Opinion
9398/06.
Decided January 5, 2010.
Plaintiff Lopez-Dones was represented by Stefano A. Filippazzo, Esq., 16 Court St., Brooklyn, NY 11241. Defendant/Second Third-Party Plaintiff B.R. Fried Assoc. and B.R. Fried Assoc. were represented by the Law Office of James J. Toomey, 485 Lexington Ave., NY, NY 10017. Defendants 601 West Assoc. and Tommy Hilfiger USA were represented by Sedgwick Detert Moran Arnold, Esqs., 125 Broad St., NY, NY 10004. Second Third-Party Defendant Falcon Electrical Contracting Corp. was represented by O'Connor Redd, LLP, 200 Mamaroneck Ave., White Plains, NY 10601. Defendant/Third-Party Defendant Capital Ceiling Systems, Inc. was represented by Quirk Bakalor, PC, 845 Third Ave., NY, NY 10022. Defendant/Third-Party Defendant Sunset Interiors Corp., was represented by Hodgson Russ, LLP. 140 Pearl St., Buffalo, NY 14202.
In this action to recover monetary damages for a workplace injury and related third-party actions for indemnification, the following motions are consolidated for disposition and, upon consolidation:
(a) the motion by plaintiff Brunilda Lopez-Dones (plaintiff or Lopez-Dones) for an order granting her partial summary judgment on the issue of liability under Labor Law § 240 (1) is denied in its entirety (sequence no. 6);
(b) the cross motion by defendants 601 West Associates, LLC (601 West) and Tommy Hilfiger U.S.A., Inc. (Hilfiger) for summary judgment (i) granting their cross claims for contractual indemnification against defendant/second-party plaintiff B.R. Fries Associates, LLC (s/h/a B.R. Fries Associates, Inc. and B.R. Fries Associates, LLC) (Fries) and for common-law indemnification against Fries and any other active tortfeasor, and (ii) dismissing plaintiff's complaint and all cross claims insofar as asserted against them, is granted only to the extent that plaintiff's Labor Law §§ 241 (6), 200, and common-law negligence claims insofar as asserted against 601 West and Hilfiger are dismissed, Hilfiger is granted summary judgment on its contractual indemnification cross claim against Fries, and all cross claims by Fries, Ronsco, Inc. (Ronsco), Capital Ceiling Systems, Inc. (Capital), Sunset Interiors Corp. (Sunset), and Falcon Electrical Contracting Corp. (Falcon) insofar as asserted against 601 West and Hilfiger are dismissed; and such motion is otherwise denied (sequence no. 7);
(c) the motion by defendant/second third-party plaintiff Fries for summary judgment on its claim for contractual indemnification against defendant/second third-party defendant Falcon and for conditional contractual and common-law indemnification against defendant/first third-party plaintiff Ronsco, is denied in its entirety (sequence no. 10);
(d) the cross motion by defendant/first third-party plaintiff Ronsco for summary judgment (i) dismissing plaintiff's complaint and all cross claims asserted against Ronsco in the main action, and (ii) granting its claims for contractual and common-law indemnification against defendants/first third-party defendants Capital and Sunset, is granted only to the extent that plaintiff's Labor Law §§ 240 (1), 241 (6), and 200 claims against Ronsco are dismissed and Capital's cross claims against Ronsco are dismissed, and such motion is otherwise denied (sequence no. 12);
(e) the motion by defendant/first third-party defendant Capital for summary judgment dismissing plaintiff's complaint, Ronsco's first third-party complaint and all cross claims insofar as asserted against Capital, is granted in its entirety (sequence no. 9);
(f) the cross motion by defendant/first third-party defendant Sunset for summary judgment dismissing plaintiff's complaint, Ronsco's first third-party complaint and all cross claims insofar as asserted against Sunset, is granted only to the extent that plaintiff's Labor Law §§ 240 (1), 241 (6), and 200 claims against Sunset are dismissed and Capital's cross claims against Sunset are dismissed, and such motion is otherwise denied (sequence no. 11); and
(g) the motion by second third-party defendant Falcon for summary judgment dismissing all claims/cross claims insofar as asserted against it is granted only to the extent that common-law indemnification claims/cross-claims by Hilfiger, Fries, Capital, and Sunset against Falcon are dismissed, and such motion is otherwise denied (sequence no. 8).
Background Facts and Procedural History
The main action arises out of an accident that occurred during the course of a renovation project on the fifth floor of the commercial building at 601 West 26th Street in Manhattan (the building) owned by 601 West. Before the accident, Hilfiger leased a portion of the fifth floor of the building from 601 West and the remainder of that floor from 601 West's prime tenant, non-party Zurich American Insurance Company. Following the gut demolition of the entire fifth floor by another contractor, Hilfiger hired Fries as the general contractor to have this "raw space" completely renovated and finished as Hilfiger's corporate offices. As part of this project, Fries subcontracted with plaintiff's employer, Falcon, to perform electrical work. In addition, Fries subcontracted with Ronsco to install interior walls/partitions and ceilings (both suspended acoustical and drywall). Ronsco, in turn, sub-subcontracted certain metal work for acoustical ceilings to Capital. Ronsco separately sub-subcontracted certain finishing (taping and spackling) work to Sunset. Ronsco performed the remainder of the work it undertook pursuant to its subcontract with Fries.
In the morning of June 1, 2005, Ms. Lopez-Dones, an apprentice electrician, reported to her employer, Falcon's, shanty on the fifth floor. She had been working at this site for six-seven months (ADR C-2 Report), and her employer's foreman (Gennadiy "Jerry" Bogush) was the only individual who instructed her as to what work she was to perform at the site. That morning, she was directed by Jerry to work on a "pull box" to connect electrical circuits running along a portion of the unfinished acoustical ceiling on the fifth floor. She retrieved a ten-foot, A-type, 70-pound wooden ladder from a stack of similar ladders owned by her employer and located next to its shanty. She also collected the requisite hand tools and placed them in her belt. She carried the ladder and the tool belt to a spot on the fifth floor underneath the pull box which was at least ten feet above the floor.
A "pull box" is "a device that wires or cables will pass through for either connecting or installation" (Scofield/Fries EBT at 71). A pull box on this project ranged in size from 4" by 4" to 36" by 36" depending on the number of wires and cables (Palazzo/Hilfiger EBT at 75).
Before setting up the ladder, Ms. Lopez-Dones checked the floor surface and saw no debris. Next, she completely opened the ladder, pulled down on its hinges, locked its links in place, and shook it to make sure it was stable and that its feet were level with the floor. She then climbed up and remained on the ladder for a couple of hours while she was working on the pull box and the electrical wires attached to it. Although she could not recall the height of the rung on which she was standing, she was positive that the pull box was within her arms' reach.
