Opinion
Index No.: 22207/2008 Motion Cal. No.: 22 Motion Seq. No.: 5 Third-Party Index No.: 350611/08 Second Third-Party Index No.: 350141/11
06-20-2013
TEOFILO CABRERA, Plaintiff, v. NY -717 FIFTH AVENUE OFFICE, LLC., NY-717 FIFTH AVENUE, L.L.C., 717 GFC L.L.C., 717 GFC OWNER, L.L.C., 717 GFC MEZZANINE, L.L.C., THE 717 FIFTH AVENUE CONDOMINIUM, and JT MAGEN CO., INC., and GIORGIO ARMANI CORPORATION, Defendants. JT MAGEN & CO., INC., Third-Party Plaintiff, v. STATEWIDE DEMOLITION CORP., Third-Party Defendant. 717 GFC LLC, 717 GFC OWNER, L.L.C., Second Third-Party Plaintiff, v. STATEWIDE DEMOLITION CORP Second Third-Party Defendant.
Short Form Order Present: HONORABLE JANICE A. TAYLOR
Justice
The following papers numbered 1 to 14 read on this motion by defendant JT Magen & Company, Inc. (Magen), defendant 717 GFC LLC (GFC LLC), defendant 717 GFC Owner, LLC (GFC Owner), defendant 717 GFC Mezzanine, LL C (GFC Mezzanine), and defendant Giorgio Armani Corp. (Armani) for, inter alia, summary judgment dismissing the plaintiff's causes of action based on Labor Law §§200, 240, and 241(6)
+--------------------------------------------------------------------+ ¦ ¦Papers ¦ ¦ ¦ ¦ ¦ ¦Numbered ¦ +---------------------------------------------------------+----------¦ ¦Notice of Motion - Affirmation - Exhibits - Service ¦1 - 4 ¦ +---------------------------------------------------------+----------¦ ¦Notice of Cross-Motion - Affirmation - Exhibits - Service¦5 - 8 ¦ +---------------------------------------------------------+----------¦ ¦Answering Affirmation - Exhibits - Service ¦9 - 11 ¦ +---------------------------------------------------------+----------¦ ¦Reply Affirmation - Service ¦12 - 13 ¦ +---------------------------------------------------------+----------¦ ¦Memorandum of Law ¦14 ¦ +--------------------------------------------------------------------+
Upon the foregoing papers it is ordered that the motion is determined as follows:
I. The Facts and Allegations
Defendant GFC LLC leased part of premises known as 717 Fifth Avenue, New York, New York to defendant Armani which entered into a contract whereby defendant Magen agreed to act as the general contractor for renovation work undertaken by the tenant. Magen, in turn, subcontracted demolition work to third party defendant Statewide Demolition Corp. ("Statewide").
Plaintiff Teofilo Cabrera, an employee of Statewide, testified at his deposition as follows: On June 18, 2008, Walter, one of his Statewide supervisors, told him to go to the basement of the building. Andrzej, the second of his Statewide supervisors, also told him to report to the basement along with Manuel Carpio, another Statewide employee, and to bring a ladder with them. They took an eight foot A-frame ladder owned by Statewide and a sawzall to the basement where Andrzej directed them to cut a pipe with cables inside of it which ran from the third floor to the basement. The pipe protruded from the basement ceiling and then apparently ran along the ceiling where it received support from metal devices attached to the ceiling. The pipe was about twelve feet above the floor of the basement.
Plaintiff Cabrera further testified at his deposition: As he stood on the last rung of the ladder and Carpio stood on a scaffold, he began to use the sawzall to cut the pipe. After he had cut halfway through the pipe, he handed the sawzall to Carpio to complete the task. Carpio resumed the cutting as the plaintiff, still standing on the ladder, held the wire for the sawzall. When Carpio had nearly finished cutting through the pipe, part of it fell because of the weight of the cables inside of it. The falling pipe struck the plaintiff on his left arm, causing injury, and also struck the ladder, causing it to collapse. The plaintiff grabbed onto a small pipe to prevent himself from falling to the floor, and, in doing so, he further injured himself.
