Diana Russell
AS THE ADMINISTRATRIX OF THE ESTATE OF JOHN RUSSELL, Plaintiff,
against
Hudson River Park Trust of New York SKANSKA USA
INC., and SKANSKA USA BUILDING, INC., Defendants.
|
7367/2007
Attorneys for Plaintiff
Lyaman F. Khashmati, Esq.
Sacks and Sacks, LLP
150 Broadway, 4th Floor
NewYork, New York 10038
Attorneys for Defendant
Second Third-Party Plaintiff
Christopher L. Deininger, Esq.
Bubb Grogan & Cocca, LLP
25 Prospect Street
Morristown, NJ 07960
Attorneys for Third-Party Defendant
Second Third-Party Defendant
Joseph V. Tejeiro, Esq.
Law Office of Thomas K. Moore
701 Westchester Avenue Suite 101 W
White Plains, New York 10604
Attorneys for Defendant
Third-Party Plaintiff
Judy Brown, Esq.
Law Offices of Alan I. Lamer
535 Taxter Road
Elmsford, New York 10523
Kenneth L. Thompson Jr., J.
The following papers numbered 1-15 read on this motion, Summary
Judgment____
NoOn Calendar of February 21, 2014PAPERS NUMBERED
Notice of Motion-Order to Show Cause- Exhibits and Affidavits
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Upon the foregoing papers and due deliberation thereof, the Decision/Order
on this motion is as follows:
Defendant, Hudson River Park Trust, (Hudson), moves pursuant to CPLR
3212 for
summary judgment dismissing the plaintiff's complaint, all cross-claims and
counterclaims as
against Hudson, and for an order granting contractual indemnification as
against co-defendant,
Forms & Surfaces, Inc., (Forms), and common law indemnification as
against co-defendants,
Skanska USA Building, Inc., (Skanska), and Forms.
Skanska moves pursuant to CPLR 3212 for summary judgment dismissing the
complaint
and all cross-claims as against it. While Skanska did not give notice in its
notice of motion that
it seeks contractual indemnification from Forms, Skanska and Forms both
treat Skanska's
motion as one seeking contractual indemnification against Forms.
Forms cross-moves pursuant to CPLR 3212 for summary judgment dismissing
the
complaint and all cross-claims as against it.
Plaintiff moves for permission to serve an expert exchange and moves pursuant to
CPLR
3212 for summary judgment on the issue of liability under Labor Law
240(1).
The motion for summary judgment by co-defendant, United Iron Works, Inc.,
(United), is
withdrawn pursuant to a letter dated October 20, 2014.
Defendants'' argue that since plaintiff's cross-motion was made more than 120 days
after
the note of issue was filed, plaintiff's cross-motion is untimely and should
not be considered.
However, "[w]hile the cross motion was made more than 120 days after the
note of issue was
filed and, therefore, was untimely (see Brill v City of New York, 2 NY3d 648 [2004]), "an
untimely motion or cross motion for summary judgment may be considered
by the court where,
as here, a timely motion for summary judgment was made on nearly identical
grounds" (Grande
v Peteroy, 39 AD3d 590, 591-592 [2007]; see Whitehead v City of New
York, 79 AD3d 858, 860
[2010]; Lennard v
Khan, 69 AD3d 812, 814 [2010]; Bressingham v Jamaica Hosp. Med.
Ctr., 17
AD3d 496, 497 [2005]). In such circumstances, the issues raised by the
untimely cross motion
are already properly before the motion court and, thus, the nearly identical
nature of the grounds
may provide the requisite good cause (see CPLR 3212 [a]) to review the
merits of the untimely
cross motion (see Grande v Peteroy, 39 AD3d at 592). Notably, a
court, in deciding the timely
motion, may search the record and award summary judgment to a
nonmoving party (see CPLR
3212 [b])." Homeland Ins. Co. of NY v National Grange Mut. Ins. Co., 84
AD3d 737, 738-
739 [2ND Dept 2011]). Accordingly, plaintiff's cross-motion is deemed
timely.
This action arose as a result of personal injuries sustained by decedent, John
Russell,
(Russell), when he attempted to move a dolly that had rectangular metal
posts stacked on it and
two posts fell on his foot. Since Russell is deceased from causes unrelated to
the accident herein,
the only other witness to this occurrence is Russell's foreman, Seon Shirley,
(Shirley). Both
Shirley and Russell were employed by former third third-party defendant
United Iron works, Inc.
United was a sub-contractor to Forms, on a construction project on a pier.
Plaintiff has brought
claims of defendants' violation of Labor Law 200, 240 and 241(6).
