
such that the statute's "core purpose" is now "to provide workers with adequate
protection from reasonably preventable, gravity-related accidents", advanced its best
pronouncement of the more expansive application of Labor Law § 240 (1) stating
therein that the "single decisive question" regarding this limitation is whether the
worker's injuries " were the direct consequence of a failure to provide adequate
protection against a risk arising from a physically significant elevation differential' "
(Wilinski v. 334 East 92nd Housing Development Fund Corp., supra at 10,
quoting, Runner v. New York Stock Exchange, Inc., supra at 603). The
Wilinski Court expanded the protections of Labor Law § 240 (1) to include
a more generalized risk stemming from a "physically significant" elevation
differential (Wilinski v. 334 East 92nd Housing Development Fund Corp., supra
at 7; Salazar v. Novalex Contr.
Corp., 18 NY3d 134, 139 [2011]).
Thus, ultimately, entitlement to recovery under Labor Law § 240 (1)
requires a demonstration of two things: (1) a violation of the statute — i.e., a
failure of the defendant to provide the required protection at a construction site —
proximately caused the plaintiff's injury; and, (2) that the "injury sustained is the
type of elevation related hazard to which the statute applies" (Wilinski v. 334 East
92nd Housing Development Fund Corp., supra at 7; see Blake v. Neighborhood Hous.
Servs. of NY City, 1 NY3d 280, 288—289 [2003]).
Here, in seeking summary judgment, Avalon Bay submits that as the
Plaintiff fell at ground level, and as his work did not involve any type of elevation related
risk so as to require any of the safety devices required by Labor Law § 240 (1), this
accident involved only the usual and ordinary type of hazards at a construction site,
namely tripping over construction material and therefore the protections outlined in
Labor Law § 240 (1) was not required.
The Plaintiffs oppose the motion and relying upon, inter alia,
Runner v. New York Stock Exchange, Inc., supra, argue that recent authorities
stand for the proposition that even a small elevation differential is within the
contemplated scope of the scaffold law where the weight of the object being hoisted is
such that it will generate substantial force over the course of its descent and that this is
sufficient to raise a material issue of fact as to whether the Plaintiff in this case sustained
an elevation related injury when the washing machine, which he was carrying, was
caused to fall upon him.
It is noted, at the outset, that contrary to the Plaintiff's contention herein, this
is not a falling object case — not in the traditional sense (where the plaintiff is
injured by a falling object); nor in the more recent Runner sense (where the
plaintiff's harm flows directly from the application of the force of gravity to the object).
Rather, this is a falling worker case (see e.g, Soltero v. City of New York, 93 AD3d 578 [1st Dept.
2012]; Brownell v. Blue Seal
Feeds, Inc., 89 AD3d 1425 [4th Dept. 2011]; Rendino v. City of New York,
83 AD3d 540, 541 [1st Dept. 2011]).
It is true that the Plaintiff and the washing machine in this case were not on
the same level; that is, there was indeed an elevation differential between the Plaintiff
and the object (washing machine) which he and his co-worker were carrying at hip level.
However, unlike the plaintiff in Runner, the Plaintiff herein was not injured as a
result of the amount of force that the machine was [*7]able to generate. Indeed, this Court cannot overlook the fact
that the washing machine did not fall; rather, it was the Plaintiff who tripped and fell
(causing the washing machine to fall on top of him). In fact, had the Plaintiff not tripped
over the insulation hose, there is no evidence, or theory, or even allegation that the
washing machine would nonetheless have fallen onto the Plaintiff as a result of gravity
being applied to the machine. The fall herein resulted from the application of the force of
gravity to the Plaintiff, and not to the washing machine. To that extent, given the
undisputed evidence herein, this Court finds that "the impetus for the [washing
machine's] fall was the Plaintiff's tripping on ground level, rather than the direct
consequence of gravity" to the appliance (Ghany v. BC Tile Contractors, Inc., 95 AD3d 768 [1st
Dept. 2012]).
As such, there is no evidence on this record to substantiate the Plaintiff's
Labor Law § 240 (1) claim against Avalon Bay.
