Opinion
13658/04.
Decided January 7, 2010.
Upon the foregoing papers, the motions and cross motions are decided as indicated.
Defendant Kel Tech Construction, Inc. (hereinafter, "Kel Tech") moves by notice of motion (Motion No. 2086) for summary judgment and dismissal of the complaint and all cross claims as against it; Second Third-Party Defendant GRB Environmental Services (hereinafter, "GRB") moves by amended notice of motion (Motion No. 2096) for summary judgment dismissing the second third-party complaint; Defendant/Third-Party Defendant Arena Construction Co., Inc. (hereinafter, "Arena") cross-moves (Motion No. 2539) for summary judgment dismissing the third-party complaint and all cross claims as against it; Plaintiff John Moore (hereinafter, "Moore") cross-moves (Motion No. 3116) for partial summary judgment on the issue of liability against the City and Skanska predicated upon alleged violations of Labor Law §§ 240(1) and 241(6). Defendants/Third-Party plaintiffs New York City Economic Development Corp., New York City Department of Transportation (hereinafter, collectively, the "City") and Barney Skanska Construction Co. (hereinafter, "Skanska") oppose all enumerated motions. Defendant Kel Tech and Defendant/Third-Party Defendant Arena oppose plaintiff's cross motion only.
The original motion by GRB dated June 26, 2009 (Motion No. 2221-006) is deemed superceded by the amended motion dated June 29, 2009 (Motion No. 2096-005).
In his moving papers, plaintiff has withdrawn his Labor Law claims against defendants Kel Tech and Arena, but continues to allege that both are liable under a theory of common-law negligence.
This litigation devolves from an accident involving plaintiff which occurred during a construction project on September 16, 2004 on the first floor of the St. George Ferry Terminal on Staten Island. On said date, Moore, an ironworker employed by A.J. McNulty and Co., Inc., was assisting his co-workers in installing a steel beam. The beam itself was being hoisted by a crane and Moore was standing on top of the elevator shaft wall on a concrete floor with underlying cinder blocks at the edge of an elevator shaft in order to help guide the beam into place. According to plaintiff, the accident occurred when the cinder blocks on which he was standing "broke off", causing him to fall backwards into the open elevator shaft and sustain personal injuries.
It is uncontroverted that the City, as the owner of the premises, had hired Skanska as its construction manager for the St. George Terminal project. It is also undisputed that Skanska, in turn, retained defendant Kel Tech, inter alia, to complete the masonry work started by non-party Shroid Construction, including the installation of the concrete cinder block walls inside the elevator shaft where the accident occurred. Defendant Arena was another sub-contractor hired by Skanska to provide laborers for the construction project. Insofar as it appears, GRB was also retained to provide an on-site safety officer, Hugh G. Gray, Jr., to ensure that the work proceeded safely.
Plaintiff commenced this action by the filing and service of a summons with complaint upon the prime defendants on or about December 28, 2004. A supplemental summons with complaint was filed and served upon defendant Arena on or about December 20, 2005 adding them as a prime defendant. Issue was joined by the service of answers by the City and Skanska on or about April 7, 2005; by Kel Tech on or about January 31, 2005; and by Arena on or about January 17, 2006. The third-party action was commenced by the City and Skanska on or about May 19, 2005, and issue joined therein by the service of an answer by third-party defendant Arena on or about August 1, 2005. The second third-party action was commenced by the City and Skanska on or about December 26, 2007, and issue in that action was joined by the service of an answer by second third-party defendant GRB on or about April 8, 2008. A Note of Issue was filed on January 20, 2009. By order of this Court the time to file these motions was extended for good cause shown. Hence, each of the motions is timely.
Labor Law § 200Labor Law § 200 is essentially a codification of the common-law duty placed upon owners and contractors to provide employees with a safe place to work ( Jack v. Fien, 80 NY2d 965, 967; DeBlase v. Herbert Constr. Co., 5 AD3d 624). Under this section liability is limited to parties who exercise supervision or control over the work out of which the injury arises, or who create or have actual or constructive notice of an unsafe condition which causes the injury ( see Rizzuto v. L.A. Wenger Contr. Co., 91 NY2d 343, 352; Ortega v. Puccia, 57 AD3d 54, 60-63; Seepersaud v. City of New York, 38 AD3d 753, 755).
Labor Law § 240(1)As is relevant, Labor Law § 240(1) provides:
"All contractors and owners and their agents [with exceptions not here relevant]. . .in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed."
