Opinion
No. 104663/2008.
03-18-2015
Neil E. NALLY, Plaintiff, v. Bovis Lend Lease LMB, Inc., The John Galt Corp., The Lower Manhattan Development Corporation and The Lower Manhattan Construction Command Center, Defendants. Bovis Lend Lease Lmb, Inc., Third–Party Plaintiffs, The City Of New York, Third–Party Defendant.
Sullivan Papain Block McGrath & Cannavo, P.C., New York, for Plaintiff. Lewis Brisbois Bisgaard & Smith LLP, New York, for Defendants. Newman Myers Kreines Gross and Harris PC, New York, for Defendant/Third–Party Plaintiff Bovis Lend Lease LMB, Inc. 40 Wall Street. Frank Wright, P.C., Westhampton Beach, Zachary Carter, Esq., Corporation Counsel of the City of New York, New York, for Defendant John Galt Group.
Sullivan Papain Block McGrath & Cannavo, P.C., New York, for Plaintiff.
Lewis Brisbois Bisgaard & Smith LLP, New York, for Defendants.
Newman Myers Kreines Gross and Harris PC, New York, for Defendant/Third–Party Plaintiff Bovis Lend Lease LMB, Inc. 40 Wall Street.
Frank Wright, P.C., Westhampton Beach, Zachary Carter, Esq., Corporation Counsel of the City of New York, New York, for Defendant John Galt Group.
Opinion
KATHRYN E. FREED, J.
RECITATION, AS REQUIRED BY CPLR 2219(a), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION:
PAPERSNUMBERED
NOTICE OF MOTION AND AFFIRMATION ATTACHED (002)1, 2 (Exs.A–O)
AFFIRMATION IN OPPOSITION (002)3 (Exs.A–B)
AFFIDAVIT IN PARTIAL SUPPORT (002)4
AFFIRMATION IN REPLY (002)5 (Ex. A)
NOTICE OF MOTION AND AFFIRMATION ATTACHED (003)6, 7 (Ex. A–V)
AFFIRMATION IN OPPOSITION (003)8 (Ex. A)
AFFIDAVIT AND MEMORANDUM OF LAW IN OPPOSITION (003)9 (Exs.A–I)
REPLY AFFIRMATION (003)10 (Exs.A–C)
NOTICE OF CROSS MOTION AND AFFIRMATION ATTACHED11, 12(Exs.A–K)
MEMORANDUM OF LAW IN SUPPORT
AFFIRMATION IN PARTIAL OPPOSITION13
AFFIDAVIT AND MEMORANDUM OF LAW IN OPPOSITION14 (Ex. A)
REPLY AFFIRMATIONS15, 16
UPON THE FOREGOING CITED PAPERS, THIS DECISION/ORDER ON THIS MOTION IS AS FOLLOWS:
Motion sequence numbers 002 and 003 are consolidated for disposition.
Plaintiff Neil E. Nally, a firefighter with the New York City Fire Department (“FDNY”), brings this action to recover for personal injuries that he sustained on August 23, 2007, while assigned to duty at the building formerly known as the Deutsche Bank Building (“the building”), located at 130 Liberty Street in downtown Manhattan.
In motion sequence number 002, third-party defendant the City of New York (“the City”) moves for summary judgment dismissing the third-party complaint, as well as all cross claims asserted against it.
In motion sequence number 003, defendants The Lower Manhattan Development Corporation (“LMDC”) and The Lower Manhattan Construction Command Center (“LMCCC”) move for summary judgment dismissing plaintiff's complaint; dismissing all claims and cross claims asserted against them by Bovis Lend Lease LMB, Inc. (“Lend Lease”), The John Galt Corp. (“Galt”), and the City; and, granting their causes of action for contractual indemnification against Lend Lease and Galt.
Lend Lease cross-moves for summary judgment dismissing plaintiff's complaint; dismissing all cross claims asserted against it by LMDC and LMCCC; and dismissing any other cross claims and/or counterclaims asserted against it.
FACTUAL AND PROCEDURAL BACKGROUND:
In the months leading up to plaintiff's accident, the building was in the process of being decontaminated and deconstructed as a result of the irreparable damage that it sustained on September 11, 2001. Defendant LMDC had purchased the building from Deutsche Bank on August 31, 2004, with the goal of abating and demolishing it in preparation for redevelopment of the site. Defendant LMCCC is a subsidiary of LMDC.
By contract dated October 20, 2005, LMDC hired defendant Lend Lease to be the general contractor on the deconstruction project. LMDC also hired nonparty URS Corp (“URS”) to act as its representative in overseeing and monitoring the work at the site.
By agreement dated February 21, 2006, Lend Lease subcontracted with defendant Galt to handle the actual deconstruction, asbestos abatement, and removal of hazardous material and debris from the building.
On August 18, 2007, a few days prior to plaintiff's accident, a fatal fire had occurred at the building during Galt's decontamination/deconstruction work. Two New York City firefighters were killed and 11 others were injured while fighting the fire. During the fire, it was learned that the standpipe within the building had been partially disassembled and was not functioning, and that certain stairwells within the building had been sealed off as part of the deconstruction and abatement process. As a result of the fire and the allegedly hazardous conditions existing at the building, the New York City Department of Buildings (“DOB”) issued a “stop work” order on August 19, 2007. The stop work order temporarily halted all work at the building other than certain repair work.
Following the fire, the FDNY began an extensive investigation into the fire. During the investigation, numerous firefighters were assigned to the site on a revolving basis. Plaintiff Nally's engine company was one of several companies assigned to do duty at the site on August 23, 2007, the date of the occurrence.
On the morning of the occurrence, the Office of Emergency Management of the City of New York (“OEM”) had called a meeting to determine how work on the deconstruction project could proceed. The meeting was attended by representatives of LMDC, URS, Lend Lease, and Galt, as well as numerous city and federal agencies and regulators, including the DOB, the FDNY, the EPA, and OSHA.
According to the deposition testimony of Greg Blinn, the president and part owner of Galt, a number of differing opinions were expressed at that meeting as to how to proceed with the project. Blinn testified that the FDNY took the position that all flammable materials had to be removed from building before any further work was done. The EPA took the position that the building should be resealed, and everything fully encapsulated before any other work was done. Galt believed that there should be a cooling off period before any work was attempted, given the tensions resulting from the deaths of the two firefighters. The OEM allegedly backed the FDNY's position. LMDC, Lend Lease, and the DOB indicated that they would acquiesce to the consensus reached by the other regulatory agencies.
In the end, the FDNY's position prevailed, and Galt was ordered to clean out all flammable materials from various floors of the building. According to Blinn, the order directing Galt to perform this clean-up work went first from the FDNY to LMDC, and thereafter, from URS, LMDC's representative at the site, to Lend Lease, and finally from Lend Lease to Galt. Blinn tr., at 56. Although Galt expressed concern that it did not have enough employees at the site, Galt began the clean up that same morning on the 23rd floor of the premises. With the exception of this clean-up work and certain repair work on the scaffolding, the stop work order remained in effect.
That morning, plaintiff and another firefighter from the same engine company were assigned to stand next to the entrance of an outdoor elevator hoist, through which construction and fire department personnel entered and departed the damaged building. The two firefighters were positioned underneath a previously constructed overhead scaffold or shed, made of piping and planks. It was plaintiff's understanding that his company was there to help preserve the fire scene, and make sure that the contractors did not interfere with the fire investigation. Nally tr., at 37. According to his deposition testimony, plaintiff was tasked only with recording or logging in all contracting or fire department personnel who entered into the building; plaintiff was not tasked with checking identifications or preventing anyone from entering the hoist. Id., at 41–47, 184.
James Congimi, another firefighter with the engine company, was assigned to ride in the hoist/elevator with the elevator operator. Congimi tr., at 22. Congimi testified that he did not operate the elevator, and did nothing but stand in the back corner of the elevator and try to keep out of the way of the construction workers. Id., at 23, 26. It was Congimi's understanding that his company was assigned at the site to act as a “fire watch,” to handle matters in case there was a rekindling of the fire given the compromised fire suppression systems in the building. Id., at 26, 95–96. Although Congimi had stepped out of the elevator and was standing on the 23rd floor at the moment of the accident (id., at 35–37), Congimi testified that he never gave any directions or directives to construction workers as to how to remove materials from the building or as to what materials to remove; Congimi also never saw any of his fellow firefighters give any such directions or directives. Id., at 86–87.