Moreover, and in any event, even if this Court construes the facts of this case
so as to satisfy the Runner standard of a falling object case, there is nonetheless
no evidence presented on this record that the Plaintiff's injuries were the direct
consequence of the Defendant, Avalon Bay's failure to provide adequate protection
against a risk from a physically significant elevation differential (Wilinski v. 334 East
92nd Housing Development Fund Corp., supra at 10). Indeed, there is no evidence in
this case to establish that this fall was an "elevation-related" risk, much less one that was
based upon a "physically significant" elevation differential or that called for the
Defendant to have provided any of the protective devices of the types listed in Labor
Law § 240 (1). To the contrary, this Court finds that the Plaintiff was exposed to the
"usual and ordinary dangers of a construction site, and not the extraordinary elevation
risks envisioned by Labor Law § 240 (1)" (Rodriguez v. Margaret Tietz Ctr. for
Nursing Care, Inc., 84 NY2d 841, 843 [1994]; Alvia v. Teman Elec. Contr.,
287 AD2d 421 [2d Dept. 2001]). Accordingly, even assuming that this case was one in
line with the Runner sequence of cases, this Court nonetheless finds that the
Plaintiff's fall herein does not come within the ambit of Labor Law § 240
(Brownell v. Blue Seal Feeds, Inc., supra).
Thus, the Plaintiff's cause of action based upon a violation of Labor Law
§ 240 (1) is herewith DISMISSED as against Avalon Bay (Toefer v.
Long Is. R.R., supra; Rocovich v. Consol. Edison Co., supra at
514-515).
Also dismissed are the Plaintiff's Labor Law § 241 (6) claims as against
Avalon Bay.
Section 241 (6) of the Labor Law provides:
§ 241. Construction, excavation and demolition work
All contractors and owners and their agents, except owners of one and
two-family dwellings who contract for but do not direct or control the work, when
constructing or demolishing buildings or doing any excavating in connection therewith,
shall comply with the following requirements:
***
6. 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 commissioner may make rules to carry into effect the provisions of this
subdivision, and the owners and contractors and their agents for such work, except
owners of one and two-family dwellings who contract for but do not direct or control the
work, shall comply therewith.
It is incumbent upon the plaintiff proceeding under Labor Law § 241
(6) to show that [*8]some "concrete specification" in the
regulations was violated and also that this was a substantial factor in causing the subject
accident (Ross v. Curtis-Palmer Hyrdo-Electric Company, supra; Morrison v. City of New York,
5 AD3d 642 [2d Dept. 2004]). Once this threshold is met, a Labor Law defendant
can be held vicariously liable for the regulatory violation even in the absence of notice
thereof (Rizzuto v. L.A. Wenger Contr. Co., 91 NY2d 343, 349-350 [1998]).
That is, while the statute does not impose "absolute liability" it does impose a
"nondelegable duty upon an owner or general contractor to respond in damages for
injuries sustained due to another party's negligence in failing to conduct their
construction, demolition or excavation operations so as to provide for the reasonable and
adequate protection of the persons employed therein" (Id. at 350). Therefore,
once it is established that any construction site participant either caused or
negligently allowed a condition violative of any of the "concrete" specifications of the
Industrial Code, then the owner or general contractor is vicariously liable, subject to
comparative negligence, irrespective of whether said defendant had notice of the
condition.
Here, the Plaintiff's Labor Law § 241 (6) claim is based chiefly on
violations of the Industrial Code §§ 12 NYCRR 23-1.5, 12 NYCRR 23-1.7
(d), 12 NYCRR 23-1.7 (e) (1) and 12 NYCRR 23-1.7 (e) (2). None of these regulations,
however, support a Labor Law § 241 (6) cause of action in this case.
Specifically, 12 NYCRR § 23-1.5 entitled "General Responsibility of
Employers" sets forth a general standard of care and, thus, does not serve as a predicate
for liability pursuant to Labor Law § 241 (6) (Ulrich v. Motor Parkway Properties, LLC, 84 AD3d 1221
[2d Dept. 2011]; Pereira v.
Quogue Field Club of Quogue, Long Is., 71 AD3d 1104 [2d Dept. 2010]).
Similarly, 12 NYCRR § 23-1.7 (d) is also insufficient to support the
Plaintiff's Labor Law § 241 (6) claim. Section 23-1.7 (d) entitled "Slipping hazards"
states:
Employers shall not suffer or permit any employee to use a floor,
passageway, walkway, scaffold, platform or other elevated working surface resulting in a
slippery condition. Ice, snow, water, grease and any other foreign substance which may
cause slippery footing shall be removed, sanded or covered to provide safe footing.
