Opinion
28507/2003.
Decided July 13, 2005.
Plaintiff Abraham Jallow commenced this action seeking to recover damages for personal injuries sustained during an accident that took place during the renovation of the condominium complex owned by Kew Gardens Hills Apartment Owners (hereinafter referred to as "Kew Gardens"). Plaintiff sues, inter alia, Kew Gardens and the general contractor on the project, Dean Builders Group Inc. (hereinafter referred to as "Dean Builders"). Plaintiff now moves for partial summary judgment on liability, based upon the alleged violation of Labor Law § 240(1). Defendants Kew Gardens and Dean Builders cross move for a dismissal of all claims under Labor Law and common law negligence. Alternatively, defendant Kew Gardens cross moves for summary judgment on its contractual indemnification claim against co-defendant Dean Builders.
Factual Background
At the time of his accident, plaintiff Abraham Jallow was working on a construction and renovation site, at the adjoining properties located at 135-18 78th Avenue and 135-20 78th Avenue, Flushing, New York. Kew Gardens, the owner of the condominium complex, hired Dean Group, as the general contractor, to replace approximately seventy-two (72) roofs, parapet walls and bricks. Dean Builders subcontracted some of the restoration work to Headson Construction, Inc., which in turn retained All Season, LC to perform roof and facade replacement.
Plaintiff Abraham Jallow was an employee of All Season, and was responsible for replacing and removing bricks on the parapet wall of the building located at 135-18 78th Avenue. Reportedly, plaintiff's accident occurred when he was standing on the platform of a pipe scaffold, assisting in fixing a hanging plastic tarp, when the platform of the scaffold collapsed for no apparent reason. Plaintiff then commenced an action against Kew Gardens, Dean Builders and Headson Construction, alleging claims under Labor Law § 240(1), Labor Law § 241(6), Labor Law § 200, and common law negligence.
Plaintiff now moves for partial summary judgment on liability, against defendants Kew Gardens and Dean Builders, based upon the alleged violation of Labor Law § 240(1). Defendants Kew Gardens and Dean Builders cross move for a dismissal of the claims under Labor Law § 240(1), Labor Law § 241(6), Labor Law § 200, and common law negligence. Alternatively, defendant Kew Gardens cross moves for summary judgment on its contractual indemnification claim against defendant Dean Builders.
Discussion
It is well settled that the proponent of a motion for summary judgment must establish that "there is no defense to the cause of action or that the cause of action or defense has no merit," (C.P.L.R. § 3212[b]), sufficiently to warrant the court as a matter of law to direct judgment in his or her favor. Bush v. St. Clare's Hospital, 82 NY2d 738, 739 (1993); Winegrad v. New York University Medical Center, 64 NY2d 851, 853 (1985). This standard requires that the proponent of the motion "tender sufficient evidence to eliminate any material issues of fact from the case," id., "by evidentiary proof in admissible form." Zuckerman v. City of New York, 49 NY2d 557, 562 (1980). Thus, the motion must be supported "by affidavit [from a person having knowledge of the facts], by a copy of the pleadings and by other available proof, such as depositions." C.P.L.R. § 3212(b).
Where the proponent of the motion makes a prima facie showing of entitlement to summary judgment, the burden shifts to the party opposing the motion to demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action, or to tender an acceptable excuse for his or her failure to do so. Vermette v. Kenworth Truck Company, 68 NY2d 714, 717 (1986); Zuckerman v. City of New York, supra, 49 NY2d at 560, 562. Like the proponent of the motion, the party opposing the motion must set forth evidentiary proof in admissible form in support of his or her claim that material triable issues of fact exist. Id., at 562.
A.