The accident occurred several hours after plaintiff had been working at his assigned location. At that time, one of Galt's employees, while in the process of cleaning up and removing the flammable materials from the 23rd floor, stumbled and/or lost control of a loaded pallet jack that he was using to move the flammable materials onto the hoist for removal. The pallet jack shot through the hoist, exited out of the back of the hoist, and fell from the 23rd floor onto the overhead protection under which plaintiff was stationed. The overhead protection collapsed, causing injury to plaintiff and the other firefighter with whom he was working.
On April 1, 2008, plaintiff commenced this action, asserting causes of action for common-law negligence and violation of General Municipal Law (“GML”) § 205–a against defendants Galt, Lend Lease, LMDC, and LMCCC.
LMDC and LMCCC subsequently asserted cross claims against Galt and Lend Lease for common-law indemnification, contribution, contractual indemnification, and breach of contract with respect to certain insurance procurement provisions.
Lend Lease asserted a cross claim against Galt, LMDC and LMCCC, for common-law indemnification, contractual indemnification, and breach of contract with respect to certain insurance procurement provisions. Lend Lease also commenced a third-party action against the City, in its capacity as the operator of the FDNY, asserting causes of action for common-law indemnification and contribution.
The City subsequently asserted a counterclaim against Lend Lease, and cross claims against Galt, LMDC and LMCCC, for common-law indemnification, contribution, and/or contractual indemnification.
Galt has asserted cross claims against Lend Lease, LMDC, LMCCC, and the City for common-law indemnification and/or contribution.
By stipulation dated February 22, 2010, plaintiff withdrew all of his claims against LMCCC with prejudice. See Ex. A to LMDC's reply affirmation.
The City now moves for summary judgment dismissing Lend Lease's third-party complaint, as well as any cross claims asserted against it.
LMDC moves for summary judgment dismissing both of plaintiff's causes of action, insofar as they are asserted against it. LMDC/LMCCC also move for an order dismissing any contractual indemnification and breach of contract claims asserted against them by Lend Lease, Galt, and the City; and granting them summary judgment on their contractual indemnification claims against Lend Lease and Galt.
Lend Lease cross-moves for summary judgment dismissing plaintiff's two causes of action, insofar as they are asserted against it; dismissing LMDC's cross claim for contractual indemnification; dismissing LMCCC's cross claims for contractual indemnification and breach of contract; and dismissing all other cross claims and counterclaims asserted against it.
LEGAL DISCUSSION:
It is well settled that “[t]he 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 eliminate any material issues of fact from the case.” Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 (1985). “Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers.” Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 (1986), citing Winegrad, 64 N.Y.2d, supra at 853. Once the movant's burden is met, the burden shifts to the party opposing the motion to “present evidentiary facts in admissible form sufficient to raise a genuine, triable issue of fact .” Mazurek v. Metropolitan Museum of Art, 27 A.D.3d 227, 228, 812 N.Y.S.2d 12 (1st Dept 2006) ; see also Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 (1980). “[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, 942 N.Y.S.2d 13, 965 N.E.2d 240 (2012) (internal quotations and citations omitted). If there is any doubt as to the existence of a triable fact, the motion for summary judgment will be denied. See Rotuba Extruders v. Ceppos, 46 N.Y.2d 223, 231, 413 N.Y.S.2d 141, 385 N.E.2d 1068 (1978).
LMDC's and Lend Lease's Summary Judgment Motions to Dismiss Plaintiff's Complaint
Common–Law Negligence Claim
Plaintiff has asserted two separate bases for his common-law negligence claim against LMDC and Lend Lease: (1) the existence of a dangerous or defective condition on the premises, i.e., defendants' alleged failure to provide proper overhead protection at the site; and (2) the alleged negligent operation of the pallet jack, for which plaintiff seeks to hold defendants vicariously liable under the doctrine of respondeat superior.
Initially, LMDC and Lend Lease both move to dismiss plaintiff's cause of action for common-law negligence on the ground that this claim is barred by the principle referred to as the “firefighter's rule.”
In the event the firefighter's rule does not bar plaintiff's cause of action, LMDC moves to dismiss plaintiff's claim on the ground that plaintiff has not established a prima facie claim of negligence against it.LMDC argues that, to the extent that plaintiff alleges that his injuries resulted from a defective or dangerous condition at the site, plaintiff will need to show that LMDC created or had actual or constructive notice of the condition prior to accident. LMDC argues that plaintiff will be unable to make such a showing as there is no evidence that LMDC controlled the site at the time of the incident, or had control over the work being performed.
Additionally, to the extent that plaintiff alleges that his injuries resulted from the manner in which the Galt employee was performing his work, LMDC argues that dismissal is warranted because LMDC did not supervise or control the work that Galt was doing at the time of the occurrence; rather, there is evidence that no one from LMDC was even on the 23rd floor at the time of the accident. In any event, LMDC argues that it cannot be held vicariously liable as the employer of Galt or the Galt operator under the doctrine of respondeat superior, as the evidence establishes that Galt was retained by Lend Lease, not LMDC.
Lend Lease argues that plaintiff's negligence claim, to the extent it is based on a claimed defect in the overhead protection, must be dismissed against it, because the evidence establishes that LMDC had hired a separate scaffolding contractor to design and construct the exterior scaffolding, and that Lend Lease thus did not create the alleged dangerous condition. See Ex. A to Lend Lease reply affirmation; Woods tr., at 99. Lend Lease argues that dismissal is further warranted because plaintiff has produced no evidence, i.e., FDNY reports, violations, or stop work orders, showing that Lend Lease had actual or constructive notice of any defective condition. Lend Lease contends that the DOB never issued a violation for the overhead protection, and that the lack of any notice or violation demonstrates that the overhead protection was adequate.
To the extent that plaintiff's claim is based on the negligent manner in which Galt performed its work, Lend Lease argues that dismissal is warranted because Lend Lease did not supervise or control Galt's work. Although Lend Lease acknowledges that its superintendent, Larry Woods, was on the 23rd floor on the day of the occurrence to oversee and watch Galt remove the combustibles, the superintendent testified that he did not supervise Galt's work, and had briefly left the floor right before the accident occurred. Woods tr., at 45, 53. Instead, Lend Lease argues that the FDNY was in control of the site at the time of the occurrence, and that it was the FDNY that had directed Galt to remove the flammable materials, and that had controlled and supervised the work operation that caused the accident. See Lend Lease memorandum of law, at 8. In support of its contention, Lend Lease notes that an FDNY firefighter was on the 23rd floor at the moment of the accident, and contends that this firefighter was directing and supervising Galt's removal of the flammable materials.
Defendants' motions to dismiss plaintiff's common-law negligence claims are denied.
Plaintiff is not barred by the firefighter's rule from asserting a common-law negligence claim against LMDC and Lend Lease. It is true that, traditionally, firefighters were prohibited from recovery in negligence for injuries sustained by a firefighter in the line of duty under the common-law rule known as the “the firefighter's rule .” See Giuffrida v. Citibank Corp., 100 N.Y.2d 72, 76, 760 N.Y.S.2d 397, 790 N.E.2d 772 (2003). However, General Obligations Law § 11–106 has largely abolished the “firefighter's rule” by providing firefighters with “a cause of action in negligence for injuries suffered while in the line of duty except as to actions against municipal employers and fellow workers.”Alcalde v. Riley, 73 A.D.3d 1101, 1103, 902 N.Y.S.2d 149 (2d Dept 2010). Inasmuch as plaintiff has asserted his common-law negligence claims against LMDC and Lend Lease, and not against his municipal employer, his claims are not barred.