First, this section is inconsistent with the Plaintiff's allegation which states
that he "tripped" over the insulation hose, and did not slip on any foreign substance.
Second, to the extent that the Plaintiff "slipped" on the insulation hose, there is no
evidence that the hose was a foreign substance or a slipping hazard identified in the
regulation (Galazka v. WFP
One Liberty Plaza Co., LLC, 55 AD3d 789, 789—790 [2d Dept. 2008],
lv. denied 12 NY3d 709 [2009]; Stafford v. Viacom, Inc., 32 AD3d 388, 390 [2d Dept.
2006]). Lastly, there is no evidence that the Plaintiff's accident was the result of the
Defendant's failure to remove or cover a foreign substance contemplated by 12 NYCRR
23—1.7 (d) (Croussett v.
Chen, 102 AD3d 448 [1st Dept. 2013]).
Industrial Code regulation 12 NYCRR § 23-1.7 (e) (1) is also
inapplicable to the Plaintiff's Labor Law § 241 (6) claim. 12 NYCRR §
23—1.7 (e) (1) provides:
(e) Tripping and other hazards. (1) Passageways. All passageways shall be
kept free from accumulations of dirt and debris and from any other obstructions or
conditions which could cause tripping. Sharp projections which could cut or puncture
any person shall be removed or covered.Although this Industrial Code provision is
sufficiently specific to support a Labor [*9]Law §
241 (6) claim (Jara v. New York
Racing Ass'n, Inc., 85 AD3d 1121 [2d Dept. 2011]), the facts of this case make
it clear that the accident did not take place in a "passageway;" rather, the facts are clear
that the Plaintiff's accident occurred in the open apartment and attic space undergoing
construction at Avalon Bay. Indeed, there is also no evidence that the Plaintiff was
using the otherwise open area as a "passageway" when the accident occurred (Parker v. Ariel Associates
Corp., 19 AD3d 670 [2d Dept. 2005]; Salinas v. Barney Skanska Constr. Co., 2 AD3d 619, 622
[2d Dept. 2003]).
Finally, Industrial Code § 23-.7 (e) (2) entitled "Tripping Hazards" is
also insufficient to substantiate the Plaintiff's Labor Law § 241 (6) claim. This
regulation requires owners and contractors to maintain working areas free from tripping
hazards such as, inter alia, debris and any other obstructions, "insofar as may be
consistent with the work being performed" (12 NYCRR § 23—1.7 [e] [2]).
This regulation " is designed to protect against tripping hazards and sharp projections on
floors and platforms' " (Cooper
v. State of New York, 72 AD3d 633, 635 [2d Dept. 2010] quoting Fura v. Adam's Rib Ranch
Corp., 15 AD3d 948, 949 [4th Dept. 2005]).
The evidence submitted herein, including the Plaintiff's testimony, shows
that the insulation hose that allegedly caused him to fall was being used and blowing
insulation at the time of the accident. There is no claim or evidence that the hose was not
integral to the ongoing work. Indeed, it is also clear that the subject insulation hose had
been purposefully laid at that location and therefore did not constitute "loose or
scattered" material (DeLiso v.
State of New York, 69 AD3d 786 [2d Dept. 2010]). Accordingly, the Plaintiff's
claim of a violation of 12 NYCRR § 23-1.7 (e) (2) is also defeated (Burkoski v. Structure Tone,
Inc., 40 AD3d 378, 383 [1st Dept. 2007]).
Having failed to establish the violation of a concrete specification in the
regulations which were also a substantial factor in causing this accident, the Plaintiff's
Labor Law § 241 (6) claims are herewith DISMISSED.
Labor Law § 200 and Common Law Negligence:
Labor Law § 200, which mandates that all workplaces be so
constructed, equipped, arranged, operated and conducted as to provide "reasonable and
adequate protection" to the persons employed there, is a codification of the common law
duty of an owner or general contractor to provide and maintain a safe construction site
(Labor Law § 200 [1]; Rizzuto v. L.A. Wenger Contr. Co., supra at 352;
Comes v. New York State Elec. & Gas Corp., 82 NY2d 876 [1993]). As
such, liability can be imposed under Labor Law § 200 only if the party charged with
violating it was negligent; that is, the defendant cannot be held liable unless it knew or
should have known of the condition or work practice in issue and had the ability or
authority to correct it (Ortiz v.
