Opinion
INDEX NO. 157839/2012 Third-Party Index No. 590551/2013
01-07-2020
ALBERT GING, Plaintiff, v. FJ SCIAME CONSTRUCTION CO., INC.,H3 HARDY COLLABORATION, and ARCHITECTURE, LLC, Defendants. FJ SCIAME CONSTRUCTION CO., INC. Plaintiff, v. KOENIG IRON WORKS, INC. Defendant.
NYSCEF DOC. NO. 306 PRESENT: HON. DEBRA A. JAMES Justice MOTION DATE 7/12/2019 MOTION SEQ. NO. 003 004 004 005 005 006
DECISION + ORDER ON MOTION
The following e-filed documents, listed by NYSCEF document number (Motion 003) 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145, 189, 190, 191, 264, 265, 266, 267, 268, 269 were read on this motion to/for JUDGMENT - SUMMARY. The following e-filed documents, listed by NYSCEF document number (Motion 004) 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 157, 158, 159, 160, 161, 162, 192, 260, 261, 271, 274, 275, 276, 277, 278 were read on this motion to/for JUDGMENT - SUMMARY. The following e-filed documents, listed by NYSCEF document number (Motion 004) 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 157, 158, 159, 160, 161, 162, 192, 260, 261, 271, 274, 275, 276, 277, 278 were read on this motion to/for PARTIAL SUMMARY JUDGMENT. The following e-filed documents, listed by NYSCEF document number (Motion 005) 163, 164, 165, 166, 167, 168, 169, 170, 171, 172, 173, 174, 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 185, 186, 187, 188, 251, 252, 253, 254, 256, 257, 258, 259, 270, 279, 280, 281, 282, 283 were read on this motion to/for DISMISSAL. The following e-filed documents, listed by NYSCEF document number (Motion 005) 163, 164, 165, 166, 167, 168, 169, 170, 171, 172, 173, 174, 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 185, 186, 187, 188, 251, 252, 253, 254, 256, 257, 258, 259, 270, 279, 280, 281, 282, 283 were read on this motion to/for JUDGMENT - SUMMARY. The following e-filed documents, listed by NYSCEF document number (Motion 006) 193, 194, 195, 196, 197, 198, 199, 200, 201, 202, 203, 204, 205, 206, 207, 208, 209, 210, 211, 212, 213, 214, 215, 216, 217, 218, 219, 220, 221, 222, 223, 246, 247, 248, 249, 250, 255, 262, 263, 272, 284, 285, 286, 287, 288, 289, 290, 291, 292, 293, 294 were read on this motion to/for SUMMARY JUDGMENT(AFTER JOINDER.
ORDER
Upon the foregoing documents, it is
ORDERED that the motion (sequence number 003) of third-party defendant Koenig Iron Works, Inc. is granted to the extent of:
(1) dismissing plaintiff's Labor Law § 241 (6) claim;
(2) dismissing plaintiff's Labor Law § 200 and common-law negligence claims,
(3) awarding third-party defendant Koenig Iron Works, Inc. contractual indemnification against third-party defendant Atlantic Detail & Erection Corp. for expenses and attorneys' fees; and
(4) awarding third-party defendant Koenig Iron Works, Inc. conditional contractual indemnification against third-party defendant Atlantic Detail & Erection for any judgment, mediation or arbitration award or settlement in this action, and is otherwise denied; and it is further
ORDERED that the motion (sequence number 004) of plaintiff Albert Ging for partial summary judgment on the issue of liability under Labor Law § 240 (1) is granted as against defendant/third-party plaintiff F.J. Sciame Construction Co., Inc., with the issue of plaintiff's damages to await the trial of this action; and it is further
ORDERED that the motion (sequence number 005) of defendant/third-party plaintiff F.J. Sciame Construction Co., Inc. for summary judgment is granted to the extent of:
(1) dismissing plaintiff's Labor Law § 241 (6) claim, and plaintiff's Labor Law § 200 and common-law negligence claims; and
(2) granting F.J. Sciame Construction Co., Inc. conditional contractual indemnification against third-party defendant Koenig Iron Works, Inc. to the extent that plaintiff's damages exceed the limits of the additional insured coverage afforded by third-party defendant Koenig Iron Works, Inc.'s insurer; and it is further
ORDERED that defendant/third-party plaintiff F.J. Sciame Construction Co., Inc.'s third-party claim for breach of contract against third-party defendant Koenig Iron Works, Inc. is dismissed; and it is further
ORDERED that the motion (sequence number 006) of third-party defendant/second third-party plaintiff Atlantic Detail & Erection Corp. is granted to the extent of dismissing plaintiff's Labor Law § 241 (6) claim, the common-law indemnification and contribution claims asserted against it, and the contractual indemnification claims asserted by defendant/third-party plaintiff F.J. Sciame Construction Co., Inc. and defendant/second third-party defendant H3 Hardy Collaboration Architecture, LLC against it, and is otherwise denied.
DECISION
In this action arising out of a construction site accident, third-party defendant Koenig Iron Works, Inc. (Koenig) moves, pursuant to CPLR 3212, for: (1) summary judgment dismissing the complaint; and (2) summary judgment dismissing the third-party complaint, along with any claims, cross claims, and counterclaims asserted against it. Alternatively, Koenig moves for contractual indemnification against third-party defendant Atlantic Detail & Erection Corp. (Atlantic) (motion sequence number 003).
Plaintiff Albert Ging moves, pursuant to CPLR 3212, for partial summary judgment on the issue of liability under Labor Law § 240 (1) as against defendant/third-party plaintiff F.J. Sciame Construction Co., Inc. (Sciame) (motion sequence number 004).
Sciame moves, pursuant to CPLR 3212, for summary judgment: (1) dismissing plaintiff's Labor Law §§ 200, 240 (1), and 241 (6) claims; (2) awarding it summary judgment on its contractual indemnification claims against Koenig and Atlantic, with interest and attorneys' fees; (3) awarding it summary judgment on its common-law indemnification claim against Koenig; and (4) awarding it summary judgment on its failure to procure insurance claims against Koenig and Atlantic (motion sequence number 005).
