Opinion
Index No. E2020000538
02-10-2023
Clarence Campbell, Plaintiff, v. Cobblestone Restaurant of Geneva, LLC, Encore Geneva Center, LLC AND TRAN'S FORMATION PROPERTIES, LLC, Defendants. COBBLESTONE RESTAURANT OF GENEVA, LLC, Third-Party Plaintiff, v. TRAN'S FORMATION PROPERTIES, LLC, Third-Party Defendant.
Robert L. Voltz, Cellino Law, LLC, for the Plaintiff Matthew A. Lenhard, Rupp Baase, for Defendant/Third-Party Plaintiff Cobblestone Restaurant of Geneva, LLC James J. Navagh, Law Offices of John Wallace, for Defendant Encore Geneva Center, LLC Timothy P. Welch, Hurwitz Fine P.C., for Defendant / Third-Party Defendant Tran's Formation Properties
Unpublished Opinion
Robert L. Voltz, Cellino Law, LLC, for the Plaintiff
Matthew A. Lenhard, Rupp Baase, for Defendant/Third-Party Plaintiff Cobblestone Restaurant of Geneva, LLC
James J. Navagh, Law Offices of John Wallace, for Defendant Encore Geneva Center, LLC
Timothy P. Welch, Hurwitz Fine P.C., for Defendant / Third-Party Defendant Tran's Formation Properties
Craig J. Doran, J.
This action, commenced by summons and complaint on January 15, 2020, seeks damages for personal injuries allegedly sustained by Plaintiff Clarence Campbell ("Plaintiff") when he fell while working at a construction site at the Cobblestone Restaurant in Geneva, NY. The property and restaurant structure were owned by Defendant Encore Geneva Center, LLC ("Defendant Encore"). Defendant Cobblestone Restaurant of Geneva, LLC ("Defendant Cobblestone") operated the Cobblestone Restaurant business. Third-Party Defendant Tran's Formation Properties ("TFP") was the general contractor for the project. Plaintiff's employer, J.H. Verdi, was a subcontractor.
On January 29, 2021, Defendant Cobblestone commenced a third-party action against TFP, asserting causes of action for common law indemnification, contractual indemnification, and failure to procure insurance. Issue was joined on the Third-Party Complaint on May 26, 2021.
Plaintiff filed an Amended Summons and Complaint on March 17, 2021, inserting TFP as a defendant in place of the "John Doe" defendant and asserting eleven causes of action. TFP moved to dismiss on statute of limitations grounds, and Plaintiff cross moved for leave to amend the Complaint to name TFP as a defendant. By Decision and Order dated July 22, 2021 (Taylor, J.), the Court dismissed the claims asserted against TFP in the Amended Complaint as untimely, and denied Plaintiff's cross motion for leave to amend.
The surviving causes of action asserted in the Amended Complaint are the following: negligence against Defendant Cobblestone and Defendant Encore (First and Second Causes of Action); violation of Labor Law § 240 (1) against Defendant Cobblestone and Defendant Encore (Third and Fourth Causes of Action); violation of Labor Law § 241 (6) against Defendant Cobblestone and Defendant Encore (Sixth and Seventh Causes of Action); and violation of Labor Law § 200 against Defendant Cobblestone and Defendant Encore (Ninth and Tenth Causes of Action).
Prior to issuance of the Court's July 22, 2021 Order dismissing the Amended Complaint as asserted against TFP, Defendants Cobblestone and Encore filed Answers asserting cross claims against each other and against TFP. Defendant Cobblestone's Answer, dated April 20, 2021, asserts a cross claim against Defendant Encore and TFP for indemnity and/or contribution. Defendant Encore's Answer, dated April 30, 2021, asserts three cross claims: against Defendant Cobblestone and TFP for common-law indemnity and contribution; against Defendant Cobblestone for contractual indemnity; and against TFP for contractual indemnity.
Plaintiff filed the Note of Issue on September 20, 2022.
There are three motions pending before the Court. The first is NYSCEF Motion No. 7, filed by Defendant Cobblestone, requesting summary judgment dismissing the Amended Complaint and all cross claims asserted against Defendant Cobblestone, and granting summary judgment in favor of Defendant Cobblestone on its claims for common-law indemnity against Defendant Encore and/or Third-Party Defendant TFP. The second motion before the Court, NYSCEF Motion No. 8, is Plaintiff's motion for partial summary judgment on its Labor Law §240 (1) claim against Defendant Encore. The third motion, NYSCEF Motion No. 9, is Defendant Encore's motion for summary judgment dismissing the Amended Complaint and granting summary judgment in favor of Defendant Encore on its claim of common-law indemnity against TFP.
