Opinion
Index No. 156977/2019 Motion Seq. Nos. 004 005 006
01-12-2024
JEFF LUCAS, Plaintiff, v. CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF TRANSPORTATION, COLUMBIA UNIVERSITY, THE TRUSTEES OF COLUMBIA UNIVERSITY, ACC CONSTRUCTION MANAGEMENT CORP., Defendants.
Unpublished Opinion
MOTION DATE 06/16/2023
DECISION+ ORDER ON MOTION
HON. DAVID B. COHEN, Justice
The following e-filed documents, listed by NYSCEF document number (Motion 004) 169, 170, 171, 172, 173, 174, 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 185, 186, 187, 188, 189, 190, 191, 192, 219, 220, 221,222, 223, 224, 248, 249, 250, 260, 263 were read on this motion to/for JUDGMENT - SUMMARY.
The following e-filed documents, listed by NYSCEF document number (Motion 005) 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, 218,251,261,264,284,285,286,287, 288, 296 were read on this motion to/for JUDGMENT - SUMMARY.
The following e-filed documents, listed by NYSCEF document number (Motion 006) 225, 226, 227, 228, 229, 230, 231,232, 233, 234, 235, 236, 237, 238, 239, 240, 241,242, 243, 244, 245, 246, 247, 252, 253, 254, 255, 256, 257, 258, 259, 262, 265, 266, 267, 268, 269, 270, 271, 272, 273, 274, 275, 276, 277, 278, 279,280,281,282, 283, 289, 290, 291,292, 293, 294, 295, 297, 298 were read on this motion to/for JUDGMENT - SUMMARY.
Plaintiff brings this action to recover damages for personal injuries allegedly sustained on April 3, 2015, when a stack of glass panels fell on him.
In motion sequence no. 004, third-party defendants Schneider Electric Holdings, Inc. and Schneider Electric Buildings Americas, Inc. (together, Schneider) move, pursuant to CPLR 3212, for summary judgment dismissing the third-party complaint and all cross claims against them. Defendants and third-party/second third-party plaintiffs Trustees of Columbia University in The City of New York, incorrectly sued herein as Columbia University and The Trustees of Columbia University (together, Columbia), and ACC Construction Corp., incorrectly sued herein as ACC Construction Management Corp. (ACC), (together, Columbia/ACC) oppose.
In motion sequence no. 005, third third-party defendant American Storage &Transport, Inc. (American) moves for summary judgment dismissing the third third-party complaint and all cross claims against it. Second third-party defendant/third third-party plaintiff Workwell Partners, Corp, opposes.
In motion sequence no. 006, Columbia/ACC move for summary judgment dismissing the complaint and granting judgment on their third-party and second third-party complaints. Plaintiff opposes and cross-moves for partial summary judgment on his Labor Law §§ 240(1) and 241(6) causes of action against Columbia/ACC. Third third-party defendant American Storage &Transport, Inc., Schneider, and Workwell oppose Columbia/ACC's motion, and Columbia/ACC oppose plaintiffs cross-motion.
I. BACKGROUND
This action arises out of an accident that occurred at Columbia's Mudd Hall located at 520 West 120th Street in Manhattan (the Premises) (NYSCEF Doc Nos. 230, 237). Prior to the accident, Columbia, as owner, and ACC, as contractor, entered into a written agreement (the ACC Contract) for ACC to renovate the fourth and fifth floors at the Premises (the Project) (NYSCEF Doc No. 232).
ACC subcontracted the HVAC work on the Project to nonparty DirectAire (DirectAire) (the DirectAire Subcontract) (NYSCEF Doc No. 233). Under purchase order no. DS 1112014 dated "11/12/11" (the Schneider Purchase Order), DirectAire retained Schneider to complete the temperature controls portion of its work (NYSCEF Doc No. 235). Plaintiffs employer, nonparty Harrand Electrical Contractors, Inc. (Harrand), completed the installation part of Schneider's work under the terms of Master Agreement No. NYJ000177, dated March 3, 2008 (NYSCEF Doc No. 236).
Tire court presumes the date should read "11/12/14" since the purchase order refers to plans dated "8/15/2014."
ACC retained Workwell to install "demountable partitions" per their written contract (the Workwell Subcontract) (NYSCEF Doc No. 234). American delivered Workwell's materials, including glass panels, to the site (NYSCEF Doc No. 243).
Plaintiff testified that he was employed by Harrand as a "MU" electrician (NYSCEF Doc No. 237). One or two days before the accident, Harrand's owner showed him the offices at the Premises where he would be working and what had to be done (id.). Plaintiff was tasked with connecting equipment in the ceiling of each office to wall-mounted thermostats and CO2 sensors (id.). The work entailed creating openings in the walls between 48 inches to 54 inches above the floor, installing thermostats or sensors in those openings, and attaching wires from the equipment to those devices (id.).
The accident occurred in an office on the fourth floor as plaintiff began to mark the wall where he had to create an opening (id.). Eight to 10 plexiglass panels were stacked "straight up and down" on the floor against one wall, with each panel measuring six to eight feet long (id.). The stack extended two feet out from the wall (id. at 110). Plaintiff, who is five feet and 10 inches tall, stated that the top of the stacked panels was somewhere below his waist and above his knees (id.). Nothing secured the panels to the floor, like a "footing" (id.).
None of the other trades at the Premises were working in that office when the accident occurred (NYSCEF Doc No. 239). Plaintiff testified that he was standing upright an arm's length away from the wall and was in the process of marking the wall above the panels when the entire stack fell over, knocking him over, and landing on his feet (NYSCEF Doc No. 237). The location of the panels did not prevent plaintiff from performing his job (id.), and neither he nor anyone else attempted to move them before the accident (NYSCEF Doc No. 239).