Atlantic moves, pursuant to CPLR 3212, for summary judgment: (1) dismissing plaintiff's Labor Law §§ 240 (1) and 241 (6) claims against Sciame; (2) dismissing the third-party complaint; and (3) dismissing all claims asserted by Sciame, Koenig, and defendant/second third-party defendant H3 Hardy Collaboration Architecture, LLC (H3) as against it (motion sequence number 006).
BACKGROUND
Plaintiff, an ironworker, was allegedly injured on June 14, 2012 at 262 Ashland Place in Brooklyn, New York (hereinafter, the premises). The New York City Economic Development Corporation (NYCEDC) hired Sciame to serve as a construction manager for the construction of the Theatre for a New Audience (NY St Cts Elec Filing [NYSCEF] Doc No. 175). Sciame retained Koenig to supply and install the structural steel (NYSCEF Doc No. 176). In turn, Koenig subcontracted out the steel erection to Atlantic (NYSCEF Doc No. 177). NYCEDC retained H3 as the architect for the project (NYSCEF Doc No. 242, Fontillas aff, ¶ 3). It is undisputed that plaintiff was an employee of Atlantic on the date of the accident.
Plaintiff testified at his deposition that he was employed as a journeyman ironworker by Atlantic (NYSCEF Doc No. 158, plaintiff tr at 46, 53). He stated that Tommy Mott (Mott) was Atlantic's foreman (id. at 54-55). Mott gave plaintiff instructions as to what needed to be done on the date of the accident (id. at 86). Mott told plaintiff that he needed to move decking from the second floor to the third floor of the construction project (id. at 98). At the time of the accident, plaintiff was working with a coworker, Frank Gregorski (Gregorski) "[b]olting up, tightening bolts, moving decking" (id. at 99). Plaintiff explained that "bolting up" meant "[p]utting bolts into open holes" (id.).
Before the accident, plaintiff and Gregorski were moving pieces of metal decking, measuring three feet by five feet, three feet by six feet, and three feet by seven feet from the second floor to the third floor (id. at 101-102). Plaintiff testified that the decking needed to be moved to the third floor so that it could be installed on the third floor (id. at 102).
In order to accomplish the task, Gregorski was standing on the second floor and was lifting pieces of decking from the second floor and was passing them up to plaintiff, who was standing on a "structural steel tube on the edge of the building facing out" on the third floor (id. at 102-103). Plaintiff was stacking the decking in a pile (id. at 102). Atlantic had installed the tubes (id. at 115). The steel tube was approximately 20 feet long and six inches wide (id. at 115, 133). In order to get into position on the outer structural tube, plaintiff walked on the steel beams and tubes that had been previously installed on the third floor (id. at 114-115). He was standing approximately 10 to 12 feet above the second floor while on the tube (id. at 127).
According to plaintiff, his accident happened around 12:30 p.m. (id. at 54, 81, 96). Plaintiff was reaching for a piece of decking when he was injured (id. at 133). His coworker lifted up a piece of decking to the level that plaintiff was standing on, and plaintiff accepted the decking (id. at 134, 136). He testified that the steel beam that he was standing on suddenly shifted, causing him to fall onto a perpendicular tube that was on the same level (id. at 123, 136). Plaintiff stated that the beam fell "[a] couple of inches," because of a "[l]oose connection" (id. at 123). According to plaintiff's testimony, he fell backwards, and landed on his tailbone (id. at 139). He testified that he had a safety harness and lanyard, but did not have a place to tie-off (id. at 97-98, 113-114). Plaintiff testified that he needed a safety scaffold or an overhead safety line in order to tie-off (id. at 114). The entire section of floor where plaintiff was standing was a cantilevered section (id. at 149). According to plaintiff, a cantilevered section is a section of the building that does not have columns supporting its weight (id. at 150).
Steven Schottmuller (Schottmuller), Sciame's site superintendent, testified that, in June 2012, he was assigned to the Theatre for a New Audience project (NYSCEF Doc No. 160, Schottmuller tr at 9, 14). Schottmuller testified that the project entailed pouring a foundation and performing a theater fit-out, which meant "[e]verything that you would need for a theater, lighting, sound, air conditioning, heat" (id. at 16). NYCEDC was the owner, and Sciame was the construction manager (id. at 21, 25). Koenig was the structural steel contractor (id. at 26). He spoke with Mott from Atlantic concerning the project schedule and about "the activities for the day, the schedule, what he accomplished, what he was preparing to accomplish, checking on what might happen later that day, later that week, maybe the following week" (id. at 37-38). Schottmuller did not recall any instances when the structural steel was sent back to Koenig for modification (id. at 42). Schottmuller had discussions with Michael Bock (Bock) from Koenig concerning the general progress of the project and the delivery schedule of the steel (id. at 38, 59). He recalled seeing a document indicating that the tube beams were insufficiently secured (id. at 104-105). Sciame did not provide any safety equipment to the contractors (id. at 115-116).
Sciame's accident report states that:
"While installing metal deck on the 3rd floor the apprentice, Frank Gregowski, handed off a sheet of decking approximately 5' long by 3' wide. As Al Ging received the sheet of decking he winced in pain and sat down. Later he went to his car and sat for a short time after which he decided his pain was getting worse. Kevin [Zipkas] was working nearby and saw the act and heard Al as he winced in pain. Later that night Mr. Ging went to the Emergency room for treatment and has made unknown quantity of subsequent visits to Drs offices"(NYSCEF Doc No. 186 at 2).
Schottmuller testified that he prepared the accident report, but did not speak to plaintiff about the accident (NYSCEF Doc No. 160, Schottmuller tr at 74-75). In addition, Schottmuller stated that he did not recall speaking to Kevin Zipkas, Gregoski or John O'Connell (O'Connell) from Atlantic about the accident (id. at 75-76).