Dismissal of plaintiff's common-law negligence claims, insofar as they are based on a dangerous premises condition, i.e., the allegedly inadequate overhead protection, also is not warranted. “Liability for a dangerous condition is generally predicated on either ownership, control or a special use of the property.” Lopez v. Allied Amusement Shows, Inc., 83 A.D.3d 519, 921 N.Y.S.2d 231 (1st Dept 2011), citing Balsam v. Delma Eng'g Corp., 139 A.D.2d 292, 296, 532 N.Y.S.2d 105 (1st Dept 1988).
Here, LMDC admits that it was the owner of the premises. While there can be no liability for a dangerous condition absent proof that an owner either created the dangerous condition or had actual or constructive notice of it (see Gordon v. American Museum of Natural History, 67 N.Y.2d 836 [1986] ), it was incumbent on LMDC, as the party moving for summary judgment, to demonstrate the merits of its defense by the submission of evidence in admissible form. See Lennard v. Mendik Realty Corp., 8 N.Y.3d 909, 910, 834 N.Y.S.2d 57, 865 N.E.2d 1223 (1st Dept 2007). That burden is not met merely by pointing to perceived deficiencies in plaintiff's proof. See DeMilia v. DeMico Bros., 294 A.D.2d 264, 741 N.Y.S.2d 873 (1st Dept 2002). Since LMDC has failed to meet its initial burden by producing any evidence establishing that it had no actual or constructive notice of the allegedly defective condition, summary judgment is not warranted.
Lend Lease's motion, insofar as it seeks summary judgment dismissing that part of plaintiff's negligence claim based on an allegedly dangerous condition at the premises, also is denied. Although a contractor hired to perform work at a particular location is not generally liable to a third-party either in tort or for the breach of an underlying contract which injures a third party, it can be held liable where: (1) the contracting party, in failing to exercise reasonable care in the performance of his duties, creates a dangerous condition; (2) “the plaintiff detrimentally relies on the continued performance of the contracting party's duties”; or (3) “the contracting party has entirely displaced the other party's duty to maintain the premises safely.” Espinal v. Melville Snow Contr., Inc., 98 N.Y.2d 136, 139–140, 746 N.Y.S.2d 120, 773 N.E.2d 485 (2002). Although Lend Lease has submitted evidence to show that it did not erect the scaffolding, and thus did not create the allegedly dangerous condition, it may have agreed, under the terms of its contract with LMDC, to assume responsibility for the scaffolding, and “the maintenance, repair, insurance, and dismantling thereof,” upon its acceptance of the scaffolding and pursuant to an acceptance procedure set forth in the contract.
To the extent that Lend Lease was responsible for maintaining overhead protection, it also failed to meet its burden of establishing that it did not have actual or constructive notice of the allegedly dangerous condition. Although Lend Lease asserts that the DOB never issued any violation for the overhead protection, it has provided no evidentiary support for this assertion. Nor has Lend Lease offered any evidence with respect to when or by whom the scaffolding was last inspected prior to the accident. See, e.g., Williams v. Yang Qi Nail Salon, Inc., 113 A.D.3d 843, 845, 979 N.Y.S.2d 625 (2d Dept 2014) (“to meet its initial burden on the issue of lack of constructive notice, [defendant] was required to offer some evidence as to when the area in question was last inspected relative to the accident” [internal citations, quotation marks, and alterations omitted] ).
Insofar as plaintiff seeks to impose vicarious liability on LMDC under the doctrine of respondeat superior for the allegedly negligent operation of the pallet jack, summary judgment dismissing that part of plaintiff's claim is granted. “The doctrine of respondeat superior renders an employer vicariously liable for torts committed by an employee acting within the scope of the employment.” Selmani v. City of New York, 116 A.D.3d 943, 943–944, 984 N.Y.S.2d 114 (2d Dept 2014). However, as a general rule, an employer may not be held liable for an independent contractor's negligent acts. See Brothers v. New York State Elec. & Gas Corp., 11 N.Y.3d 251, 257, 869 N.Y.S.2d 356, 898 N.E.2d 539 (2008) ; Kleeman v. Rheingold, 81 N.Y.2d 270, 273, 598 N.Y.S.2d 149, 614 N.E.2d 712 (1993). The rationale underlying this rule is that “one who employs an independent contractor has no right to control the manner in which the work is to be done and, thus, the risk of loss is more sensibly placed on the contractor.” Brothers, 11 NY3d, supra at 257–258, quoting Kleeman, 81 N.Y.2d, supra at 274 (internal quotations omitted). Thus, our courts have held that “[t]he determination of whether an employer-employee relationship exists turns on whether the alleged employer exercises control over the results produced, or the means used to achieve the results. Control over the means is the more important consideration.” Fenster v. Ellis, 71 A.D.3d 1079, 1080, 898 N.Y.S.2d 582 (2d Dept 2010), quoting Abouzeid v. Grgas, 295 A.D.2d 376, 377, 743 N.Y.S.2d 165 (2d Dept 2002).
Here, LMDC has produced evidence sufficient to establish that Galt and its pallet operator were not employees of LMDC. Specifically, the evidence establishes that the pallet operator was an employee of Galt, and that Galt was hired by Lend Lease, not LMDC, as a subcontractor on the project. Additionally, LMDC has adduced evidence that it was not present at the scene, and that it did not control the results or means by which Lend Lease's subcontractor performed its work at the time of the accident.
Lend Lease's motion for summary judgment dismissing this part of plaintiff's claim will, however, be denied. In support of its motion, Lend Lease submits the deposition testimony of superintendent Woods to establish that it was not supervising Galt's work at the time of the accident, but was there merely to observe. However, superintendent Woods also testified that he had been directed by Lend Lease to accompany Galt to oversee the removal of combustibles, and to watch Galt's employees to ensure that they removed everything he believed to be combustible from the floor. Woods tr., at 45, 53. The evidence is sufficient to raise a triable issue of fact with respect to Lend Lease's direction and control of the results of the clean-up work being performed by Galt at the time of the occurrence. See Lopez, 83 AD3d, supra at 520 (while mere retention of general supervisory powers over an independent contractor cannot form a basis for the imposition of liability against the principal, “if the employer assumes control over the details of the work or some part of it, then the general rule will not apply, and the employer may be liable”).
General Municipal Law § 205–a Claim
GML § 205–a affords an injured firefighter the right to recover against any party whose neglect or omission to comply with governmental requirements results, directly or indirectly, in the firefighter's injury. See Giuffrida v. Citibank Corp., 100 N.Y.2d, supra at 79; Zanghi v. Niagara Frontier Transp. Commn., 85 N.Y.2d 423, 441, 626 N.Y.S.2d 23, 649 N.E.2d 1167 (1995). As currently amended, GML § 205–a provides, in pertinent part:
In addition to any other right of action or recovery under any other provision of law, in the event any accident, causing injury, death or a disease which results in death, occurs directly or indirectly as a result of any neglect, omission, willful or culpable negligence of any person or persons in failing to comply with the requirements of any of the statutes, ordinances, rules, orders and requirements of the federal, state, county, village, town or city governments or of any and all their departments, divisions and bureaus, the person or persons guilty of said neglect, omission, willful or culpable negligence at the time of such injury or death shall be liable to pay any officer, member, agent or employee of any fire department injured, or whose life may be lost while in the discharge or performance at any time or place of any duty imposed by the fire commissioner, fire chief or other superior officer of the fire department ...
(Id. ).
Our courts have held that:
[t]o make out a valid claim under [GML] § 205–a, and [to] survive a motion to dismiss, a plaintiff must [1] identify the statute or ordinance with which the defendant failed to comply, [2] describe the manner in which the firefighter was injured, and [3] set forth those facts from which it may be inferred that the defendant's negligence directly or indirectly caused the harm to the firefighter.
Giuffrida, 100 N.Y.2d supra, at 79, quoting Zanghi, 85 N.Y.2d, supra at 441. The “directly or indirectly” language employed in GML § 205–a “has been accorded broad application by the courts, in light of the clear legislative intent to offer firefighters greater protections.” Cusumano v. City of New York, 15 N.Y.3d 319, 325, 910 N.Y.S.2d 410, 937 N.E.2d 74 (2010), quoting Giuffrida, 100 N.Y.2d, supra at 80. The plaintiff “is not required to show the same degree of proximate cause as is required in a common-law negligence action.” Giuffrida, 100 N.Y.2d supra, at 81 (internal quotation marks omitted). Rather, “a plaintiff need only establish a practical or reasonable connection between the statutory or regulatory violation and the claimed injury.” Id. (internal quotation marks omitted).