At approximately 12:30 p.m., while she was working and looking up directly into the pull box, Ms. Lopez-Dones felt a "hard hit" to the lower part of her ladder (Dec. 7, 2007 EBT at 59 and Oct. 22, 2008 EBT at 18). She testified:
Q. . . . What happened when you felt the hit to your ladder?
A. I immediately twisted to my right, grabbed onto the [steel] pencil rod and felt my ladder fall from underneath me.
* * *
Q. What's a pencil rod?
A. Pencil rod is sh[o]t into the concrete ceiling and it holds these (indicating), dropped ceiling.[]
A "dropped" or suspended acoustical ceiling consists of an aluminum grid system with laid-in tiles. The grid is held by black irons or pegs shot into the concrete deck (exposed slab) above (Scofield/Fries EBT at 46-48; Zaretzky/Ronsco EBT at 16-17). A pencil rod is part of the black irons (Zaretzky/Ronsco EBT at 54).
* * *
Q. How many hands did you grab the pencil rod with?
A. Both hands.
* * *
Q. When you say you felt your ladder fall from underneath you, did the ladder actually fall down?
A. No.
Q. Did you fall down to the ground at any point?
A. I fell off my ladder.
Q. When you say you fell off your ladder, did you hit the ground at any point?
A. I was holding on to the pencil rod, the ladder hit the tin, the AC unit, and came back.
[Q.]The ladder came back into a standing position beneath you?
A. Only because I grabbed it with my left leg so I was able to get my leg on it and get back on it.
[Q.][Y]ou grabbed onto the pencil rod, you held on to that constantly?
A. I held on to the pencil rod, as the ladder went that way (indicating), what stopped the ladder from hitting the floor was the [AC] duct, and the duct is over 30 feet.
* * *
Q. Where was the duct located?
A. To my left.
Q. . . . Was it hanging from the ceiling; is that correct?
A. Yes.
Q. . . . So the ladder went to the left, hit the duct and then came back to a standing position; is that correct?
A. Yes.
Q. So did there come any point that you were hanging on to the pencil rod with nothing underneath you?
A. Yes.
Q. And how long did that instance last?
A. A few seconds.
(Dec. 7, 2007 EBT at 59-63).
After regaining her balance, Ms. Lopez-Dones looked down and saw a man passing by with a four-wheeled A-frame dolly loaded with three or four "big drums of something" (Dec. 7, 2007 EBT at 64; Oct. 22, 2008 EBT at 101-102). She continued her testimony:
An A-frame dolly is "a cart. It's approximately 18 inches deep by 4 feet long with a horizontal surface, four casters and a vertical angled back approximately 3 feet tall" (Zaretzky/Ronsco EBT at 58).
Q. Did you recognize this gentleman, had you seen him before?
A. He looked like the carpenter's foreman to me.
Q. Do you remember the name of the carpenter?
A. I don't recall his name.
Q. Do you remember the name of the company that he worked for?
A. I think it's Fries because I remember French fries.
Q. Can you describe him for me?
A. He's a male white, no hair.
* * *
Q. Had you ever spoken to him before?
A. No.
Q. . . . So after you saw the carpenter walking with the A-frame [dolly], did you speak to him?
A. I yelled, "Hay, you just hit my ladder."
Q. Did he respond?
A. No.
Although plaintiff yelled at the man who bumped her ladder, he did not stop, turn, look at her, or acknowledge her in any way (Oct. 22, 2008 EBT at 81).
* * *
Q. So after you yelled at this gentleman and he didn't respond, what happened next?
A. I got off my ladder.
Q. And then what?
A. And I felt pain in my shoulder [a torn rotator cuff], my neck and my lower back.
Upon reporting the accident to her foreman, Ms. Lopez-Dones went home. She did not work for the next 12 months. Thereafter, she worked for two other employers as an apprentice electrician. On August 21, 2006, she allegedly sustained another on-the-job accident in which her nose was fractured ( see Lopez-Dones v HLT-Manage Franchise Holding, LLC, d/b/a Waldorf Astoria Hotel, et al. [Sup Ct, Kings County, index No. 46070/07, Schack, J.]). As of October 2008, when she was last deposed in this action, she was 40 years old, unemployed, uninsured, on daily pain-relieving medications, and subsisting with her two underage children on her workers' compensation benefits of $560.60 biweekly.
In March 2006, Ms. Lopez-Dones commenced the main action against 601 West, Hilfiger, Fries, and Ronsco alleging, as to each defendant, common-law negligence and failure to comply with Labor Law §§ 200, 240, 241, and 241-a. In her bill of particulars, she alleged in support of her Labor Law § 241 (6) claim violations of (i) 12 NYCRR 23-1.2 (a), 1.5 (a), 1.7 (d), 1.7 (e), 1.16, 1.17, 1.21, and 1.30; and (ii) the rules of the Occupational Safety and Health Administration (OSHA). In June 2006, Ronsco commenced a third-party action against Capital and Sunset, and Fries commenced a second third-party action against Falcon, in each case, for contractual and common-law indemnification. In September 2006, plaintiff amended her complaint to add Capital and Sunset as co-defendants. Various cross claims were asserted by defendants and third-party defendants against one another in their respective answers. Discovery was completed, plaintiff filed a note of issue on June 8, 2009, and the instant motions, all considered timely, are now before the court.
Plaintiff, 601 West, Hilfiger, Fries, Capital, and Falcon timely moved or cross-moved for summary judgment within the 60-day time period provided by then Rule 13 of the Uniform Civil Trial Rules of the Supreme Court, Kings County (now Rule 6 of Part C). Although Ronsco and Sunset cross-moved for summary judgment beyond the 60-day period, their motions will also be considered on the merits because they relate to the same subject matter as the timely served motions ( see Grande v Peteroy , 39 AD3d 590 , 592 [2d Dept 2007] [when "the issues raised by the untimely motion or cross motion are already properly before the court . . ., the nearly identical nature of the grounds may provide the requisite good cause to review the untimely motion or cross motion on the merits" [internal citation omitted]).
Discussion
As with any motion for summary judgment, each proponent seeking summary judgment has the initial burden of setting forth evidentiary facts to prove its prima-facie case such that it would be entitled to judgment in its favor, without the need for a trial ( see CPLR 3212 [b]). If this burden is met, it will then shift to the opposing parties who must establish the existence of material issues of fact, through evidentiary proof in admissible form, that would require a trial of any material issue of fact in this action ( see Zuckerman v City of New York, 49 NY2d 557, 562).
The court's function on a motion for summary judgment is issue finding, rather than issue determination ( see Sillman v Twentieth Century Fox Film Corp., 3 NY2d 395, 404, rearg denied 3 NY2d 941). Since summary judgment is the procedural equivalent of a trial, it should not be granted where there is any doubt as to the existence of a material issue ( see Rotuba Extruders, Inc. v Ceppos, 46 NY2d 223, 231). Thus, when the existence of an issue of fact is "fairly debatable," summary judgment should be denied ( see Stone v Goodson, 8 NY2d 8, 12, rearg denied 8 NY2d 934). In addition to identifying factual disputes that must be tried, the court will also resolve any issues of law raised by the instant motions and thereby "narrow the issues to be tried to the genuine issues presented" ( Alvia v Mutual Redevelopment Houses, Inc. , 56 AD3d 311 , 314 [1st Dept 2008]).