Bock, Koenig's project manager, stated that Koenig delivered fabricated steel to the project (NYSCEF Doc No. 130, Bock tr at 6, 12, 29). The project entailed the "construction of a theater from the ground up" (id. at 13). Koenig hired Atlantic "to do the erecting" (id. at 9, 12). Koenig directed Atlantic's workers "from area to area" (id. at 24). In other words, Koenig "[d]irec[ted] them to specific areas, so they would be prepared for those areas, when the delivery came" (id.). When the steel and decking were delivered to the site, Atlantic's workers unloaded the materials and erected the steel (id. at 31). He testified that he did not have any supervisory responsibility with respect to Atlantic's work "[o]ther than area to work in at times" (id. at 34). He did not receive any complaints regarding the steel beams prior to the accident (id. at 49, 52). Bock further testified that he did not have any authority to stop any unsafe work practice employed by Atlantic (id. at 63).
O'Connell testified that he was Atlantic's manager (NYSCEF Doc No. 131, O'Connell tr at 11). Atlantic has wound up its operations (id. at 11-12). O'Connell was employed as a foreman by Atlantic (id. at 16). Adriana Torre (Torre) was the president and chief executive officer of Atlantic in March 2011 (id. at 26). When shown a copy of Atlantic's contract, O'Connell stated that he believed that Torre signed on behalf of Atlantic (id. at 27). Atlantic "got wiped out in 2012"; "everything we have is in the ocean" (id. at 29). O'Connell "got a call from Tom Mott that Ging hurt his back and he's sitting in the car. And that's all" ( id . at 69).
A C-3 report, which was signed by plaintiff, indicates that plaintiff's accident happened while "lifting at work" (NYSCEF Doc No. 278, Zecca affirmation in opposition, exhibit A at 2). In addition, a C-2 report states that "[t]he employee was picking up/lowering decking and injured his back" (id. at 5).
O'Connell testified that one of Atlantic's administrative assistants, Fran McFadden (McFadden), was listed at the bottom of the C-2 form (NYSCEF Doc No. 131, O'Connell tr at 74). He did not recall discussing the form with McFadden, Torre or Mott (id.). He "assume[d]" that Atlantic completed the form "[b]ecause we know we have to submit these forms" (id. at 75). He did not know if Mott filled out the form (id. at 76).
PROCEDURAL HISTORY
Plaintiff's complaint asserts two causes of action against Sciame and H3, seeking recovery for common-law negligence and violations of Labor Law §§ 200, 240, and 241.
Sciame's third-party complaint asserts the following eight causes of action: (1) contribution against Koenig; (2) common-law indemnification against Koenig; (3) contractual indemnification and defense against Koenig; (4) breach of contract against Koenig; (5) contribution against Atlantic; (6) common-law indemnification against Atlantic; (7) contractual indemnification and defense against Atlantic; and (8) breach of contract against Atlantic. In its answer, Koenig asserts a cross claim for contractual indemnification against Atlantic.
Atlantic's second third-party complaint asserts four causes of action against H3, seeking recovery for negligence, common-law contribution, common-law indemnification, breach of contract, and contractual indemnification.
By decision and order dated June 6, 2019, the court granted H3's motion for summary judgment without opposition, and dismissed the complaint, cross claims and/or counterclaims against it (NYSCEF Doc No. 301).
DISCUSSION
"'On a motion for summary judgment, the movant bears the burden of adducing affirmative evidence of its entitlement to summary judgment'" (Scafe v Schindler El. Corp., 111 AD3d 556, 556 [1st Dept 2013], quoting Cole v Homes for the Homeless Inst., Inc., 93 AD3d 593, 594 [1st Dept 2012]). "Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers" (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). "Once this requirement is met, the burden then shifts to the opposing party 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" (Ostrov v Rozbruch, 91 AD3d 147, 152 [1st Dept 2012]). The court's function on a motion for summary judgment is "issue-finding, rather than issue-determination" (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957], rearg denied 3 NY3d 941 [1957] [internal quotation marks and citation omitted]).
Plaintiff argues that he is entitled to summary judgment on the issue of liability under Labor Law § 240 (1) because he did not have adequate fall protection while working on the steel beam. According to plaintiff, he did not have proper hoisting equipment or fall protection. In addition, plaintiff contends that the steel tube on which he was standing was the functional equivalent of a scaffold. In this regard, plaintiff asserts that the steel tube failed to provide adequate protection from the elevation-related risk associated with plaintiff's work, since it was unstable and caused him to fall and sustain injuries. Moreover, plaintiff maintains that the fact that he was injured while attempting to prevent his fall does not excuse the statutory violation.
To support his position, plaintiff submits an affidavit, in which he avers that he prevented himself from falling off the tube by hooking his feet onto the side of the tube (NYSCEF Doc No. 161, plaintiff aff, ¶ 6). According to plaintiff, if he had not done so, he would have fallen off the tube to the decking approximately 15 feet below (id.).
Sciame argues that plaintiff was not subjected to an elevation-related risk as contemplated by the statute. Sciame contends that his accident did not involve any height differential - plaintiff did not fall to another level, and was not hit by any falling materials or objects. In addition, Sciame points out that its accident report presents a different version of the accident for which it would not be liable under Labor Law § 240 (1).
Koenig contends that it is not a responsible party under section 240 (1). Specifically, Koenig asserts that it was not an owner or general contractor or agent of either the owner or general contractor. Furthermore, according to Koenig, section 240 (1) is inapplicable to plaintiff's accident. Koenig points out that plaintiff did not fall from an elevated height. Moreover, plaintiff was not struck by a falling object, and was not performing any work involving gravity-related risks at the time of his accident.
Atlantic maintains, relying upon the emergency room record, Sciame's accident report, and workers' compensation forms, that the most credible version of the accident shows that plaintiff was injured when he bent over and tweaked his back. However, Atlantic argues that, even if the accident happened as plaintiff said that it did, the accident still does not fall within the ambit of the statute. Plaintiff did not fall to the floor below, and was not struck by the decking. Plaintiff merely fell onto another beam that was at the same level as the one on which he originally stood.
Labor Law § 240 (1) provides, in relevant part, as follows:
"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."