As predicates for his GML § 205–a claim, plaintiff cites to the Administrative Code of the City of New York §§ 27–127, 27–128 and 27–1009, as well as to New York State Industrial Code §§ 23–1.5 and 23–1.7.
In his complaint and bill of particulars, plaintiff additionally cited the following as predicates for his cause of action: New York State Administrative Code §§ 26–228, 26–235, 26–236, 27–147, 27–1005, 27–1010, 27–1012, 27–1014, 27–1017, 27–1018, 27–1019, 27–1021, 27–1022, 27–1024, 27–1030, 27–1036, 27–1038, 27–1039, 27–1054, 27–1061, 27–1062; Industrial Code §§ 8–1.7, 8–1.9, 8–1.41, 23–1.6, 23–1.12, 23–1.14, 23–1.27, 23–1.28, 23–1.33, 23–2.1, 23–3.2, 23–3.3, 23–3.4, 23–9.2, 23–9.8; 29 CFR 1910 .212, 1910.243, 1926.305, 1926.552, 1926.602, and 1926.856. As plaintiff has not addressed defendants' allegations that these provisions are inapplicable or were not violated, plaintiff is deemed to have abandoned these provisions as bases for liability (cf Perez v. Folio House, Inc., 123 A.D.3d 519, 999 N.Y.S.2d 29 [1st Dept 2014] [Industrial Code regulations on which plaintiff predicated his § 241(6) claim, but failed to address, indicates that he has abandoned them as bases for liability] ).
Administrative Code § 27–127 (repealed effective July 1, 2008, and recodified at Administrative Code § 28–301.1), which sets forth a general requirement to maintain buildings and their parts in a safe condition, provides:
Maintenance requirements. All buildings and all parts thereof shall be maintained in a safe condition. All service equipment, means of egress, devices, and safeguards that are required in a building by the provisions of this code or other applicable laws or regulations, or that were required by law when the building was erected, altered, or repaired, shall be maintained in good working order.
Administrative Code § 27–128 (repealed effective July 1, 2008, and recodified at Administrative Code § 28–301.1), which sets forth an owner's responsibility for such maintenance, provides:
Owner responsibility. The owner shall be responsible at all times for the safe maintenance of the building and its facilities.
Additionally, Administrative Code § 27–1009 provides, in pertinent part:
General requirements. (a) A contractor engaged in building work shall institute and maintain safety measures and provide all equipment or temporary construction necessary to safeguard all persons and property affected by such contractor's operations.
Our courts have held that violations of Administrative Code §§ 27–127 and 27–128 provide a sufficient predicate for liability under General Municipal Law § 205–a. See Cusumano v. City of New York, 104 A.D.3d 639, 641, 960 N.Y.S.2d 194 (2d Dept 2013) (citations omitted).
Industrial Code 12 NYCRR § 23–1.5(a) provides:
Health and safety protection required. All places where employees are suffered or permitted to perform work of any kind in construction, demolition or excavation operations shall be so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection for the lives, health and safety of such persons as well as of persons lawfully frequenting the area of such activity. To this end, all employers, owners, contractors and their agents and other persons obligated by law to provide safe working conditions, personal protective equipment and safe places to work for persons employed in construction, demolition or excavation operations and to protect persons lawfully frequenting the areas of such activity shall provide or cause to be provided the working conditions, safety devices, types of construction, methods of demolition and of excavation and the materials, means, methods and procedures required by this Part (rule). No employer shall suffer or permit an employee to work under working conditions which are not in compliance with the provisions of this Part (rule), or to perform any act prohibited by any provision of this Part (rule).
Industrial Code 12 NYCRR § 23–1.7 provides, in pertinent part:
(a) Overhead hazards.
(1) Every place where persons are required to work or pass that is normally exposed to falling material or objects shall be provided with suitable overhead protection. Such overhead protection shall consist of tightly laid sound planks at least two inches thick full size, tightly laid three-quarter inch exterior grade plywood or other material of equivalent strength. Such overhead protection shall be provided with a supporting structure capable of supporting a loading of 100 pounds per square foot.
(2) Where persons are lawfully frequenting areas exposed to falling material or objects but wherein employees are not required to work or pass, such exposed areas shall be provided with barricades, fencing or the equivalent in compliance with this Part (rule) to prevent inadvertent entry into such areas.
Our courts have held that a violation of the provisions of Industrial Code § 1.7 also can serve as a sufficient predicate for liability under GML § 205–a. See Bongiovanni v. KMO–361 Realty Assoc., 268 A.D.2d 365, 702 N.Y.S.2d 263 (1st Dept 2000) ; Scollin v. Theater for New City Found., 229 A.D.2d 355, 646 N.Y.S.2d 323 (1st Dept 1996).
LMDC argues that plaintiff's GML § 205–a claim must be dismissed against it, because plaintiff will be unable to show that these regulations or statutes are factually applicable to LMDC, or that LMDC violated them. More specifically, LMDC argues that plaintiff has produced no evidence, other than a purported expert affidavit, to suggest that the overhead protection was deficient or violated any code or statute, or that the alleged deficiencies in the overhead protection either directly or indirectly caused plaintiff's injuries. LMDC argues that the expert affidavit, which plaintiff submitted in opposition to its motion, should not be considered because the expert was not disclosed by plaintiff prior to his filing the note of issue, and because no curriculum vitae was attached to the expert affidavit. In any event, LMDC argues that the affidavit lacks any probative value because the expert's conclusion, that the scaffolding was inappropriately constructed, designed and maintained, was based on limited documentation, was not based on any personal inspection of the scaffold or pallet jack, and did not identify the technical or engineering principles, or accepted industry standards or practices, on which the expert based his conclusion. LMDC further argues that plaintiff's claim, that the inadequate overhead protection directly or indirectly caused his injury, is far-fetched and unsupported, as the evidence establishes that it was the pallet jack falling out of the building that caused the scaffold to collapse. LMDC additionally argues that any connection between the cause of the August 18, 2007 fire and the cause of plaintiff's injuries from the pallet jack is neither reasonable nor practical.
Lend Lease argues that plaintiff's GML § 205–a claim against it must be dismissed because a contractor can be held liable under this provision only if it was in control of the premises at the time of the injury (citing Zanghi, 85 N.Y.2d, supra at 445 [GML § 205–a claim dismissed against contractors that “had no control over the premises at the time of the injury to the firefighters, having completed their engagements some 12 years prior to that date”] ). Lend Lease argues that here, there is evidence that the FDNY, not Lend Lease, had control of the premises and the operations at the project during the days following the fatal fire of August 18, 2007.
Lend Lease argues that dismissal of plaintiff's GML § 205–a claim is further warranted because Administrative Code §§ 27–127 and 27–128 apply only to the owner of the premises, and Lend Lease was not an owner. Lend Lease argues that Industrial Code 12 NYCRR § 23–1.5 is too general to sustain a GML § 205–a claim, and that Industrial Code 12 NYCRR § 23–1.7 is not applicable to the facts of this case, because this code provision applies only to places “normally exposed to falling material or objects.” 12 NYCRR § 1.7(a)(1). Lend Lease argues that because the falling pallet jack was an unexpected and one-time event, and there is no evidence that the area was otherwise frequently exposed to falling material, no overhead protection was required in the area where the accident occurred (citing Buckley v. Columbia Grammar & Preparatory, 44 A.D.3d 263, 841 N.Y.S.2d 249 [1st Dept 2007] [section 23–1.7 not applicable where plaintiff hit by falling counterweights that were dislodged while testing operation of car elevator platform]; Favia v. Weatherby Constr. Corp., 26 A.D.3d 165 [1st Dept 2006] [section 23–1.7 not applicable where plaintiff injured by cement blocks falling from a newly completed wall] ).