Shirley has signed two affidavits that were submitted on this motion. The first one
is
dated September 30, 2013, which was submitted by defendants, while the
second Shirley
affidavit is dated December 2, 2013, and was submitted by plaintiff. While
defendants argue that
the affidavits are contradictory and should be disregarded, Shirley's
affidavits each omit
pertinent averments that are contained in the other affidavit, but do not
contradict each other.
Shirley avers in the September 30, 2013 affidavit that Russell pulled on the
posts to move the
dolly which dislodged a metal post which fell onto his foot. In the December
2, 2013 affidavit,
Shirley avers that Russell first tried to move the cart by the handle, but since
the cart was too
heavy he moved to the opposite side of the cart and two metal posts fell on
his foot. In the
December 2, 2013 affidavit, no cause for the fall of the metal posts was
stated. Therefore, there
is no direct contradiction in the affidavits, rather, one affidavit has a detail
that another affidavit
does not. Conversely, the December 2, 2013 affidavit generally has far more
details about the
accident than the September 30, 2013 affidavit. SKANSKA, CONSTRUCTION MANAGER OR
GENERAL
CONTRACTOR
Under the contract between Hudson and Skanska, Skanska's status was defined as
an
"independent Consultant and not that of a servant, agent or employee of
[Hudson]. Accordingly,
Consultant shall not hold itself our as, nor claim to act in the capacity of, an
officer, agent,
employee or servant of [Hudson]." (Page 9 par. 13). Skanska was the
construction manager at
the construction site.
"Although a construction manager of a work site is generally not responsible for
injuries
under Labor Law § 240 (1), one may be vicariously liable as an agent
of the property owner for
injuries sustained under the statute in an instance where the manager had the
ability to control the
activity which brought about the injury (see Russin v Picciano &
Son, 54 NY2d 311, 317-318
[1981]; see also Comes v New York State Elec. & Gas Corp.,
82 NY2d 876, 878 [1993]). "When
the work giving rise to [the duty to conform to the requirements of section
240 (1)] has been
delegated to a third party, that third party then obtains the concomitant
authority to supervise and
control that work and becomes a statutory agent' of the owner or general
contractor" (Russin, 54
NY2d at 318). Thus, unless a defendant has supervisory control and
authority over the work
being done when the plaintiff is injured, there is no statutory agency
conferring liability under
the Labor Law (see Blake v Neighborhood Hous. Servs. of NY City, 1 NY3d
280, 293 [2003])."
(Walls v Turner
Constr. Co., 4 NY3d 861, 863-864 [2005]).
Skanska never had control over the activity that brought about plaintiff's injury, and
is
therefore not an agent of the owner for purposes of the Labor Law.
(Pramberger transcript pp.
25-28, 70-76). LABOR LAW
200
Section 200 of the Labor Law is a codification of the
common-law duty imposed upon an owner or general contractor to provide construction
site workers with a safe place to work. An implicit precondition to this duty is that the
party charged with that responsibility have the authority to control the activity bringing
about the injury.
(Comes v. New York State Electric and Gas Corp., 82 NY2d 876,
877 [1993])
(citations omitted).
United's foreman was responsible for Russell's supervision. (Rifelli aff. P. 81-86).
Skanska directed United's work to the limited extent required to coordinate
the work on the
construction project. (Rifelli p. 82).
[M]ere oversight of the timing and quality of the work performed is not
equivalent to direct supervision and control and is thus insufficient to support the
imposition of liability under Labor Law 200. (See Gonzalez v United Parcel
Serv., 249 AD2d 210, 210-211 [1998]; Pacheco v South Bronx Mental Health
Council, 179 AD2d 550, 551 [1992], lv denied 80 NY2d 754 [1992]; see
also Brezinski v Olympia & York Water St. Co., 218 AD2d 633, 634-635
[1995]).
(Artiga v Century Management Co., 303 AD2d 280 [1st Dept
2003]).
Accordingly, plaintiff's Labor Law 200 claim is dismissed as is her common law
negligence claim. It should be noted that plaintiff's expert's opinion
regarding violation of
Labor Law 200 was conclusory. LABOR
LAW 241(6)
"A cause of action under Labor Law § 241(6)
depends upon a showing of noncompliance
with some specific safety standard (see Ross v. Curtis—Palmer
Hydro—Elec. Co., 81 NY2d 494,
505, 601 N.Y.S.2d 49, 618 N.E.2d 82 [1993])." (Carty v. Port Authority
of New York and New
Jersey, 32 AD3d 732, 733 [1st Dept 2006]).
Of the four Industrial Code regulations plead in plaintiff's Bill of Particulars,
plaintiff
only argued for retention of two of them, Section 23-1.5 and 23-2.1. "12
NYCRR 23—1.5(a) sets
forth an employer's general responsibility for health and safety in the
workplace, and is
insufficiently specific to support a § 241(6) claim." (Carty v. Port
Authority of New York and
New Jersey, 32 AD3d 732, 733 [1st Dept 2006]).