"'Labor Law § 240 (1) was designed to prevent those types of accidents in which the scaffold, hoist, stay, ladder or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person'" (Runner v New York Stock Exch., Inc., 13 NY3d 599, 604 [2009], quoting Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [1993] [emphasis in original]). To establish liability on a Labor Law § 240 (1) cause of action, the plaintiff must show: (1) a violation of the statute, and (2) that the violation was a proximate cause of his or her injuries (Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 287-289 [2003]).
The legislative intent behind the statute is to place ultimate responsibility for safety practices on owners and general contractors, rather on workers, who "are scarcely in a position to protect themselves from accident" (Zimmer v Chemung County Performing Arts, 65 NY2d 513, 520, rearg denied 65 NY2d 1054 [1985] [internal quotation marks and citations omitted]).
At the outset, Koenig argues that it cannot be held liable under Labor Law § 240 (1) because it was not an owner, general contractor or agent. However, plaintiff did not assert any direct claims against Koenig.
Sciame has not contested that it may be held liable under section 240 (1). In Walls v Turner Constr. Co. (4 NY3d 861, 863-864 [2005]), the Court of Appeals held that:
"[a]lthough 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."Therefore, the court finds that Sciame may be held liable under the statute.
Here, plaintiff has established prima facie entitlement to summary judgment under section 240 (1) (see Anderson v MSG Holdings, L.P., 146 AD3d 401, 402 [1st Dept 2017], lv dismissed 29 NY3d 1100 [2017] [ironworker established prima facie entitlement to partial summary judgment under section 240 (1), i.e., "that while subjected to an elevation-related risk, he was injured due to defendants' failure to provide him with proper fall protection, namely, an appropriate place to which to attach his harness"]). Plaintiff testified that he was injured when he was reaching out for a piece of decking while standing on a structural steel tube on the third floor (NYSCEF Doc No. 158, plaintiff tr at 133). Plaintiff was about 10 or 12 feet above the second floor while on the steel tube (id . at 127). He testified that "[h]e fell when the tube he was standing on fell" "[a] couple of inches," which caused him to fall onto a perpendicular tube (id. at 123, 134, 136, 139). Plaintiff testified that, although he had a safety harness and lanyard, he "had no place to tie off to" (id. at 113-114). He explained that there was no safety scaffold in place or an overhead safety line (id. at 114). In addition, plaintiff avers that he prevented himself from falling off the tube by hooking his feet on the steel tube (NYSCEF Doc No. 161, plaintiff aff, ¶ 6).
Defendants and third-party defendants have failed to establish prima facie entitlement to summary judgment or raise an issue of fact as to Sciame's liability. Although defendants and third-party defendants argue that plaintiff did not actually fall from an elevated height, they have not refuted plaintiff's evidence that his work required him to work at an elevation, and that his injuries directly flowed from the application of the force of gravity to his person when he fell onto the perpendicular steel tube (see Runner, 13 NY3d at 603). The First Department has held that a worker injured in attempting to prevent a fall is entitled to the protections of the statute (see Messina v City of New York, 148 AD3d 493, 494 [1st Dept 2017]; Reavely v Yonkers Raceway Programs, Inc., 88 AD3d 561, 563 [1st Dept 2011]; Suwareh v State of New York, 24 AD3d 380, 381 [1st Dept 2005]).
The cases cited by defendants and third-party defendants are distinguishable, since in those cases the workers were not working at an elevation, and the injuries did not directly flow from the application of the force of gravity (cf. Nieves v Five Boro A.C. & Refrig. Corp., 93 NY2d 914, 916 [1999] ["plaintiff's injury resulted from a separate hazard wholly unrelated to the danger that brought about the need for the ladder in the first instance--an unnoticed or concealed object on the floor"]; Misseritti v Mark IV Constr. Co., 86 NY2d 487, 491 [1995], rearg denied 87 NY2d 969 [1996] ["There is no showing that the decedent was working at an elevated level at the time of his tragic accident"]; Rodriguez v Margaret Tietz Ctr. for Nursing Care, 84 NY2d 841, 843-844 [1994] [plaintiff was not exposed to "the extraordinary elevation risks envisioned by Labor Law §240 (1) . . . [i]n placing a 120-pound beam onto the ground from seven inches above his head with the assistance of three co-workers"]; Torkel v NYU Hosps. Ctr., 63 AD3d 587, 590 [1st Dept 2009] [worker was not exposed to an elevation-related risk when makeshift ramp collapsed where the height differential of the ramp was between 12 to 18 inches]).
Even though Atlantic argues that plaintiff's accident was not caused by the lack of adequate protection, Atlantic has not rebutted plaintiff's testimony that he did not have a suitable place to which to attach his safety harness.
The court must next determine whether defendants and third-party defendants have raised an issue of fact as to how the accident occurred. Where "credible evidence reveals differing versions of the accident" (Ellerbe v Port Auth. of N.Y. & N.J., 91 AD3d 441, 442 [1st Dept 2012]), summary judgment is inappropriate.
Sciame and Atlantic rely on Sciame's unsworn accident report (NYSCEF Doc No. 186). However, given that it is unclear from where this information came, the accident report is not in admissible form (see Kristo v Board of Educ. of the City of N.Y., 134 AD3d 550, 551 [1st Dept 2015]; Stock v Otis El. Co., 52 AD3d 816, 817 [2d Dept 2008]). Schottmuller testified that he prepared the accident report, but did not speak to plaintiff or other Atlantic employees about the accident (NYSCEF Doc No. 160, Schottmuller tr at 74-76).
In addition, while Atlantic relies on the emergency room record, the record is redacted, and does not present a contradictory version of the accident for which there would be no liability (NYSCEF Doc No. 278 at 1). Moreover, the C-2 and C-3 reports relied upon by Atlantic are not in admissible form (see Taylor v One Bryant Park, LLC, 94 AD3d 415, 415 [1st Dept 2012] ["The workers' compensation C-2 report is not signed or authenticated, and it is not conclusively clear who created the report or where that person acquired the information"]; Zuluaga v P.P.C. Constr., LLC, 45 AD3d 479, 480 [1st Dept 2007] [accident report, allegedly prepared by plaintiff's supervisor, was not in admissible form, since there was no foundation that the report was prepared in the regular course of business]). Even if the C-2 report and C-3 report were admissible, the C-2 and C-3 reports are not inconsistent with plaintiff's testimony; they state that plaintiff injured his back while "lifting at work" and "picking up/lowering decking" (NYSCEF Doc No. 278 at 2, 3).