In any event, Lend Lease argues that, even if section 23–1.7 were applicable to the facts of this case, dismissal is warranted because there was no violation of this provision. Rather, the evidence establishes that the overhead protection was adequate, as it diffused the impact of the falling pallet jack, and thus did exactly what it was designed to do. Lend Lease further argues that, because the scaffolding contractor had erected the overhead protection as an extra safety measure, and the scaffold had prevented a direct blow to plaintiff, Administrative Code § 1009(a) also was not violated.
LMDC's motion to dismiss plaintiff's GML § 205–a claim is denied. Here, plaintiff has set forth sufficient facts from which it could be inferred that defendant's alleged negligence in failing to provide adequate overhead protection may have directly or indirectly caused plaintiff's injury. Consequently, LMDC, as the party moving for summary judgment to dismiss plaintiff's GML § 205–a claim, bore the initial burden of establishing “either that it did not negligently violate any relevant government provision or that, if it did, the violation did not directly or indirectly cause plaintiff's injuries.” Giuffrida, 100 N.Y.2d, supra at 82. “Only if the defendant sustains this burden must the plaintiff raise a triable issue of fact as to whether the alleged code violations directly or indirectly caused his injuries.” Zvinys v. Richfield Inv. Co., 25 A.D.3d 358, 359, 808 N.Y.S.2d 640 (1st Dept 2006). Since LMDC has failed to meet its burden of establishing that it did not violate any of the relevant provisions, or that the violation did not directly or indirectly cause plaintiff's injuries, plaintiff was not required to submit evidence sufficient to raise a triable issue of fact as to whether the alleged violations were a direct or indirect cause of his injuries. Additionally, as plaintiff has established that he was injured while in the discharge or performance of his assigned duty to help preserve the scene of the fire, there was no need for plaintiff to establish any connection between the cause of plaintiff's injuries and the cause of the earlier fire.
Lend Lease's motion for summary judgment dismissing plaintiff's GML § 205–a claim also is denied. Although Lend Lease contends it cannot be held liable under GML § 205–a because it was not in “control” of the site on the day of the accident, Zanghi also provides that, “[u]nder the terms of the statute, a contractor may be held liable if employed on the premises or engaged in maintaining or repairing it at the time of the firefighter's injury.” Zanghi, 85 N.Y.2d, supra at 445. Here, the evidence establishes that Lend Lease was present at the site and overseeing the removal of combustible materials by its subcontractor at the time of the accident (Woods tr at 44).
Additionally, the historical and statutory notes to the 1996 amendment of this statute indicate the legislature's intent that GML § 205–a provide “a right of action ... regardless of whether the person whose negligence leads directly or indirectly to the violation causing injury or death owns or controls the premises where such violation occurs.” McKinney's Cons.Laws of NY, Book 23, General Municipal Law § 205–a, Historical and Statutory Notes, L.1996, ch. 703, § 3.
Because Administrative Code § 27–128, by its terms, applies only to building owners, plaintiff may not seek to recover against Lend Lease based on a violation of this code provision. However, the courts have allowed a GML § 205–a claim alleging a violation of section 27–127 to be asserted against a contractor. See Lynch v. City of New York, 14 A.D.3d 347, 787 N.Y.S.2d 308 (1st Dept 2005).
To the extent that plaintiff bases his GML § 205–a claim on the violation of Administrative Code § 27–127, as well as on the alleged violations of Industrial Code § 12 NYCRR 23–1.7 and Administrative Code § 27–1009, Lend Lease has failed to meet its burden of establishing that these provisions are inapplicable to the facts of this case or were not violated. While Lend Lease cites to Buckley and Favia as support for its contention that no overhead protection was required in the area in which plaintiff was working, in each of those cases, no overhead activity was taking place. Here, overhead activity clearly was taking place at the Building, a 40–plus story skyscraper that was in the process of being deconstructed and dismantled from the top down at the time of the accident. Lend Lease has failed to produce any evidentiary support for its apparent contention that no overhead protection was required around the entrance of the hoist to guard against potential falling objects during the deconstruction and dismantling of the building.
Moreover, to the extent that there is evidence that the scaffold properly diffused a direct blow from the pallet jack as it collapsed upon the plaintiff, such evidence does not necessarily establish that there was no violation of 12 NYCRR § 23–1.7, or that the alleged violation did not directly or indirectly cause plaintiff's injuries. Thus, since Lend Lease also has failed to meet its burden, as movant, of establishing that it did not negligently violate any relevant government provision, or that any codes or statutes it violated did not directly or indirectly cause plaintiff's injuries, the burden never shifted to plaintiff to present evidence sufficient to raise a triable issue of fact in this regard.
The City's Summary Judgment Motion to Dismiss Lend Lease's Third–Party Complaint and Galt's Cross Claim for Common–Law Indemnification and Contribution
Lend Lease has asserted claims for common-law indemnification and/or contribution against the City, based upon the FDNY's alleged control of the site, and alleged negligence in directing, controlling, and supervising the work that led to plaintiff's injury. Galt also has asserted a cross claim against the City for common-law indemnification and/or contribution.
The City moves for summary judgment dismissing these causes of action. The City argues that it is entitled to summary judgment dismissing the Lend Lease and Galt indemnification causes of action because the City's purported negligence in investigating the fire and directing that all combustible material be removed from the building were not the proximate cause of plaintiff's injuries. Additionally, the City argues that defendants are not entitled to indemnification or contribution based on the City's alleged breach of a duty owed to plaintiff, because the City owed no duty to plaintiff, as any common-law negligence claim brought by plaintiff against the City would have been barred by the firefighter's rule.
The City argues that dismissal of these claims is further warranted because neither Lend Lease nor Galt can establish that the City owed a special duty either to plaintiff or to them, the breach of which would provide a basis for indemnification or contribution. In any event, the City argues that, to the extent that the City could be found to have owed a special duty to either plaintiff or these defendants, summary judgment still would be warranted because the evidence establishes that the FDNY's actions, in directing that the combustible materials be removed and deploying firefighters at the site during the fire investigation and clean up, were discretionary actions taken during the performance of a government function. Thus, the governmental function immunity defense precludes municipal liability for those actions.
In opposition, Lend Lease argues that the City's motion to dismiss its common-law indemnification claim must be denied because the accident was a foreseeable risk of the FDNY's decision to order removal of all flammable materials from the building. Lend Lease argues that, at a minimum, an issue of fact exists as to whether the City should be liable for plaintiff's injuries given that the accident resulted from the FDNY's actions in taking control over the site, making all decisions, and directing and supervising the work that caused plaintiff's injury, and there is evidence that Lend Lease neither directed nor controlled the injury producing work, and had no decision making authority over the work.
Lend Lease argues that the City's motion to dismiss its contribution claim also should be denied, because the City, as plaintiff's employer, owed plaintiff a duty of care. While Lend Lease acknowledges that the firefighter's rule would bar any claim of common-law negligence brought by plaintiff directly against his municipal employer, it argues that the rule does not necessarily extinguish Lend Lease's claim for contribution against the City for its breach of that duty.
Finally, Lend Lease argues that, even if this Court were to find that the City owed no special duty of care to plaintiff, summary judgment still would not be warranted, because an issue of fact also exists as to whether the City owed Lend Lease a special duty of care by its conduct in (1) requisitioning Galt and ordering it to remove the flammable materials, when Galt had expressed concerns about the adequacy of its work force; and (2) assuming complete and exclusive control of the site and directing and supervising the injury causing work performed by Galt.
Galt has submitted no opposition to the City's motion.
The City's motion to dismiss Lend Lease's indemnification and contribution claims is granted.
To the extent Lend Lease seeks to base its claim for contribution on a duty that the City owed to plaintiff firefighter, its employee, our courts have held that the firefighter's rule, which bars a firefighter's direct claim against the City for common-law negligence, also precludes a claim for contribution based thereon. See Campbell v. Goga, 26 Misc.3d 1204(A), 2009 N.Y. Slip Op 52656(U) (Sup Ct, Richmond County 2009). While, it is true that the courts have declined to dismiss a contribution claim against the City where the plaintiff firefighter had alleged a predicate violation to support a GML § 205–a claim against the City (see Fisher v. City of New York, 48 A.D.3d 303, 851 N.Y.S.2d 497 [1st Dept 2008] ), the plaintiff firefighter herein has asserted no such claim. Although Lend Lease argues that plaintiff could have asserted such a claim, it has failed to identify any predicate violation which would support such a claim.