It is well settled that this section of the Labor Law has been held to apply to all general contractors, owners and the agents of either (except the owners of one-or two-family dwellings), who contract for but do not direct or control the work out of which the injury arises. This provision was specifically enacted to protect workers from the "special hazards" posed by certain "gravity-related" accidents ( see e.g. Ross v. Curtis-Palmer Hydro-Electric Co., 81 NY2d 494, 501), and accordingly imposes absolute liability on the parties best situated to require the use of the enumerated safety devices designed to prevent accidents by the construction, placement and operation of such devices so as to give proper protection to a person so employed at a construction site ( see Zimmer v. Chemung County Performing Arts, Inc., 65 NY2d 513, 520-521). While the Court of Appeals has said that the statute must be construed liberally to achieve its intended purpose, it has also cautioned that its application must not be strained to encompass risks which the Legislature never intended to encompass ( see Blake v. Neighborhood Hous. Servs. Of NY City, 1 NY3d 280, 292). Thus, it has been held that Labor Law § 240(1) does not apply to any and all perils that may be connected in some way with the effects of gravity ( see Rocovich v. Consolidated Edison Co., 78 NY2d 509), but is restricted in application to those circumstances where, e.g., "protective devices are called for either because of a difference between the elevation level of the required work and a lower level or difference between the elevation level where the worker is positioned and the higher level of the materials or load being hoisted or secured" ( id. at 514), i.e., the so-called "falling object" and "falling worker" line of cases ( see Narducci v. Manhasset Bay Assoc., 96 NY2d 259, 268).
Labor Law § 241(6)Labor Law § 241(6) provides as follows:
"All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, when constructing or demolishing buildings or doing any excavating in connection therewith, shall comply with The following requirements:
(6) 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. The commissioner may make rules to carry into effect the provisions of this subdivision, and the owners and contractors and their agents for such work, except owners of one and two-family dwellings who contract for but do not direct or control the work, shall comply therewith.
Since it has consistently been held that this section of the Labor Law was enacted to provide reasonable and adequate safety protection for all workers engaged in construction, demolition or excavation, without regard to any height differential ( Ross v. Curtis-Palmer Hydro-Electric Co., 81 NY2d at 501-502). This non-delegable duty of compliance imposed by statute is broad enough to cover all general contractors, owners and their agents who violate such specific rules and regulations pertaining to safety as may be promulgated by the Industrial Commissioner and set forth in the New York State Industrial Code where the violation constitutes a proximate cause of a worker's injury ( id. at 502-504). While this statutory responsibility is stated to be absolute notwithstanding the absence of control or supervision of the worksite by an owner or contractor ( Rizzuto v. L.A. Wenger Contr. Co., 91 NY2d at 348-349), contributory or comparative negligence on the part of the worker have long been recognized as a viable defense ( id. at 350).
In the instant case Skanska has been contractually designated as the "Construction Manager" at the St. George reconstruction project. While generally a "Construction Manager" is not considered a "contractor" or "owner" within the meaning of Labor Law sections 240(1) or 241(6), liability will be imposed upon it where the construction manager has the authority to control or supervise the work that is being performed ( Domino v. Professional Consulting, Inc., 57 AD3d 713, 714-715; Borbeck v. Hercules Constr. Corp., 48 AD3d 498), because under such circumstances, the construction manager has been given the authority and duties of an agent of an owner or general contractor ( Walls v. Turner Constr. Co., 4 NY3d 861, 863-864; Pino v. Irvington Union Free School Dist., 43 AD3d 1130, 1131). However, a construction manager will not be held liable under Labor Law § 200 or common-law negligence in the absence of evidence that it controlled or supervised the work or manner of work from which the injuries arose ( Ortega v. Puccia, 57 AD3d 54; Delahaye v. Saint Ann's School, 40 AD3d 679).
Summary Judgment
Summary judgment is a drastic remedy that should be granted only if no triable issues of fact exist and the movant is entitled to judgment as a matter of law ( see Rotuba Extruders v. Ceppos, 46 NY2d 223; Herrin v. Airborne Freight Corp., 301 AD2d 500). On a motion for summary judgment, the function of the court is issue finding, not issue determination ( see Weiner v. Ga-Ro Die Cutting, 104 AD2d 331, affd 65 NY2d 732). In making such an inquiry, the proof must be scrutinized carefully in the light most favorable to the party opposing the motion ( see Glennon v. Mayo, 148 AD2d 580). To prevail upon the motion, the moving party must present prima facie evidence of its entitlement to judgment as a matter of law ( Alvarez v. Prospect Hosp., 68 NY2d 320, 324). Upon its failure to do so, the motion will be denied. Once a prima facie showing has been made, however, the burden shifts to the party opposing the motion to produce competent evidence demonstrating the existence of triable issues of fact ( Zuckerman v. City of New York, 49 NY2d 557, 562). In this regard, "mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" to raise a triable issue ( id. at 562). Thus, summary judgment, is only appropriate where the movant's initial burden of proof has been satisfied, and the opposing party has failed to adduce competent evidence demonstrating the presence of a genuine issue of material fact ( Persaud v. Darbeau, 13 AD3d 347).
