Labor - Safe Place to Work - Industrial Code Violation - Summary Judgment

Dolce Panepinto, Buffalo (Sean E. Cooney of counsel), for plaintiff.

Osborn, Reed & Burke, LLP, East Aurora (Kevin D. Walsh of counsel), for Dora Wisniewski and another, defendants.

Kenney Shelton Liptak Nowak LLP, White Plains (Lori B. Lewis of counsel), for third-party defendant.

Matthew J. Duggan, Buffalo, for defendant/third-party plaintiff.

Plaintiff commenced this action seeking damages for injuries he sustained at a construction site and asserted causes of action sounding in violation of Labor Law §§ 200, 240 (1), and 241 (6), as well as in common-law negligence. Plaintiff's injuries occurred when, while in the employ of nonparty Burke Homes, LLC, he slipped and fell on stairs that were covered in a slippery substance consisting of "sludge and debris." At the time of the incident, defendant Jim's Electric & General Contracting (Jim's) acted as the general contractor for the project, which was performed on a premises owned by Dora Wisniewski and Tom's Family Restaurant (collectively, Wisniewski defendants). Jim's, in turn, subsequently commenced a third-party action sounding in breach of contract and seeking indemnification and/or contribution from third-party defendant SAB Specialties (SAB), which provided laborers for the project pursuant to an annual work agreement relevant to that project.

Now, plaintiff moves for an order granting summary judgment on liability pursuant to Labor Law § 241 (6). The Wisniewski defendants, in turn, cross-move for an order granting summary judgment dismissing the Labor Law § 200 claim as against them, while SAB applies for an order granting summary judgment dismissing the third-party complaint.

For the reasons that follow, plaintiff's motion is granted in its entirety. The application of the Wisniewski defendants, in turn, is denied, and the motion of SAB for summary judgment dismissing the third-party complaint is granted.

Labor Law § 241 (6) reflects a legislative effort "to protect workers from industrial accidents specifically in connection{**88 Misc 3d at 464} with construction, demolition[, and] excavation work" (Nagel v D & R Realty Corp., 99 NY2d 98, 102 [2002]). That statute "requires owners and contractors to provide reasonable and adequate protection and safety for workers and to comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor" (St. Louis v Town of N. Elba, 16 NY3d 411, 413-414 [2011] [internal quotation marks omitted]).

Inasmuch as Labor Law § 241 (6) "imposes a nondelegable duty on property owners, [a] plaintiff need not show that defendants exercised supervision or control over the work site in order to establish a right of recovery [there]under" (id.). To sustain such a cause, however, "[a] plaintiff . . . must demonstrate a violation of a rule or regulation of the Industrial Code [that] gives a specific, positive command, and is applicable to the facts of the case" (Abreu v Frocione Props., LLC, 199 AD3d 1452, 1452-1453 [4th Dept 2021] [internal quotation marks omitted]; see Bazdaric v Almah Partners LLC, 41 NY3d 310, 318 [2024]; St. Louis v Town of N. Elba, 16 NY3d 411, 413-414 [2011]; cf. Losurdo v [*2]Skyline Assoc., L.P., 24 AD3d 1235, 1237 [4th Dept 2005]). A plaintiff also must demonstrate that "this violation alone, or considered with other undisputed factual evidence, constitutes negligence," and that "the violation caused plaintiff['s] injuries" (Bazdaric, 41 NY3d at 318).

Agency, Protected Activity, and Industrial Code

Here, plaintiff established that defendants are either owners or agents thereof within the meaning of Labor Law § 241 (6) (see generally Walls v Turner Constr. Co., 4 NY3d 861, 863-864 [2005]; Mulcaire v Buffalo Structural Steel Constr. Corp., 45 AD3d 1426, 1428 [4th Dept 2007]), and that the injury-producing work was a protected activity (see generally Love v New York State Thruway Auth., 17 AD3d 1000, 1002 [4th Dept 2005]). The only provision of the Industrial Code at issue on this motion practice, namely, 12 NYCRR 23-1.7 (d), is sufficiently specific to support a section 241 (6) cause of action (see generally Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 351 [1998]), and plaintiff met his initial burden of establishing that such regulation was breached (see generally Piazza v Frank L. Ciminelli Constr. Co., Inc., 2 AD3d 1345, 1349 [4th Dept 2003]). Defendants failed to raise a triable issue of fact in opposition to any of those parts of this motion (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).{**88 Misc 3d at 465}