Plaintiff's Claims
Ms. Lopez-Dones asserts claims pursuant to Labor Law §§ 240 (1), 241 (6) and 200, and for common-law negligence. She moves for partial summary judgment on liability under Section 240 (1) against all defendants in the main action. In opposition, these defendants (except Fries) move/cross-move for summary judgment dismissing the entire complaint against them.
Ms. Lopez-Dones also alleges in her amended complaint violation of Section 241-a (protection of workmen in or at elevator shaftways, hatchways and stairwells). As Ronsco correctly points out, this claim is without merit because Section 241-a addresses accidents occurring in or at elevator shaftways, hatchways and stairwells, but the accident did not occur in any of those areas. A review of the bill of particulars appears to indicate that she has abandoned this claim.
A. Section 240 (1)
In support of her motion for partial summary judgment and in opposition to defendants' papers, Ms. Lopez-Dones points out that the accident occurred when the ladder on which she was working unexpectedly moved, causing her to twist and grab onto a metal rod to prevent herself from falling. According to her, this constitutes a prima-facie violation of the statute and an actual fall is unnecessary for liability to be imposed. She further maintains that the fact that the ladder was bumped by another worker does not constitute a superseding cause sufficient to insulate defendants from liability. With respect to defendants Ronsco, Capital, and Sunset, she asserts that they each may be held liable as statutory agents if they had the authority to supervise and control the work which gave rise to her injuries.
In opposition to plaintiff's motion and in support of their motions/cross motions for summary judgment dismissing this claim, all defendants (except Fries) contend that: (a) Section 240 (1) liability is not triggered where plaintiff did not actually fall from an elevated work surface to a different and lower level, i.e., that there can be no liability in this case because plaintiff succeeded in avoiding a fall by grabbing and holding onto a rod affixed to the ceiling and almost immediately regaining her position on the ladder; (b) the accident was not caused by any defect of the ladder that plaintiff was using at the time of the accident and plaintiff has made no showing that any other safety device would have prevented the accident; and (c) the sole proximate cause of her accident was negligence by an unidentified worker in bumping her ladder. Defendants Capital, Sunset, and Ronsco further contend that they may not be held liable under Section 240 (1) because they were not owners, contractors, or agents.
Section 240 (1) provides, in pertinent part, that:
All contractors and owners and their agents . . . in the erection, . . . repairing, altering, . . . 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.
"[T]he governing rule is . . . that 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 Exchange, Inc., ___ NY3d ___, 2009 WL 4840213, 2009 NY Slip Op 09310 [Ct App 2009] [quoting Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [emphasis in the original]). The statute places the responsibility for safety practices and safety devices on owners, contractors, and their agents who "are best situated to bear that responsibility" ( Ross, 81 NY2d at 500). Moreover, "the duty imposed by Labor Law § 240 (1) is nondelegable and . . . an owner or contractor who breaches that duty may be held liable in damages regardless of whether it has actually exercised supervision or control over the work" ( id.).
I. The Potential Defendants
The first step is to determine which defendants, if any, in the main action may be held liable to plaintiff under this theory. The potential defendants are 601 West, Hilfiger, Fries, Ronsco, Capital, and Sunset.
601 West (Owner)
Section 240 (1) generally imposes liability upon a commercial property owner regardless of whether such owner contracted for the work or benefitted from it ( see Gordon v Eastern Ry. Supply, Inc., 82 NY2d 555, 560). 601 West, as the owner of the subject commercial space, may be held absolutely liable under the statute ( see Sanatass v Consolidated Investing Co., Inc. , 10 NY3d 333 , 340).
Hilfiger (Tenant)
The term "owner" under the Labor Law is not limited to the titleholder of the property where the accident occurred and encompasses a person "who has an interest in the property and who fulfilled the role of owner by contracting to have work performed for his [or her] benefit" ( Scaparo v Village of Ilion, ___ NY3d ___, 2009 WL 4250154, 2009 NY Slip Op 08857 [Ct App 2009] [internal quotation marks and citations omitted]). Thus, a lessee may be held liable as an "owner" under the Labor Law when it had the right or authority to control the work site; for example, by actually hiring the general contractor ( see Bart v Universal Pictures, 277 AD2d 4, 5 [1st Dept 2000]). Here, Hilfiger contracted with Fries to have the work performed on the fifth floor pursuant to AIA Document A101-1997 (Standard Form of Agreement Between Owner and Contractor), dated as of December 6, 2004 (the Construction Agreement), which incorporated, in accordance with Section 8.1.2 thereof, AIA Document A201-1997 (General Conditions of the Contract of Construction [GC]). Pursuant to the Construction Agreement, Hilfiger possessed rights to: (a) approve, reject, or dismiss Fries' superintendent for the project (GC, § 3.9.1); (b) approve or reject the construction schedules prepared by Fries (GC, § 3.10.1); (c) approve or reject subcontractors proposed by Fries (GC, § 5.2.1); (d) require Fries to correct any non-conforming work (GC, § 12.2); and (e) suspend any work without cause (GC, § 14.3.1). Hilfiger's status as a lessee/sublessee, coupled with its rights under the Construction Agreement, qualifies it as an "owner" in the context of potential Labor Law liability.
Fries (General Contractor)
Section 240 (1) also applies to a general contractor, based upon its overall responsibility for the construction or repair. Pursuant to the Construction Agreement, Fries was charged with planning and managing the project, by, among other things: (a) supervising and directing the work (GC, § 3.3.1); (b) assuming the sole responsibility for, and control over, construction means, methods, techniques, sequences and procedures and for coordinating all portions of the work under the contract, including coordination of the duties of all trades (GC, § 3.3.1); (c) inspecting portions of work already performed (GC, § 3.3.3); (d) hiring all personnel to perform the work (GC, § 3.3.5); (e) providing and paying for labor, materials, and equipment necessary for the execution and completion of the work (GC, § 3.4.1); and (f) subject to Hilfiger's approval, selecting subcontractors to perform the work (GC, § 5.2.1). Moreover, Fries hired plaintiff's employer, Falcon, to perform electrical work, and its authority extended over Falcon's work ( see Subcontract No. 0478-160-001, dated as of January 12, 2005). Accordingly, Fries, as the general contractor, likewise fits within the scope of potential Labor Law liability.
Ronsco, Capital, and Sunset (Subcontractor and Sub-Subcontractors)
"A subcontractor will be held strictly liable under Labor Law § 240 (1) . . . where it has become a statutory agent of . . . the general contractor by virtue of having been delegated the authority to supervise and control the plaintiff's work or work area" ( Stevenson v Alfredo, 277 AD2d 218, 220 [2d Dept 2000] [internal quotation marks and citation omitted]). In this case, however, neither Ronsco nor its contractors (Capital and Sunset) had the authority to direct, supervise, or control plaintiff's work or her work area. Rather, Ms. Lopez-Dones' work was supervised exclusively by her foreman. Therefore, Ronsco, Capital, and Sunset are not proper Labor Law defendants, and Ms. Lopez-Dones' Labor Law § 240 (1) claim is dismissed as to each of them ( see Kelarakos v Massapequa Water Dist. , 38 AD3d 717 , 718 [2d Dept 2007] [subcontractor was not liable under the Labor Law where it neither controlled nor supervised plaintiff's work]). II. The Scope of Scaffold Law
See also Caballero v Benjamin Beechwood, LLC , 67 AD3d 849 [2d Dept 2009] [subcontractor which hired plaintiff's employer was not liable under Section 240 (1) where it did not exercise supervisory control over plaintiff's work or have the authority to insist that proper safety practices be followed]; Mancini v Pedra Constr., 293 AD2d 453, 454 (2d Dept 2002) (since the subcontractor did not control or supervise the plaintiff and did not have the authority to do so, the Labor Law claims were properly dismissed insofar as asserted against it).