With these criteria in mind, the Court will first consider plaintiff's cross motion for partial summary judgment against the City and Skanska on the issue of liability under Labor Law § 240(1), 241(6).
While not so denominated, plaintiff uses his cross motion to state opposition to the motions by Kel-Tech and Arena seeking summary judgment dismissing the complaint as against each.
In support of his application, Moore has submitted an attorney's affirmation, a notice to admit and a memorandum of law. In addition, Moore relies upon numerous exhibits attached to the other moving papers, including his own deposition testimony and that of others. Based upon these evidentiary offerings, plaintiff maintains that it is uncontroverted that (1) he is a member of the class of workers that Labor Law § 240(1) and 241(6) were designed to protect; (2) these statutes were violated by the City and Skanska, and (3) such violations were a substantial factor in causing his fall into an unprotected open elevator shaft. Specifically with respect to Labor Law § 241(6), Moore claims that the City and Skanska violated Industrial Code sections 23-1.7 and 23-2.5 ( 12 NYCRR §§ 23-1.7, 23-2.5) which relate to protection from falling into hazardous openings, and the creation and need for plank platforms within an elevator shaft. Thus, Moore contends he is entitled to partial summary judgment under Labor Law §§ 240(1) and 241(6) as against the City and Skanska.
Moore stated in his deposition testimony that at the time of the accident he had not been provided with and was not wearing a safety harness, or otherwise secured or attached by a rope or wire (Moore E/B/T p. 37).
In opposition, the City and Skanska have submitted an attorney's affirmation, the deposition testimony of Thomas Lyons (Kel-Tech Foreman and hereafter "Lyons"), Hugh G. Gray, Jr. (GRB Site-Safety Manager and hereafter "Gray"), Samer Alacha (Skanska's Project Manager and hereafter "Alacha"), and an accident report prepared by Mr. Gray. Based upon these evidentiary offerings, the City and Skanska contend that numerous triable issues of fact exist such as whether plaintiff was given proper safety equipment. This assertion is based on hearsay information provided by Moore's co-workers that he was wearing a safety vest and lanyard at the time of the accident. In addition, there is testimony from Lyons that the elevator shaft was planked and guarded in compliance with the applicable sections of the Industrial Code sections. As for Skanska, the latter alleges that it did not control or supervise plaintiff's work, and was unaware that Moore would be using the elevator wall as a work platform. Thus, the City and Skanska contend that they should not be subjected to summary judgment.
Kel-Tech and Arena also oppose plaintiff's cross motion but their papers are more directly applicable to plaintiff's opposition to their respective motions for dismissal of the complaint and will be discussed in that context.
Applying the relevant criteria and viewing the evidence in a light most favorable to the opponents of plaintiff's cross motion, the Court finds that triable issues exist including, but not limited to whether Moore was provided with a safety harness and failed to use it, as well as whether the elevator shaft was properly blocked and the scaffold planked as required by the Industrial Code. Thus, plaintiff's cross motion must be denied. Next, the Court will consider Kel-Tech's motion for summary judgment.
In support of its motion, Kel-Tech has submitted an attorney's affirmation, a copy of the pleadings, plaintiff's deposition testimony, further deposition testimony by Alacha, Lyons, Victor Vitale (Project Manager for Arena and hereafter, Vitale), Gray, photos of debris in the elevator shaft, copies of the jobsite incident and accident reports, a copy of a Kel-Tech memorandum detailing its work schedule at the accident site, Arena work logs, Gray's accident report, an affidavit by Lisa Alongi (a Skanska paralegal), a copy of the takeover agreement between Safeco Insurance Company of America, as Surety, and the City in reference to the Shroid Construction, Inc. (hereinafter "Shroid") bankruptcy petition, and daily reports generated by Skanska from September 1, 2004 to September 16, 2004. According to Skanska, the reports from July 1, 2004 thru August 31, 2004 cannot be located.
