Opinion
Index Nos. 151310/2019 595999/2019
10-03-2022
JOSEPH EMERSON, LORI EMERSON, Plaintiff, v. 4TS II LLC.SKANSKA USA BUILDING INC., Defendant. 4TS II LLC, SKANSKA USA BUILDING INC. Plaintiff, v. METROPOLITAN WALTERS, LLC Defendant.
Unpublished Opinion
PRESENT: HON. SABRINA KRAUS Justice.
DECISION + ORDER ON MOTION
SABRINA KRAUS, J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 001) 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 74, 88, 89, 91 were read on this motion to/for JUDGMENT - SUMMARY.
The following e-filed documents, listed by NYSCEF document number (Motion 002) 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 75, 90, 92 were read on this motion to/for JUDGMENT - SUMMARY.
The following e-filed documents, listed by NYSCEF document number (Motion 003) 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 93, 94 were read on this motion to/for SUMMARY JUDGMENT (AFTER JOINDER.
BACKGROUND
Joseph Emerson (JE) commenced this action seeking damages for injuries he sustained when a scissor lift he was working on collapsed. 4TS II LLC (4TS) is the owner of the property where the accident occurred. Skanska USA Building Inc. (Skanska) was the project's general contractor. Metropolitan Walters LLC (MW) was plaintiffs employer at the time of the accident and a subcontractor on the project.
PENDING MOTIONS
On July 28, 2022, plaintiffs moved for summary judgment on the issue of liability pursuant to Labor Law § 240(1).
On the same date, 4TS and Skanska moved for summary judgment dismissing plaintiffs' Labor Law §200 and common-law negligence claims and on its claim for unconditional contractual indemnification as against MW. Skanska also seeks an order dismissing MWs counterclaims.
On August 29th, 2022, MW moved for an order dismissing plaintiffs' claims pursuant to New York Labor Law §§240 and 241(6) and dismissing the claims of 4TS and Skanska for common law indemnity and contribution.
On September 12, 2022, the motions were marked submitted and the court reserved decision. The motions are consolidated herein and determined as set forth below.
ALLEGED FACTS
The accident occurred on December 12, 2018 at approximately 2:25 p.m. at a renovation project underway at 4 Times Square in Manhattan. JE, while working as a journeyman ironworker for MW, was injured when the scissor lift he was using tipped over, causing him to fall approximately 25 feet to the roofs surface below. As a result of his fall, JE is alleged to have sustained, inter alia, skull, facial, clavicle, shoulder, sternal, ribs, pelvic and hip fractures as well as multiple lacerated internal organs, a traumatic brain injury, and a stroke.
4 Times Square is owned by 4TS. Skanska was the project's general contractor. Skanska retained JE's employer, MW, as a subcontractor to install structural steel and Building Maintenance Unit (BMU) rigging on the building's rooftop.
JE was a member of a crew assigned to install a BMU track located on the building's roof level 50, which would ultimately extend over the edge of the building to hang and clean windows. The crew received their instructions from their MW foreman Frank Filaminno and MW's superintendent Pat Keane.
In order to perform the task, the crew was required to use a scissor lift leased by nonparty Sunbelt that has a maximum extension of approximately 30 feet. The lift's platform was approximately 2.5 by 6 feet and allowed for a maximum of two men to stand upon it. Because the roofs surface consisted of loose small rocks and stone walkways, the crew had laid down 3A inch thick unsecured 4x8 foot plywood pieces to provide additional support under the lift's outriggers. MW procured the scissor lift and placed plywood planking underneath the scissor lift to facilitate the work.
At the time of the incident, JE and his brother, Jimmy Emerson, were on the scissor lift's platform which was extended approximately 25 feet above the roofs surface to remove a chain hoist that was hanging from a previously installed beam. Mr. Emerson remembers the sensation of falling, but otherwise does not recall the accident.
DISCUSSION
In order to prevail on a motion for summary judgment, the moving party must establish its cause of action or defense sufficiently to warrant the court as a matter of law in directing judgment in its favor. Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851 (1985); Zuckerman v. City of New York, 49 N.Y.2d 557 (1980). Absent such a prima facie showing, the motion must be denied, regardless of the sufficiency of the opposing papers (Alvarez v Prospect Hospital, 68 N.Y.2d 320, 324 [1986]).