Turning to the substance of this claim, there is no question that Ms. Lopez-Dones' injury was related to the effects of gravity when she attempted to stop herself from falling down, and that her injuries could not have occurred at ground level. The Second Department holds that Section 240 (1) applies to injuries sustained in trying to save oneself from falling ( see Lacey v Turner Const. Co., 275 AD2d 734, 735 [2d Dept 2000] [in the course of his employment, plaintiff was standing on an extension ladder when the ladder lost contact with the building wall against which it was leaning, and turned sideways; although plaintiff managed to turn the ladder back against the wall, in doing so he ruptured a disc in his back; in granting summary judgment to plaintiff on his Section 240 (1) claim, the court noted that "(t)he fact that the plaintiff did not actually fall from the ladder is irrelevant as long as the harm directly flow[ed] from the application of the force of gravity to an object or person'"] [quoting Ross, 81 NY2d at 501]).
See also Ortiz v Turner Constr. Co. , 28 AD3d 627 , 628 (2d Dept 2006) ("[i]t is of no consequence that plaintiff allegedly sustained injuries as he prevented himself from falling further") (internal quotation marks and citation omitted); Cordero v Kaiser Org., Inc., 288 AD2d 424, 425-426 (2d Dept 2001) ("[t]he fact that the plaintiff did not fall completely from the beams does not remove this case from the reach of Labor Law § 240 [1]").
The uncontroverted evidence before the court in the form of Ms. Lopez-Dones' deposition testimony is that her injuries were caused when the ladder upon which she was standing was bumped by a dolly and she instinctively moved to avoid the impending fall. To paraphrase another motion court which found Section 240 (1) applicable in similar circumstances:
Her foreman's deposition testimony that he did not remember whether she had told him that her accident was caused by a dolly bumping her ladder, is not pertinent because he did not witness the accident (Bogush/Falcon EBT at 35, 38).
Working at an elevation may not have increased plaintiff's risk of being struck by a [dolly], but because plaintiff was on a ladder when [the dolly] struck, [s]he was in danger of falling from the elevated ladder step to the ground and averted that danger by grabbing a [pencil rod] overhead. Moreover, while the ladder may not have been unstable due to the lack of stabilizing devices, the ladder did move from under [her], causing [her] to grab overhead to prevent [herself] from falling. That effort to avoid falling downward injured [her].
In contrast, had plaintiff been standing on the [floor] when [the dolly] struck, it likely would have injured [her] also, . . . but the injury would have been different: not the result of avoiding a fall from an elevation. Just as a painter of a ceiling did not increase his risk of backing into a hole by being on the third floor, but suffered a different injury from falling through the floor than had he encountered a hole on the ground floor, so, too, was plaintiff knocked from a ladder, not knocked over on the ground, causing a different injury due to the different risk posed by [her] elevated site. Plaintiff's attempt to avoid falling thus was related to the risk inherent in [her] elevation from the ground.
( Murray v Stein, 11 Misc 3d 1052 [A], 2005 WL 3754409, *3, 2005 NY Slip Op 52264 [U] [Sup Ct, Bronx County 2005] [internal citations omitted] [plaintiff electrician lacerated his hand when he grabbed onto a light fixture he was installing to prevent himself from falling after a car making a turn onto the sidewalk had struck his ladder]).
III. The Adequacy of Protective Equipment
While Section 240 (1) applies to Ms. Lopez-Dones' injuries, the current record does not establish, as a matter of law, that she was not provided with adequate protective measures for her work. While her ladder moved, it moved because it was subjected to an external force that was unrelated to her work, to her elevated position, or to her placement of the ladder. The current record suggests nothing in the nature of elevation-related devices — whether to secure Ms. Lopez-Dones to the ceiling or to catch her fall when she lost her footing on the ladder — the absence or inadequacy of which allegedly caused her injuries ( see Murray, 2005 WL 3754409, *4). Her contention that she "was not provided with any safety devices whatsoever by any of the defendants, and [that] the ladder was unsecured and not held by a co-worker," misses a key point that she had carefully set up her ladder before using it and that she had performed her work without let or hindrance for several hours until the man with a dolly came along and bumped her ladder. Further, Ms. Lopez-Dones could not recall any additional safety devices she would use in addition to an A-frame ladder, nor did she know of any additional safety devices for her job (Oct. 22, 2008 EBT at 67-68). The need, if any, for the use of additional elevation-related devices in the specific circumstances of the case cannot be determined at this time as a matter of law ( see Farrington v Bovis Lend Lease LMB, Inc. , 51 AD3d 624 , 626 [2d Dept 2008] [whether defendants were obligated to provide additional safety devices was a material fact for the jury to determine]).
This point segues into a discussion of the superseding cause defense. "An independent intervening act may constitute a superseding cause, and be sufficient to relieve a defendant of liability, if it is of such an extraordinary nature or so attenuated from the defendants' conduct that responsibility for the injury should not be reasonably attributed to them" ( Gordon, 82 NY2d at 562). In this case, however, the risk that the ladder on which Ms. Lopez-Dones was working could be bumped by another worker was neither so extraordinary nor so attenuated as to constitute a superseding cause sufficient to relieve defendants of liability ( see Alomia v New York City Tr. Auth., 292 AD2d 403, 405 [2d Dept 2002] [Section 240 (1) was violated as a matter of law when a vehicle struck a scaffold's support cables, thereby causing the scaffold to collapse and the workers on it to fall]). Thus, it is not that Ms. Lopez-Dones needs to demonstrate the foreseeability of another worker bumping her ladder. Rather, she must demonstrate that a risk of an elevation-related injury from defendants' failure to provide adequate protection was foreseeable ( see Murray, 2005 WL 3754409, *5). The record is similarly silent on this issue.