The parties have not addressed the unique procedural posture of the main action. Although Plaintiff's claims asserted against TFP in the Amended Complaint were dismissed per the July 22, 2021 Order, the cross claims asserted in April 2021 by Defendants Cobblestone and Encore against TFP appear to remain viable in the main action inasmuch as the Court had jurisdiction over TFP at the time Defendants' cross claims were asserted. As such, the Court will address the pending motions concerning those cross claims on their merits. Notably, TFP has not, in its opposition papers, asserted any procedural objections to the Court reaching the merits of those cross claims.
For ease of analysis, the Court will address the Defendants' motions for summary judgment first, followed by Plaintiff's motion.
Summary Judgment Standard
"On a motion for summary judgment, facts must be viewed 'in the light most favorable to the non-moving party'" (Vega v Restani Constr. Corp., 18 N.Y.3d 499, 503 [2012]). "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'" (id.). "A motion for summary judgment must be denied 'if there is any significant doubt as to the existence of a triable issue, or if there is even arguably such an issue'" (Vanderwater v Sears, 277 A.D.2d 1056, 1056 [4th Dept 2000]; see Sillman v Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404 [1957], rearg denied 3 N.Y.2d 941 [1957]); Hann v S&J Morrell, Inc., 207 A.D.3d 1118, 1119 [4th Dept 2022]).
A. Defendant Cobblestone's Motion for Summary Judgment
1. Defendant Cobblestone's Motion for Summary Judgment on the Amended Complaint
In support of Defendant Cobblestone's motion for summary judgment seeking dismissal of the Amended Complaint insofar as asserted against it, Defendant Cobblestone contends that Plaintiff's claims asserting common-law negligence and violations of Labor Law §§ 200, 240 (1), and 241 (6) are not actionable against Defendant Cobblestone because it was not a contractor or owner of the property where Plaintiff was injured, and did not direct or control the work being performed by Plaintiff.
Labor Law § 240 (1) provides that "[a]ll contractors and owners and their agents,... 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" (id.).
Labor Law § 241 (6) provides that "All contractors and owners and their agents,... when constructing or demolishing buildings or doing any excavating in connection therewith, shall comply with the following requirements:... 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,... shall comply therewith" (id.).
"[I]t is well settled that the duties of [Labor Law §§ 240 (1) and 241 (6)] apply only to general contractors and owners and their agents" (Wrobel v Town of Pendleton, 120 A.D.3d 963, 964 [4th Dept 2014] [internal quotations and brackets omitted]). "An entity is a contractor within the meaning of Labor Law § 240 (1) and § 241 (6) if it had the power to enforce safety standards and choose responsible subcontractors, and an entity is a general contractor if, in addition thereto, it was responsible for coordinating and supervising the... project" (Mulcaire v Buffalo Structural Steel Const. Corp., 45 A.D.3d 1426, 1428 [4th Dept 2007] [internal quotations and brackets omitted], rearg denied 49 A.D.3d 1320 [4th Dept 2008]). Further, "the entity's right to exercise control over the work denotes its status as a contractor, regardless of whether it actually exercised that right" (id. [internal quotations omitted]).
Agent liability under Sections 240 (1) and 241 (6) only applies to entities having "sufficient supervision or control over the activity that caused plaintiff's injury, or over the safety procedures employed at the site" (Wrobel, 120 A.D.3d at 965; see also Robinson v Spragues Washington Sq., LLC, 158 A.D.3d 1318, 1319-1320 [4th Dept 2018]).
Here, it is undisputed that Defendant Cobblestone - the entity that operated the Cobblestone Restaurant business - did not own the subject property and was not the general contractor on the worksite. Further, Defendant Cobblestone met its prima facie burden on summary judgment by submitting evidence establishing that Defendant Cobblestone did not exercise supervision or control over the activity that caused Plaintiff's injury, or over the safety procedures employed at the worksite. Defendant Cobblestone submitted the deposition testimony of Andres Fernandez ("Fernandez"), the principal of both Defendant Encore and Defendant Cobblestone, wherein Fernandez testified that he personally hired TFP as the general contractor and TFP hired all of the subcontractors; at the time of the accident, there were only two subcontractors, the excavator and the mason, and TFP "did everything else"; Fernandez did not know the names of the subcontractors on site; it was the general contractor's responsibility to enforce safety regulations and determine the need for safety devices during construction; and Fernandez was only present on the worksite for approximately one hour once per week, when he would stop there in the course of making routine visits to his properties and tenants in the Geneva, NY area. Defendant Cobblestone also submitted Plaintiff's deposition testimony wherein he confirms that his activity at the worksite was directed by a J.H. Verdi supervisor named "John."