Anthony Wall, an employee of Magen, testified at his deposition as follows: On the day of the accident, he had seen Statewide workers on the third floor where they were engaged in removing a four-inch pipe which served as a conduit for electrical wires. He observed the workers removing a "chuck" from the pipe which had held the wires in place so that they did not slip down the pipe. He inquired if the pipe in the basement had been cut, and when they told him that it had not yet been cut, he told them not to take the chuck out. O nce the pipe had been cut at the basement level, the chuck could be removed and the wires would fall safely out of the pipe. When he told the Statewide employees not to release the chuck, they answered that they "do this all the time release the chuck," but they did not release the chuck in his presence. Wall took them down to the basement to show them where he wanted them to cut the conduit. A Kindorf support held the pipe, and he told the Statewide workers to cut the pipe to the left of the support so that the pipe's weight would be held by the support after the cutting. Wall then left the basement. After someone told him about the accident, Wall returned to the basement and observed that, contrary to his instructions, the workers had cut the pipe to the right of the support. He also observed that wire had fallen to the floor, and he concluded that, contrary to his instructions, the workers had released the chuck.
II. 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" (Comes v New York State Electric and Gas Corp., 82 NY2d 876, 877). Where a defendant has not exercised supervisory control and an injury results from a contractor's methods, liability does not attach pursuant to Labor Law § 200 (Comes v New York State Electric and Gas Corp., supra). Insofar as the defendant owners are concerned, plaintiff Cabrera did not raise a genuine issue of fact concerning whether they exercised supervisory control over his work. Insofar as defendant Magen is concerned, " [i]n addition to showing that the defendant exercised supervisory direction or control over the operation, the plaintiff also must show that the defendant had actual or constructive notice of the alleged unsafe condition that caused the accident ***." (Nevins v. Essex Owners Corp., 276 AD2d 315, 316; Maldonado v. Metropolitan Life Ins. Co., 289 AD2d 176). In the case at bar, plaintiff Cabrera did not raise a genuine issue of fact concerning whether Wall, Magen's supervisor, knew that the Statewide workers had created a dangerous condition by disregarding his instructions about the removal of the chuck and the location of the cut. There is no evidence in this case supportive of a Labor Law §200 claim or of a negligence claim that defendant Magen created or had notice of the dangerous condition from which the plaintiff allegedly sustained his injury (see, Bond v. York Hunter Const., Inc., 95 NY2d 883; Carty v. Port Authority of New York and New Jersey, 32 AD3d 732 ; DeRosa v. Union Square 14th Street Associates, 269 AD2d 486).
Accordingly, that branch of the motion which is for summary judgment dismissing the plaintiff's cause of action based on Labor Law §200 is granted.
III. Labor Law §240
Labor Law § 240(1) provides: "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, 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" (see, Blake v. Neighborhood Housing Services of New York City, Inc. 1 NY3d 280.)
The duty imposed upon contractors and owners pursuant to Labor Law § 240(1) is nondelegable (see, Rocovich v Consolidated Edison Co., 78 NY2d 509), and a violation of the duty results in absolute liability. (Wilinski v. 334 East 92nd Housing Development Fund, 18 NY3d 1; Bland v Manocherian, 66 NY2d 452; Jamindar v. Uniondale Union Free School Dist., 90 AD3d 612; Paz v. City of New York, 85 AD3d 519.) "[W]here an accident is caused by a violation of the statute, the plaintiff's own negligence does not furnish a defense" (Cahill v. Triborough Bridge and Tunnel Authority 4 NY3d 35, 39). Comparative negligence is not an issue which can be raised by a defendant in a claim based on Labor Law §240(1) (Dean v. City of Utica, 75 AD3d 1130; Gizowski v. State of New York, 66 AD3d 1348). A defendant cannot avoid liability unless the plaintiff worker's own actions were the sole proximate cause of the accident (Cahill v. Triborough Bridge and Tunnel Authority, supra; Blake v. Neighborhood Housing Services of New York , 1 NY3d 280).
While Labor Law § 240(1) does not protect a worker from "any and all perils that may be connected in some tangential way with the effects of gravity," the statute does protect him from "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-Electric Company, 81 NY2d 494, 501 [emphasis in the original]). The harm must flow "directly *** from the application of the force of gravity to an object or person." (Ross v Curtis Palmer Hydro-Electric Company, supra, 501) .