See also Cordero, 288 AD2d at 426 (when the building shook because other workers were throwing bags of shingles onto the building roof, the plaintiff lost his balance, fell between the beams, and lodged his left leg between the beams, but did not fall to the ground; the court held that the risk that the beams could shake was not a superseding cause sufficient to relieve defendants of liability, particularly since the plaintiff was working inside of a building that was under construction); deSousa v Dayton T. Brown, Inc., 280 AD2d 447, 448 (2d Dept 2001) (a bricklayer, who fell off the scaffold when a co-worker attempted to adjust a pin and brace on that scaffold, stated a valid Section 240 [1] claim because the co-worker's acts were not of such an extraordinary nature or so attenuated from the statutory violation as to constitute a superseding cause sufficient to relieve the defendant of liability); Rivera v Rite Lite Ltd. , 13 Misc 3d 1142 , 1146 (Sup Ct, Kings County 2006) (the accident occurred when one of the plaintiff's co-workers, who was positioned at ground level, unexpectedly moved/pushed the scaffold while plaintiff was standing on the scaffold installing lighting fixtures; the co-worker's actions did not constitute a superseding cause).
In light of these unresolved material factual issues, plaintiff's motion for partial summary judgment on liability with respect to her Section 240 (1) claim is denied as to all defendants in the main action and that branch of the cross motion of defendants 601 West and Hilfiger for summary judgment dismissing her Section 240 (1) claim insofar as asserted against them is denied. However, those branches of the motions/cross motions of defendants Ronsco, Capital, and Sunset for summary judgment dismissing plaintiff's Section 240 (1) claim insofar as asserted against them are granted.
B. Section 241 (6)
All defendants (except Fries) seek summary judgment dismissing plaintiff's Section 241(6) claim. They contend, for the most part, that none of the Industrial Code provisions on which Ms. Lopez-Dones relies are applicable. In her opposition and reply, she does not specifically address their contention.
Section 241 (6) provides, in pertinent part, that:
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.
Liability under Section 241 (6) is imposed if a specific and concrete provision of the Industrial Code ( 12 NYCRR part 23) was violated and the violation proximately caused plaintiff's injuries ( see Ross, 81 NY2d at 505; Plass v Solotoff , 5 AD3d 365 , 367 [2d Dept 2004]).
In support of her Labor Law § 241 (6) claim, Ms. Lopez-Dones alleges violations of Paragraphs 1.7 (d), 1.7 (e), 1.16, 1.17, 1.21, and 1.30 of part 23 of the Industrial Code. The court, however, finds that none of these provisions have been violated.
Ms. Lopez-Dones also incorrectly relies on Paragraph 1.2 (a) (setting forth certain findings of fact) and Paragraph 1.5 (a) (reciting certain general conditions), which are general safety regulations and may not serve as a basis for a Section 241 (6) claim ( see e.g. Stairs v State Street Assocs. L.P., 206 AD2d 817, 818 [3d Dept 1994]; Huether v New York Times Bldg., LLC , 24 Misc 3d 634 , 640 n 5 [Sup Ct, Kings County 2009]). Likewise, the OSHA rules cannot support a Section 241 (6) claim ( see Ferreira v Unico Serv. Corp., 262 AD2d 524, 525 [2d Dept 1999]).
(a) Paragraphs 1.7 (d) and 1.7 (e), which pertain to slipping hazards and tripping/other hazards, respectively, are not pertinent because there is no evidence that plaintiff slipped, tripped, was cut, or was punctured.
(b) Paragraph 1.16, which sets standards related to safety belts, harnesses, tail lines, and lifelines, and Paragraph 1.17, which sets standards related to life nets, are inapplicable because plaintiff was not provided with any such devices ( see Kwang Ho Kim v D W Shin Realty Corp., 47 AD3d 616, 619 [2d Dept 2008]).
(c) While Paragraph 1.21, which establishes standards for stepladders such as an A-frame ladder, is sufficiently specific ( see Enderlin v Herbert Indust. Insulation, Inc., 224 AD2d 1020, 1021 [4th Dept 1996]), its only relevant provision states that "[w]hen work is being performed from a step of a stepladder 10 feet or more above the footing, such stepladder shall be steadied by a person stationed at the foot of the stepladder or such stepladder shall be secured against sway by mechanical means" (1.21 [e] [3]). There is no evidence that Ms. Lopez-Dones was working while standing on the top of her ten-foot, A-frame ladder. Thus, this provision is inapplicable in this case.
A stepladder is defined as a "self-supporting portable ladder, nonadjustable in length, having flat steps or heavy duty rungs and a hinged back" (1.4 [b] [53]).
An A-frame ladder is used typically for standing on one of the ladder's steps (as opposed to the top of the ladder) and performing work.
(d) Finally, there is no evidence that Paragraph 1.30, which concerns proper illumination, was violated. Ms. Lopez-Dones specifically testified that illumination in her work area was adequate.
Accordingly, those branches of the motions/cross motions of defendants 601 West, Hilfiger, Ronsco, Sunset, and Capital for summary judgment dismissing plaintiff's Section 241 (6) claim insofar as asserted against them are granted.
C. Section 200 and Common-Law Negligence
All defendants (except Fries) further seek summary judgment dismissing plaintiff's Section 200 and common-law negligence claims. They each contend that the man with a dolly was not its employee and that they did not supervise or control Ms. Lopez-Dones' work. In her opposition and reply, she does not specifically address their contentions.
Section 200 (1) provides, in relevant part, that "[a]ll 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." Section 200 is "a codification of the common-law duty imposed upon an owner or general contractor to maintain a safe construction site" ( Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 352). "The duty runs to all persons employed on the premises without regard to whether they are employees of the party in control or possession" ( Employers Mut. Liab. Ins. Co. of Wis. v Di Cesare, 9 AD2d 379, 383 [1st Dept 1959]). Cases involving Section 200 generally fall into two categories: those involving the manner in which the work giving rise to plaintiff's injuries was performed and those where workers were injured as a result of dangerous or defective conditions at a work site ( see LaGiudice v Sleepy's, Inc. , 67 AD3d 969 [2d Dept 2009]). Where a claim arises out of alleged defects or dangers in the methods or materials of the work, recovery against the property owner or contractor is available under Section 200 only if it is shown that it had the authority to supervise or control the work giving rise to plaintiff's injury ( id.). On the other hand, where a premises condition is at issue, a property owner or contractor is liable under Section 200 when the owner or contractor created the dangerous condition causing an injury or when the owner or contractor failed to remedy a dangerous or defective condition of which it had actual or constructive notice ( id.).
601 West (Owner)
The record is clear that 601 West lacked control over the work site or notice of the allegedly dangerous condition. Thus, there is no basis for plaintiff's Section 200 and common-law negligence claims against 601 West.
Hilfiger (Tenant)
This result applies with equal force to Hilfiger. To the extent that plaintiff's Section 200 and common-law negligence claims are based on another worker's negligence in bumping her ladder, Hilfiger has established its prima-facie entitlement to judgment as a matter of law by demonstrating that it did not have authority to supervise or control the performance of the work. Although Hilfiger's officer (Gregory Palazzo) visited the site weekly to review the progress of the work, there is no evidence in the record that he supervised the manner in which the work was performed.
To the extent that plaintiff's claims are based on the allegedly dangerous condition of her work area ( i.e., an inattentive worker with a loaded dolly), Hilfiger has also established its prima-facie entitlement to judgment as a matter of law by demonstrating that it did not create or have actual or constructive notice of such dangerous condition. In opposition, Ms. Lopez-Dones has failed to raise a triable issue of fact. Accordingly, her Section 200 and common-law negligence claims against Hilfiger are dismissed ( see LaGiudice, 67 AD3d at 969).