Based upon these submissions, Kel Tech claims that pursuant to its takeover agreement with the City following the bankruptcy of Shroid, it was hired to perform the remaining masonry work at the St. George Staten Island Ferry Terminal construction project, including the installation of the concrete cinder-block walls inside the elevator shaft where plaintiff fell. Then, on July 23, 2004, i.e., some several weeks before the accident occurred, Skanska ordered Kel Tech to stop working on the elevator shaft because the shaft walls were too high for the structural steel that needed to be installed. When Kel Tech stopped work on the elevator shaft, it was properly planked up to the ground to prevent any falls into the opening, and its opening was guarded with cross beams and three separate railings to prevent anyone from entering the shaft. Insofar as it appears, sometime thereafter but before the happening of plaintiff's accident, Skanska directed Mario Nicklo (a laborer supplied to Skanska but paid by Arena) to remove some of the cinder-blocks in the shaft so that the structural steel beams could be installed. In performing the work, Mr. Nicklo removed and rearranged some of the planking previously installed by Kel-Tech, as well as the guard rails prohibiting entry into the shaft where many cinder-blocks had been removed or weakened by the use of a chipping gun. Kel-Tech was not present, nor did it control, supervise or direct any of the work done by Mr. Nicklo. Thus, Kel-Tech contends that its work on site was proper and in no way was a substantial factor in causing plaintiff's accident.
In opposition, the City and Skanska have submitted an attorney's affirmation and the deposition testimony of Lyons, Gray and Alacha. Based upon these submissions, the City and Skanska contend that Kel Tech breached its duty to plaintiff by (1) improperly planking the scaffolding by allowing a two-and-one-half foot gap to exist all around the shaft, and (2) improperly securing the work site. Relying upon the deposition testimony by Mr. Alacha, they further contend that Kel Tech has failed to demonstrate prima facie that it was directed away from the work site by Skanska where the accident occurred. Plaintiff also opposes Kel Tech's motion by stating in conclusory fashion general principles of law without any specific reference to Kel Tech's alleged violation of duty to plaintiff.
Notwithstanding the self-serving deposition testimony of Alacha, this Court concludes, based upon all the other exhibits and deposition testimony, that Kel Tech has demonstrated that it neither directed nor controlled the chipping work that created a dangerous condition by compromising the cinder-block wall, and that it was directed by Skanska to work elsewhere when Mr. Nicklo compromised the location at Skanska's direction by chipping the walls, rearranging the scaffolding and planking, and removing the cross-beams and guard rails installed by Kel Tech to secure the area. Since the plaintiff has withdrawn all claims against Kel Tech sounding in Labor Law §§ 240(1) and 241(6), this Court concludes that Kel Tech has demonstrated prima facie its lack of negligence under Labor Law § 200 and common-law negligence as a matter of law and thus is entitled to a dismissal of the complaint and all cross claims against it. Next, the Court will consider the amended notice of motion by second third-party defendant GRB.
Plaintiff concedes in his cross motion that Arena laborers, and in particular Mr. Nicklo, were controlled and directed by Skanska during the demolition of the critical parts of the wall inside the elevator shaft. Additionally, Mr. Alacha, Vitale, and Gray all testified that they were aware of such demolition work.
In support of its application for summary judgment, GRB has submitted an attorney's affirmation, a copy of plaintiff's bill of particulars, case law, a transcript of the plaintiff's 50-h hearing, the deposition testimony of plaintiff, Alacha, Lyons, Gray and Vitale, Skanska's purchase order, an affidavit by Jill Braverman (Assistant General Counsel at the New York City Economic Development Corporation) and a copy of all of the pleadings. Based upon these submissions, GRB contends that the second third-party complaint should be dismissed since its role and function at the construction site was limited by Skanska to monitoring the trade contractors' compliance with the safety regulations of the building code. As such, GRB lacked the authority to correct violations, and could only advise trade contractors of any violation so that the offending party could remedy the violation itself. GRB further contends that (1) it did not direct, supervise or control the means and methods of plaintiff's work; and (2) it did not perform any of the masonry, scaffold, construction, carpentry or general contractor work at the job site. Moreover, under its contract, GRB was required to provide only one on-site safety manager for the approximately 180,000 square foot area contained within the perimeter of the project, and is entitled to the same immunities as a New York City Building Inspector possesses while performing the same function. Thus, GRB contends that the second third-party complaint sounding in contractual indemnification should be dismissed as against it as it was neither negligent in the performance of its duties nor performed any act that was a substantial factor in causing plaintiff's accident.