Thus, defendants and third-party defendants have only presented hearsay in opposition to plaintiff's motion (see O'Halloran v City of New York, 78 AD3d 536, 537 [1st Dept 2010]). Moreover, defendants and third-party defendants have failed to "demonstrate acceptable excuse for [their] failure to meet the strict requirement of tender in admissible form" (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).
Accordingly, plaintiff's motion for partial summary judgment under section 240 (1) must be granted as against Sciame. The branches of Sciame, Koenig, and Atlantic's motions for summary judgment dismissing this cause of action shall be denied.
Plaintiff did not oppose dismissal of his Labor Law § 241 (6) claim. At oral argument, the court granted the branches of defendants' motions seeking dismissal of this claim (oral argument tr at 4).
C. Labor Law § 200 and Common-Law Negligence
Sciame argues that plaintiff's section 200 and common-law negligence claims should be dismissed, because it did not control or supervise the means or methods of plaintiff's work. Koenig maintains that it also did not direct, control or supervise the means and methods of plaintiff's work.
Plaintiff concedes, in opposition, that "defendants did not exercise supervisory control over the defendants" (NYSCEF Doc No. 251, McGrath affirmation in opposition at 14). However, plaintiff argues that defendants had constructive notice of the defective condition of the steel tube that caused plaintiff to fall. Plaintiff points out that he testified that the problem with the wobbly, unsteady steel tubes existed for a long time on the job site.
As support, plaintiff offers an affidavit from his coworker, Kevin Zipkas, who states that the cantilevered section was loose throughout the entire project (NYSCEF Doc No. 144, Zipkas aff, ¶ 5). According to Zipkas, the problem existed when Atlantic erected the second floor, which was brought to Sciame's attention (id., ¶ 6). After Sciame was notified, the workers used additional shoring to correct the problem when they erected the second floor (id.). However, the problem reoccurred when they did the third floor (id.).
Labor Law § 200 (1) provides as follows:
"All places to which this chapter applies shall be so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein or lawfully frequenting such places. All machinery, equipment, and devices in such places shall be so placed, operated, guarded, and lighted as to provide reasonable and adequate protection to all such persons. The board may make rules to carry into effect the provisions of this section."
"Claims for person injury under the statute and the common law fall into two broad categories: those arising from an alleged defect or dangerous condition existing on the premises and those arising from the manner in which the work was performed" (Cappabianca v Skanska USA Bldg. Inc., 99 AD3d 139, 143-144 [1st Dept 2012]).
As for the first category, "'[w]here an existing defect or dangerous condition causing the injury, liability attaches if the owner or general contractor created the condition or had actual or constructive notice of it'" (Vazquez v Takara Condominium, 145 AD3d 627, 628 [1st Dept 2016], quoting Cappabianca, 99 AD3d at 144). With respect to the second category, "where the injury was caused by the manner and means of the work, including the equipment used, the owner or general contractor is liable if it actually exercised supervisory control over the injury producing work" (Villanueva v 114 Fifth Ave. Assoc. LLC, 162 AD3d 404, 406 [1st Dept 2018] [internal quotation marks and citation omitted]).
There is no dispute that Sciame owed plaintiff a duty to keep the premises in a reasonably safe condition.
Contrary to plaintiff's contention, the accident arose out of the means and methods in which the work was performed, and not out of a defect inherent in the premises (see Francis v Plaza Constr. Corp., 121 AD3d 427, 428 [1st Dept 2014] [where accident was caused by the method in which electrical contractor performed its work, general contractor was entitled to dismissal of plaintiff's section 200 and common-law negligence claims where it "did not exercise supervision or control over the injury-producing work"]; Dalanna v City of New York, 308 AD2d 400, 400 [1st Dept 2003] ["the protruding bolt was not a defect inherent in the property, but rather was created by the manner in which plaintiff's employer performed its work"]). Plaintiff testified that his accident occurred because of a "[l]oose connection" on the steel tube (NYSCEF Doc No. 158, plaintiff tr at 123).
Here, there is no evidence that Sciame exercised supervisory control over plaintiff's, Atlantic's or Koenig's work. Plaintiff testified that Atlantic's foreman supervised his work (id. at 60-61). His foreman told him where he would be working on any given day (id. at 61). Atlantic provided him with the tools, materials, and equipment needed to perform his tasks (id. at 73-75). In addition, plaintiff testified that no other entity provided him with tools, materials or equipment (id.). Atlantic installed the steel tubes (id. at 115). Koenig merely coordinated the delivery of the steel to the project (NYSCEF Doc No. 130, Bock tr at 24, 29). Schottmuller testified that he did not direct Atlantic or Koenig how to do the work (NYSCEF Doc No. 129, Schottmuller tr at 96). Monitoring and oversight of the timing and quality of the work, mere presence on the job site, and a general duty to ensure compliance with safety regulations, are insufficient to impose liability under section 200 or in common-law negligence (see Phillip v 525 E. 80th St. Condominium, 93 AD3d 578, 579-580 [1st Dept 2012]; Paz v City of New York, 85 AD3d 519, 519-520 [1st Dept 2011]; Carty v Port Auth. of N.Y. & N.J., 32 AD3d 732, 733 [1st Dept 2006], lv denied 8 NY3d 814 [2007]).
Although plaintiff argues that defendants had notice of the defective condition of the steel tubes, "[m]ere notice of unsafe methods of performance is not enough to hold the . . . general contractor vicariously liable under this section [or in common-law negligence]" (Colon v Lehrer, McGovern & Bovis, 259 AD2d 417, 419 [1st Dept 1999]; see also Dennis v City of New York, 304 AD2d 611, 612 [2d Dept 2003] [noting that "no liability will attach to the owner solely because it may have had notice of the allegedly unsafe manner in which work was performed"]).
Accordingly, plaintiff's section 200 and common-law negligence claims shall be dismissed.