Ronsco, Capital, and Sunset (Subcontractor and Sub-Subcontractors)
With respect to these defendants, a distinction must be drawn between Section 200 and common-law negligence. Because Section 200 is limited in its scope to the duty of care to be exercised on a work site by owners and general contractors, "it will impose liability against a subcontractor only in the rare case where that party is in effect standing in the shoes of an owner or contractor through the conferral of authority upon it to supervise and control the activity that produced the plaintiff's injury" ( Ryder v Mount Loretto Nursing Home, Inc., 290 AD2d 892, 894 [3d Dept 2002]). This is not such a case. It is not sufficient to demonstrate that Ronsco, Capital, or Sunset may have employed the man with a dolly. Rather, to impose liability under Section 200, it is necessary to show authority and control over plaintiff's work ( see Ryder, 290 AD2d at 894; see also Kelarkos v Massapequa Water Dist. , 38 AD3d 717 , 718 [2d Dept 2007]; Bell v Bengomo Realty, Inc. , 36 AD3d 479 , 481 [1st Dept 2007]). Such control was obviously lacking in this case.
With respect to Ms. Lopez-Dones' claim for common-law negligence, however, Ronsco and Sunset (but not Capital) have failed to sustain their burden of demonstrating entitlement to judgment as a matter of law on the ground that they were not negligent in the occurrence of the accident. Although the man with a dolly has not been identified, the trier of facts, through circumstantial evidence and by the process of elimination, may identify this individual as either a Ronsco employee or a Sunset employee. Ronsco's workers were in the nearby area, putting up the sheetrock walls (Lopez-Dones' Dec. 7, 2007 EBT at 56; Zaretzky/Ronsco EBT at 45-46). Ronsco typically had, and used, its own A-frame dollies at work sites (Zaretzky/Ronsco EBT at 46, 58; Eckert/Capital EBT at 19). Ms. Lopez-Dones testified that she may have seen "an A-frame" (either a dolly or ladder) with Ronsco's name on it at this site, and that the man with the subject dolly looked like the carpenter's foreman to her (Dec. 7, 2007 EBT at 64). Viewing the evidence in the light most favorable to plaintiff, as the court must on a defendant's motion for summary judgment ( see Branham v Loews Orpheum Cinemas, Inc. , 8 NY3d 931 , 932), Ronsco has not demonstrated its entitlement to summary judgment dismissing the common-law negligence claim against it ( see Marano v Commander Elec., Inc. , 12 AD3d 571 , 572-573 [2d Dept 2004] [where a subcontractor's employee was injured when a trench caved in on him as he was clearing debris from a conduit while another subcontractor's employee was simultaneously excavating the trench with a back hoe around the area of the conduit, plaintiff had a valid common-law negligence claim against the excavating subcontractor]).
Likewise, Sunset's potential involvement in the accident cannot be ruled out at this juncture. According to Ms. Lopez-Dones, there were carpenters working throughout the whole "big" room in which she was working (Oct. 22, 2008 EBT at 73). Specifically, some workers were taping joints nearby (Dec. 7, 2007 EBT at 66), and these were Sunset's employees (Zaretzky/Ronsco EBT at 45). To perform taping, a worker holds in one hand a flat metal dish with a wooden dowel on the bottom (a "hawk") containing joint compound, and in the other hand a taping knife with which he applies successive coats of the compound (Zaretzky/Ronsco EBT at 46-47). Sunset's workers were also covering (or "spotting") the fastener heads with the compound ( id. at 46). The compound was packaged in five-gallon ready-mix pails ( id. at 61) or drums which arguably could have been transported by the subject dolly when it bumped the ladder. Since any doubt as to the existence of a triable issue requires the denial of the motion ( see In re Cuttitto Family Trust, 10 AD3d 656, 657 [2d Dept 2004]), Sunset has failed to demonstrate its entitlement to dismissal of plaintiff's common-law negligence claim against it ( see Scuderi v Independence Community Bank Corp. , 65 AD3d 928 , 929 [1st Dept 2009] [summary judgment dismissing plaintiff's common-law negligence claim is precluded, inasmuch as triable issues of fact exist as to whether subcontractors were present at the site when plaintiff was injured and whether they created the debris on which plaintiff claims he fell]). Failure to make such a showing requires denial of Sunset's motion regardless of the sufficiency of plaintiff's opposing papers ( see Peerless Ins. Co. v Allied Bldg. Products Corp. , 15 AD3d 373 , 374 [2d Dept 2005]).
Taping is drywall finishing. Tapers come in after the drywall/sheetrock is installed by another contractor to tape and finish the drywall to make the walls ready for painting (Bove/Sunset Aff., July 30, 2009, ¶ 6).
In contrast, Capital has demonstrated the merit of its defense as a matter of law. While Ms. Lopez-Dones has identified the individual with the dolly to be a white bald male, Capital has presented the undisputed testimony that it had only one worker at the site on the day of the accident — a black male with some hair on his head — and who was not working on the fifth floor (Eckert/Capital EBT at 10-11, 14, 26). Moreover, Capital has established that because it was performing solely iron-related ceiling work, there was no reason for it to use at this site either a dolly or any materials that were packaged in pails or drums ( id. at 15, 20).
Fries, as a potential operator of the subject dolly, is easily excluded because it employed only laborers which used solely brooms to clean after subcontractors (Scofield/Fries EBT at 30, 40).
Accordingly, plaintiff's Section 200 and common-law negligence claims against 601 West, Hilfiger, and Capital are dismissed, her Section 200 claim against Ronsco and Sunset is dismissed, but her common-law negligence claim against Ronsco and Sunset remains.
Defendants' Indemnification Claims A.601 West (Owner)
601 West seeks summary judgment on its cross claims for common-law indemnification against Fries and any other active tortfeasor. "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 or in the absence of any negligence that the proposed indemnitor had the authority to direct, supervise, and control the work giving rise to the injury" ( Perri v Gilbert Johnson Enters., Ltd. , 14 AD3d 681 , 684-685 [2d Dept 2005] [internal quotation marks and citations omitted]).
601 West would only be entitled to common-law indemnification if it did not supervise or control the work but is vicariously liable therefor. The record reflects that 601 West did not control or supervise the renovation work on the fifth floor of its building. Since the liability of 601 West is purely statutory and vicarious, the next inquiry is whether its potential indemnitor, Fries, was "negligent or had authority to direct, supervise, and control the work giving rise to the plaintiff's injury'" ( Nasuro v PI Assocs., LLC , 49 AD3d 829 , 832 [2d Dept 2008] [quoting Benedetto v Carrera Realty Corp. , 32 AD3d 874 , 875 [2d Dept 2006]). While Fries employed a full-time on-site superintendent whose job responsibilities included figuring out where each trade would be deployed, so there would be no overcrowded working conditions in any particular area (Scofield/Fries EBT at 70), the record is unclear whether Fries was negligent. The relative culpability, if any, of Fries and that of its subcontractors and sub-subcontractors (excluding Capital) is an issue of fact which precludes the granting of summary judgment on the issue of common-law indemnification in favor of 601 West ( see Farduchi v United Artists Theatre Circuit, Inc. , 23 AD3d 613 [2d Dept 2005]; Perri, 14 AD3d at 685).