However, "[o]nce the movant makes the required showing, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of a material issue of fact that precludes summary judgment and requires a trial" (Dallas-Stephenson v Waisman, 39 A.D.3d 303, 306 [1st Dept 2007], citing Alvarez, 68 N.Y.2d at 324). "[A]ll of the evidence must be viewed in the light most favorable to the opponent of the motion" (People v Grasso, 50 A.D.3d 535,544 [1st Dept 2008]). "On a motion for summary judgment, the court's function is issue finding, not issue determination, and any questions of credibility are best resolved by the trier of fact" (Martin v Citibank, N.A., 64 A.D.3d 477,478 [1st Dept 2009]; see also Sheehan v Gong, 2 A.D.3d 166,168 [1st Dept 2003] ["The court's role, in passing on a motion for summary judgment, is solely to determine if any triable issues exist, not to determine the merits of any such issues"], citing Sillman v Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404 [1957]).
Plaintiff is Entitled to Summary Judgment as to His Labor Law Section 240(1) Claim
Plaintiff is entitled to partial summary judgment as to his claim sounding in Labor Law §240(1) because the collapse of a scissor lift constitutes prima facie evidence of the statute's violation.
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.
§ 240 has long been construed as an absolute liability statute, enacted for the protection of workers who are scarcely in position to protect themselves from accidents; it is to be construed "as liberally as may be to achieve this purpose." Quigley v. Thatcher, 207 NY 66 (1912), quoted in Zimmer v. Chemung County Performing Arts, Inc., 65 N.Y.2d 513 (1985). The statute places a nondelegable duty upon owners, contractors and their agents "to provide a safe place to work for all workmen on the job." Haimes v. New York Tel. Co., 46 N.Y.2d 132, 137 (1978). Owners and general contractors are subject to liability for accidents "in which the scaffold, hoist, stay, ladder or other protective device proved inadequate to shield the injured worker from harm directly flowing form the application of the force of gravity to an object or person." Ross v. Curtis-Palmer Hydro Electric Co., 81 N.Y.2d 494 (1993). The protection of workers on ladders, scaffolds and other elevated work platforms is the core purpose of Labor Law § 240(1). See Koenigv. Patrick Const. Corp., 298 NY 313, 318-319 (1948).
A scissor lift collapse constitutes prima facie evidence under § 240(1) that a plaintiff was not provided with an adequate safety device to do his work. Jamindar v Uniondale Union Free School Dist., 90 A.D.3d 612 (2d Dept. 2011); Bermejo v New York City Health and Hospitals Corp., 119 A.D.3d 500 (2d Dept. 2014); Thompson v St. Charles Condominiums, 303 A.D.2d 152 (1st Dept. 2003).
Plaintiffs do not need to establish the cause of the collapse of a safety device to establish entitlement to summary judgment for a §240(1) claim. "Whether a device provided proper protection is a question of fact, except when the device collapses, moves, falls, or otherwise fails to support the plaintiff and his materials." Kindv 1177 Avenue of the Americas Acquisitions, LLC, 168 A.D.3d 408 (1st Dept. 2019). See also, Hernandez v 767 Fifth Partners, LLC, 199 A.D.3d 484 (1st Dept. 2021); Lipariv At Spring, LLC, 92 A.D.3d 502 (1st Dept. 2012); Strojek v 33 East 70th Street Corp., 128 A.D.3d 490 (1st Dept. 2015); Hauff v CLXXXII Via Magna Corp., 118 A.D.2d 485 (1st Dept. 1986); Pierrakeas v 137 E. 38th St. LLC, 177 A.D.3d 574, 574-75 (1st Dept. 2019).
4TS and Skanska do not oppose the motion, only MW submits opposition.
MW argues: that plaintiffs are not entitled to judgment because the cause of the collapse is allegedly unknown; that plaintiffs were required to submit an expert opinion to establish that the lift was defective; and that JE was not engaged in an enumerated activity when the accident occurred because he was just cleaning up. These arguments are rejected by the court.