The Court first examines plaintiff's motion for partial summary judgment on liability against defendants Kew Gardens and Dean Builders on the Labor Law § 240(1) claim. In order to prevail in an action brought under Labor Law § 240(1), a plaintiff must show that the statute was violated and that the violation was the proximate cause of the injury. See, Sprague v. Peckham Materials Corp., 240 AD2d 392, 393 (2nd Dept. 1997); Wieszchowski v. Skidmore Coll., 147 AD2d 822 (3rd Dept. 1989). Specifically, Section 240(1) of the Labor Law provides that:
"All contractors and owners and their agents . . . 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) is designed to protect employees on construction sites from elevation-related risks. Elevation risks covered by the statute "are those related to the effects of gravity where protective devices are called for either because of a difference between the elevation level of the required work and a lower level or a difference between the elevation level where the worker is positioned and the higher level of the materials or load being hoisted or secured." Rocovich v. Consolidated Edison Co., 78 NY2d 509, 514 (1991). See also, Paul v. Ryan Homes, Inc., 5 AD3d 58 (4th Dept. 2004); John v. Baharestani, 281 AD2d 114 (1st Dept. 2001); Kyle v. City of New York, 268 AD2d 192, 195(1st Dept. 2000).
This Court finds that plaintiff met his burden. In support of his motion, plaintiff relies upon his own deposition testimony in which he describes that his injuries were sustained when he fell from a scaffold that collapsed. Prior to the accident, plaintiff was adjusting the plastic tarp covering an outer wall of a building. The plastic tarp was used to cover the wall after the parapet wall was removed as part of the renovation project of the premises. Plaintiff's testimony established a prima facie showing of a Labor Law § 240(1) violation. His testimony demonstrated exposure to a gravity-related risk. In addition, his testimony established that the scaffold upon which the injured plaintiff was working failed to provide proper protection as required by Labor Law § 240(1) and that this violation was the proximate cause of the accident, since the submitted proof established that the scaffold collapsed without an apparent reason.
Defendants, however, attempt to escape liability under Labor Law § 240(1) by claiming that the work in which plaintiff was engaged at the time of the accident was "routine maintenance" that falls outside the ambit of Labor Law § 240(1). This Court disagrees. Although the occurrence giving rise to injury must have happened during a pendency of a covered task, plaintiff need not have been performing such a task at the time of the accident. In Prats v. The Port Authority of NYNJ, 100 NY2d 878 (2003), the Court of Appeals held that the intent of Labor Law § 240(1) was to protect workers employed in the type of activity enumerated in the statute even while performing duties ancillary to those acts. Thus, in this case, since plaintiff was placing a plastic tarp to cover walls after the parapet wall was removed, as part of the renovation project, he was "performing duties ancillary" to the repair, reconstruction or alteration of the subject building and as such was entitled to the protection of Labor Law § 240(1). Cf. Greenfield v. March of Queen Limited, 3 AD3d 429 (1st Dept. 2004) (Laborer was entitled to partial summary judgment on liability under Labor Law § 240 (1) since he was injured when ladder collapsed while he was on "walk-through" of newly built store for purpose of compiling "punch list" of small unfinished items and last minute changes, which falls under "erection" category of statute.); Velasco v. Greenwood Cemetery, 8 AD3d 88 (1st Dept. 2004) (waterproofing work was integral part of roofing work). See also, Scally v. Regional Indus. Partnership, 9 AD3d 865 (4th Dept. 2004).
Nor does this Court find any merit to defendants' contention that there are triable issues of act regarding the recalcitrant worker defense, which would allow them to escape liability imposed by Labor Law 240(1). In order to establish a recalcitrant worker defense, a defendant must show that a plaintiff deliberatively refused to use available safety devices provided by the owner or contractor. Hagins v. State of New York, 81 NY2d 921, 922-923 (1993); Stolt v. General Foods Corp., 81 NY2d 918 (1993). Thus, the defense is not established by merely showing that the worker failed to comply with an employer's instruction to avoid using unsafe equipment or engaging in unsafe practices or to use a particular safety device, or by the mere presence of safety devices on the work site. Hagins v. State of New York, supra; Gordon v. Eastern Railway, 82 NY2d 555 (1993).
In this case, defendants have failed to raise a triable issue of fact on the recalcitrant worker defense. Defendant Dean Builders relies upon the affidavit of its president that he provided safety instructions to the workers. However, he had no knowledge whether plaintiff was among those employees who were provided such safety instructions. More importantly, the mere fact that generalized safety instructions were given at some point in the past are insufficient to raise a triable issue of fact as to the defendant's recalcitrant worker defense. See Zimmer v. Chemung County Performing Arts, 65 NY2d 513, 524 (1985).