In opposition, the City and Skanska have submitted an attorney's affirmation, a copy of the relevant incident report, the deposition testimony of Alacha and Gray, Skanska's purchase order with GRB, and affidavits by Alacha and Cira Petino (Skanska's Office Manager). Based upon these submissions, the City and Skanska allege that triable issues of fact exist as to GRB's negligence, and whether such negligence was a substantial factor in causing plaintiff's accident.
It is uncontroverted that Gray was aware of the demolition occurring inside the elevator shaft and, as it occurred, the shaft was not blocked off. In addition, there is no evidence that while he observed the demolition, he ever inspected the wall or checked the stability of the cinder-blocks; or advised the trades to blockade the opening at the end of each day's work. Accordingly, on the papers before this Court, it cannot be said as a matter of law that Gray's omissions may not have constituted negligence on the part of GRB nor been a substantial factor in causing plaintiff's accident. Once again, viewing the evidence in a light most favorable to the opponents of summary judgment (the City and Skanska), this Court is of the opinion that triable issus of fact exist, such that GRB's motion for summary judgment must be denied ( see Hanley v. McClier Corp., 63 AD3d 453 cf. Waller v. Site Safety LLC, 28 AD3d 236). Finally, the Court will consider the cross motion by Arena.
In support of its application, Arena has submitted an attorney's affirmation, a copy of the pleadings, a transcript of plaintiff's 50-h hearing, the deposition testimony by Alacha, Lyons and Vitale, work logs, daily reports, and a copy of their contract with the City. Based upon these submissions, Arena contends that no triable issues of fact exist upon which liability might be imposed upon it, and asks that the complaint, third-party complaint, and any cross claims against it be summarily dismissed. In particular, Arena concedes that it paid and provided laborers to Skanska at the construction project to perform interior finish work, but avers that this was the only group of laborers directed and controlled by Arena. Notwithstanding, it had also provided another group of laborers, who were directed and controlled by Skanska including Mr. Nicklo, who was allegedly in the latter group. Moreover, both the deposition testimony by Vitale and the daily work logs clearly show that Skanska rather than Arena, directed and controlled Nicklo's work, including the demolition within the elevator shaft where the accident occurred. Thus, it is argued that since Arena neither directed nor controlled Nicklo, or any other workers operating within the elevator shaft, no theory of liability can lie against it. This Court agrees and based on the foregoing concludes that Arena has demonstrated prima facie its entitlement to summary judgment.
In opposition, the City and Skanska have submitted an attorney's affirmation, deposition testimony by Alacha, Lyons, Gray and Vitale, and copies of certain daily reports which are alleged to dispute the allegation that Skanska directed or controlled Nicklo's on site activities. They further argue that since the daily work logs relied upon by Arena are not dated as of the date of the accident, they are not relevant. Moreover, it is alleged that to the extent that any statement by Alacha that Skanska directed the laborers provided to it by Arena, such direction was only for the purposes of general clean-up, as well as the opening and closing of the site. Thus, it is contended that triable issues of fact exist so as to preclude the granting of Arena's cross motion, especially since issues of credibility will ultimately determine which entity controlled Nicklo's activities at the site.
Plaintiff opposes Arena's cross motion in the same fashion as he did that of Skanska.
Again, notwithstanding the self-serving deposition testimony of Alacha, this Court concludes, based upon all the other exhibits and deposition testimony that Arena has prima facie demonstrated its freedom from negligence as a matter of law and its entitlement to summary judgment. It is clear that Arena neither directed or controlled the chipping work that created a dangerous condition undermining the cinder-block wall, and since plaintiff has withdrawn all claims against it sounding in Labor Law § 240(1) and 241(6), this Court concludes that no triable issue of fact exists upon which liability may be imposed upon this defendant. Thus, the complaint based upon Labor Law § 200 and/or common-law negligence and the third-party complaint seeking indemnification and all cross claims against Arena must be dismissed.
Accordingly, it is
ORDERED that the cross motion by plaintiff John Moore for summary judgment is denied; and it is further
ORDERED that the motion by defendant Kel-Tech Construction Corp., Inc. for summary judgment is granted and the complaint and all cross claims against it are severed and dismissed; and it is further
ORDERED that the cross motion by second third-party defendant GRB Environmental Services for summary judgment is denied; and it is further
ORDERED that the cross motion by defendant and third-party defendant Arena Construction Co., Inc. for summary judgment is granted, and the complaint and third-party complaint against it are severed and dismissed; and it is further
ORDERED that the cross-claims and counterclaims in the action by Arena are denied as academic; and it is further
ORDERED that the Clerk of the Court enter judgment accordingly.