An accident report completed by Harrand's owner described the happening of the accident as follows: "While measuring to drill a hole, elbow hit into about 300 lbs. plexiglass that was leaning on the wall and glass fell pinning him under it for about 40 seconds until other guys working nearby heard him yell" (NYSCEF Doc No. 238).
A different accident report completed by plaintiff reads, in part, that he was "installing a thermostat when plexiglass fell on [his] feet" and "10-15 pieces of plexiglass not properly stored weighing about 2,500 lbs tipped over and landed on both of [his] feet" (NYSCEF Doc No. 186).
Columbia's project manager for construction testified that Columbia hired ACC as its general contractor to renovate the Premises, but he was unfamiliar with Workwell, American, Harrand or plaintiff. He was not involved with and was not present when materials were delivered for the project. No one from Columbia directed delivery persons on where to store materials, he had never received a complaint about deliveries made by American, and he had never received a complaint about how glass was stored at the Premises. The manager could not recall if he complained to ACC about "clutter" at the jobsite, although he did complain about general cleanliness, and he never saw unsafe storage of materials at the Premises (NYSCEF Doc No. 240).
ACC's president and CEO testified that ACC hired Workwell to furnish and install glass office fronts on the Project, and that its subcontractors, such as Workwell, were responsible for overseeing deliveries of their own materials, although ACC would work with them to determine where their materials could be stored. The president was not aware of any specific staging procedure for the delivery of office materials, did not know where glass for the Project was stored, and never saw glass stacked against a wall on any of his visits. He could not recall receiving any complaints about Workwell before April 2015 and testified that no one raised any site safety concerns to him. The sole laborer ACC employed on the Project was responsible for cleaning, and ACC's subcontractors were responsible for keeping means of egress clear of materials and debris. To the best of his knowledge, the worksite was not "cluttered" (NYSCEF Doc No. 241).
A senior project manager at Schneider testified that Schneider furnishes systems that manage and control a building's HVAC system, and he was assigned to the Project. DirectAire hired Schneider in late 2014 for the Project, and Schneider designed the system and hired Harrand to complete the installation. No Schneider employees were present when Harrand performed its work. The project manager testified that Harrand's president notified him about the accident and told him that plaintiff was injured when "glass fell on him while he was in the process of installing a thermostat" (NYSCEF Doc No. 242).
Workwell's project manager on the Project, testified that ACC hired it to furnish "office fronts," or glass partitions and wood doors, and Workwell hired American to deliver its material. Workwell did not physically install the items and hired another company to perform that work. Usually, jobsites are almost complete by the time Workwell begins its work, but "on this jobsite, none of that had really happened yet. So we had to stage where we could." The project manager stated that only those materials to be installed in a specific office should be placed there, but "those offices [at the Premises] were completely full of materials, racks, and garbage," requiring Workwell to stage its material in every third or fourth office. While usually only three glass panels would be staged per office, on this Project, he recalled seeing six to eight panels of glass leaning at an angle against one wall, meaning that three offices worth of product was staged in the same office. He recalled that the glass panels furthest from the wall in the offices were not braced in any way, and there were no cones, barricades or caution tape around them (NYSCEF Doc No. 243).
Nor were the panels banded or tied together or secured to the floor or wall in any way, which was typical in staging (NYSCEF Doc No. 244). Some panels of glass for the Project measured between 40 to 46 inches in width and 8 % to 9 feet in length, were 10 to 12 millimeters thick, and weighed up to 200 pounds each (NYSCEF Doc No. 243), while others measured 50 inches wide by 9 feet long by one-half inch thick and weighed 300 pounds each (NYSCEF Doc No. 244).
American's owner visited the Premises one week before the first scheduled delivery and informed Workwell's project manager that the site was not ready to receive the materials, and therefore the project manager asked ACC's project supervisor if Workwell could delay the delivery. Workwell's project manager was concerned about "climbing on top of other trades," and the presence of other trades made things difficult. ACC's project supervisor told him to "just bring" them because "we had to stick to the schedule." American delivered the glass panels on April 2, 2015, when Workwell's project manager was not present, and American made the decision on where to place the panels, and Workwell did not instruct American on where or how to store them (NYSCEF Doc No. 243). However, Workwell's project manager and ACC's project supervisor would have looked at the space to determine where to stage the panels, while American had the "final say" on where to place the panels (NYSCEF Doc No. 244).
American's owner testified that the standard practice for staging glass panels involved leaning a maximum of three to four panels against a wall in the room where they would be installed. If the floor was finished, panels are placed against the wall with protection placed between the wall and the first panel. The panels are not placed at a specific angle other than at an angle that ensured they would not slip or tip forward, and on a floor like vinyl or concrete, the panels are placed on top of a piece of carpet. The owner, who was not present when the glass delivery took place, recalled telling Workwell's project manager that "[t]he site was not ready" because "there was trade material throughout the space" but the project manager spoke to the general contractor about changing the delivery schedule, but "[t]he GC was adamant staying with the schedule" (NYSCEF Doc No. 245).
The owner testified that he received a call from American's foreman on the day the panels were delivered, who told him that a laborer or representative for the "GC" was directing American on where to stage the panels. "The GC wanted [American] to stage items in different areas ... [and] Workwell's project manager said to go ahead." The owner then relayed this message to his employees, and the staging was to take place in areas that were not originally specified in the plans. No one told American that it would need to stage more than three or four glass panels against a wall in any location (NYSCEF Doc No. 245).