Consequently, Defendant Cobblestone "established its prima facie entitlement to judgment as a matter of law dismissing the Labor Law §§ 240 (1) and 241 (6) causes of action insofar as asserted against it by demonstrating that it lacked the authority to supervise or control the plaintiff's work," and also lacked supervision and control over the safety devices employed at the workplace (Vazquez v Humboldt Seigle Lofts, LLC, 145 A.D.3d 709, 710-711 [2d Dept 2016]).
In opposition, Plaintiff failed to raise a genuine issue of fact precluding summary judgment as to Defendant Cobblestone. Plaintiff argues that a question of fact exists based on his submission of work invoices issued by TFP to Andres Fernandez at "Cobblestone Restaurant." However, the corporate name of Defendant Cobblestone of Geneva, LLC appears nowhere on TFP's invoices and, in any event, the listing of an entity as recipient of an invoice does not raise a question of fact on the ability of Defendant Cobblestone to direct and control Plaintiff's work.
For these same reasons, Plaintiff's common-law negligence and Labor Law § 200 causes of action as asserted against Defendant Cobblestone, must be dismissed. Defendant Cobblestone was neither an owner, a contractor, or an agent thereof having ability to supervise or control Plaintiff's work (see Romang v Welsbach Elec. Corp., 47 A.D.3d 789, 789 [2d Dept 2008] [Labor Law § 200 "applies to owners, contractors, and their agents" and agency liability "requires a showing that authority was conferred on the [agent] to supervise and control the activity which produced the injury"]).
2. Defendant Cobblestone's Motion for Summary Judgment as to Defendant Encore's Cross Claims against Defendant Cobblestone
Defendant Cobblestone also moves for summary judgment dismissing Defendant Encore's cross claims asserted against it. Defendant Encore's Answer to the Amended Complaint asserts two cross claims against Defendant Cobblestone for common-law indemnity (First Cross Claim) and contractual indemnity (Second Cross Claim).
"To establish a claim for 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" (Pena v Intergate Manhattan LLC, 194 A.D.3d 576, 578 [1st Dept 2021]). Here, Defendant Encore cannot pursue a claim for common-law indemnity against Defendant Cobblestone because, as set forth above, Defendant Cobblestone did not supervise or control Plaintiff's work, or otherwise contribute to the causation of the accident. Defendant Cobblestone is therefore entitled to summary judgment dismissing Defendant Encore's First Cross Claim for common-law indemnity.
However, the Court must deny Defendant Cobblestone's motion insofar as it seeks dismissal of Defendant Encore's second cross claim, for contractual indemnity. "Unlike common-law indemnification, contractual indemnification is permissible where... there is no finding of negligence on the part of the indemnitor; however, the right to contractual indemnification depends upon the specific language of the contract" (Allington v Templeton Found., 167 A.D.3d 1437, 1441 [4th Dept 2018], citing Brown v Two Exch. Plaza Partners, 76 N.Y.2d 172, 178 [1990]).
Defendant Encore's cross claim alleges that pursuant to an agreement between Defendants Encore and Cobblestone, Defendant Cobblestone agreed to indemnify and hold harmless Defendant Encore against any claims arising out of or "in connection with the performance of Cobblestone's work under the contract or any activity associated with Cobblestone's work under the Contract." Defendant Cobblestone has failed to meet its prima facie burden to establish that either this agreement does not exist or that the terms of the agreement do not require contractual indemnification by Defendant Cobblestone. Indeed, neither party has offered evidence of the alleged agreement or its terms. Further, the Court cannot, based on the record before it, make any determination as to the enforceability of any such agreement under General Obligations Law § 5-322.1.
3. Defendant Cobblestone's Motion for Summary Judgment on its Claims for Common-Law Indemnity against Defendant Encore and Third-Party Defendant TFP
Defendant Cobblestone's Answer to the Amended Complaint asserts a cross claim against Defendant Encore and TFP for common-law indemnity. Defendant Cobblestone also seeks common-law indemnity against TFP in its Third-Party Complaint.
Because Defendant Cobblestone's common-law indemnity claims are not viable as a matter of law, the Court must deny Defendant Cobblestone's motion for summary judgment and, pursuant to its powers under CPLR 3212 (b), grant summary judgment dismissing those claims.