The first issue presented concerns which of the party defendants are "owners" within the meaning of Labor Law §240(1). A tenant such as defendant Giorgio Armani who contracts for the work is an "owner" within the meaning of the statute (see, Walp v. ACTS Testing Labs, Inc./Division of Bureau Veritas, 28 AD3d 1104; Crespo v. Triad, Inc., 294 AD2d 145). The fee holder is also an "owner" within the meaning of the statute despite the fact that a lessee may have contracted for the work (see, Sanatass v. Consolidated Investing Co., Inc., 10 NY3d 333; Coleman v. City of New York, 91 NY2d 821; Crespo v. Triad, Inc., supra). In the case at bar, defendant 717 GFC, LLC, here presumed to be the fee holder, rented part of the premises to defendant Giorgio Armani, which contracted for the work, pursuant to a lease dated May 10, 2007, and both of those parties are "owners" within the meaning of Labor Law §240. The other moving defendants presented no evidence concerning their relationship, if any, to the property, and as the proponents of this motion for summary judgment they had the burden of doing so.
Plaintiff Cabrera first sustained injury when the falling pipe cut his arm. Labor Law §240 protects workers from "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-Electric Company, supra, 501), and the defendants did not eliminate the issue of fact pertaining to whether the pipe upon which the plaintiff worked was adequately secured. Plaintiff Cabrera also allegedly sustained injury when the ladder moved out from under him and he had to grab onto something to keep from falling. The fact that the accident started with the falling piece of pipe does not eliminate the liability of the defendants under Labor Law §240(1) (see, Montalvo v. J. Petrocelli Const., Inc., 8 AD3d 173; Dasilva v. A.J. Contracting Co., 262 AD2d 214). "The failure to properly secure a ladder so as to hold it steady and erect during its use constitutes a violation of Labor Law § 240(1) ***" (Dasilva v. A.J. Contracting Co. supra, 214).
It is true, as the defendants argue, that the height differential must be sufficient to be within the scope of the special protections afforded by Labor Law § 240(1) (see, Rodriguez v. Tietz Ctr. for Nursing Care, 84 NY2d 841; Outar v. City of New York, 286 AD2d 671). However, although the pipe may have been just inches above the plaintiff's head as he stood on the ladder, he was also working at an elevated height. "[T]he force of gravity operating on an unsecured object at an elevated height caused plaintiff's injuries and § 240(1) provides a cause of action ***" (Hawkins v. City of New York, 275 AD2d 634, 634-635, distinguishing Rodriguez v. Tietz Ctr. for Nursing Care, supra). A case involving merely inches in height differential may come within the scope of the statute where, as here, under all of the circumstances, "there is a significant risk inherent in the relative elevation at which material or loads must be positioned or secured ***" (Salinas v. Barney Skanska Const. Co., 2 AD3d 619, 621). In any event, the plaintiff alleges that he sustained injury from two elevation related risks, the first, being struck from the the pipe above his head, and the second, falling from the ladder upon which he stood.
Accordingly, that branch of the motion which is for summary judgment dismissing the cause of action based on Labor Law §240(1) is denied.
IV. Labor Law §241(6)
Labor Law §241(6) provides, inter alia, that areas in which construction is being performed shall be "guarded, arranged, operated, and conducted" in a manner which provides "reasonable and adequate protection and safety to the persons employed therein," that the Commissioner of Labor may make rules to implement the statute, and that owners, contractors, and their agents shall comply with them (see, Rizzuto v. L.A. Wenger Contracting Co., Inc., 91 NY2d 343). The duty imposed by Labor Law § 241(6) upon owners and contractors is nondelegable (Rizzuto v. L.A. Wenger Contracting Co., Inc., supra; Comes v New York State Electric and Gas Corp., 82 NY2d 876). Since an owner or general contractor's vicarious liability under section 241(6) is not dependent on its personal capability to prevent or cure a dangerous condition, the absence of actual or constructive notice sufficient to prevent or cure must also be irrelevant to the imposition of Labor Law § 241(6) liability." (Rizzuto v. L.A. Wenger Contracting Co., Inc., 91 NY2d 343, 352).