D. Sciame's Third-Party Claim for Contractual Indemnification Against Koenig
Koenig moves for summary judgment dismissing the third-party complaint, arguing that Atlantic was the sole entity that controlled, supervised, and directed plaintiff's work. Therefore, according to Koenig, the accident did not arise out of its work. Alternatively, Koenig requests contractual indemnification against Atlantic.
Sciame also moves for full contractual indemnification in its favor against Koenig.
Koenig's subcontract contains the following indemnification provision:
" Indemnification
8.1 To the fullest extent permitted by law, Subcontractor [Koenig] shall indemnify, defend, save and hold harmless Construction Manager [Sciame], NYCEDC, the City of New York, the Theatre for a New Audience . . . and any other required indemnitee under the Prime Contract (hereinafter collectively called 'Indemnitees') from and against all damage, loss, liabilities, claims, judgments, demands and actions of any nature whatsoever which arise out of or are connected with or are claimed to arise out of or be connected with the performance of the Subcontractor's Work, or any negligence, fault or default of Subcontractor, or the breach of any of the Subcontractor's obligations under this Agreement"(NYSCEF Doc No. 132, Cheng affirmation in support, exhibit N at 23 [emphasis supplied]).
Sciame argues, in moving for contractual indemnification from Koenig, that: (1) the contractual indemnification provision complies with General Obligations Law § 5-322.1; (2) Sciame was not negligent, since it did not supervise Koenig's work or select the means or methods in which the work was performed; and (3) plaintiff's accident arose out of or resulted from the work being performed by Koenig under its subcontract with Sciame. Alternatively, Sciame requests conditional indemnification from Koenig.
In opposition to Sciame's motion and in reply, Koenig argues that Sciame's contractual indemnification claim is barred by the antisubrogation doctrine. As argued by Koenig, Sciame and Koenig are being defended in this action under an insurance policy issued by Harleysville Worcester Insurance Company (Harleysville) effective for the period from July 18, 2011 through July 18, 2012 with policy limits of $1,000,000 per occurrence and $2,000,000 in the aggregate (NYSCEF Doc No. 257, Cheng affirmation in opposition, exhibit A).
It is well established that "[a] party is entitled to full contractual indemnification provided that the intention to indemnify can be clearly implied from the language and purposes of the entire agreement and the surrounding facts and circumstances" (Drzewinski v Atlantic Scaffold & Ladder Co., 70 NY2d 774, 777 [1987] [internal quotation marks omitted]). "[I]n 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" (Uluturk v City of New York, 298 AD2d 233, 234 [1st Dept 2002] [internal quotation marks and citation omitted]).
Koenig has failed to establish prima facie entitlement to summary judgment dismissing Sciame's third-party complaint, including its contractual indemnification claim. Although Koenig argues that Atlantic was the only entity that supervised plaintiff's work, plaintiff's accident arose out of or was connected with Koenig's work (see Lesisz v Salvation Army, 40 AD3d 1050, 1052 [2d Dept 2007]). Indeed, Koenig retained Atlantic to perform steel erection on the project (NYSCEF Doc No. 133).
Pursuant to General Obligations Law § 5-322.1, a clause in a construction contract which purports to indemnify a party for its own negligence is against public policy and is void and unenforceable (Itri Brick & Concrete Corp. v Aetna Cas. & Sur. Co., 89 NY2d 786, 795 [1997], rearg denied 90 NY2d 1008 [1997]). However, an indemnification agreement that authorizes indemnification "to the fullest extent permitted by law" is enforceable (Williams v City of New York, 74 AD3d 479, 480 [1st Dept 2010]; Landgraff v 1579 Bronx Riv. Ave., LLC, 18 AD3d 385, 387 [1st Dept 2005]; Dutton v Pankow Bldrs., 296 AD2d 321, 322 [1st Dept 2002], lv denied 99 NY2d 511 [2003]). Furthermore, even if the indemnification agreement does not contain this savings language, it may nevertheless be enforced where the party to be indemnified is found to be free of any negligence (Mathews v Bank of Am., 107 AD3d 495, 496 [1st Dept 2013]; Collins v Switzer Constr. Group, Inc., 69 AD3d 407, 408 [1st Dept 2010]).
Here, the indemnification provision in Koenig's subcontract does not violate the General Obligations Law because it provides that Koenig shall indemnify Sciame "[t]o the fullest extent permitted by law" (NYSCEF Doc No. 132 at 23). Moreover, as noted above, Sciame has demonstrated that it was not negligent. Therefore, Sciame will not be indemnified for its own negligence.
The anti-subrogation rule provides that "[a]n insurer ... has no right of subrogation against its own insured for a claim arising from the very risk for which the insured was covered" (North Star Reins. Corp. v Continental Ins. Co., 82 NY2d 281, 294 [1993]). "The anti-subrogation rule applies only to the policy limits of the comprehensive general liability policy at issue, and claims for contribution and/or indemnification beyond the limits of a common insurance policy are not barred" (Lodovichetti v Baez, 31 AD3d 718, 718 [2d Dept 2006]). Therefore, Koenig is not entitled to dismissal of Sciame's contractual indemnification claim based on the anti-subrogation rule, even considering its arguments made in reply.
Accordingly, Sciame is entitled to conditional contractual indemnification from Koenig, to the extent that any settlement or judgment exceeds the limits of Harleysville's policy (see Gallagher v New York Post, 55 AD3d 488, 491 [1st Dept 2008], revd on other grounds 14 NY3d 83 [2010] [awarding conditional contractual indemnification for any damages awarded over limits of a common policy]).
The branch of Koenig's motion seeking dismissal of Sciame's contractual indemnification claim against it shall be denied.
E. Sciame's Third-Party Claim for Contractual Indemnification Against Atlantic/H3's Cross Claim for Contractual Indemnification Against Atlantic
Sciame moves for contractual indemnification from Atlantic, pursuant to the indemnification provision contained within Koenig's contract with Atlantic. Atlantic moves for summary judgment dismissing this claim, arguing that Sciame does not qualify as an indemnitee.