II. PROCEDURAL HISTORY
Plaintiff commenced this action on July 2, 2015, asserting claims for common-law negligence and for violations of Labor Law § § § 200, 240(1) and 241(6) against Columbia and ACC. Columbia/ACC brought a third-party action against Schneider for common-law indemnification, contribution, and contractual indemnification (NYSCEF Doc No. 29), and a second third-party action against Workwell for common-law indemnification, contribution, contractual indemnification, and breach of contract for failure to procure insurance (NYSCEF Doc No. 44). Workwell subsequently brought a third third-party complaint seeking contribution and common-law indemnification from American. Plaintiff filed his note of issue on November 16, 2022 (NYSCEF Doc No. 168).
Plaintiff discontinued the action against defendants City of New York and New York City Department of Transportation with prejudice (NYSCEF Doc No. 32).
III. DISCUSSION
It is well settled that "the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986]). The "facts must be viewed in the light most favorable to the non-moving party" (Vega v. Restani Constr. Corp., 18 N.Y.3d 499, 503 [2012] [internal quotation marks and citation omitted]). If the moving party meets its prima facie burden, the non-moving party must furnish evidence in admissible form sufficient to raise a material issue of fact (Alvarez, 68 N.Y.2d at 324). "[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" (Zuckerman v City of New York, 49 N.Y.2d 557, 562 [1980]). If the moving party fails to meet its prima facie burden, the motion must be denied without regard to the sufficiency of the opposing papers (Alvarez, 68 N.Y.2d at 324).
A. The timeliness of plaintiffs cross-motion
The preliminary conference order directed that all dispositive motions be made within 120 days after the filing of the note of issue (NYSCEF Doc No. 41). Columbia/ACC moved for summary judgment motion on March 14, 2023 (NYSCEF Doc No. 225), which is within 120 days after the date plaintiff filed the note of issue. Plaintiff filed his cross-motion one month later (NYSCEF Doc No. 253).
"A cross-motion for summary judgment made after the expiration of the statutory 120-day period may be considered by the court, even in the absence of good cause, where a timely motion for summary judgment was made seeking relief 'nearly identical' to that sought by the cross motion" (Filannino v Triborough Bridge &Tunnel Auth., 34 A.D.3d 280, 281 [1st Dept 2006], appeal dismissed 9 N.Y.3d 862 [2007] [citations omitted]). Columbia/ACC's motion seeks summary dismissal of all of plaintiff's Labor Law claims, and plaintiff s cross-motion seeks partial summary judgment on some of his Labor Law claims. Thus, as the untimely crossmotion seeks nearly identical relief to that sought in the timely-filed motion, it will be considered (Connor v AMA Consulting Engrs. PC, 213 A.D.3d 483, 484 [1st Dept 2023]).
B. Workwell's failure to submit a counter statement of material facts
An assertion in a statement of material facts submitted in connection with a summary judgment motion that is not specifically controverted in a counterstatement "may be deemed to be admitted for purposes of the motion" (Uniform Rules for Trial Cts [22 NYCRR] § 202.8-g[c]). However, "[b]lind adherence to the procedure set forth in 22 NYCRR 202.8-g" is not mandated (On the Water Prods.. LLC v Glynos, 211 A.D.3d 1480, 1481 [4th Dept 2022] [internal quotation marks and citation omitted]; see also Uniform Rules for Trial Cts [22 NYCRR] § 202.8-g[e] [stating the court "may take such other action as may be just and appropriate"]), especially as a counsel's affirmation in opposition serves as the "'functional equivalent of a [counter] statement of material facts'" (Hart v City of Buffalo, 218 A.D.3d 1140, 1151 [4th Dept 2023], rearg denied 2023 NY Slip Op 05940 [4th Dept 2023]), quoting Smith v MDA Consulting Engrs.. PLLC, 210 A.D.3d 1448, 1449 [4th Dept 2022], Iv denied 39 N.Y.3d 910 [2023]).
Here, given the content of Workwell's opposition to the motion, its failure to submit a counterstatement of material facts is disregarded.
1. Contentions
Columbia/ACC argue that the accident did not involve an elevation-related risk because the height of the glass panels reached to plaintiffs waist, the panels were not being hoisted or secured, and they did not require securing for the purposes of the undertaking. Moreover, and in any event, plaintiff was the sole proximate cause of the accident.
Plaintiff counters that the panels, which collectively weighed more than 2,000 pounds, should have been secured. In support, plaintiff relies on the opinion of his engineering expert that:
it is generally good and accepted practice that glass panels shall be secured and supported with braces, stays, or other means of restraint when being stored at a jobsite prior to installation ... [and that] the storage of the glass panels on edge and leaning against the wall without any bracing or restraints does not conform to good and accepted industry practice, thereby posing an inherent safety hazard that can be cited as a cause for Plaintiffs accident.(NYSCEF Doc No. 258). The expert further opines that the panels should not have been stored in an unbraced condition, and that bracing or supporting the panels could have protected against "the inherent hazard posed by displacement, overturning, and/or sliding of the panels within the work area" (id.).
2. Analysis
"Labor Law § 240(1) imposes a nondelegable duty and absolute liability upon owners and contractors for failing to provide safety devices necessary for workers subjected to elevation- related risks in circumstances specified by the statute" (Soto v J. Crew Inc., 21 N.Y.3d 562, 566 [2013]). The statute "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" (Ross v Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 501 [1993]), and therefore "applies to both 'falling worker' and 'falling object' cases" (Narducci v Manhasset Bay Assoc., 96 N.Y.2d 259, 267 [2001]). A plaintiff's contributory negligence is not a defense (Blake v Neighborhood Hous. Servs. of City of N.Y. City, 1 N.Y.3d 280, 286 [2003]).