I.B.K. Enterprises, Inc., 85 AD3d 1139 [2d Dept. 2011]).
Generally Labor Law § 200 claims fall into two broad categories; to
wit, those involving injuries arising from an allegedly defective and dangerous premises
condition and those involving injuries arising from the manner in which the work is
performed (Ventimiglia v.
Thatch, Ripley & Co., LLC, 96 AD3d 1043 [2d Dept. 2012]).
Where the accident was purportedly caused by an unsafe work practice
— the means and methods of the work — the defendant will not stand
liable under Labor Law § 200 unless it: (a) knew or should have known of the
unsafe practice; and (b) had "supervisory control" over the unsafe activity (Robinson v. County of Nassau,
84 AD3d 919, 920 [2d Dept. 2011]). That is, the owner and general contractor can
be held liable for common law negligence and violation of Labor Law § 200 [*10]if the defendant knew or should have known of the unsafe
work practice and had "supervisory control" over the activity (Rodriguez v. Gany, 82 AD3d
863 [2d Dept. 2011]; Mancuso v. MTA New York City Transit, 80 AD3d
577 [2d Dept. 2011]). They cannot be held responsible for a contractor's unsafe work
practices or defective equipment if they did not actually supervise or control the
contractor's work (Ghany v. BC Tile Contractors, Inc., supra). To that extent, the
mere fact that the owner may be intermittently present or retain the power to stop the
work does not mean that the owner had control over the contractor's work methods and
can be held liable in common law or under Labor Law § 200 for an unsafe work
practice (Harrison v. State of
New York, 88 AD3d 951 [2d Dept. 2011]; Foley v. Consolidated Edison Co. of New York, Inc., 84 AD3d
476 [1st Dept. 2011]). In addition, an owner or general contractor's general
control over the project as a whole does not of itself constitute the kind of close
supervision that will render such a defendant responsible for the contractor's work
methods (Phillip v. 525 East
80th Street Condominium, 93 AD3d 578, 579-580 [1st Dept. 2012]; McKee v. Great Atl. & Pac.
Tea Co., 73 AD3d 872 [2d Dept. 2010]).
On the other hand, where the injury producing condition was a premises
hazard, liability is imposed where the defendant either created the condition or had actual
or constructive notice of its existence. In the "defective/dangerous premises condition"
line of cases, it is not a defense that the defendant lacked control over the means and
methods of the work (Fuger v.
Amsterdam House of Continuing Care Retirement Community, Inc., 117 AD3d
649, 650 [1st Dept. 2014]; Burton v. CW Equities, LLC, 97 AD3d 462 [1st Dept.
2012]). Specifically, where the accident is caused by a premises defect, liability can be
imposed irrespective of the defendant's control over the details of the work
(Ventimiglia v. Thatch, Ripley & Co., LLC, supra; Sotomayor v.
Metropolitan Transportation Authority, 92 AD3d 862 [2d Dept. 2012]). Liability
therein is not a function of the defendant's control over the work alone; it is instead a
function of the defendant's creation of the hazard or actual or constructive notice of the
hazard plus control over the area in issue (Dalvano v. Racanelli Construction
Company, Inc., 86 AD3d 550 [2d Dept. 2011]; Harsch v. City of New York, 78 AD3d 781, 782-783 [2d
Dept. 2010]).
Here, while the Plaintiffs appear to classify their common law negligence
and Labor Law § 200 theories against JP Hunter (insulation contractor and owner of
the hose) on "defective and dangerous premises condition" line of cases (see also Aff. In
Opp. to JP Hunter Motion, ¶ 50), as against Avalon Bay (owner and general
contractor), the Plaintiffs do not make any distinctions and submit that Avalon Bay is
chargeable with both actual prior notice as to the existence of the dangerous and
defective condition as well as whether said moving Defendant possessed and did
exercise the requisite responsibility to supervise and control the subject work (see also
Aff. In Opp. to Avalon Bay Motion, ¶ 66).