In addition, 601 West seeks dismissal of all cross claims which have been asserted against it by some, but not all, of the other defendants. The sole objector is Ronsco which contends that its cross claim against 601 West may not be dismissed because 601 West, as the building owner, is "undeniably a statutory defendant subject to the Labor Law." The status of a statutory defendant, however, does not presuppose fault. Common-law indemnity depends on the potential indemnitor's wrongdoing. Ronsco's objection is overruled since the record contains no evidence that 601 West was at fault for the accident. Thus, 601 West is entitled to the dismissal of all cross claims which have been asserted against it by defendants Fries, Ronsco, Capital, Sunset, and Falcon.
B. Hilfiger (Tenant)
Hilfiger cross-moves for contractual and common-law indemnification against Fries and any other active tortfeasor. For its contractual indemnification claim against Fries, Hilfiger relies on Section 3.18.1 of the General Conditions of the Contract of Construction (AIA A201-1997), which provides, in relevant part:
This provision and other provisions in the General Conditions rider are applicable pursuant to Section 8.1.2 of the contract between Hilfiger and Fries (AIA Document A101-1997, dated as of Dec. 6, 2004).
To the fullest extent permitted by law the Contractor [Fries] shall indemnify and hold harmless the Owner [Hilfiger] . . . from and against claims, damages, losses and expenses, including but not limited to attorneys' fees, arising out of or resulting from performance of the Work or the acts or omissions of the Contractor, a Subcontractor , anyone directly or indirectly employed by them or anyone for whose acts they may be liable, regardless of whether or not such claim, damage, loss or expense is caused in part by a party to be indemnified hereunder.
The term "Work" means "the construction and services required by the Contract Documents, whether completed or partially completed, and includes all other labor, materials, equipment and services provided or to be provided by the Contractor to fulfill the Contractor's obligations" (GC, § 1.1.3).
The term "Subcontractor" means "a person or entity who has a direct contract with the Contractor to perform a portion of the Work at the site . . . (GC, § 5.1.1).
GC § 3.3.3 provides that:
The Contractor shall be responsible to the Owner for acts and omissions of the Contractor's employees, Subcontractors and their agents and employees, and other persons or entities performing portions of the Work for or on behalf of the Contractor or any of its Subcontractors.
Given that plaintiff's claims against Hilfiger arise out of the subject construction work, Hilfiger argues that it is entitled to contractual indemnification against Fries. In opposition, Fries argues that any claims for contractual indemnification against it are barred by General Obligations Law (GOL) § 5-322.1 and are unenforceable as a matter of public policy. According to Fries, the purported enforcement of this provision would impermissibly require Fries to indemnify Hilfiger even if Hilfiger were deemed to be responsible, or even if any other entities ( e.g., Fries' subcontractors) were determined to be liable for the occurrence.
General Obligations Law § 5-322.1 (1) provides, in relevant part, that:
A covenant, promise, agreement or understanding in, or in connection with . . . a contract or agreement relative to the construction, alteration, repair or maintenance of a building . . . purporting to indemnify or hold harmless the promisee against liability for damage arising out of bodily injury to persons or damage to property contributed to, caused by or resulting from the negligence of the promisee, his agents or employees, or indemnitee, whether such negligence be in whole or in part, is against public policy and is void and unenforceable.
The indemnification clause in the contract between Hilfiger and Fries is broadly written. Fries is to indemnify Hilfiger in either of two situations: (a) where a claim arose out of, or resulted from, performance of the work, or (b) where a claim arose out of the acts or omissions of Fries or its subcontractors. It thus provides for indemnification when the claim arises out of the subcontractor's work, even though the subcontractor has not been negligent. By its terms, the clause applies in this case in which Ms. Lopez-Dones, an employee of the subcontractor hired by Fries, was injured while performing work called for in Fries' contract with Hilfiger ( see Brown v Two Exchange Plaza Partners, 76 NY2d 172, 178).
The inquiry, therefore, shifts to Hilfiger to determine if it was or was not negligent, or if an issue of fact as to its negligence exists ( see Jawara v BHA, Inc., 24 Misc 3d 1201 [A], 2009 WL 1676004, *11, 2009 NY Slip Op 51217 [U] [Sup Ct, Bronx County 2009]). There is no genuine issue of fact as to whether Hilfiger was negligent. While a clause that purports to indemnify a party for its own negligence is void under GOL § 5-322.1, this statute is not violated here because: (a) Hilfiger was not negligent ( see Brown, 76 NY2d at 180-181), and (b) the indemnification clause authorizes partial indemnification "[t]o the fullest extent permitted by law" ( see Brooks v Judlow Contr., Inc. , 11 NY3d 204 , 210). Accordingly, Hilfiger is entitled to contractual indemnification against Fries ( see Giangarra v Pav-Lak Contr., Inc. , 55 AD3d 869 , 871 [2d Dept 2008]). Hilfiger's request for common-law indemnification with respect to Fries is denied as academic, and with respect to any other active tortfeasor is denied as premature.
Fries' assertion that the responsibility for plaintiff's injuries may possibly lie with Hilfiger, "particularly if the alleged scheduling of the work' is adjudged to be a cause of the plaintiff's accident" is specious. Hilfiger's involvement in scheduling was limited to "just [the] status and progress of the work" (Palazzo/Hilfiger EBT at 59) and had nothing to do with the coordination of the trades.
Moreover, Hilfiger seeks dismissal of all cross claims which have been asserted against it by some, but not all, of the other defendants. Again, the sole objector is Ronsco which contends that its cross claim against Hilfiger may not be dismissed because Hilfiger, as the owner's agent, has "non-delegable statutory duties with respect to plaintiff's [L]abor [L]aw accident." Ronsco's objection is meritless because Hilfiger was not at fault for the accident. Thus, Hilfiger is entitled to the dismissal of all cross claims which have been asserted against it by defendants Fries, Ronsco, Capital, Sunset, and Falcon.
Given their landlord-tenant relationship and the fact that they are represented by joint counsel, 601 West's and Hilfiger's cross claims against each other remain undisturbed.
C. Fries (General Contractor) As to Falcon (Employer)
Defendant/second third-party plaintiff Fries moves for contractual indemnification against Falcon, which separately moves to dismiss Fries' third-party action against it. Fries contends that Ms. Lopez-Dones was injured while engaged in operations for her employer, Falcon, at the time of her accident as a result of the allegedly negligent supervision, direction, and control by Falcon, which failed to provide her with any safety devices for her work. Fries further contends that no viable claim of negligence for this accident may be asserted against it because it did not directly supervise or control Falcon's work.