However, "[n]ot every worker who falls at a construction site, and not every object that falls on a worker, gives rise to the extraordinary protections of Labor Law § 240(1)" (Narducci, 96 N.Y.2d at 267). "Rather, liability is contingent upon the existence of a hazard contemplated in section 240(1) and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein" (id.). In falling object cases, whether Labor Law § 240(1) applies does not "depend upon whether the object has hit the worker ... [but] whether the harm flows directly from the application of the force of gravity to the object" (Runner v New York Stock Exch., Inc., 13 N.Y.3d 599, 604 [2009]).
Thus, the plaintiff must demonstrate that the object fell while it was being "'hoisted or secured'" or "'required securing for the purposes of the undertaking,"' and "'the object fell ... because of the absence or inadequacy of a safety device of the kind enumerated in the statute'" (Fabrizi v 1095 Ave. of the Ams., L.L.C., 22 N.Y.3d 658, 663 [2014] [internal citations removed]). When an object falls a relatively short distance, the court may also take into account the object's weight and the force it is capable of generating as it falls (Runner, 13 N.Y.3d at 605).
Applying these concepts, plaintiff has met his prima facie burden of showing that his work at the Project exposed him to an elevation-related risk. The fact that plaintiff and the panels were on the same level before they fell on him does not "categorically bar" recovery under the statute (Wilinksi v 334 E. 92ndHous. Dev. Fund Corp., 18 N.Y.3d 1,5 [2011]). Instead, the "single decisive question is whether plaintiffs injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential" (Runner, 13 N.Y.3d at 603). Here, although the panels fell less than four feet, their combined weight, and the force they were capable of generating over that short distance, is dispositive (see Rivas v Seward Park Hous. Corp., 219 A.D.3d 59, 64 [1st Dept 2023] [finding defendants liable for accident involving trench that collapsed on plaintiff, where there was height differential between top of plaintiffs head and top of trench and large amount of dirt poured into trench and caused it to collapse, and given amount of force dirt was capable of generating]).
Columbia/ACC argue that the staging of the panels was not a situation where a safety device of the kind enumerated in Labor Law § 240(1) was necessary or expected. Although the panels were not being hoisted or secured, they nevertheless were objects that required securing for the purposes of the undertaking being performed at the time (see Jordan v City of New York, 126 A.D.3d 619, 620 [1st Dept 2015] [pile of rails stacked two to three feet high was object that required securing, as it was foreseeable that crane could strike pile and cause rails to fall]). "What is essential to a conclusion that an object requires securing is that it present a foreseeable elevation risk in light of the work being undertaken" (Buckley v Columbia Grammar &Preparatory, 44 A.D.3d 263, 269 [1st Dept 2007], Iv denied 10 N.Y.3d 710 [2008]).
As plaintiff s task required him to work on the same wall against which the panels were leaning, it was reasonably foreseeable that that the unsecured glass panels could tip or fall over onto plaintiff, and, moreover, plaintiffs expert opined that the panels should have been secured with a brace or other type of safety device enumerated in Labor Law § 240(1) (see Jordan, 126 A.D.3d at 620), and that they fell because of the absence of a brace or other restraint to stabilize them and prevent them from falling.
Plaintiff has thus demonstrated his entitlement to summary judgment on liability (see Spero v 3781 Broadway, LLC, 214 A.D.3d 546, 547 [1st Dept 2023] [eight-foot by four-foot plywood board weighing between 60 to 100 pounds placed vertically on floor without braces fell and injured plaintiff]; Grigoryan v 108 Chambers St. Owner, LLC, 204 A.D.3d 534, 534 [1st Dept 2022] ["3-to-4 foot tall, 300-500+ pound fire pump" that fell should have been secured]; but see Seales v Trident Structural Corp., 142 A.D.3d 1153, 1156 [2d Dept 2016] [sheetrock leaning against wall not material being hoisted or secured and did not require securing for purposes of undertaking]).
Columbia/ACC, in opposition, argue that plaintiff s expert's affidavit should not be considered because plaintiff served a CPLR 3101(d) exchange only after they filed their motion (NYSCEF Doc No. 258). However, pursuant to CPLR 3212(b), the court may not reject an expert affidavit simply because a CPLR 3101(d) exchange was not previously furnished. Thus, the affidavit is considered, and, contrary to Columbia/ACC's contention, the expert's opinion is not speculative. An expert's opinion lacks probative value if it lacks an evidentiary foundation (Diaz v New York Downtown Hosp., 99 N.Y.2d 542, 544 [2002]), and here, plaintiff s expert based his opinion on the parties' deposition testimony along with the photographs marked at those depositions.
Columbia/ACC assert that the Occupational Safety and Health Administration regulation cited in the expert's affidavit is inapplicable as that regulation concerns aisles and passageways, and plaintiffs accident did not occur in an aisle or passageway. However, the expert also cited a bulletin published by the Glass Association of North America that effectively states that individual cases of glass and pre-glazed materials should be secured, blocked and braced to prevent falls and should not be exposed to the activities of other trades (NYSCEF Doc No. 257). Columbia/ACC did not address whether this industry standard is inapplicable.
Turning to Columbia/ACC's sole proximate cause argument, liability under Labor Law § 240(1) does not attach where the plaintiffs own actions are the sole proximate cause of the accident (Cahill v Triborough Bridge &Tunnel Auth., 4 N.Y.3d 35, 39 [2004]). To raise a triable issue of fact on the sole proximate cause defense, the defendant must establish that an adequate safety device was readily available, the plaintiff was expected to use the device, and the plaintiff "for no good reason chose not do so, causing the accident" (Gallagher v New York Post, 14 N.Y.3d 83, 88 [2010]).