To that extent, this Court notes that in 2011, the Second Department laid out
the rules governing those cases where a worker's injury may be concurrently caused by
both an alleged dangerous or defective premises condition and by dangerous and
defective equipment. In Reyes v. Arco Wentworth Management Corporation, 83
AD3d 47, 51 [2d Dept. 2011], the Second Department stated:
In determining how to resolve cases that contain overlapping allegations of
both dangerous premises conditions and defective equipment, we note that as a general
principle of tort law, there may be more than one cause of an occurrence, with injury
attributable to two or more tortfeasors***
We find that when an accident is alleged to involve defects in both the
premises and the equipment [*11]used at the work site,
the property owner moving for summary judgment with respect to causes of action
alleging a violation of Labor Law § 200 is obligated to address the proof applicable
to both liability standards. Defendants moving for summary judgment with respect to
causes of action alleging a violation of Labor Law § 200 and common-law
negligence must examine the plaintiff's complaint and bill of particulars to identify the
theory or theories of liability, in order to properly direct proof to premises issues, or
means and methods issues, or both, as may be indicated on a case-by-case basis. The
property owner is entitled to summary judgment only when the evidence exonerates it as
a matter of law for all potential concurrent causes of the plaintiff's accident and injury,
and when no triable issue of fact is raised in opposition as to either relevant liability
standard.
(Reyes v. Arco Wentworth Management Corporation, supra at 51
[Emphasis Added]).
As such, this Court will address each claim separately and in turn.
Defective and Dangerous Premises Condition:
(as against both JP Hunter and Avalon Bay)
In this case, JP Hunter has failed to establish its prima facie entitlement to
judgment as a mater of law. Indeed, the evidence establishes that not only was JP Hunter
the owner of the subject insulation hose, but also that it was JP Hunter who designated
where the hose would be placed in the apartment. The evidence also confirms that the
configuration of the insulation hose required the workers, including the Plaintiff and his
employer Greg Lamagna, to regularly travel over and across the insulation hose. Given
the foregoing, this Court finds that there remain issues of fact as to whether JP Hunter
was not only aware of the defective and dangerous condition but also created the defect
(Eversfield v. Brush Hollow
Realty, LLC, 91 AD3d 814 [2d Dept. 2012]; Hernandez v. Argo Corp., 95 AD3d 782 [1st Dept.
2012]).
Accordingly, the branch of the Defendant, JP Hunter's motion for summary
judgment dismissal of the Plaintiff's Labor Law § 200 and common law negligence
claims (which theories are based only upon dangerous/defective condition premises
condition) is DENIED, without regard to the Plaintiffs' opposing proof
(Winegrad v. New York University Medical Center, 64 NY2d 851, 853
[1985]).
The Defendant, Avalon Bay, (owner and general contractor) on the other
hand has established its prima facie entitlement to judgment as a matter of law dismissing
the common law negligence and Labor Law § 200 claims. Specifically, while it has
demonstrated that it neither created the allegedly dangerous condition nor had actual or
constructive notice of same (Sanders v. St. Vincent Hospital, 95 AD3d 1195 [2d Dept.
2012]; Reilly-Geiger v.
Dougherty, 85 AD3d 1000 [2d Dept. 2011]), it has failed to establish that it did
not have control over the area. Liability based on a dangerous/defective premises
condition, however, requires a demonstration of both control over the work site
and either creation of or actual or constructive notice of the dangerous condition
(Harsch v. City of New York, supra at 782-783). Having failed to demonstrate
both prerequisites, the Defendant has established its prima facie entitlement to judgment
as a matter of law.
In opposition, the Plaintiff has failed to submit any admissible evidence
sufficient to raise an issue of fact as to Avalon Bay's creation of the dangerous/defective
condition or its notice (actual or constructive) of the alleged dangerous/defective
premises condition, i.e., the existence and placement of the insulation pipe. The
Plaintiff's argument that Avalon Bay representatives knew of [*12]the dangerous/defective condition is meritless given that
they fail to show, with any admissible proof, that this alleged knowledge and/or control
was anything other than general supervisory control which, as stated above, is
insufficient to sustain Labor Law § 200 claim based on dangerous/defective
premises condition.
Accordingly, the branch of the Defendant, Avalon Bay's motion for
summary judgment dismissal of the Plaintiff's Labor Law § 200 and common law
negligence claims based upon a dangerous/defective premises condition, is
GRANTED.
Means and Methods of Work:
(As against Avalon Bay)
The Defendant, Avalon Bay, has also established its prima facie entitlement
to summary judgment as a matter of law on the Plaintiff's Labor Law § 200 and
common law negligence claims insofar as they are based on the Defendant's alleged
failure to control the means and methods of the Plaintiff's work.