Section, 23-2.1 of the Industrial Code, states that "[a]ll 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."
Shirley averred in both the affidavits that have been submitted that Russell attempted
to
move the dolly in order to permit another worker from another trade to pass.
Whether the area
where the accident occurred was a passageway, walkway or other
thoroughfare is a question of
fact as Shirley's affidavit does not describe the area of the accident in
sufficient detail.
"Defendant claims this is a room while plaintiff and his expert engineer state
that this was a
passageway under 12 NYCRR 23—1.7(e) and 23—21(a)(i)(b).
However, neither the Industrial
Code nor the plaintiff's expert set forth the means to distinguish between the
designation of that
area as a room or a passageway; nor does the defendant. This, then is a very
significant fact
dispute that will have to be decided at trial. " (Metz v. Marine Estates, LLC,
20 Misc 3d 1106(A)
(Table) N.Y.Sup.,2008.)
In Marrero v 2075 Holding
Co., LLC, 106 AD3d 408 [1st Dept 2013], two steel beams
with a combined weight of 1,000 pounds fell off a cart onto plaintiffs foot.
With respect to the
Marrero plaintiff's Labor Law 241(6) claim, it was considered
inapplicable because of a lack an
"allegation that the accident occurred in a passageway, walkway, stairway, or
other
thoroughfare." Id. at 410. Labor Law 241(6) was not inapplicable on the
issue of whether
transporting the steel beams was "storage" under the statute. With respect to
whether the metal
posts were safely stored, there is evidence from the foreman, Shirley's
affidavit dated December
2, 2013, that the customary industry practice is to secure the load that Russell
and Shirley were
transporting, and that the lack of securing the load contributed to the
happening of plaintiff's
injuries.
Accordingly, that branch of defendants' motions that seeks to dismiss plaintiff's
Labor
Law 241(6) claim is granted to the limited extent of dismissing the following
alleged underlying
Industrial code violations: 23-1.5, 23-1.7, 23-1.28. Plaintiff's Labor Law
241(6) claim that is
based upon a violation of Industrial Code section 23-2.1 remains. While
plaintiff's expert opines
that Section 23-2.1 was violated, even without consideration of plaintiff's
expert's affidavit,
Industrial Code Section 23-2.1 would not be dismissed.
LABOR LAW 240
Labor Law 240 provides that "[a]ll 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,
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, ladders, slings, hangers, blocks, pulleys,
braces, irons, ropes, and
other devices which shall be so constructed, placed and operated as to give
proper protection to a
person so employed."
In Marrero v 2075 Holding
Co. LLC, 106 AD3d 408 [1ST Dept 2013], the plaintiff was
injured when an A-frame cart holding two 500 pound steel beams fell off the
cart as the plywood
planks resting on fresh concrete buckled. The steel beams landed on his calf
and ankle injuring
the plaintiff. "Given the beams' total weight of 1,000 pounds and the force
they were able to
generate during their descent, the height differential was not de minimis (see
McCallister v 200
Park, L.P., 92 AD3d 927, 928-929 [2d Dept 2012] [elevation
differential was within the scope of
the scaffold law when a scaffold on wheels fell on the plaintiff who was at
the same level as the
scaffold, and it traveled a short distance]; Kempisty v 246 Spring St.,
LLC, 92 AD3d 474, 474
[1st Dept 2012] [an elevation differential cannot be considered de minimis
when the weight of
the object being hoisted is capable of generating an extreme amount of force,
even though it only
traveled a short distance]." Marrero v 2075 Holding Co. LLC, 106 AD3d 408, 409
[1ST Dept
2013]). In the case at bar, the dolly was approximately 14 inches off the
ground and the weight
estimate varied from 40 to 60 pounds per metal post, for a combined
maximum total estimate of
80 to 120 pounds for both of the posts that fell on Russell's foot. The amount
of force generated
by 120 pounds from a dolly is considerably smaller than the 1,000 pounds
that fell from A-frame
cart in Marrero.
Accordingly, the fall of relatively light posts, 40-60 pounds each from a relatively
short
distance does not invoke Labor law 240 coverage. It is noted that even if
plaintiff's expert's
report were considered on this motion, the expert did not render an opinion
regarding the amount
of force generated by the posts herein. INDEMNIFICATION
In contractual
indemnification, the one seeking indemnity need only establish that it was free from any
negligence and was held liable solely by virtue of the statutory liability. Whether or not
the proposed indemnitor was negligent is a non-issue and irrelevant (Brown v Two
Exch. Plaza [*2]Partners, supra). In distinction, in the
case of common-law indemnification, the one 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, such as the nondelegable duty imposed by
Labor Law § 240 (1) (see, McDermott v City of New York, 50 NY2d 211).