Columbia/ACC maintain that plaintiff was the sole proximate cause because he was unable to deny touching the glass panels before the accident and was not required to work in the office where the accident occurred. They observe that plaintiff admitted the panels did not inhibit his work and he did not ask anyone to move them before the accident. These arguments sound in contributory negligence (see Sotelo v TRM Contr., LP, 212 A.D.3d 488, 488-489 ), and "[d]isguised claims of comparative negligence do not make out a sole proximate cause defense" (Vitucci v Durst Pyramid LLC, 205 A.D.3d 441, 443 [1st Dept 2022]).
In any event, plaintiff did not testify that he was moving the glass panels when they fell or that he had been told not to do so (see Padilla v Touro Coll. Univ. Sys., 204 A.D.3d 415,416 [1st Dept 2022] [triable issue whether the plaintiff disregarded instructions not to move the sheetrock that fell on him]). The passage in plaintiff s deposition where he could not recall whether his elbow struck the panels relates to a description of the accident on an accident report completed by Harrand's owner, and reflected plaintiff s difficulty remembering the specifics of the conversation he had with the owner, rather than the specifics of the accident. Thus, Columbia/ACC fail to raise a triable issue as to their liability under Labor Law § 240(1).
Since plaintiff is entitled to summary judgment on liability on his Labor Law § 240(1) claim, it is unnecessary to address his Labor Law § 241(6) claim; as his damages are the same under either theory of liability and he may only recover once, the issue is academic (see Corleto v Henry Restoration Ltd., 206 A.D.3d 525, 526 [1st Dept 2022] [deeming issue of Labor Law § 241(6) claim academic after finding plaintiff entitled to partial summary judgment on Labor Law § 240(1) claim]; Jerezv Tishman Constr. Corp, of N.Y., 118 A.D.3d 617, 617-618 [1st Dept 2014] [similar]). However, in an effort to aid any potential appellate review, plaintiff s Labor Law § 241(6) claim will still be analyzed.
Columbia/ACC argue that the Labor Law § 241(6) claim should be dismissed because none of the Industrial Code provisions cited by plaintiff are applicable to the facts herein. Plaintiff contends that summary judgment on this claim is warranted based on an alleged violation of Industrial Code (12 NYCRR) § 23-2.1(a)(1) with respect to unsafe storage, and that a triable issue of fact precludes dismissal of the claim predicated on Industrial Code § 23-1.7(e)(2).
Labor Law § 241(6) "imposes a nondelegable duty of reasonable care upon owners and contractors 'to provide reasonable and adequate protection and safety' to persons employed in, or lawfully frequenting, all areas in which construction, excavation or demolition work is being performed" (Rizzuto v L.A. Wenger Contr. Co., 91 N.Y.2d 343, 348 [1998]). To prevail on a Labor Law § 241(6) claim, the plaintiff must establish that there was a violation of rule or regulation setting forth a specific standard of conduct, and that the violation was a proximate cause of the injury (Buckley, 44 A.D.3d at 268-269). A plaintiffs comparative or contributory negligence is a valid defense to a Labor Law § 241(6) claim (Ross v Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494 [1993]).
As an initial matter, while plaintiffs bill of particulars lists various industrial code violations, he addressed only 12 NYCRR 23-1.7(e)(2) and 23-2.1(a)(1) in his moving and opposing papers, and has thus abandoned his reliance on any other Industrial Code sections (see Romano v New York City Tr. Auth., 213 A.D.3d 506, 508 [1st Dept 2023]).
Section 1.7(e)(2) concerns tripping and other hazards in "[w]orking areas" and provides that "[t]he parts of floors, platforms and similar areas where persons work or pass shall be kept free from accumulations of dirt and debris and from scattered tools and materials and from sharp projections insofar as may be consistent with the work being performed."
The accident occurred in a "working area" (see Canning v Barneys N. Y., 289 A.D.2d 32, 34 [1st Dept 2001]), even though materials were being stored there (compare Dacchille v Metropolitan Life Ins. Co., 262 A.D.2d 149, 149 [1st Dept 1999]). However, the accident was not caused by an accumulation of scattered materials or debris (cf Nicholson v Sabey Data Ctr. Props.. LLC, 205 A.D.3d 620, 621 [1st Dept 2022] [four or five pipes on storage room floor constituted scattered materials]), as the panels were all purposely stacked together against one wall. Moreover, plaintiff did not trip over the panels (see Johnson v 923 Fifth Ave. Condominium, 102 A.D.3d 592, 593 [1st Dept 2013]; Urbano v Rockefeller Ctr. N., Inc., 91 A.D.3d 549, 550 [1st Dept 2012]), nor was he cut by a sharp projection (AU v Sloan-Kettering Inst, for Cancer Research, 176 A.D.3d 561, 561 [1st Dept 2019]). Thus, 12 NYCRR 23-1.7(e)(2) is inapplicable.
2. 12 NYCRR 23-2,1(a)(1)
Section 2.1(a)(1) states that "[a]ll building materials shall be stored in a safe and orderly manner. Material piles shall be stable under all conditions and so located that they do not obstruct any passageway, walkway, stairway or other thoroughfare."
Although the panels were being staged for future installation, the accident occurred in a partially enclosed office, and they did not obstruct a passageway, walkway, stairway or other thoroughfare (see Kuylen v KPP 107th St.. LLC, 203 A.D.3d 465, 465-466 [1st Dept 2022] [Section 2.1(a)(1) inapplicable where the accident occurred not in passageway, hallway, stairway or other walkway but in apartment unit]; Ormsbee v Time Warner Realty Inc., 203 A.D.3d 630 [1st Dept 2022] [code section inapplicable where accident occurred in open work area]; but see Rodriguez v DRLD Dev., Corp., 109 A.D.3d 409, 410 [1st Dept 2013] [issue of fact if sheetrock boards leaning against a wall were stored in a safe and orderly manner even though there was no testimony that they obstructed a passageway, walkway, stairway or other thoroughfare]). Therefore, 12 NYCRR 23-2.1(a)(1) is inapplicable.