The elements of a common-law indemnity claim, along with the language of Defendant Cobblestone's claims as plead, condition Defendant Encore's and TFP's liability for indemnity upon Plaintiff recovering judgment against Defendant Cobblestone (see Divens v Finger Lakes Gaming & Racing Assn., Inc., 151 A.D.3d 1640, 1643 [4th Dept 2017] [the "predicate of common-law indemnity is vicarious liability without actual fault on the part of the proposed indemnitee,..." ]). The Court has granted summary judgment dismissing Plaintiff's claims against Defendant Cobblestone, and therefore Plaintiff cannot recover against Defendant Cobblestone and Defendant Cobblestone, in turn, cannot seek common-law indemnity from Defendant Encore or TFP. For the same reason, the Court grants summary judgment in favor of Defendant Encore and TFP dismissing Defendant Cobblestone's cross claim for common-law indemnity, and to Third-Party Defendant TFP dismissing the first cause of action in the Third-Party Complaint (see CPLR 3212 [b]).
B. Defendant Encore's Motion for Summary Judgment
1. Defendant Encore's Motion for Summary Judgment on the Amended Complaint
Defendant Encore contends that it is entitled to summary judgment on Plaintiff's Labor Law § 240 (1) claim because Plaintiff was not working at an elevated worksite at the time of the accident, and, consequently, he was not engaged in an activity protected under Labor Law § 240 (1). Defendant Encore further argues that Plaintiff's Labor Law § 241 (6) claim must be dismissed inasmuch as the Industrial Code violations alleged by Plaintiff either do not apply to the facts of this case, or are codifications of general safety rules that are insufficient to support Plaintiff's claim. Finally, Defendant Encore requests summary judgment dismissing Plaintiff's Labor Law § 200 and common law negligence claims, arguing that Plaintiff's injury did not arise from a dangerous condition on the property, and Defendant Encore did not control the means and methods of Plaintiff's work.
Labor Law § 240 (1) "imposes absolute liability on building owners and contractors whose failure to 'provide proper protection to workers employed on a construction site' proximately causes injury to a worker" (Wilinski v 334 E. 92nd Hous. Dev. Fund Corp., 18 N.Y.3d 1, 7 [2011], quoting Misseritti v Mark IV Const. Co., Inc., 86 N.Y.2d 487, 490 [1995]).
"Whether a plaintiff is entitled to recovery under Labor Law § 240 (1) requires a determination of whether the injury sustained is the type of elevation-related hazard to which the statute applies" (id.). The hazards contemplated by Section 240 (1) include "those related to the effects of gravity where protective devices are called for... because of a difference between the elevation level of the required work and a lower level...," and the provision applies only where "the proper 'erection,' 'construction,' 'placement' or 'operation' of one or more devices of the sort listed in section 240 (1) would... have prevented the injury" (Rocovich v Consol. Edison Co., 78 N.Y.2d 509, 514 [1991]). By contrast, there is no liability where the "injury results from the usual and ordinary dangers of a construction site," as opposed to an injury caused by an elevation-related hazard that could have been prevented by providing a protective device (see Caradori v Med Inn Centers of Am., LLC, 5 A.D.3d 1063, 1064 [4th Dept 2004], amended on rearg. 775 N.Y.S.2d 729 [4th Dept 2004]). "[T]he 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" (Wilinski, 18 N.Y.3d at 10 [internal quotations omitted]).
Defendant Encore does not dispute that it owns the property where Plaintiff's accident occurred. Defendant Encore contends, however, that Labor Law § 240 (1) does not apply because Plaintiff was not working at an elevated work site at the time of his injury. The protections of Labor Law § 240 (1) extend to workers employed at a construction site who "must... perform[]" tasks at an elevation (see Ames v Norstar Bldg. Corp., 19 A.D.3d 1016, 1016 [4th Dept 2005])." '[A] work site is 'elevated' within the meaning of the statute where the required work itself must be performed at an elevation, i.e., at the upper elevation differential, such that one of the devices enumerated in the statute will safely allow the worker to perform the task'" (id., quoting D'Egidio v Frontier Ins. Co., 270 A.D.2d 763, 765 [3d Dept 2000], lv denied 95 N.Y.2d 765 [2000]).
Defendant Encore has failed to meet its prima facie burden on summary judgment as to Plaintiff's Labor Law § 240 (1) claim. Defendant Encore's own motion papers, and in particular the deposition testimony of Plaintiff and Andres Fernandez, the principal of both Defendant Encore and Defendant Cobblestone, establish that Plaintiff was a laborer employed on a construction site and suffered an injury caused by an elevation-related hazard. Further, Defendant Encore has failed to establish the absence of any material issues of fact on the question of whether Plaintiff's injury could have been prevented by providing a protective device.