In opposition and in support of its motion for summary judgment, Falcon contends that its contractual obligation to indemnify Fries is expressly limited to the extent that Falcon's negligence, if any, caused the accident. According to Falcon, it was not negligent in the occurrence of the accident because the subject ladder provided Ms. Lopez-Dones with proper protection, and that the cause of the accident was a non-Falcon worker. Moreover, Falcon asserts that Fries is not entitled to summary judgment on contractual indemnification since a question of fact exists as to Fries' active negligence. Specifically, Falcon points out that Fries: (a) was responsible for the overall site safety; (b) presided over weekly safety meetings; (c) conducted weekly walk-throughs when its on-site superintendent would look for, among other things, safety issues; and (d) coordinated the trades to avoid overcrowding working conditions.
The indemnification clause in the subcontract between Fries and Falcon provides that:
To the extent permitted by law, Subcontractor [Falcon] shall indemnify, hold harmless . . . Contractor [Fries] . . ., and agents and employees of any of them from and against all claims, damages, losses and expenses including but not limited to attorney's fees arising out of or resulting from the performance of the work, provided that any such claim, damage, loss or expense (a) is attributable to bodily injury, sickness, disease or death . . ., and (b) is caused in whole or in part by any act or omission of Subcontractor or anyone directly or indirectly employed by it or anyone for whose acts it may be liable pursuant to the performance of this Subcontract, regardless of whether or not it is caused in part by a party indemnified hereunder. Notwithstanding the foregoing, Subcontractor's obligation to indemnify . . . Contractor . . . and agents and employees of any of them for any judgment . . . 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 . . . (¶ 11 [emphasis added]).
The subject indemnity clause is contingent on the accident being "caused in whole or in part by any act or omission" of Falcon. Additionally, Falcon's indemnification obligation is expressly limited to the percentage of Falcon's negligence. Thus, Falcon's potential liability is triggered based on who and what caused the injury. At this juncture, Fries is not entitled to summary judgment on its contractual indemnification claim against Falcon because, as stated above, there are material issues of fact as to whether Ms. Lopez-Dones was to be provided with additional safety equipment and, if so, whether a risk of an elevation-related injury from a failure to provide such equipment was foreseeable.
As to Ronsco (Subcontractor)
Fries also moves for conditional contractual and common-law indemnification against Ronsco, which separately cross-moves to dismiss Fries' cross-claim against it. Fries contends that there is evidence to date that Ronsco or its subcontractors, Capital and Sunset, were actively negligent in causing the accident. Fries maintains that it is entitled to conditional indemnification if Ronsco is determined at trial to be a proximate cause of the accident. In opposition, Ronsco contends that there is no evidence to demonstrate that either Ronsco or any of its subcontractors caused or contributed to the accident.
The indemnification clause in the subcontract between Fries and Ronsco, which is identical to the one contained in the subcontract between Fries and Falcon (as quoted above), is triggered when an accident is "caused in whole or in part by any act or omission of" Ronsco, anyone employed it, or anyone for whose acts it may be liable pursuant to the instant subcontract. Ronsco's indemnification obligation is further limited to the percentage of negligence of Ronsco, anyone employed it, or anyone for whose acts it may be liable pursuant to the subcontract. Ronsco's potential liability, therefore, depends on who and what caused the injury. Thus, Fries is not entitled to summary judgment on its contractual indemnification claim against Ronsco because, as stated above, there are material issues of fact as to the extent, if any, of negligence of Ronsco, Sunset, and Fries. Accordingly, Fries is not entitled to conditional summary judgment on its contractual and common-law indemnification claims against Ronsco. Similarly, Ronsco is not entitled to the dismissal of Fries' cross claims against it.
D. Ronsco, Capital, and Sunset (Subcontractor and Sub-Subcontractors)
Defendant/first third-party plaintiff, Ronsco, cross-moves for contractual indemnification against Capital and Sunset, which, in turn, seek dismissal of such claim. Ronsco contends that the "hold harmless" clause in its sub-subcontracts (actually purchase orders) with Capital and Sunset is sufficiently broad to apply to the subject accident. In opposition and in support of their requests for summary judgment dismissing such claim, Capital and Sunset contend that they were not negligent and that, moreover, Ronsco has failed to prove its own lack of negligence.
The "hold harmless" clause provides, in pertinent part, that:
To the fullest extent permitted by law, . . . (Subcontractor) . . . shall defend, indemnify and save harmless, Ronsco . . . from any and all liability, claims, judgments, demands, damages, losses, costs, attorney's fees and charges of every kind connected with or arising directly or indirectly out of the activities, performance or nonperformance of the Work hereunder or any negligent act or omission or arising as a result of faulty workmanship or performance (emphasis added).
In accordance with this clause, Ronsco may seek indemnification when the claim arises out of either the sub-subcontractor's activities or the subcontractor's work. While the evidence is clear that Capital's activities or work did not give rise to the accident, there are triable issues of material fact regarding whether Sunset's activities or work caused or contributed to the accident, as well as whether Ronsco was free from negligence.
In addition, Ronsco seeks common-law indemnification against Capital and Sunset. Similarly, Hilfiger and Fries assert in their respective answers cross claims against Capital and Sunset for common-law indemnification. Conversely, Capital and Sunset assert cross claims against each other and against Ronsco for common-law indemnification. In their moving papers, Capital, Sunset, and Ronsco seek dismissal of all of these cross claims. With respect to Ronsco and Sunset, claims/cross-claims for common-law indemnification insofar as asserted by or against Ronsco or Sunset cannot be resolved at this stage of the case. 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 each party involved ( see Kwang Ho Kim, 47 AD3d at 620). Each claimant must show that it was "not negligent" and that the other claimant was "responsible for the negligence that contributed to the accident" ( George v Marshalls of MA, Inc. , 61 AD3d 925 , 930 [2d Dept 2009] [citations and internal quotation marks omitted]). As noted above, sufficient questions of fact exist as to the extent, if any, of liability of Ronsco or Sunset for causing plaintiff's injuries. Accordingly, dismissal of claims/cross claims by or against Ronsco and by or against Sunset for common-law indemnification is premature ( see Mendelsohn v Goodman , 67 AD3d 753 , 753 [2d Dept 2009] ["an 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"]).
In light of the dismissal of the main complaint in its entirety against Capital, the claims/cross-claims for common-law indemnification insofar as asserted by or against Capital are academic ( see Johnson v Incorporated Village of Freeport, 279 AD2d 451, 453 [2d Dept 2001]).
E. Falcon (Employer)
Finally, Fries asserts a claim for common-law indemnification against Falcon. In addition, Hilfiger, Capital, and Sunset assert cross claims of similar nature against Falcon. All of these claims/cross claims are dismissed because Falcon, as Ms. Lopez-Dones' employer, may be held liable under the common-law indemnification theory only if her injuries were "grave" within the meaning of Workers' Compensation Law § 11, which is not the case here ( see Rubeis v Aqua Club Inc. , 3 NY3d 408 , 417).
That provision defines "grave injury" as "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."
The parties shall appear in Jury Coordinating Part (JCP 1) on February 18, 2010.
The foregoing constitutes the decision and order of this court.