Accordingly, this Court must grant plaintiff's motion for partial summary judgment on liability against defendants Kew Gardens and Dean Builders, based upon the violation of Labor Law § 240(1). Having granted plaintiff's motion based upon Labor Law 240(1), the Court sees no need to consider defendants' argument that they are entitled to summary judgment dismissing the claims based upon the violation of Labor Law § 241(6) and § 200, and common law negligence. It is clear from the record that plaintiff's damages are the same regardless of the theory of liability, and plaintiff can only recover these damages once. As such, defendants' argument concerning the lack of merit of the other theories of liability contained in the complaint are academic. See Torino v. KLM Const. Co. Inc., 257 AD2d 541 (1st Dept. 1999); Covey v. Iroqouis Gas Transmission Sys, 218 AD2d 197 (3rd Dept. 1996).
B.
The Court next examines the motion and cross motion by defendants Kew Garden and Dean Builders for summary judgment dismissing plaintiff's claims for loss of past and future earnings. Defendants argue that an illegal immigrant like plaintiff is barred from recovering past and future loss of earnings. Defendant relies upon the United States Supreme Court decision of Hoffman v. National Labor Relations Board, 535 U.S. 237 (2002), which held that it would offend Congress' intent in enacting the Immigration Reform and Control Act of 1986 (IRCA), which bars the employment of undocumented aliens, to permit the National Labor Relations Board to award back pay to an undocumented alien who hand been illegally fired for attempts to organize a union.
The Appellate Division, First Department recently held in two cases: Sanango v. 200 E. 16th Street Hous. Corp., 15 AD3d 36 (1st Dept. 2004); and Balbuena v. IDR Realty, LLC, 13 AD3d 285 (1st Dept. 2004) that Hoffman precludes illegal aliens from recovering under state tort law for lost wages they would have earned in the United States. The court found that Hoffman, supra, was controlling and effectively precluded all recovery by illegal aliens for lost wages they would have earned in the U.S. Sanango stated, "[w]hether or not we agree with Hoffman's reasoning, we are bound by its conclusion that federal immigration policy is offended by an award compensating an undocumented alien for lost illegal wages." Although Hoffman addressed the powers of the NLRB, Sanango reasoned that "if even a coequal federal statute, such as the NLRA, must, under some circumstances, give way to IRCA, as Hoffman holds, it follows that a state law — which, by virtue of the Supremacy Clause [U.S. Const, art VI, § [2], is subordinate to any federal policy — must give way to IRCA as well." Of course, the First Department in Sanango, supra, and Balbuena, supra, focused more on the spirit rather than the actual holding of Hoffman. For instance, Sanango explains that "the clear implication of Hoffman is that a remedy based on the wages plaintiff might have earned unlawfully in the United States 'would unduly trench upon explicit statutory prohibitions critical to federal immigration policy, as expressed in IRCA.'" The court found that the policy expressed in Hoffman against encouraging future IRCA violations is likewise implicated with respect to illegal aliens recovering for lost earnings under state tort law. However, the court further reasoned, that the policy is not offended by permitting illegal aliens to recover based upon wages they could have earned in their home country. Thus, both Sanango and Balbuena held that the plaintiffs should be permitted to recover lost earnings based upon wage rates in their home countries.
Accordingly, this Court must grant the motion and cross motion by defendants Kew Gardens and Dean Builders seeking summary judgment dismissing plaintiff's claims for loss of past and future earnings, but only to the extent plaintiff, as an illegal alien, seeks to recover past and future loss of earnings he could have earned in the United States. This Court, however, denies the motion and cross motion by said defendants seeking summary judgment dismissing plaintiff's claims for lost past and future earnings, to the extent plaintiff, as an illegal alien, seeks to recover lost past and future earnings he could have earned in his home country.
C.