(Correia v Professional Data Mgt., 259 AD2d 60, 65 [1st Dept 1999]).
In the contract between Hudson and Forms, Forms is contractually obligated to
indemnify Hudson and the construction manager, Skanska for "all liability
for violation of such
laws and regulations and shall defend any claims or actions which may be
brought against the
Owner and its Construction manager as the result thereof. In the event that
the Contractor shall
fail or refuse to defend any such action, the Contractor shall be liable to the
Owner and its
Construction Manager for all costs of the Owner and its Construction
Manager in defending such
claims and all costs of the Owner and its Construction Manager, including
reasonable attorney's
fees, in recovering such defense costs from the Contractor." (Paragraph
10.2.2.1). Pursuant to
section 3.18.1 of the contract, Forms is responsible for all injuries to persons
resulting from the
work under the contract even if performed by subcontractors of Forms such
as United.
(Paragraph 3.18.1). While Forms argues that under the contract it must be
negligent before it
must indemnify Hudson and Skanska, there simply is no contractual
language that limits
indemnification to negligent acts or omissions by Forms.
Accordingly, Forms is contractually obligated to indemnify both Hudson and
Skanska.
While Skanska did not notice in its motion for summary judgment that it
seeks contractual
indemnification from Forms, Skanska's motion was treated by both Skanska
and Forms as a
motion for contractual indemnification from Forms in favor of Skanska.
Moreover, under CPLR
3212(b), the Court can grant summary judgment to a party even if a motion
or cross-motion is
not made.
With respect to Hudson's common law indemnification claims against Forms
and
Skanska, there is no evidence of any negligence on the part of either Forms
or Skanska. The
harm producing activity was supervised by United, and United's foreman
was present during that
activity. [*3]PLAINTIFF'S EXPERT
Plaintiff's
expert witness' affidavit was not used herein and would not have made a
difference in the outcome of the motions if it were used. Plaintiff failed to
give defendants
sufficient notice of an expert witness. (Salzo v Bedding Showcase,
238 AD2d 180 [1st Dept
1997]). However, while plaintiff's expert's report was not considered on this
motion, the branch
of plaintiff's motion that seeks permission to serve an expert exchange is
granted to the extent
that the plaintiff's expert exchange is deemed timely served for purposes of
permitting the
plaintiff's expert to testify at trial. The time for defendant's to timely serve an
expert exchange
is hereby extended to sixty days after notice of entry of this order. Any
defendants' expert
witness exchange after said date is subject to further judicial order of any
judge. CONCLUSION
The motion of
defendant, Hudson River Park Trust, pursuant to CPLR 3212 for summary
judgment is granted to the extent of dismissing the plaintiff's common law
negligence claims,
Labor Law 200 and 240 causes of action and dismissing the alleged
industrial code violations
except section 23-2.1, and dismissing all cross-claims and counterclaims as
against Hudson, and
Forms & Surfaces Inc. is to provide contractual indemnification to
Hudson River Park Trust.
Hudson River Park Trust's claim for common law indemnification as against
co-defendants,
Skanska USA Building, Inc., and Forms & Surfaces Inc., is denied.
Skanska's motion pursuant to CPLR 3212 for summary judgment is granted to the
extent
of dismissing the plaintiff's common law negligence claims, Labor Law 200
and 240 causes of
action and dismissing the alleged industrial code violations except section
23-2.1, and dismissing
all cross-claims as against it, and Forms & Surfaces Inc. is to provide
contractual indemnification
to Skanska USA Building, Inc.
The motion of defendant, Forms & Surfaces, Inc., pursuant to CPLR 3212 for
summary
judgment is granted to the extent of dismissing the plaintiff's common law
negligence claims,
Labor Law 200 and 240 causes of action and dismissing the alleged
industrial code violations
except section 23-2.1, and dismissing all cross-claims for common law
indemnity.
That branch of plaintiff's motion pursuant to CPLR 3212 that seeks summary
judgment
on her Labor Law 240(1) claim is denied. That branch of plaintiff's motion
that seeks
permission to serve an expert exchange is granted to the limited extent that
the plaintiff's expert
exchange is deemed timely served for purposes of permitting the expert to
testify at trial. The
time for defendant's to timely serve an expert exchange is hereby extended to
sixty days after
notice of entry of this order. Any defendants' expert witness exchanged after
said date is subject
to further judicial order of any judge.
The motion for summary judgment by co-defendant, United Iron Works, Inc.,
(United), is
withdrawn pursuant to a letter dated October 20, 2014.
The foregoing shall constitute the decision and order of the Court.
Dated:
_____________________________________________KENNETH L.
THOMPSON JR. J.S.C.