Negligence, Proximate Cause, and Comparative Fault

Historically, the state of the law in the Fourth Department has been such that the violation of an Industrial Code provision—here, 12 NYCRR 23-1.7 (d)—would "not establish negligence as a matter of law [and would constitute] merely some evidence to be considered on the question of a defendant's negligence" (Mulcaire, 45 AD3d at 1428 [internal quotation marks omitted]; cf. 1B NY PJI3d 2:216A at 393 [2024]). To that end, the Fourth Department has been of the mind that a plaintiff may not be awarded summary judgment on liability on a Labor Law § 241 (6) cause of action.^[FN1] The Third Department similarly has taken the position that the violation of a regulation "would only amount to some evidence of negligence" (Wells v British Am. Dev. Corp., 2 AD3d 1141, 1144 [3d Dept 2003] [internal quotation marks omitted]). The First and Second Departments, however, have allowed summary judgment to be awarded to a section 241 (6) plaintiff (see Favaloro v Port Auth. of N.Y. & N.J., 191 AD3d 524, 525 [1st Dept 2021]; Reynoso v Bovis Lend Lease LMB, Inc., 125 AD3d 740, 741 [2d Dept 2015]; see 1B NY PJI3d 2:216A at 393 [2024]).

That departmental split was resolved in Bazdaric v Almah Partners LLC (41 NY3d 310 [2024]). There, the Court of Appeals concluded that the

"[p]laintiffs [were] entitled to summary judgment as to liability on their Labor Law § 241 (6) cause of action for workplace injuries resulting from a fall on a . . . . slipping hazard that [the] defendants failed to remove in violation of [the same regulation at issue here, namely, 12 NYCRR] 23-1.7 (d)" (Bazdaric, 41 NY3d at 313-314).

Consequently, this court concludes that, as a matter of theory, plaintiff may [*3]be awarded summary judgment on liability pursuant to section 241 (6).

This court further concludes that, as a matter of practice, plaintiff should receive that award with respect to the parts of his motion considering liability and comparative fault.{**88 Misc 3d at 466}

With respect to the liability question, " '[t]o be entitled to partial summary judgment [on that issue,] a plaintiff does not bear the double burden of establishing a prima facie case of defendant's liability and the absence of his or her own comparative fault' " (Edwards v Gorman, 162 AD3d 1480, 1481 [4th Dept 2018], quoting Rodriguez v City of New York, 31 NY3d 312, 324-325 [2018]). Plaintiff established entitlement to judgment as a matter of law with respect to liability^[FN2] through a tender of evidence showing that the stairs were covered with slime and sludge at the time of his fall, and that Jim's, which was responsible for worksite safety, neither conducted any formal safety inspections at the jobsite nor took any steps to address slipping hazards at that location before plaintiff's accident.

With respect to the comparative fault issue, the court acknowledges that "[q]uestions regarding proximate cause generally are for a trier of fact" (Newman v RCPI Landmark Props., LLC, 28 NY3d 1032, 1033 [2016]). In this context, however, plaintiff demonstrated his freedom from comparative negligence inasmuch as he was following his employer's directives in proceeding to a work area accessible through the steps on which he fell (Reynoso, 125 AD3d at 742). Defendants' duty to remove sludge and like substances from the stairway was nondelegable and, absent any semblance of a policy providing that plaintiff was not supposed to have traversed that passageway at that time or while it was in that condition, plaintiff cannot be held negligent for defendants' failure to meet that obligation (see Thompson v 1241 PVR, LLC, 104 AD3d 1298, 1299 [4th Dept 2013]). Defendants failed to raise a triable issue of fact in opposition to this part of the motion (see generally Zuckerman, 49 NY2d at 562).