E. Labor Law § 200 and common-law negligence
Labor Law § 200 "codifies the common-law duty to maintain a safe workplace" (Toussaint v Port Auth. of N.Y. &N.J., 38 N.Y.3d 89, 94 [2022]). Labor Law § 200 and commonlaw negligence claims may arise from the means and methods of the work or a dangerous condition on the premises (Cappabianca v Skanska USA Bldg. Inc., 99 A.D.3d 139, 149-150 [1st Dept 2012]), or both (Moore v URS Corp., 209 A.D.3d 438, 440 [1st Dept 2022]). If an accident arises out of a dangerous premises condition, liability may be imposed if the defendant created the condition or failed to remedy a condition of which it had actual or constructive notice (Coon v WFP Tower B Co., L.P., 220 A.D.3d 407, 408 [1st Dept 2023]), and proof of the defendant's supervision or control over the plaintiff s work is unnecessary (Licata v AB Green Gansevoort, LLC, 158 A.D.3d 487 [1st Dept 2018]). If an accident results from the means and methods of the work, liability may be imposed only if the defendant supervised or controlled the injury producing work (Estevez v SLG 100 Park LLC, 215 A.D.3d 566, 568-569 [1st Dept 2023]).
In this case, plaintiffs injuries arose out of both the means and methods of the work and a dangerous condition on the Premises. As to Columbia/ACC, it has not met its prima facie burden of showing that it did not have "control over the activity bringing about the injury, i.e., the placement of the [glass panels]" (Nicholson, 205 A.D.3d at 622 [general contactor did not direct the manner in which the subcontractors stored their materials but did direct them where to store those materials]; Valle v Port Auth. of N.Y. &N.J., 189 A.D.3d 594, 596 [1st Dept 2020] [owner and general contractor directed the subcontractor to deliver materials to subbasement]). Workweirs project manager testified that he worked with ACC to determine where the panels should be stored, and American's owner testified that a representative from the GC directed American's employees where to stage materials, including the panels.
The stacked panels may also have constituted a dangerous premises condition (see Villanueva v O 'Mara Org., Inc., 204 A.D.3d 557, 558 [1st Dept 2022] [improper stacking of electrical metallic tubes against wall next to freight elevator was dangerous premises condition]; but see Maddox v Tishman Constr. Corp., 138 A.D.3d 646, 646 [1st Dept 2016] [double-stacking of sand and cement bags not inherently dangerous property condition but the result of means and methods of work]). The panels were delivered to the jobsite one day before the accident, and neither Columbia nor ACC demonstrated when the accident location was last inspected prior to the accident (see Padilla, 204 A.D.3d at 415] [no showing as to when site last inspected before stack of sheetrock panels fell on plaintiff]; Baumann v Town of Islip, 120 A.D.3d 603, 605 [2d Dept 2014] [unknown when site where plaintiff fell over unsecured and improperly stored electrical wire was last inspected]). Thus, Columbia/ACC fail to meet their burden and dismissal of plaintiff's claims against them is unwarranted.
F. Columbia/ACC's claim for contribution and common-law indemnification against Schneider and Workwell
"[A] claim for common-law contribution involves the apportionment of liability amongst joint tortfeasors, both of whom owed a duty to an injured plaintiff' (Aiello v Burns Inti. Sec. Servs. Corp., 110 A.D.3d 234, 247-248 [1st Dept 2013]). Common-law indemnification is predicated upon vicarious liability without actual fault (J.H. v 1288 LLC, 171 A.D.3d 549 [1st Dept 2019]). "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 A.D.3d 1, 10 [1st Dept 2012]).
Here, Columbia/ACC's motion for summary judgment on their contribution and common-law indemnification claims against Schneider and Workwell is denied because issues of fact exist as to whether Columbia or ACC were negligent (see Shelton v Chelsea Piers, L.P., 214 A.D.3d 490, 490 [1st Dept 2023]).
Conversely, Schneider has demonstrated that it was not negligent and that it did not exercise actual supervision or control over the injury-producing work (see Quiroz v. New York Presbyt./Columbia Univ. Med. Ctr., 202 A.D.3d 555, 557 [1st Dept 2022]). Columbia/ACC's contribution and common-law indemnification claims against Schneider are thus dismissed.
G. Columbia/ACC's claims for contractual indemnification
"When a party is under no legal duty to indemnify, a contract assuming that obligation must be strictly construed to avoid reading into it a duty which the parties did not intend to be assumed" (Hooper Assoc, v AGS Computers, 74 N.Y.2d 487, 491 [1989]). The "intention to indemnify [must] 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 N.Y.2d 774, 777 [1987], quoting Margolin v New York Life Ins. Co., 32 N.Y.2d 149, 153 [1973]).
General Obligations Law (GOL) § 5-322.1 imposes certain restrictions on the scope of an indemnification provision contained in a contract and provides that an agreement "purporting to indemnify or hold harmless the promisee against liability for damage . . . caused by or resulting from the negligence of the promisee . . . whether such negligence be in whole or in part, is against public policy and is void and unenforceable" (GOL § 5-322.1 [1]).
Thus, the statute prohibits contractual agreements that provide for full indemnification regardless of the indemnitee's fault (Itri Brick &Concrete Corp, v Aetna Cas. &Sur. Co., 89 N.Y.2d 786, 796 [1997], rearg denied 90 N.Y.2d 1008 [1997]). However, if an indemnification provision includes language limiting the indemnitor's obligation, then the provision does not violate GOL § 5-322.1 (1) (see Brooks v. Judlau Contr. Inc., 11 N.Y.3d 204, 210 [2008] [finding that the phrase "'to the fullest extent permitted by law . . .' contemplates partial indemnification and is intended to limit [a subcontractor's] contractual indemnity obligation solely to [the subcontractor's] own negligence"]). To prevail on a claim for 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" (Correia, 259 A.D.2d at 65).