Fernandez testified that the construction of the addition onto the restaurant structure involved excavating a crawl space that was between four-and-a-half to five-feet deep. The foundation and footers were cinder block filled with concrete. Plaintiff testified that the date of the accident was his first day working at the subject worksite at the Cobblestone restaurant. He worked for J.H. Verdi, the masonry subcontractor assisting with the laying of concrete and cement blocks for the foundation. When Plaintiff arrived at the worksite, the excavation had already been dug. Plaintiff described the excavation as "like down in the hole"; Plaintiff's boss, "John," was to work inside of "the hole" and Plaintiff and his co-worker, "Willie," worked outside of the hole.
Plaintiff was instructed by his supervisor, John, to "get the block,... mix the mud and... run the water hose along the building so we can get water to mix the mud,... that was our assignment there." The water hose was coiled on the east side of the restaurant building and the water spigot was on the north side of the building. Willie took the end of the hose and walked it east, and then made a turn around the corner of the building to head north to connect the hose. As Willie dragged the hose, it became caught on a tree stump on top of a pile of dirt near Plaintiff - which Plaintiff described as a "mountain of dirt" - located about two to three feet away from the edge of the excavation. Plaintiff believed that a tree must have been cut down when the excavation was dug, and the stump was in the pile of dirt removed from the ground to dig the excavation. Willie had already turned the corner of the building and could not see Plaintiff. Plaintiff then "climb[ed] up the pile of dirt to go all the way to get the hose off of the stump." When Plaintiff picked up the hose to free it from the stump, Willie pulled the hose, and the hose hit Plaintiff's chest and knocked him backwards, causing him to fall approximately five to six feet into the excavation, where he landed on his back.
Based on Plaintiff's description of how the accident occurred - which, significantly, is undisputed - the Court is not persuaded by Defendant Encore's assertion that Plaintiff was not working at an elevated work site at the time of the accident. Plaintiff's testimony establishes that he climbed to the top of the dirt pile in order to perform required work (i.e., running the hose to the water faucet), and fell about five to six feet from that elevated area into the excavation, where he landed on his back. He was not working at ground level when he fell, as asserted by Defendant Encore. Consequently, the cases cited by Defendant Encore, such as Caradori, where the worker fell into a three-foot trench from ground level, are not instructive here (see 5 A.D.3d at 1064) and, in any event, at least one Fourth Department decision post-dating Cardori seems to dispense with the notion that a fall from ground-level cannot qualify for Labor Law § 240 (1) protection (see e.g. Wild v Marrano/Marc Equity Corp., 75 A.D.3d 1099, 1099 [4th Dept 2010] [worker's fall into an excavation that was immediately adjacent to his work area "is 'the type of elevation-related risk for which Labor Law § 240 (1) provides protection' "]).
The facts of this case more closely align with cases holding that Labor Law § 240 (1) applies where the worker fell into a hole or pit from an elevated work area (see Gottstine v Dunlop Tire Corp., 272 A.D.2d 863, 864 [4th Dept 2000] [Labor Law § 240 (1) applied where worker's leg fell into an opening while performing required work on a rebar mat suspended over a two-foot-deep pit]; Covey v Iroquois Gas Transmission Sys., L.P., 89 N.Y.2d 952, 952 [1997] ["plaintiff's fall from the backhoe into the 15-foot deep excavation after attempting to steady himself by grabbing an improperly secured handrail was the type of elevation-related risk for which Labor Law § 240 (1) provides protection"]).
Defendant Encore also makes the conclusory assertion that Plaintiff's injury is not one that could have been prevented by the use of one of the enumerated safety devices because Plaintiff was working at ground level. As set forth above, the undisputed evidence establishes that Plaintiff was not working at ground level at the time of the accident. Defendant Encore has failed to satisfy its prima facie burden to establish the absence of material issues of fact on the question whether providing Plaintiff with an enumerated safety device could have prevented his fall.
Defendant Encore's motion for summary judgment as to Plaintiff's Labor Law § 240 (1) claim is therefore denied.
"A plaintiff asserting a cause of action under Labor Law § 241 (6) must demonstrate a violation of a rule or regulation of the Industrial Code which gives a specific, positive command, and is applicable to the facts of the case" (Shaw v Scepter, Inc., 187 A.D.3d 1662, 1665 [4th Dept 2020] [internal quotations omitted]). "[T]he duty to comply with the Commissioner's regulations imposed by Labor Law § 241 (6) is nondelegable and there is no need to show that an owner exercised supervision or control over the worksite to establish a claim" (Toussaint v Port Auth. of New York and New Jersey, 38 N.Y.3d 89, 94 [2022]).