A cause of action based on Labor Law § 241(6) "must refer to a violation of the specific standards set forth in the implementing regulations (12 NYCRR Part 123)." (Simon v Schenectady North Congregation of Jehovah's Witnesses, 132 AD2d 313, 317; Vernieri v Empire Realty Co., 219 AD2d 593). In order to prove a cause of action pursuant to Labor Law § 241(6), a plaintiff must show that the defendant "violated a rule or regulation of the Commissioner of Labor that sets forth a specific standard of conduct as opposed to a general reiteration of common-law principles ***" (Adams v. Glass Fab, Inc., 212 AD2d 972, 973). " [T]he particular provision relied upon by a plaintiff must mandate compliance with concrete specifications and not simply declare general safety standards or reiterate common-law principles ***" (Misicki v. Caradonna, 12 NY3d 511, 515).
The Industrial Code provisions relied upon by plaintiff Cabrera are not relevant to this action. (See, e.g., Moncayo v. Curtis Partition Corp., -AD3d-, - NYS2d-, 2013 WL 2232286 [12 NYCRR 23-1.7(a)(1)]; Estrella v. GIT Industries, Inc., 105 AD3d 555 [12 NYCRR 23-1.21(b)(4)]; Bolster v. Eastern Bldg. and Restoration, Inc., 96 AD3d 1123 [ 12 NYCRR 23-3.3(c)]).
Accordingly, that branch of the motion which is for summary judgment dismissing the cause of action based on Labor Law §241(6) is granted.
V. Breach of Contract
The movants allege that Statewide breached section 15.3 of the subcontract by failing to procure insurance naming various parties as additional insureds. A party seeking summary judgment on a cause of action for breach of contract to procure insurance must show that a contract provision required insurance to be procured and that the provision was not complied with (see, Rodriguez v. Savoy Boro Park Associates Ltd. Partnership, 304 AD2d 738). In the case at bar, statements made by an attorney in a memorandum of law have no probative value on the issue of compliance. Moreover, the roles of the various parties mentioned in section 15.3 were not clearly identified for the court.
Accordingly, that branch of the motion which is for summary judgment on the claim for breach of contract is denied without prejudice to renewal.
VI. Contractual Indemnification
General Obligations Law § 5-322.1 voids an indemnification clause where the party which seeks indemnity was itself negligent (see, Itri Brick & Concrete Corp. v. Aetna Cas. & Sur. Co., 89 NY2d 786; Daniels v. Bohn/fiore, Inc., 300 AD2d 341 ; Carriere v. Whiting Turner Contracting, 299 AD2d 509). In the case at bar, there are issues of fact concerning whether Magen was itself negligent in the supervision of the plaintiff's work. Wall left the basement area without observing that the plaintiff had begun to cut the pipe at the correct location, and he did not verify that the chuck on the third floor had not been removed. Insofar as the rest of the movants are concerned, some of their roles were not clearly identified, and the court cannot determine which of them fall within the scope of the indemnification clause.
Accordingly, that branch of the motion which is for summary judgment on the claim for contractual indemnification is denied as to JT Magen and denied without prejudice to renewal as to the remaining defendants.
VII. Common Law Indemnification
In a Labor Law case, "[t]o 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 cause of the accident ***" (Mikelatos v. Theofilaktidis 105 AD3d 822, 824; Correia v. Professional Data Mgt., 259 AD2d 60.) Insofar as Magen is concerned, summary judgment is premature before the liability of the general contractor and the subcontractor, if any, has been determined. (See, Watters v. R.D. Branch Associates, LP, 30 AD3d 408; Iurato v City of New York, 18 AD3d 247; Donnelly v Treeline Companies, 13 AD3d 143; Springstead v Ciba Geigy Corp., 302 AD2d 589). Insofar as the rest of the movants are concerned, some of their roles were not clearly identified, and the court cannot determine which of them may be entitled to common law indemnification.
Accordingly, that branch of the motion which is for summary judgment on the claim for common law indemnification is denied as to Magen and denied without prejudice to renewal as to the remaining defendants.
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Janice A. Taylor , J. S. C.