As argued by Atlantic, Sciame is not entitled to contractual indemnification from Atlantic (see Tonking v Port Auth. of N.Y. & N.J., 3 NY3d 486, 490 [2004] ["the language of the parties is not clear enough to enforce an obligation to indemnify, and we are unwilling to rewrite the contract and supply a specific obligation the parties themselves did not spell out"]). The indemnification provision contained within Atlantic's subcontract requires Atlantic to indemnify "Contractor [Koenig], Owner and agents and employees . . ." (NYSCEF Doc No. 177 at 6). "The contractual provisions on which [Sciame] rel[ies] are found in a subcontract to which [it is not a signator[y] and that does not enumerate [it] as [an] indemnitee[]" (Sicilia v City of New York, 127 AD3d 628, 628 [1st Dept 2015]). Therefore, Sciame's contractual indemnification claim against Atlantic shall be dismissed.
In addition, H3 did not oppose dismissal of its contractual indemnification claim against Atlantic. Accordingly, this claim shall likewise be dismissed.
F. Sciame's Third-Party Claim for Common-Law Indemnification Against Koenig
Sciame moves for common-law indemnification against Koenig. Sciame argues that Koenig was the only contractor that installed structural steel besides its subcontractors, and that it was required to perform its work in a safe and workmanlike manner.
"To be entitled to common-law indemnification, a party must show (1) that it has been held vicariously liable without proof of any negligence or actual supervision on its part; and (2) that the proposed indemnitor was either negligent or exercised actual supervision or control over the injury-producing work" (Naughton v City of New York, 94 AD3d 1, 10 [1st Dept 2012]; see also McCarthy v Turner Constr., Inc., 17 NY3d 369, 377-378 [2011]; Muriqi v Charmer Indus. Inc., 96 AD3d 535, 536 [1st Dept 2012]).
Although Sciame has established that it was not negligent, it has failed to demonstrate that Koenig was negligent or that Koenig exclusively supervised the injury-producing work. "[A]n award of summary judgment on a claim for common-law indemnification is appropriate only where there are no triable issues of fact concerning the degree of fault attributable to the parties" (Aragundi v Tishman Realty & Constr. Co., Inc., 68 AD3d 1027, 1030 [2d Dept 2009]). Plaintiff testified that Atlantic's foreman supervised his work, and that only Atlantic provided him with the tools, materials and equipment necessary for his work (NYSCEF Doc No. 158, plaintiff tr at 60-61, 73-75). Sciame also relies on section 1.12 of Koenig's subcontract, which required it to "perform all of the Subcontract Work in a prudent and professional manner" (NYSCEF Doc No. 176 at 5). However, "a party's . . . authority to supervise the work and implement safety procedures is not alone a sufficient basis for requiring common-law indemnification" (McCarthy, 17 NY3d at 378). In any case, Sciame would be barred from seeking indemnification for amounts below the limits of Harleysville's policy. Therefore, Sciame's request for common-law indemnification against Koenig must be denied.
G. Sciame's Third-Party Claims for Breach of Contract Against Koenig and Atlantic
Sciame moves for partial summary judgment on its breach of contract claims against Koenig and Atlantic. Atlantic moves for summary judgment dismissing this claim, arguing that it was not obligated to purchase any type of insurance for Sciame.
Exhibit D to Koenig's subcontract, entitled "Insurance Requirements," states that Koenig shall purchase a commercial general liability policy with limits of $1,000,000 each occurrence and $2,000,000 general aggregate, and shall name Sciame as an additional insured (NYSCEF Doc No. 176 at 87, 89).
In response to Sciame's motion, Koenig submits the Harleysville policy indicating that it complied with its insurance procurement obligation, i.e., it purchased a commercial general liability with limits of $1,000,000 each occurrence and $2,000,000 general aggregate, with an additional insured endorsement naming Sciame as an additional insured (NYSCEF Doc No. 257). Moreover, that Harleysville has refused to indemnify Sciame is not a basis for a breach of contract claim (see Perez v Morse Diesel Intl., Inc., 10 AD3d 497, 498 [1st Dept 2004]). Upon a search of the record (see CPLR 3212 [b]), Sciame's breach of contract claim against Koenig shall be dismissed.
The Indemnity Agreement and Agreement to Maintain Certain Insurance between Koenig and Atlantic provides that "FOR ANY AND ALL JOBS PERFORMED BY Subcontractors for Contractors, the Subcontractor shall maintain . . . Commercial general liability with limits of $1,000,000 each occurrence and $2,000,000 General Aggregate" (NYSCEF Doc No. 177 at 6). "Koenig Iron Works, Inc. shall be named as additional insured on the Subcontractor's insurance policies. This shall be indicated on the certificate of insurance in the description section as follows: 'Koenig Iron Works Inc. is named additional insured'" (id.). Thus, Atlantic was not required to purchase insurance for Sciame's benefit, only Koenig (NYSCEF Doc No. 177 at 6). Accordingly, Sciame's breach of contract claim against Atlantic must be dismissed.
H. Common-Law Indemnification and Contribution Claims Against Atlantic
Atlantic moves for summary judgment dismissing the common-law indemnification and contribution claims against it. There is no opposition to this branch of Atlantic's motion.
Workers' Compensation Law § 11 provides that a "grave injury":
"shall mean only one or more of the following: death, permanent and total loss of use or amputation of an arm, leg, hand or foot, loss of multiple fingers, loss of multiple toes, paraplegia or quadriplegia, total and permanent blindness, total and permanent deafness, loss of nose, loss of ear, permanent and severe facial disfigurement, loss of an index finger or an acquired injury to the brain caused by an external physical force resulting in permanent total disability."
In Castro v United Container Mach. Group, Inc. (96 NY2d 398, 402 [2001]), the Court of Appeals held that "[t]he grave injuries listed are deliberately both narrowly and completely described. The list is exhaustive, not illustrative; it is not intended to be extended absent further legislative action [internal quotation marks and citation omitted]."