Here, Plaintiff's Verified Bill of Particulars directed to Defendant Encore lists several Industrial Code provisions Plaintiff alleges were violated. As discussed below, Defendant Encore's motion for summary judgment is granted insofar as Plaintiff's Labor Law § 241 (6) cause of action is premised upon Industrial Code (12 NYCRR) Sections 23-1.33, 23-1.5, 23-2.1, 23-4.2(h), and 23-4.2(i). However, Defendant Encore has failed to satisfy its prima facie burden, and therefore is not entitled to summary judgment, to the extent that Plaintiff's Section 241 (6) claim is premised on a violation of 12 NYCRR 23-1.7(b).
The Fourth Department has instructed that 12 NYCRR 23-1.33 and 23-1.5 are general safety standards that cannot be the basis for liability under Labor Law § 241 (6) (Hill v Corning Inc., 237 A.D.2d 881, 881 [4th Dept 1997], abrogated on other grounds by Bax v Allstate Health Care, Inc., 26 A.D.3d 861 [4th Dept 2006], quoting Ross v Curtis-Palmer Hydro-Electric Co., 81 N.Y.2d 494, 505 [1993]; Mahoney v Madeira Assoc., 32 A.D.3d 1303, 1305 [4th Dept 2006]). Further, 12 NYCRR 23-1.33 "applies to persons passing by construction operations and not to workers, such as [P]laintiff, on a construction site" (Lawyer v Hoffman, 275 A.D.2d 541, 542 [3d Dept 2000]).
Sections 23-2.1, 23-4.2 (h), and 23-4.2 (i), while sufficiently specific, are not applicable to the facts of this case. 12 NYCRR 23-2.1 is inapplicable because Plaintiff's unrebutted testimony establishes that he fell from a dirt pile that "does not constitute a passageway, walkway or other thoroughfare" that could have been obstructed by ill-placed material or equipment (see Cafarella v Harrison Radiator Div. of Gen. Motors, 237 A.D.2d 936, 938 [4th Dept 1997]; 12 NYCRR 23-2.1 [a] [1]). Nor was Plaintiff injured as a result of storage of material at a weight exceeding the capacity of a storage surface, storage of material too close to the edge of a surface above workers, or while disposing of or handling debris (see 12 NYCRR 23-2.1 [a] [2], [b]).
12 NYCRR 23-4.2 (h) is also not applicable to this case. "Pursuant to that regulation, '[a]ny open excavation adjacent to a sidewalk, street, highway or other area lawfully frequented by any person shall be effectively guarded [or covered],'" and "[P]laintiff, as an employee at the work site, d[oes] not fall within the class of people intended to be protected by 12 NYCRR 23-4.2 (h)" (Wrobel v Town of Pendleton, 120 A.D.3d 963, 966 [4th Dept 2014]). Section 23-4.2 (i) requires guarding of all open sides of an excavation, but only applies "[w]here no work is being performed in an unattended open excavation..." (12 NYCRR 23-4.2 [i]), which, as established by Plaintiff's deposition testimony, was not the case here. Plaintiff testified that his supervisor, John, was working in the excavation, and therefore "the accident did not occur in an unattended open excavation where no work was being performed" (Smith v County of Monroe, 229 A.D.2d 984 [4th Dept 1996], rearg denied 647 N.Y.S.2d 653 [4th Dept 1996]).
Defendant Encore's motion is, however, denied insofar as Plaintiff's Section 241 (6) cause of action is based upon an alleged violation of 12 NYCRR 23-1.7 (b). That provision requires that hazardous openings be guarded by a safety railing or cover, and that, where employees are required to work close to the edge of a hazardous opening, protections such as planking, a safety net, or a safety belt should be provided. Defendant Encore has failed to submit evidence eliminating questions of fact on the issue whether any safety devices, such as railings or a safety belt, were necessary under this provision where, as here, Plaintiff was required to work close to the edge of an excavation.
c. Labor Law § 200 and Common Law Negligence
"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" (Landahl v City of Buffalo, 103 A.D.3d 1129, 1131 [4th Dept 2013] [internal quotations omitted]). "It is settled law that where the alleged defect or dangerous condition arises from the contractor's methods and the owner exercises no supervisory control over the operation, no liability attaches to the owner under the common law or under section 200 of the Labor Law (Ferguson v Hanson Aggregates New York, Inc., 103 A.D.3d 1174, 1175 [4th Dept 2013]). An owner, "however, may be liable for common-law negligence or the violation of Labor Law § 200 if it had actual or constructive notice of the allegedly dangerous condition on the premises which caused the... plaintiff's injuries, regardless of whether [it] supervised [plaintiff's] work" (id.; see also Piazza v Shaw Contr. Flooring Services, Inc., 39 A.D.3d 1218, 1219 [4th Dept 2007] ["Plaintiff alleges that the accident occurred as a result of a dangerous condition on the premises, and thus whether defendants supervised or controlled plaintiff's work is irrelevant"]).