Insofar as Lend Lease seeks to assert a claim for indemnification and/or contribution based on the FDNY's alleged breach of a special duty owed to Lend Lease, dismissal is warranted as Lend Lease has not shown a special relationship between itself and the City that gave rise to a special duty. Matter of East 91st St. Crane Collapse Litig., 103 A.D.3d 503, 504, 960 N.Y.S.2d 31 (1st Dept 2013), citing Garrett v. Holiday Inns, 58 N.Y.2d 253, 261–262, 460 N.Y.S.2d 774, 447 N.E.2d 717 (1983). Our courts have held that a municipality's liability for a claim that it negligently exercised a governmental function “turns upon the existence of a special duty to the injured person, in contrast to a general duty owed to the public.” Coleson v. City of New York, ––– N.Y.3d ––––, 2014 WL 6607352 [2014], quoting Garrett, 58 N.Y.2d, supra at 261. “[A] duty to exercise reasonable care toward [a] plaintiff” is “born of a special relationship between the plaintiff and the governmental entity.” Pelaez v. Seide, 2 N.Y.3d 186, 198–199, 778 N.Y.S.2d 111, 810 N.E.2d 393 (2004). A special relationship giving rise to a special duty can be formed in three ways:
(1) when the municipality violates a statutory duty enacted for the benefit of a particular class of persons; (2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when the municipality assumes positive direction and control in the face of a known, blatant and dangerous safety violation.
McLean v. City of New York, 12 N.Y.3d 194, 199, 878 N.Y.S.2d 238, 905 N.E.2d 1167 (2009) quoting Pelaez, 2 NY3d, supra at 199–200. Lend Lease contends that the second manner of triggering a special duty is implicated here.
In Cuffy v. City of New York, 69 N.Y.2d 255, 513 N.Y.S.2d 372, 505 N.E.2d 937 (1987), the Court of Appeals identified the requisite elements for a duty voluntarily assumed:
(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality's agents that inaction could lead to harm; (3) some form of direct contact between the municipality's agents and the injured party; and (4) that party's justifiable reliance on the municipality's affirmative undertaking.
Id., at 260, 513 N.Y.S.2d 372, 505 N.E.2d 937. Lend Lease bears the burden of establishing such a special duty. Pelaez, 2 N.Y.2d supra, at 199.
In this case, Lend Lease contends that the City voluntarily assumed an affirmative duty to act on its behalf by, inter alia, taking complete and exclusive control of the site; directing and controlling the activities of the firefighters; directing and supervising Galt's performance of the work over Lend Lease's objections, and taking these actions despite the knowledge that Galt had an insufficient work force to perform the work that first day. Lend Lease contends that the City knew that its actions could lead to harm, because it knew that Galt did not have an adequate work force to begin removing materials on that first day. Lend Lease contends that the City had direct contact not only with its firefighter, but with Lend Lease and Galt, when it ordered the clean-up work. Lend Lease further asserts that it justifiably relied on the FDNY's direction and control to its detriment.
The City argues that Lend Lease's claim must be dismissed, because there is nothing in the record that supports Lend Lease's contention that the FDNY voluntarily assumed control over the management of the site, or that the FDNY had directed and supervised the injury producing work, and thereby assumed an affirmative duty to act on Lend Lease's behalf. In support of its motion to dismiss Lend Lease's claims, the City has proffered evidence to establish that it did not exercise exclusive control over the site, that it did not assume Lend Lease's role as general contractor and/or construction manager, and that, while the FDNY did order the removal of all combustible material, it did not control or supervise the injury producing work.
Specifically, the City acknowledges that it may have exercised a degree of control over access to and movement in and around the site, as it does not dispute that the FDNY had numerous personnel on the site following the fire, and that firefighters were manning checkpoints, logging who entered and left the site, escorting personnel through the site, and observing the clean up work in conjunction with the FDNY's investigation of the fire. However, the City notes that there is no evidence that the FDNY exercised exclusive control over the site, since the evidence also establishes that the FDNY was not checking identification or restricting access to the building or the to site in general. Nally tr., at 41–47, 184. Additionally, while the City does not deny that the FDNY had directed that all combustible materials be removed from the floors before work on the project could resume, the City has produced evidence to establish that its directive to clean up the combustible materials was given to LMDC, the owner of the Building, which then assigned the task to Lend Lease, which in turn assigned the task to Galt. Blinn tr., at 56. Additionally, the City has proffered the deposition testimony of superintendent Woods, that in the days following the fire, Lend Lease continued to be present at the site in the same capacity as before the fire; that Lend Lease personnel did not receive directions from the FDNY during that time; and, that the FDNY was not performing the same oversight functions at the site that Lend Lease had performed before the fire. Woods tr., at 44, 46, 108.
To the extent that Lend Lease contends that the FDNY supervised and controlled the injury producing work, the City has proffered testimony from Galt that it never received any further directions or specifications on how the work was to be performed from anyone, which necessarily would include the FDNY. Blinn tr., at 58. Additionally, while the City does not dispute that a firefighter was present on the floor when the accident occurred, the City has produced evidence that the firefighter did not control, direct or supervise Galt's work. Congimi tr., at 86–87. There also is evidence that no one from the FDNY directly gave any instructions to the Lend Lease superintendent who was accompanying Galt while it performed its work. Woods tr., at 54.
In response to the City's showing, and in support of its contention that the FDNY was in control of the site and had assumed management of the site and the work, Lend Lease proffers a report prepared by LMCCC, stating “[FDNY has] control of [the] site and is investigating [the] fire started on 8/18/07.” Ex. A to Lend Lease's affirmation in opposition. Lend Lease also proffers the deposition of superintendent Woods, who stated that FDNY personnel were all over and “had controlled the site” (Woods tr., at 41), and that “[n]obody could do anything unless [the FDNY] said it was okay.” Id., at 108–109. In support of its contention that the FDNY was supervising and controlling Galt's work, Lend Lease proffers Blinn's deposition testimony that he believed that the FDNY was directing Galt's work at the time of accident (Blinn tr., at 139), and Woods' testimony that the FDNY made the decision to have the combustible materials removed immediately, as well as the decision about which materials were to be removed. Woods tr., at 123.
Although the evidence proffered by Lend Lease may be sufficient to establish that FDNY exercised significant control over the site, the evidence is insufficient to rebut the City's showing that the FDNY did not assume an affirmative duty to manage the site on behalf of Lend Lease, and that the FDNY did not control or supervise the work that caused plaintiff's injury. Thus, Lend Lease has failed to meet its burden of establishing that the City either owed or breached a special duty to it.
In any event, even had Lend Lease established that the City owed it a special duty based on its alleged control of the site, summary judgment in favor of the City would still be warranted under the so-called “governmental function immunity defense.” The common-law doctrine of governmental immunity shields public entities from liability for discretionary actions taken during the performance of governmental functions. See Matter of World Trade Ctr. Bombing Litig., 17 N.Y.3d 428, 933 N.Y.S.2d 164, 957 N.E.2d 733 (2011) ; Lauer v. City of New York, 95 N.Y.2d 95, 99–100, 711 N.Y.S.2d 112, 733 N.E.2d 184 (2000). “This limitation on liability reflects separation of powers principles and is intended to ensure that public servants are free to exercise their decision-making authority without interference from the courts.”Valdez v. City of New York, 18 N.Y.3d 69, 76, 936 N.Y.S.2d 587, 960 N.E.2d 356 (2011).
“[A] state or municipal defendant engaging in a governmental function can avoid liability [only] if it timely raises the defense and proves that the alleged negligent act or omission involved the exercise of discretionary authority. Valdez, 18 NY3d, supra at 76. In order to successfully invoke the governmental function defense, the City “must do much more than merely allege that its employee was engaged in activities involving the exercise of discretion.” Id., at 79, 936 N.Y.S.2d 587, 960 N.E.2d 356. “[T]he availability of governmental function immunity ... turns on whether the conduct giving rise to the claim is related to an exercise of that discretion.” Id., quoting Mon v. City of New York, 78 N.Y.2d 309, 313, 574 N.Y.S.2d 529, 579 N.E.2d 689 (1991). The “immunity is not available unless the municipality establishes that the action taken actually resulted from discretionary decision-making-i.e., the exercise of reasoned judgment which could typically produce different acceptable results.” Id., at 79–80, 574 N.Y.S.2d 529, 579 N.E.2d 689, quoting Tango v. Tulevech, 61 N.Y.2d 34, 41, 471 N.Y.S.2d 73, 459 N.E.2d 182 (1983).