However, as noted above, a plaintiff seeking summary judgment under Section 240(1) is not required to establish the cause of the collapse an enumerated safety device. Proof of a collapse of a safety device constitutes a prima facie showing that § 240(1) was violated, and that the violation was a proximate cause of the accident. See e.g., Blake v Neighborhood Housing Services of New York City, Inc., 1 N.Y.3d 280, fn. 8 (2003); Dos Santos v State of New York, 300 A.D.2d 434 (2d Dept. 2002); Dean v City of Utica, 75 A.D.3d 1130 (4th Dept. 2010); Cruz v Roman Catholic Church of St. Gerard Magella, 174 A.D.3d 782 (2d Dept. 2019).
Additionally, there is no requirement that a plaintiff submit an expert opinion in support of his Section 240(1) claim. See Ortega v. City of New York, 95 A.D.3d 125 (1st Dept. 2012); See also Viruet v Purvis Holdings LLC, 198 A.D.3d 587 (1st Dept. 2021).
Moreover, the court finds that the record clearly and unequivocally establishes that JE was engaged in an enumerated activity as defined by the statute. JE's work involved the removal of a chain hoist that was hanging from a beam that was located approximately 30 feet above the roof surface, and constituted the removal of heavy industrial equipment related to his work involving the installation of a new derrick crane and window washer hanging scaffold unit on a rooftop.
Based on the foregoing, plaintiffs motion for summary judgment as to liability under Labor Law § 240(1) is granted. For the same reasons MW's motion for summary judgment seeking dismissal of plaintiff s claim under Labor Law §240(1) is denied on the merits, and the motion to dismiss the claim under 241(6) is denied as moot.
Plaintiffs' claims pursuant to Common Law Negligence and Labor Law Section 200 are Dismissed
Plaintiffs have not opposed the dismissal of their § 200 and common law negligence claims. These claims have therefore been abandoned and should be dismissed. Kempisty v. 246 Spring Street, LLC, 92 A.D.3d 474, 475 (1st Dept. 2012); Crawford v. Liz Claiborne, Inc., 57 A.D.3d 270 (1st Dept. 2008); Genovese v. Gambino, 30-9 A.D.2d 832, 833 (2d Dept. 2003). 4TS And Skanska Are Entitled to Contractual Indemnification From MW
The broad indemnity provision in the Terms and Conditions of the Subcontract Agreement between Skanska and MW, and in particular Articles l.l(m) and 18.1(b), obligates MW to defend and indemnify the Owner and Contractor from any claims "arising out of the performance of their subcontracted work, including work performed by their subcontractors, and regardless of fault. Since Skanska subcontracted the installation of a derrick crane, structural steel, and BMU rigging work, to MW, and it is undisputed that JE's accident occurred during the course of the JE's employment as a journeyman ironworker on this project, plaintiffs' claim necessarily arose out of MW's work on the Project, triggering its indemnity obligations to 4TS and to SKANSKA.
In addition, the Subcontract Agreement contains a separate 'hold harmless" provision that obligates MW to "indemnify, defend, and hold harmless" various entities including 4TS. MW is obligated to indemnity 4TS "from and against any and all loss or damage, claim, demand, liability, ... suit or action... by reason of bodily injury... directly or indirectly arising out of... (ii) any work of Company".
It is well settled that, "when parties set down their agreement in a clear complete document, their writing should... be enforced according to its terms." TAG 380, LLC v. ComMet 380, Inc., 10 N.Y.3d 507, 512-13 (2008); W.W.W. Assoc, v. Giancontieri, 11 N.Y.2d 157, 162 (1990). The right to contractual indemnification depends upon the specific language of the contract. See Ging v. F.J. Sciame Construction Co., 193 A.D.3d 415, 418 (1st Dep't 2021); Kader v. City of N.Y.Hous. Preserv. & Dev., 16 A.D.3d 461, 463 (2d Dep't 2005). A party is entitled to contractual indemnification as long as the intent to indemnify can be clearly implied from the language and purposes of the entire agreement and the surrounding circumstances. See Drzewinski v. Atlantic Scaffold & Ladder Co., 70 N.Y.2d 774, 777 (1987); Torres v. Morse Diesel International, Inc., 14 A.D.3d 401, 403 (1st Dep't 2005). The grant of contractual indemnity is not contingent upon knowing the exact circumstances as to how the accident occurred, as long as there is a clear intention to indemnify expressed in the contract. See, e.g., Roldan v. New York Univ., 81 A.D.3d 625, 628 (2d Dep't 2011).