Defendant Encore has established that it did not supervise or control Plaintiff's work. As concluded above, Fernandez's deposition testimony established that he did not - either as the agent of Encore or the agent of Cobblestone - direct or control the work performed by Plaintiff or the safety protocols employed at the worksite. Plaintiff's work was directed by his J.H. Verdi supervisor, John, and it is undisputed that TFP was the general contractor responsible for enforcing safety regulations and determining the need for safety devices during construction. Fernandez was only present on the worksite for approximately one hour once per week, when he would stop there in the course of making routine visits to his properties and tenants in the Geneva, NY area.
However, as to Defendant Encore, the owner of the property, the analysis does not end there. Defendant Encore "may be liable for common-law negligence or the violation of Labor Law § 200 if it had actual or constructive notice of the allegedly dangerous condition on the premises which caused the... plaintiff's injuries, regardless of whether [it] supervised [plaintiff's] work" (Ferguson, 103 A.D.3d at 1175). Here, "[a]lthough defendant established that it did not supervise or control plaintiff's work, defendant failed to establish that it did not have actual or constructive notice of the allegedly dangerous condition on the premises that caused plaintiff's injuries" (id.). Fernandez testified that he was on site during the construction of the addition about once per week, and, while he could not recall whether he was on site when the foundation was being built, he did testify with specificity as to the depth of the excavation for the crawl space. This testimony raises questions of fact whether he, as principal of Encore, had actual or constructive notice of the alleged dangerous condition that caused Plaintiff's injury.
2. Defendant Encore's Motion for Summary Judgment on its Cross Claim for Common-Law Indemnification Against TFP
"The principle of common-law, or implied indemnification, permits one who has been compelled to pay for the wrong of another to recover from the wrongdoer the damages it paid to the injured party" (Genesee/Wyoming YMCA v Bovis Lend Lease LMB, Inc., 98 A.D.3d 1242, 1244 [4th Dept 2012] [internal quotations omitted]). "Since the predicate of common-law indemnity is vicarious liability without actual fault on the part of the proposed indemnitee, it follows that a party who has itself actually participated to some degree in the wrongdoing cannot receive the benefit of the doctrine" (id. at 1244-1245 [internal quotations omitted]). Therefore, "to establish a claim for 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" (Grove v Cornell Univ., 151 A.D.3d 1813, 1816 [4th Dept 2017]).
Here, as concluded above, Defendant Encore has established through undisputed evidence that it did not supervise or control Plaintiff's work nor was it responsible for enforcing safety violations at the work site. Consequently, Defendant Encore's liability under Labor Law §§ 240 (1) and 241 (6), if any, is vicarious in nature. Defendant Encore must also establish, however, that TFP "was guilty of some negligence that contributed to the causation of the accident" - in other words, that TFP was the active wrongdoer whose acts or omissions were a cause of the accident (Grove, 151 A.D.3d at 1816). The Court agrees that Fernandez's unrefuted deposition testimony establishes that TFP was the general contractor at the time of the accident and was responsible for enforcing safety regulations and determining the need for safety devices during construction. However, for the reasons stated above, Defendant Encore has failed to satisfy its prima facie burden to establish the absence of material issues of fact concerning any party's liability under Labor Law §§ 240 (1) or 241 (6). Defendant Encore has likewise failed to establish the absence of issues of fact on the question whether the accident was causally related to TFP's acts or omissions concerning the provision of safety devices or compliance with the Industrial Code. Defendant Encore's motion is therefore denied as to any claim for common-law indemnity related to the Labor Law §§ 240 (1) and 241 (6) claims.
The Court also denies Defendant Encore's motion as to its cross claim against TFP for common-law indemnity related to the Labor Law §200 and common law negligence claims. As concluded above, questions of fact exist as to whether Defendant Encore had actual or constructive knowledge of the allegedly dangerous condition on the premises that caused Plaintiff's injuries. Defendant Encore has, for the same reason, failed to establish that it is without fault as to those claims, thereby precluding summary judgment on its cross claim for common-law indemnity related to the Labor Law § 200 and common-law negligence claims.
C. Plaintiff's Motion for Partial Summary Judgment on its Labor Law § 240 (1) Claim against Defendant Encore
Plaintiff, through his submission of Plaintiff's and Fernandez's deposition testimony, has met his prima facie burden to demonstrate that Defendant Encore was the property owner owing a duty under Labor Law § 240 (1), and also that Plaintiff was a laborer employed on a construction site and suffered an injury caused by an elevation-related hazard (see Gottstine, 272 A.D.2d at 864; Covey, 89 N.Y.2d at 952; see also discussion, supra, at section [B] [1] [a]). In response to Plaintiff's motion, Defendant Encore has failed to raise a genuine issue of material fact as to those elements of Plaintiff's Labor Law § 240 (1) claim.