Here, the City timely raised its governmental immunity defense as an affirmative defense. In addition, the actions taken by the FDNY in both investigating the fire and in securing the safety of the site, in view of the hazardous conditions and lack of a working fire suppression system in the building, were quintessential government functions. Further, the record reflects that the decision to direct the removal of the combustible materials, which was made only after a meeting and discussion among the owners, contractors, and other regulatory agencies, demonstrates that the decision was discretionary, and was made in the exercise of the FDNY's reasoned judgment. See Matter of East 91, 960 N.Y.S.2d 31st St. Crane Collapse Litig., 103 AD3d, supra, at 505, citing Tango, 61 N.Y.2d, supra at 41. Accordingly, to the extent it may be determined that the FDNY assumed a special duty to either plaintiff or to Lend Lease, summary judgment dismissing Lend Lease's indemnification and contribution claims against the City would still be warranted.
As Galt has submitted no opposition to the City's motion, and thus has failed to establish that the City owed it a special duty of care (see Pelaez, 2 N.Y.2d, supra at 199), the City's motion for summary judgment dismissing Galt's cross claims for common-law indemnification and/or contribution is also granted.
The Remaining Summary Judgment Motions to Dismiss the Cross–Claims asserted by LMDC, LMCCC, Lend Lease, the City, and Galt
LMDC has moved for summary judgment on its cross claims against Lend Lease and Galt for contractual indemnification, and dismissing any and all cross claims asserted against it. Lend Lease opposes LMDC's motion, insofar as it seeks summary judgment against Lend Lease on the claim for contractual indemnification, and has cross-moved to dismiss that claim, as well as any and all other cross claims asserted against it. Galt has submitted no opposition to either motion.Any right that LMDC has to contractual indemnification from Lend Lease and/or Galt will depend upon the specific language of the indemnification provisions contained in their respective agreements. See Zastenchik v. Knollwood Country Club, 101 A.D.3d 861, 864, 955 N.Y.S.2d 640 (2d Dept 2012). Article 31 of the contract between LMDC and Lend Lease provides, in pertinent part, that:
Contractor shall indemnify all Indemnitees (as defined below) against all claims described in subparagraphs A through O above paid or incurred by any of the Indemnitees, or asserted against any of the Indemnitees, and for all expense incurred by any of them in the defense, settlement or satisfaction thereof, including reasonable expenses of attorneys, except to the extent that such indemnity would be precluded by applicable law. If so directed, Contractor shall defend against any claim (including an allegation that an Indemnitee was negligent or engaged in willful misconduct) described above by counsel approved by the Indemnitee, unless and except to the extent that it is established by an initial court order or judgment that the applicable Indemnitee was negligent or engaged in willful misconduct. Nor shall Contractor settle any such claims without the prior written consent of all Indemnitees against whom such claims have been asserted unless the effect of such settlement is to release unconditionally from complete liability every Indemnitee against whom the applicable claim was asserted. Notwithstanding anything to the contrary in this Article 31, Contractor is not responsible for the acts or omissions of the Scaffolding Contractor, except to the extent of the Contractor's negligence or willful misconduct.
The risks expressly assumed by Lend Lease under this Article include, inter alia:
C. The risk of claims, loss, liability, damage, expense, fines or penalties, just or unjust, made or asserted by third persons or assessed by courts or Governmental Authorities or entities against Contractor, LMDC or any other Indemnitee on account of injuries (including wrongful death), loss, damage or liability of any kind whatsoever arising or alleged to arise out of or in connection with the performance of the Work (whether or not actually caused by or resulting from the performance of the Work) or out of or in connection with Contractor's operations or presence at or in the vicinity of the construction site and/or the Building, (including claims against Contractor or LMDC for the payment of workers' compensation), whether such claims, loss, liability, damage, expense, fines or penalties are made or assessed and whether such injuries, damage, loss, liability, damage and/or expense are sustained at any time both before and/or after the rendition of the Certificate of Final Completion.
The Article expressly defines “Indemnitees” as LMDC, Empire State Development Corporation, the Owner's representative, The Port Authority of New York and New Jersey, and each employee, officer, director and consultant of each of them. Id.
Article 11 of the contract between Lend Lease and Galt provides, in pertinent part, that:
11.1 To the maximum extent permitted by law, Contractor hereby assumes the responsibility and liability for any and all damage (direct or consequential) and injury (including death), of any kind or nature whatsoever, to all persons, whether or not employees of Contractor, and to all property and business or businesses, proximately cause by, resulting from, arising out of, or occurring in connection with (i) the Work; (ii) the performance or intended performance of the Work; (iii) the negligent performance or negligent or willful failure to perform the Contract; or (iv) any occurrence which happens in or about the area where the Work is being performed by Contractor, either directly or through a subcontract, while any of Contractor's property, equipment or personnel is in or about said area and is/are directly involved in the damage, loss or injury.
11.2 Except to the extent, if any, expressly prohibited by law, should any such damage or injury referred to in Paragraph 11.1 be sustained, suffered, or incurred by Owner, Architect/Engineer, or Construction Manager or should any claim for such damage or injury be made or asserted against any of them, whether or not such claim is based upon any alleged breach of any statutory duty or obligation on the part of Owner, Architect/Engineer or Construction Manager, Contractor shall indemnify and hold harmless Owner, Architect/Engineer and Construction Manager, their officers, agents, partners, employees, affiliates and subsidiaries (hereinafter collectively referred to as Indemnitees'), of, from and against any and all reasonable cost, expense, and liability, including without limitation, legal fees and disbursements (including reasonable legal fees and disbursements incurred in enforcing this indemnity), that any Indemnitee may directly or indirectly sustain, suffer or incur as a result of such damages, injuries and claims; and Contractor agrees to assume, on behalf of any and all Indemnitees the defense (with counsel satisfactory to the party indemnified) of any action at law or in equity, or other legal proceeding, which may be brought against any Indemnitee upon or by reason of such damage, injury, or claim and to pay on behalf of every Indemnitee, the amount of any judgment, decree, award or order that may be entered against said Indemnitee in any such action or proceeding, except if such damage, loss or injury is solely caused by Owner, Construction Manager or Engineer ...
LMDC argues that it is entitled to summary judgment against Lend Lease on its contractual indemnification claim because the evidence establishes that the accident occurred while Lend Lease was overseeing or watching the work of its subcontractor Galt in removing the combustible materials from the Building. LMDC contends that, because plaintiff's injury arose out of, or in connection with, Lend Lease's performance of its work, or Lend Lease's operation or presence at or in the vicinity of the construction site, it falls within the scope of the indemnity provision.
In opposition, Lend Lease argues that LMDC's motion for summary judgment must be denied, and its motion for summary judgment dismissing LMDC's contractual indemnification claim must be granted, because the indemnification provision in the LMDC/Lend Lease contract requires Lend Lease to indemnify LMDC only for injuries arising out of Lend Lease's work, i.e., work involving the abatement and deconstruction of the building at the direction and control of Lend Lease. Lend Lease argues that the work that Galt was performing at the time of accident, i.e., removing combustible materials under the direction and control of the FDNY, falls outside the scope of Lend Lease's work under the contract; thus, Lend Lease is not obligated to defend LMDC for that work. Even assuming that this work was within the scope of its contract with LMDC, Lend Lease argues that it still is not obligated to indemnify LMDC because the evidence establishes that plaintiff's injury arose out of Galt's performance of the work, and the indemnification provision contained in the LMDC/Lend Lease contract did not expressly obligate Lend Lease to indemnify LMDC for the work of its subcontractors. Additionally, Lend Lease argues that, to the extent plaintiff's negligence claim is based on the allegedly inadequate overhead protection, the indemnification provision expressly provides that Lend Lease is not responsible for the acts or omissions of the scaffolding contractor, except to the extent of its own negligence or willful conduct.