Plaintiff's bill of particulars alleges that he sustained injuries to his lumbar spine and ankle (NYSCEF Doc No. 206, verified bill of particulars, ¶ 14). None of these injuries qualify as a "grave injury" (see Picchione v Sweet Constr. Corp., 60 AD3d 510, 512 [1st Dept 2009] ["Contribution and common-law indemnification were properly denied against Arc, plaintiff's employer, since there was no showing of 'grave injury' where plaintiff sustained a "lower back injury"]). Accordingly, the common-law indemnification and contribution claims against Atlantic shall be dismissed.
I. Koenig's Cross Claim for Contractual Indemnification Against Atlantic
Koenig moves for contractual indemnification against Atlantic, based upon the following indemnification provision in Atlantic's subcontract:
"Furthermore, to the fullest extent permitted by law, the Subcontractor shall indemnify, defend and hold harmless and defend Contractor, Owner and agents and employees, of any of them from and against all claims, damages, losses and expenses, including but not limited to attorneys' fees arising out of or resulting from the work of Subcontractor, provided that any such claim, damage, loss or expense (a) is attributable to bodily injury, sickness, disease or death . . . (b) is caused in whole or in part by any act or omission of the Subcontractor or anyone directly or indirectly employed or Subcontracted by it, or anyone whose acts it may be liable pursuant to the performance of the agreement. Notwithstanding the foregoing, Subcontractor's obligation to indemnify Contractor, Owner and agents and employees of any of them against any judgment, mediation or arbitration award or settlement shall extend only to the percentage of negligence of Subcontractor or anyone directly or indirectly employed by it or anyone for whose acts it may be liable in connection to such claim, damage, loss or expense"(NYSCEF Doc No. 133, Cheng affirmation in support, exhibit O at 9).
Koenig argues that plaintiff's accident clearly arose out of Atlantic's operations: Atlantic exclusively performed the steel erection work, and was responsible for plaintiff's safety. Furthermore, Koenig contends that it was not actively negligent, was not responsible for site safety with respect to plaintiff's work, and did not create any defective condition that caused the accident.
For its part, Atlantic contends that there are no contracts requiring it to indemnify Koenig. Atlantic argues that its proposal, which Koenig accepted, does not require Atlantic to indemnify any party, let alone Koenig (NYSCEF Doc No. 214). Moreover, the separate Indemnity Agreement and Agreement to Maintain Certain Insurance was undated and there is a question of fact as to whether the agreement was in effect on the date of the accident. In addition, Atlantic argues that Koenig has not met its burden of establishing that the indemnification provision has been triggered. Further, Atlantic contends that Koenig has not shown its freedom from negligence. Finally, Atlantic maintains that Koenig has nothing for which it may be indemnified. In this regard, Atlantic points out that plaintiff has no direct claims against Koenig, and Sciame's claims against Koenig fail under the anti-subrogation rule.
In response, Koenig submits an affidavit from its executive vice president, Nick Morisset (Morisset), who avers that he signed the subcontract on behalf of Koenig as shown on the second page, and that the fourth page entitled "Indemnity Agreement and Agreement to Maintain Certain Insurance" was part of the subcontract documents (NYSCEF Doc No. 247, Morisset aff, ¶¶ 2, 3). According to Morisset, it was Koenig's custom and practice to have its subcontractors simultaneously sign the indemnification agreement along with the other contract documents (id., ¶ 4).
Contrary to Atlantic's contention, Koenig has shown that the indemnification provision was in effect on the date of the accident (see Workers' Compensation Law § 11). Morisset avers that the indemnification agreement was part of Atlantic's subcontract for the project (id., ¶ 3). It was in effect on June 14, 2012 because Atlantic's president signed the contract on behalf of Atlantic on February 7, 2012 (id., ¶¶ 3, 4; see also NYSCEF Doc No. 133). Atlantic has not pointed to any contradictory evidence.
In addition, Koenig has demonstrated that the indemnification provision has been triggered with respect to expenses and attorneys' fees. It is undisputed that Atlantic was plaintiff's employer, and that plaintiff was injured in the course of his employment with Atlantic. Therefore, plaintiff's accident was "caused in whole or in part by an act or omission of [Atlantic] or anyone directly or indirectly employed by [it]" (NYSCEF Doc No. 133, Cheng affirmation in support, exhibit O at 9). Atlantic is required to pay Koenig's expenses, including attorneys' fees, pursuant to this provision (see id.). Moreover, the indemnification provision does not condition Atlantic's obligation to pay expenses and attorneys' fees based upon a finding of fault (see Simone v Liebherr Cranes, Inc., 90 AD3d 1019, 1020 [2d Dept 2011]).
Furthermore, Koenig has demonstrated that it was not negligent (see Gonzalez v Old Navy Clothing Co., 286 AD2d 308, 308 [1st Dept 2001]). Plaintiff testified that the steel tube was installed by Atlantic (NYSCEF Doc No. 158, plaintiff tr at 115). He further testified that he was supervised by Atlantic's foreman (id. at 60-61). Koenig purchased the steel, and retained Atlantic to perform the actual steel erection (NYSCEF Doc No. 130, Bock tr at 12-13, 29). Koenig merely coordinated the delivery of the steel for the project (id. at 24-29). Koenig did not supervise Atlantic's work (NYSCEF Doc No. 131, O'Connell tr at 78-79).
However, Koenig is conditionally granted indemnification for any "judgment, mediation or arbitration award or settlement" against Atlantic (NYSCEF Doc No. 133, Cheng affirmation in support, exhibit O at 9). Pursuant to the indemnification provision, Atlantic's obligation is conditioned upon a finding of "negligence of Subcontractor [Atlantic] or anyone directly or indirectly employed by it or anyone for whose acts it may be liable in connection to such claim, damage, loss or expense" (id.). There has been no finding of negligence against Atlantic or any of its employees at this juncture.
Accordingly, Koenig is entitled to contractual defense and indemnification for expenses and attorneys' fees against Atlantic and conditional indemnification for any judgment, mediation or arbitration award or settlement against Atlantic. The branch of Atlantic's motion seeking dismissal of Koenig's contractual indemnification claim shall be denied. 1/7/2020
DATE
/s/ _________
DEBRA A. JAMES, J.S.C.