1. Contractual indemnification claim against Schneider
Schneider argues that Columbia/ACC's contractual indemnification claim should be dismissed because Schneider contracted with DirectAire, not Columbia/ACC, and neither Columbia nor ACC are listed as indemnitees in the Schneider Purchase Order. Schneider also argues that the indemnification language in the purchase order violates GOL § 5-322.1. Columbia/ACC maintain that they are entitled to contractual indemnification from
Schneider and invoke an exception to the parol evidence rule to show that the indemnification provisions in the DirectAire Subcontract apply to the Schneider Purchase Order.
Section 5.12 of the ACC Contract, titled "Indemnification," reads, in part:
5.12.2 The Contractor agrees to have all contracts with Subcontractors and suppliers contain a provision whereby the Subcontractor or supplier, to the fullest extent permitted by law, will be liable to, hold harmless, defend and indemnify the Owner ... [and] the Contractor... (the 'Indemnitees') against any and all damages, suits, claims, liabilities, costs and expenses (including actual attorneys' fees) resulting from bodily injury, sickness, disease or death ... arising out of or relating to the performance of the Work by that Subcontractor or supplier or anyone directly or indirectly employed or retained by any of them. However, the Subcontractor or supplier shall not be required to indemnify or hold harmless an Indemnitee against liability for damage arising out of bodily injury to persons or damage to property caused by or resulting from the negligence of such Indemnitee(NYSCEF Doc No. 232).
Section 13 of Rider C to the DirectAire Subcontract states that all "second tier subcontractors shall be governed by all Terms and Conditions (including insurance requirements) of the contract between the General Contractor and Owner" (NYSCEF Doc No. 233). The pertinent parts of the terms and conditions of the Schneider Purchase Order state that "[t]he materials or services described herein shall constitute entire contract between the seller and purchaser" and "[t]he seller unconditionally agrees to indemnify the purchaser from any and all liabilities, expenses, fees, claims, losses or damages of any type in connection with the performance of this order" (NYSCEF Doc No. 235).
"Parol evidence - evidence outside the four comers of the document - is admissible only if a court finds an ambiguity in the contract" (Schron v Troutman Sanders LLP, 20 N.Y.3d 430, 436 [2013]). Such evidence is "inadmissible to alter or add a provision to the agreement" (id.). Although "seller" and "purchaser" are not defined, the Schneider Purchase Order itself is not ambiguous. The top of the purchase order bears DirectAire's name, address and contact information, and it lists the recipient as an account executive at Schneider; the order number authorized by DirectAire's president; ACC as the general contractor; nonparty RG Vanderweil LLP as the engineer; and "Columbia University Mudd Hall Renovation" as the job name (NYSCEF Doc No. 235). Thus, as the purchase order is unambiguous, Columbia/ACC's parol evidence is not considered.
There is no language in the purchase order that expressly incorporates by reference any of the terms of the DirectAire Subcontract, including the indemnity provisions (see Naughton, 94 A.D.3d at 12 [purchase order did not incorporate terms of subcontract, and subcontractor was not a third-party beneficiary of the purchase order]; Frankv 1100 Ave. of the Arns. Assoc., 159 A.D.3d 537, 538 [1st Dept 2018] [owner, tenant, and general contractor awarded contractual indemnification from demolition contractor even though the identity of the "owner" was not clear from the purchase order since the purchase order incorporated by reference the contract between the tenant and general contractor]).
Because the terms of the DirectAire Subcontract were not made part of the Schneider Purchase Order, Columbia/ACC are not entitled to contractual indemnity from Schneider. Furthermore, Schneider is not a party to the DirectAire Subcontract, and Schneider cannot be held liable on a contract to which it was not a party (see Victory State Bank v EMBA Hylan, LLC, 169 A.D.3d 963, 965 [2d Dept 2019]). Columbia/ACC's contractual indemnification claim against Schneider is thus dismissed, and all other arguments are not considered. 2,Contractual indemnification claim against Workwell Columbia/ACC contend that they are entitled to contractual indemnification because staging of the glass panels was part of Workwell's contracted-for work, and that the indemnification provision in the Workwell Subcontract does not violate GOL § 5-322.1.
Workwell asserts that a triable issue of fact exists as to whether Columbia/ACC were at fault for the accident, and whether the language of the pertinent indemnity clause applies here, thereby precluding them from summary judgment on their contractual indemnity claim.
The indemnification provision in Rider B to the Workwell Subcontract reads, in part:
4.6.1 To the fullest extent permitted by law, Subcontractor shall defend, indemnify and hold harmless Owner, Contractor ... (individually or collectively, 'Indemnity') from and against all claims, damages, liabilities, losses and expenses ... arising out of or in any way connected with the performance or lack of performance of the work under the agreement ... provided that any such claim, damage, liability, loss or expense is attributable to bodily injury ... and caused in whole or in part by any actual or alleged:
- Act or omission of the Subcontractor or anyone directly or indirectly retained or engaged by it or anyone for whose acts it may be liable; or
- Violation of any statutory duty, regulation, ordinance, rule or obligation by an Indemnitee provided that the violation arises out of or is in any way connected with the Subcontractor's performance or lack of performance of the work under the agreement.
The Subcontractor's obligations under this Article shall apply regardless of whether or not any such claim, damage, liability, loss or expense is or may be attributable to the fault or negligence of the Subcontractor.(NYSCEF Doc No. 234).