Here, the indemnity/hold harmless provisions in the Subcontract Agreement between Skanska and MW are clear and unambiguous. They apply to any claim arising out of the work that MW was contracted to perform. JE's accident arose out of and happened during his performance of the very work that his employer was hired to perform.
Similar indemnity provisions containing "arising out of or similar language have been interpreted as requiring the indemnitor to assume liability for all claims that have a relationship to the work it was contracted to perform, including where an employee of an indemnitor/employer has an accident at a construction site while performing work his employer was hired to perform. The employee's mere presence at the construction site to perform the contracted for work is sufficient to trigger the employer's "arising out of indemnity obligation. See, e.g., Urbina v. 26 Ct. St. Assoc, LLC, 46 A.D.3d 268, 271, 274 (1st Dep't 2007); Torres v. Morse Diesel International, Inc., 14 A.D.3d 401, 402-03 (1st Dep't 2005).
It is also well settled that similar provisions conditioning indemnity upon claims "arising out of or otherwise connected with the performance of the contracted work do not require proof of the indemnitor's negligence or fault. See, e.g., Brown v. Two Exchange Plaza Partners, 76 N.Y.2d 172, 178 (1990); Vey v. Port Authority of New York and New Jersey, 54 N.Y.2d 221, 226 (1981); Ezzard v. One East River Place Realty Co., LLC, 137 A.D.3d 648, 649 (1st Dep't 2016); Quinones v. Manhattan Ford, Lincoln-Mercury, Inc., 62 A.D.3d 495, 497 (1st Dep't 2009); Velez v. Tishman Foley Partners, 245 A.D.2d 155, 156 (1st Dep't 1997).
The fact that JE's accident occurred as an incident of MW's presence at the jobsite is sufficient to trigger the "arising out of indemnity obligation. See, e.g., O 'Connor v. Serge Elevator Co., 58 N.Y.2d 655, 657-58 (1982); accord Tobio v. Boston Properties Inc., 54 A.D.3d 1022, 1024 (2d Dep't 2008). Plaintiffs' claim arose out of MW's performance of the work on the project, since the only reason JE was at the Project site was because he was performing the structural steel and BMU rigging work that MW was contracted to install and he was performing that work at the time of his accident.
In opposition MW fails to raise a triable issue of fact. MW alleges that 4TS and Skanska failed to prove, as a matter of law, that the condition of the premises was not dangerous and that it was not one of the proximate causes of the accident. The claim that any premises condition played a role in the accident is speculation, lacks probative value, and is insufficient to raise a triable issue of fact. See Rooney v. Madison, 134 A.D.3d 634 (1st Dept. 2015); Perez v. Brux Cab Corp., 251 A.D.2d 157, 159 (1st Dept. 1998); Smith v. Johnson Products Co., 95 A.D.2d 675, 676 (1st Dept 1983).
WHEREFORE it is hereby:
ORDERED that plaintiffs' motion for partial summary judgment as to liability on its claim under Labor Law § 240(1) is granted; and it is further
ORDERED that the motion of Metropolitan Walters LLC is denied in its entirety; and it is further
ORDERED that Skanska's motion for dismissal of plaintiffs' Labor Law §200 and common law negligence claims is granted and Skanska is awarded summary judgment on its claim for unconditional contractual indemnification as against Metropolitan Walters LLC; and it is further
ORDERED that Metropolitan Walters LLC's counterclaims are dismissed; and it is further
ORDERED that, within 20 days from entry of this order, plaintiffs shall serve a copy of this order with notice of entry on the Clerk of the General Clerk's Office (60 Centre Street, Room 119); and it is further
ORDERED that such service upon the Clerk shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "E-Filing" page on the court's website at the address www.nycourts.gov/supctmanh);]; and it is further
ORDERED that any relief not expressly addressed has nonetheless been considered and is hereby denied; and it is further
ORDERED that this constitutes the decision and order of this court.