Avalon Bay has demonstrated that apart from having general control over
the project as a whole, and retaining a general power to stop any unsafe work practices, it
neither knew of the specific unsafe work practice that allegedly led to the Plaintiff's
accident, nor did it have specific supervisory control over the alleged unsafe work
practice (DeLiso v. State of New York, supra).
In opposition, however, the Plaintiff fails to present any admissible proof
raising an issue of fact. The Plaintiff's argument that as Avalon Bay's representative, Ciro
Tudisco was physically present in the apartment where the Plaintiff's accident occurred
on the morning of the accident (Aff. In Opp. to Avalon, ¶¶ 67-68), the
Defendant should be held liable under Labor Law § 200 and principles of common
law negligence. Counsel for the Plaintiffs also submit as follows:
Moreover, and although no affidavits have been introduced in support of the
instant motion, the deposition witnesses produced by the moving defendant Avalon
establish both that said moving defendant had the authority to supervise and control the
performance of the work on the date in question as well as the requisite responsibility for
the manner in which work was being performed thereat by both the co-defendant Hunter
as well as plaintiff's employer (Aff In Opp. ¶70).
This is wholly insufficient to hold the Defendant, Avalon Bay, liable under
Labor Law § 200 and common law negligence principles. That an owner or general
contractor exercises general control over the project as a whole does not of itself
constitute the kind of close supervision that will render such a defendant responsible for
the contractor's work methods (Phillip v. 525 East 80th Street Condominium,
supra at 579-580; McKee v. Great Atlantic & Pacific Tea Company,
supra).
In light of the foregoing, the Plaintiffs' Labor Law § 200 and common
law negligence claims as against Avalon Bay, either under a defective/dangerous
premises condition or a means/methods of work theories, are DISMISSED in
their entirety.
Contractual Indemnification:
(PC Richard & Son)
Finally, the Third-Party Defendant, PC Richard & Son's motion for
summary judgment dismissal of Avalon Bay's third party complaint seeking, inter
alia, contractual indemnification is GRANTED.
In support of its motion, the Defendant, PC Richard & Son, relies upon
a "contract" it apparently entered into with Avalon Bay which apparently contains an
indemnification provision wherein PC Richard apparently agreed to, inter alia, defend,
indemnify and hold Avalon Bay harmless from all losses sustained by Avalon Bay.
Specifically, counsel for movant, PC Richard & Son, states in her moving
affirmation as follows:
21. Avalon Bay entered into a contract with P.C. Richard for the purchase,
delivery and installation of appliances for the complex. A copy of the contract is annexed
hereto as Exhibit "R".
Notably, the Defendant's Exhibit "R"[FN2]
is a three page document entitled "Purchase Order." Nowhere on said document,
however, does it identify the "Seller" in any capacity. Indeed, there is not even any
signature lines of the alleged parties herein on the document establishing that it is a valid
and binding contract in the first place.
Indeed, this distinction is particularly important in this case as there is sworn
testimony establishing that P.C. Richard subcontracted delivery and installation work to
non-party, Lipari Trucking and that Lipari Trucking, in turn, subcontracted the work to
other entities including the Plaintiff's employer, Lamagna Trucking. Notably, the movant
also fails to furnish a copy of the alleged subcontracts for this Court's consideration.
Nonetheless, to the extent that it remains undisputed by and between the
parties that the purchase order relied upon by PC Richard & Son, was indeed
the valid and binding agreement entered into between the parties, this Court finds
that the "Indemnification" provision contained therein is inapplicable to the facts at
hand.
The "Indemnification" provision in the Purchase Order states as
follows:
11.INDEMNIFICATION — Seller [PC Richard & Son] shall
defend, indemnify and hold Buyer [Avalon Bay] harmless from all loss, damage and
expenses sustained by Buyer and from all claims, liability and expense suffered by it by
reason of any property damage including loss of use hereof, infringement of rights
(including patent and trademark rights) personal injury or other claim or action brought
by any other person, firm or corporation that results from the purchase, sale or use of any
of the goods, products or services referred to in this order. This indemnity applies
regardless of any active and/or passive negligent act or omission of Buyer or its agents or
employees. Seller, however, shall not be obligated under this Purchase Order to
indemnify Buyer for the sole negligence or willful conduct of Buyer or its agents or
employees. The indemnity set forth in this paragraph shall not be limited by the insurance
requirements set forth in Paragraph 13. Seller shall be liable for the loss or damage to
Buyers' property while such property is in the possession of the Seller.