However, Plaintiff has failed to meet his prima facie burden as to the final element of his claim, whether his injuries were "the direct consequence of a failure to provide adequate protection" against that elevation-related risk (see Wilinski, 18 N.Y.3d at 10 [internal quotations omitted]). Plaintiff has submitted the expert affidavit of Professional Engineer Ernest J. Gailor wherein he opines "that the excavation should have been guarded by a barrier or safety railing installed around the outside of the excavation" and "the lack of a barrier or safety railing was a substantial factor in allowing Mr. Campbell to fall into the excavation where he was injured." The Court finds that these opinions are conclusory and speculatory when considered in the context of Plaintiff's testimony describing the worksite itself and how the accident occurred.
Plaintiff's testimony suggested that the excavation was an active worksite on the day of his fall, and materials were being passed into and out of the excavation. Plaintiff testified that he fell from the top of a dirt pile that was two to three feet away from the edge of the excavation. Plaintiff's expert does not opine whether a barrier or safety railing around the excavation in these circumstances was required or possible from a practical standpoint, i.e., where individuals are working in the excavation and materials were passing into and out of the excavation. Plaintiff's expert also fails to explain how Plaintiff's fall from the top of the dirt pile would have been prevented by the use of such devices. Consequently, Plaintiff has failed to meet its initial burden of establishing its entitlement to judgment as a matter of law on the Labor Law § 240 (1) claim as asserted against Defendant Encore, and its motion is therefore denied (see Swormville Fire Co., Inc. v K2M Architects P.C., 147 A.D.3d 1310, 1311 [4th Dept 2017] [plaintiff not entitled to summary judgment based upon conclusory and speculative opinions of an expert]).
In sum, the Court finds that the evidence before it demands the same determination on summary judgment as was reached by the Court of Appeals in Wilinski, that neither party is entitled to summary judgment under Section 240 (1) where "Plaintiff asserts, but does not demonstrate, that protective devices... could have been used to... prevent the accident [and] Defendant[] assert[s], but fail[s] to demonstrate, that no protective devices were called for" (Wilinski, 18 N.Y.3d at 11). "Whether plaintiff's injuries were proximately caused by the lack of a safety device of the kind required by the statute is an issue for a trier of fact to determine" (id.).
Accordingly, it is hereby
ORDERED that Defendant Cobblestone's motion for summary judgment [NYSCEF Motion No. 7] is granted as to the claims asserted against it in the Amended Complaint and Defendant Encore's First Cross Claim for common-law indemnity, and those claims are hereby dismissed in their entirety; is denied to the extent Defendant Cobblestone seeks summary judgment dismissing Defendant Encore's Second Cross Claim for contractual indemnity; is denied to the extent that Defendant Cobblestone seeks summary judgment in its favor on its cross claim against Defendant Encore and TFP for common-law indemnity; and is denied to the extent that Defendant Cobblestone seeks summary judgment in its favor and against Third-Party Defendant TFP on its First Cause of Action in the Third-Party Complaint for common-law indemnity; and it is further
ORDERED that, pursuant to CPLR 3212 (b), summary judgment is granted in favor of Defendant Encore and TFP dismissing Defendant Cobblestone's cross claim for common-law indemnity, and in favor of Third-Party Defendant TFP dismissing the First Cause of Action in the Third-Party Complaint; and it is further
ORDERED that Plaintiff's motion for partial summary judgment on its Labor Law § 240 (1) claim against Defendant Encore [NYSCEF Motion No. 8] is denied; and it is further
ORDERED that Defendant Encore's motion for summary judgment [NYSCEF Motion No. 9] is denied to the extent Defendant Encore seeks summary judgment on Plaintiff's Labor Law §240 (1) claim; is denied to the extent Defendant Encore seeks summary judgment on Plaintiff's Labor Law 241 (6) claim insofar as that claim is premised on a violation of 12 NYCRR 23-1.7(b); is granted to the extent that Defendant Encore seeks summary judgment dismissing Plaintiff's Labor Law § 241 (6) claim based upon 12 NYCRR 23-1.33, 23-1.5, 23-2.1, 23-4.2(h) and 23-4.2(i), and that portion of Plaintiff's Section 241 (6) claim is hereby dismissed; is denied to the extent Defendant Encore seeks summary judgment on Plaintiff's common law negligence and Labor Law § 200 claims; and is denied to the extent Defendant Encore seeks summary judgment in its favor on its cross claim against TFP for common-law indemnity.
This shall constitute the Decision and Order of the Court.