The Court next examines that part of defendant Kew Gardens' motion seeking summary judgment against co-defendant Dean Builders on its third-party claim for contractual indemnification. This Court finds that defendant Kew Gardens has met its burden. In support of its motion, defendant Kew Gardens submits a copy of the contract in effect at the time of the accident, between Kew Gardens and Dean Builders, which required Dean Builders to indemnify Kew Gardens from and against all liability in connection with personal injury claims arising out of the performance of the contract. Specifically, the pertinent clause states:
To the fullest extent permitted by law, Contractor shall indemnify and hold harmless, the Owner . . . from and against all claims, damages, losses and expenses, arising out of or resulting from the performance or nonperformance of the Work . . ., provided that any such claim, damage, loss or expense: 1) is attributable to bodily injury, sickness, disease or death . . . and (2) is caused in whole or in part by either (a) any negligent act or omission of Contractor or of any Subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, regardless of whether or not a party indemnified hereunder is partially negligent, or (b) arises out of operation of law as a consequence of any act or omission of Contractor, any subcontractor, anyone directly or indirectly employed by any of them, or anyone for whose acts any of them may be liable, regardless of whether any of them has been negligent.
Summary judgment has been found to lie where, like here, "[t]he contract between [owner] and [contractor] contains a broad indemnity clause under which [the contractor] is required to indemnify [the owner] against all claims arising out of the performance of the work. . . ." Smith v. Cassadaga Valley Cent. Sch. Dist., 178 AD2d 955 (4th Dept. 1991). Such language "manifests a clear intention to indemnify." Id. It is well settled law that a right of contractual indemnification is uniformly granted in New York where there is no finding of negligence on the part of the owner. See Brown v. Two Exchange Plaza Partners, 76 NY2d 172 (1990); Glielmi v. Toys R Us, 62 NY2d 664 (1984); Kelly v. Diesel Construction Division of Carl A. Morse, Inc., 35 NY2d 1 (1974).
Here, defendant Kew Gardens, in moving for summary judgment, sets forth its status as the owner of the premises which did not control or supervise the worksite, and its indemnity provision in the agreement with Dean Builders. The only showing of any involvement by Kew Gardens was that the architect it hired for the project, Devon Architects, performed inspections on a regular basis and provided the owner with updates on the progress of the work performance. This participation was inadequate to establish the type of control by Kew Gardens that would preclude indemnification. Cf. Curtis v. 37th Street Assocs., 198 AD2d 62, 63 (1st Dept. 1993).
In addition, no evidence has been presented on the motions indicating the existence of a factual issue as to any possible negligence by Kew Gardens that contributed to the accident. It is undisputed that the obligation to furnish all of the tools and equipment to be used on the project rested upon the general contractor, Dean Builders. Nor is there any showing that Kew Gardens supplied the scaffold that collapsed or that it knew, or should have known, of any defect therein. There is no basis in this case, therefore, to find that Kew Gardens was negligent. Thus, this Court must grant Kew Gardens a conditional summary judgment on its claims for contractual indemnification against Dean Builders.
Conclusion
For the foregoing reasons, it is
ORDERED that the motion by plaintiff for partial summary judgment on the issue of liability, based on defendants' violation of Labor Law § 240(1), is granted, and the Clerk is directed to enter a partial judgment in favor of said plaintiff on the issue of liability and against defendants Kew Gardens and Dean Builders; it is further
ORDERED that the motion by defendant Kew Gardens for summary judgment on its contractual indemnifications claims against Dean Builders, is granted and the Clerk is directed to enter a conditional judgment in favor of said defendant on its contractual indemnification claim against defendant Dean Builders; it is further
ORDERED that the motion and cross motion by defendants Kew Gardens and Dean Builders for summary judgment dismissing plaintiff's claims for loss of past and future earnings, is partially granted, but only to the extent plaintiff, as an illegal alien, seeks to recover loss of past and future earnings he could have earned in the United States; it is further
ORDERED that the motion and cross by defendants Kew Gardens and Dean Builders, for summary judgment dismissing plaintiff's claims for loss of past and future loss of earnings, is partially denied, to the extent plaintiff, as an illegal alien, seeks to recover loss of past and future earnings he could have earned in his home country.
This constitutes the Decision and Order of the Court.