Given the foregoing language of the indemnification provision providing
that PC Richard would indemnify Avalon Bay from any claim arising from the purchase,
sale or use of goods, products or services referred to in the order, Avalon Bay's claim for
contractual indemnification is herewith DISMISSED. When read in it its
entirety, it is clear that the [*13]indemnification clause is
only intended to provide Avalon Bay with indemnification for claims arising from the
purchase, sale or use of any appliance supplied under the purchase agreement. The
incident that allegedly resulted in the Plaintiff's injuries did not arise from the purchase,
sale or use of PC Richard's washing machine. Rather the incident occurred when the
appliance was being moved within an Avalon Bay apartment. Thus, since the alleged
injury was unrelated to the operation of the washing machine, this Court finds it
beyond the scope of the parties' indemnification clause (see Toledo v. Long Island
Jewish Medical Center, 309 AD2d 921 [2d Dept. 2003]; Castelli v. KDI,
Atl. Foods, 281 AD2d 505 [2d Dept. 2001]). Therefore, said third party claim is
herewith DISMISSED.
Common Law Indemnification and Contribution:
(PC Richard & Son)
The Third-Party Defendant, PC Richard & Son's motion for summary
judgment dismissal of Avalon Bay's common law indemnification and contribution
claims is also GRANTED.
To establish a claim for common law indemnification, the party "seeking
indemnity must prove not only that it was not guilty of any negligence beyond the
statutory liability but must also prove that the proposed indemnitor was guilty of some
negligence that contributed to the causation of the accident for which the indemnitee was
held liable to the injured party by virtue of some obligation imposed by law***"
(Correia v. Professional Data Management, Inc., 259 AD2d 60, 65 [1st Dept.
1999]; see also Mikelatos v.
Theofilaktidis, 105 AD3d 822, 824 [2d Dept. 2013]).
Here, the Third-Party Defendant, PC Richard, maintains that it cannot be
held liable under Labor Law § 200 and the common law because it had no authority
to supervise or control the premises in which the Plaintiff was injured, it had no presence
at Avalon Bay at any time, and it did not place the insulation hose at the apartment. It
submits that in the absence of any finding of negligence on it's part, Avalon Bay cannot
be held liable under a theory of common law negligence or Labor Law § 200 and is
also therefore not entitled to common law indemnification or contribution (see
e.g, Ramirez v.
Metropolitan Transp. Auth., 106 AD3d 799 [2d Dept. 2013]; Kraut v. City of New York, 85
AD3d 979 [2d Dept. 2011]). This Court agrees.
In this case, whether Avalon Bay can prove that it is not guilty of negligence
is not dispositive on PC Richard's right to summary judgment on the common law
negligence claim. Here, the Third-Party Defendant, PC Richard & Son, has
established that it cannot be held liable under a common law negligence theory.
In opposition, the Third-Party Plaintiff, Avalon Bay, fails to offer any proof
or advance any arguments sufficient to raise an issue of fact as to the negligence of PC
Richard & Son. Therefore, PC Richard & Son's motion for summary judgment
dismissal of Avalon Bay's common law indemnification and contribution claims is
herewith GRANTED. Said claims are DISMISSED.
Accordingly, the motion (Mot. Seq. 04) of the Third-Party Defendant, PC
Richard & Son, is GRANTED in its entirety.
The parties' remaining contentions have been considered and do not warrant
discussion.
All applications not specifically addressed are herewith denied.
This decision constitutes the decision and order of the court.
DATED:Mineola, New York
September 15, 2014
______________________________
Hon. Randy Sue Marber, J.S.C.
Footnotes
Footnote 1:It is noted at the outset
that the Plaintiffs, in their opposition to the Defendant, JP Hunter's motion for summary
judgment, "concede" that Labor Law § 240 (1) and Labor Law § 241 (6) do
not apply to the Defendant, JP Hunter, infra.
Footnote 2:Movant's papers did not
originally append an Exhibit "R." Counsel for PC Richard & Son produced the
Exhibit only upon request of Chambers. Said Exhibit consisted of only three pages
entitled "Purchase Order Terms & Conditions."