Here, the indemnification provision does not violate GOL § 5-322.1 because it contains a savings clause (Payne v. NSH Community Servs., Inc., 203 A.D.3d 546, 548 [1st Dept 2022]). In addition, based on a plain reading of this language, Workwell's obligation to indemnify Columbia/ACC has been triggered because plaintiffs accident arose, at least in part, out of Workwell's work (see Gingv F.J. Sciame Constr. Co., Inc., 2020 NY Slip Op 30055[U], *8 [Sup Ct, NY County 2020], affd 193 A.D.3d 415 [1st Dept 2021]). Columbia/ACC, though, are entitled only to conditional indemnification for "any amount, payment, judgment, settlement, mediation or arbitration award," because whether Workwell (and American by extension) was negligent has not been determined (id. at 38-39).
H. Columbia/ACC's claim for breach of contract against Workwell
Columbia/ACC allege that Workwell's failure to procure insurance constitutes a breach of the Workwell Subcontract. Workwell contends that it has responded to Columbia/ACC's demand for insurance information.
Article 13.1, as amended by Rider F, of the Workwell Subcontract required Workwell to purchase and maintain certain types of insurance, including commercial general liability (CGL) coverage, and to name Columbia and ACC as additional insureds (NYSCEF Doc No. 234). The CGL coverage Workwell obtained "cannot exclude injury to an employee via third party lawsuits under New York State Labor Laws 240 and 241" (id.). Workwell agreed it would not subcontract any part of its work "without assuming full responsibility for requiring similar insurance from his subcontractors and shall submit satisfactory evidence to that effect to the Contractor. Each such insurance policy ... shall include the Owner and the Contractor as an additional insured" (id. at 34).
'"A party moving for summary judgment on its claim for failure to procure insurance meets its prima facie burden by establishing that a contract provision requiring the procurement of insurance was not complied with'" (Dorset v 285 Madison Owner LLC, 214 A.D.3d 402, 404 [1st Dept 2023], quoting Benedetto v Hyatt Corp., 203 A.D.3d 505, 506 [1st Dept 2022]). The moving party may meet this burden "by submitting ... copies of the contract requiring the procurement of insurance and of correspondence from the insurer of the party against whom summary judgment is sought indicating that the moving party was not named as an insured on any policies issued" (Dorset, 214 A.D.3d at 404, citing DiBuono v Abbey. LLC, 83 A.D.3d 650, 652 [2d Dept 2011]). Once the moving party meets its burden, the party opposing the motion may raise a triable issue of fact by tendering a copy of the policy (Benedetto, 203 A.D.3d at 506]).
Columbia/ACC have failed to meet their prima facie burden on this cause of action. Columbia/ACC have submitted a copy of the Workwell Subcontract and cited to the specific provisions therein requiring Workwell to purchase and maintain certain types of coverages, but Columbia/ACC have not submitted any documentary or testimonial evidence that Workwell failed to procure the requisite insurance (see Dorset, 214 A.D.3d at 404).
I. Workwell's contribution and common-law indemnification claims against American
American argues that WorkwelTs third-party complaint must be dismissed because American was not negligent and had no authority to supervise or control the injury-producing work. Workwell responds that American has not demonstrated that it was not negligent or that it lacked the authority to supervise and control the work that gave rise to plaintiffs injury.
American also moves for summary judgment dismissing WorkwelTs contractual indemnification claim, but WorkwelTs third-party complaint does not plead a claim for contractual indemnification.
American's motion is denied because it has not demonstrated its own freedom from negligence, as there is evidence that, although ACC's representative, with Workwell's consent, directed American's employees on where the glass panels should be stored, American's employees were responsible for stacking the panels that fell on plaintiff.
IV. CONCLUSION
Accordingly, it is hereby:
ORDERED that the motion of third-party defendants Schneider Electric Holdings, Inc. and Schneider Electric Buildings Americas, Inc. for summary judgment dismissing the third-party complaint (motion sequence no. 004) is granted, and the third-party complaint is dismissed in its entirety, with costs and disbursements to said third-party defendants as taxed by the Clerk of the Court upon the submission of an appropriate bill of costs; it is further
ORDERED that the motion of third third-party defendant American Storage &Transport, Inc. for summary judgment dismissing the third third-party complaint (motion sequence no. 005) is denied; it is further
ORDERED that the motion of defendants and third-party/second third-party plaintiffs Trustees of Columbia University in The City of New York incorrectly sued herein as Columbia University and The Trustees of Columbia University and ACC Construction Corp, incorrectly sued herein as ACC Construction Management Corp. (Columbia/ACC) for summary judgment (motion sequence no. 006) is granted to the extent of:
1. severing and dismissing plaintiffs Labor Law § 241(6) claim;
2. awarding Columbia/ACC contractual indemnification as against second-third party defendant Workwell Partners, Corp, for expenses and attorneys' fees; and
3. awarding Columbia/ACC conditional contractual indemnification as against second third-party defendant Workwell Partners, Corp, for any amount, payment, judgment, settlement, mediation or arbitration award;
And the balance of the motion is otherwise denied; and it is further
ORDERED that plaintiffs cross-motion for partial summary judgment on liability on his Labor Law §§ 240(1) and 241(6) claims (motion sequence no. 006) is granted to the extent of granting summary judgment on liability as against defendants Trustees of Columbia University in The City of New York incorrectly sued herein as Columbia University and The Trustees of Columbia University and ACC Construction Corp, incorrectly sued herein as ACC Construction Management Corp, on his Labor Law § 240(1) claim, with the issue of plaintiffs damages to await the trial of this action, and the balance of the motion is otherwise denied.
ORDERED that the parties are to appear for a settlement/trial scheduling conference in person at 71 Thomas Street, Room 305, on May 29, 2024, at 9:30 a.m.