As the parties seeking summary judgment dismissing the Labor Law § 200 claim, the Wisniewski defendants must demonstrate "as a matter of law that they did not exercise any supervisory control over the general condition of the premises or that they neither created nor [*4]had actual or constructive notice of the dangerous condition on the premises" (Ozimek, 83 AD3d at 1416 [internal quotation marks omitted]). Here, the Wisniewski defendants failed to meet their initial burden on the motion inasmuch as they did not demonstrate that they neither created nor had actual or constructive notice of the slippery condition that gave rise to the subject accident (see generally Zuckerman, 49 NY2d at 562).

Turning to SAB's motion for summary judgment dismissing the complaint, the court notes that the issue "[w]hether a contract is ambiguous is a question of law" (Matter of Banos v Rhea, 25 NY3d 266, 276, 280 [2015]), and that "[a]mbiguity in a contract arises when the contract, read as a whole, fails to disclose its purpose and the parties' intent, or when specific language is susceptible of two reasonable interpretations" (Ellington v EMI Music, Inc., 24 NY3d 239, 244 [2014] [internal quotation marks and citation omitted]).

An ambiguity in a contract, of course, "will be construed against the drafter[ ]" (Albunio v City of New York, 23 NY3d 65, 71 [2014] [internal quotation marks omitted]), and here the part of the agreement between Jim's and SAB (generally, agreement) considering insurance procurement is inconclusive as to whether SAB had an obligation to procure coverage for Jim's "protecting it from liability" in this matter. Consequently, the part of this motion seeking dismissal of the cause of action for breach of contract is granted.

The parts of this motion seeking dismissal of the claim for contractual indemnification also are granted.{**88 Misc 3d at 468}

" '[W]hen a party is under no legal duty to indemnify, a contract assuming that obligation must be strictly construed to avoid reading into it a duty which the parties did not intend to be assumed. The promise should not be found unless it can be clearly implied from the language and purpose of the entire agreement and the surrounding facts and circumstances' " (Rodrigues v N & S Bldg. Contrs., Inc., 5 NY3d 427, 433 [2005], quoting Hooper Assoc. v AGS Computers, 74 NY2d 487, 491-492 [1989] [citations omitted]).

Even assuming, arguendo, that the agreement's indemnity clause expresses unmistakable intent of the parties that SAB would indemnify Jim's for any damages arising out of an accident such as the incident at issue (see generally Worth Constr. Co., Inc. v Admiral Ins. Co., 10 NY3d 411, 415 [2008]; Olivieri v Barnes & Noble, Inc., 208 AD3d 1001, 1005 [4th Dept 2022]), that provision is not triggered under the circumstances of this case. SAB's obligation to indemnify Jim's is conditioned upon, among other things, a "negligent act or omission of [SAB or] anyone directly or indirectly employed by [SAB]." Here, the record does not demonstrate that the injuries complained of resulted from negligence of SAB.

Finally, with respect to the causes of action for common-law indemnification and contribution, the court notes that "[t]he right of common-law indemnification belongs to parties determined to be vicariously liable without proof of any negligence or active fault on their part" (Brickel v Buffalo Mun. Hous. Auth., 280 AD2d 985, 985 [4th Dept 2001] [internal quotation marks omitted]). A subcontractor may have an obligation of common-law indemnification to a project owner or general contractor upon proof either that its negligence caused the accident, or that it was not actually negligent, but "had the authority to direct, supervise and control the work giving rise to the injury" (Welsh v County of Albany, 235 AD2d 820, 822-823 [3d Dept 1997][*5] [internal quotation marks omitted]; see Malecki v Wal-Mart Stores, 222 AD2d 1010, 1011 [4th Dept 1995]; Gillmore v Duke/Fluor Daniel, 221 AD2d 938, 940 [4th Dept 1995]). "The right of contribution[, in turn,] requir[es] only that the party seeking contribution and the party from whom contribution is sought be liable, in whole or in part, for the same injury" (Oursler v Brennan, 67 AD3d 36, 45 [4th Dept 2009] [internal quotation marks omitted], appeal withdrawn 15 NY3d 848 [2010]). Here, in view of the determination that the actions{**88 Misc 3d at 469} of plaintiff—who was in the employ of SAB at the time of the accident—did not contribute to that event, the parts of the motion seeking dismissal of these claims also are granted.

Accordingly, for all of the foregoing reasons, plaintiff's motion for summary judgment is granted. The application of the Wisniewski defendants is denied, and the motion of SAB is granted.