Lend Lease argues that, in the event that this Court declines to grant its motion for summary judgment dismissing LMDC's contractual indemnification claim, then this Court should also deny LMDC's motion for summary judgment, because LMDC's freedom from negligence has yet to be determined. In either event, Lend Lease argues that this Court should grant its motion to the extent that it seeks summary judgment dismissing the claims for contractual indemnification and breach of the insurance procurement provision asserted by LMCCC, since LMCCC was not named as an indemnitee under the LMDC/Lend Lease contract, and Lend Lease did not agree to name LMCCC as an additional insured.
Lend Lease's motion for summary judgment dismissing LMDC's claim for contractual indemnification is denied. In response to Lend Lease's contention, that the work that Galt was performing fell outside the scope of Lend Lease's work under the contract, LMDC has identified provisions of the LMDC/Lend Lease contract which show that the scope of the work to be performed by Lend Lease, for which LMDC was to be entitled to indemnification, was not limited to abatement and deconstruction of the building. Specifically, Lend Lease notes that contract's scope of work section also required, inter alia, that Lend Lease “be responsible for the removal, packaging, transportation and disposal of all refuse and debris, including all [h]azardous [m]aterials resulting from the [d]econstruction.” See LMDC/Lend Lease Contract, Annex 6 at 4, ¶ 4.
Additionally, the scope of work section provided that, in the occurrence of certain events, including “fire or other safety emergency,” the Contractor “shall require the abatement subcontractor to stop work and initiate appropriate corrective actions.” Id., at 11, 955 N.Y.S.2d 640. The scope of work section further provided that it was intended only as a general overview, and that Lend Lease “shall be responsible for all necessary means or methods necessary to accomplish the intended purpose [of creating a site ready for development], whether or not specific procedures or responsibilities are set forth in the [scope] [of] [work], the [d]econstruction [p]lan, or in the [s]pecifications.” Id., at 5, ¶ 10, 955 N.Y.S.2d 640. Thus, the evidence is sufficient to establish that work being performed by Galt at the time of the accident, i.e., the removal of combustible materials, fell within Lend Lease's scope of work under the agreement.
Although the indemnification provision in the LMDC/Lend Lease contract does not directly or expressly state that Lend Lease is obligated to indemnify LMDC for the work of its subcontractors, that provision is, contrary to Lend Lease's contention, not limited to claims “arising or alleged to arise out of or in connection with the performance of the [w]ork,” but also includes any claims arising or alleged to arise “out of or in connection with Contractor's operations or presence at or in the vicinity of the construction site and/or the [b]uilding.” Lend Lease Contract, Article 31. Since the evidence establishes that Lend Lease was present and overseeing the injury causing work performed by Galt in removing the combustible materials, the work falls within the scope of the indemnity provision, regardless of whether Lend Lease or its subcontractor was performing the work. In any event, since superintendent Woods testified that Lend Lease did not actually perform work under the contract, but subcontracted its work to other contractors (Woods tr., at 44), Lend Lease's interpretation of this provision would have the effect of excluding almost any claims or losses arising out of the performance of the abatement and deconstruction work.
LMDC's motion seeking summary judgment granting its cause of action for contractual indemnification against Lend Lease is also denied. “[A] party seeking contractual indemnification must [first] prove itself free from negligence, because to the extent its negligence contributed to the accident, it cannot be indemnified therefor.” Cava Constr. Co., Inc. v. Gealtec Remodeling Corp., 58 A.D.3d 660, 662, 871 N.Y.S.2d 654 (2d Dept 2009) ; see General Obligations Law § 5–322.1. Since LMDC's freedom from negligence has yet to be established, its summary judgment motion is premature. LMDC's motion for summary judgment on its contractual indemnification against Galt also is denied as premature.
With respect to the remaining claims and cross claims, Lend Lease's motion, insofar as it seeks dismissal of the cross claims for contractual indemnification and breach of contract asserted against it by LMCCC, is granted, as the evidence establishes that LMCCC was not named as an indemnitee, and was not otherwise a party to or beneficiary of the LMDC/Lend Lease contract. Lend Lease is also entitled to summary judgment dismissing the claim for common-law indemnification asserted against it by Galt. To establish a claim for common-law indemnification, the party seeking indemnity must prove “not only that it was not guilty of any negligence beyond [any] statutory liability, but must also prove that the proposed indemnitor was guilty of some negligence that contributed to the causation of the accident.” Correia v. Professional Data Mgt., 259 A.D.2d 60, 65, 693 N.Y.S.2d 596 (1st Dept 1999). Since the record establishes that any liability for negligence on the part of Galt could not be “solely statutory,” dismissal of this claim is appropriate.
LMDC's motion is granted to the extent that it seeks summary judgment dismissing the claims for contractual indemnification and breach of contract asserted against it by Lend Lease. Lend Lease has failed to identify any indemnity or insurance procurement language in favor of Lend Lease in the LMDC/Lend Lease agreement. LMDC also is entitled to summary judgment dismissing the common-law indemnification claim asserted against it by Galt, for the reasons stated above. Additionally, all claims and cross claims for contractual indemnification, common-law indemnification, and contribution asserted against LMCCC are also dismissed, since the evidence adduced establishes that LMCCC is merely a subsidiary of LMDC, and is not a separate entity subject to suit.
Finally, because Lend Lease's third-party complaint and Galt's cross claims against the City have been dismissed in their entirety, the motions by LMDC and Lend Lease, to dismiss all cross claims that the City has asserted against them, are granted.
Therefore, in accordance with the foregoing, it is hereby:
ORDERED that the motion by third-party defendant City of New York, for summary judgment dismissing the third-party complaint, as well as any and all cross claims asserted against it (motion sequence number 002) is granted, and the third-party complaint and all cross claims asserted against third-party defendant City of New York are dismissed with costs and disbursements to that defendant as taxed by the Clerk upon the submission of an appropriate bill of costs; and it is further,
ORDERED that the motion by defendants The Lower Manhattan Development Corporation (LMDC) and The Lower Manhattan Construction Command Center (LMCCC), for summary judgment dismissing plaintiff's complaint; dismissing any claims and/or cross claims asserted against them by Bovis Lend Lease LMB, Inc., The John Galt Corp., and third-party defendant City; and, granting their causes of action for contractual indemnification against Lend Lease and Galt (motion sequence number 003), is granted solely to the extent of (1) dismissing plaintiff's common-law negligence claim against LMDC, but only insofar as it is based upon the doctrine of respondeat superior; (2) dismissing those portions of plaintiff's GML § 205–a claim against LMDC that are predicated on any violation of a statute, rule, or regulation other than Administrative Code §§ 27–127, 27–128 and Industrial Code §§ 12 NYCRR 23–1.5 and 23–1.7; (3) dismissing all cross claims asserted against LMDC by The City of New York; (4) dismissing the contractual indemnification claim and breach of contract claim asserted against LMDC by Bovis Lend Lease LMB, Inc., and (5) dismissing the common-law indemnification claim asserted against LMDC by The John Galt Corp., and the motion is otherwise denied; and it is further,
ORDERED that the cross motion by defendant Lend Lease LMB, Inc, for summary judgment dismissing plaintiff's complaint; dismissing all cross claims asserted against it by LMDC and LMCCC; and dismissing any other cross claims and/or counterclaims asserted against it, is granted solely to the extent of (1) dismissing those portions of plaintiff's GML § 205–a claim against Bovis Lend Lease LMB, Inc that are predicated on any violation of a statute, rule, or regulation other than Administrative Code §§ 27–127, 27–1009 and Industrial Code §§ 12 NYCRR 23–1.5 and 23–1.7; (2) dismissing all cross claims asserted against Bovis Lend Lease LMB, Inc. by the City of New York; (3) dismissing the contractual indemnification claim and breach of contract claim asserted against Bovis Lend Lease, LMB, Inc. by LMCCC, and (4) dismissing the common-law indemnification claim asserted against Bovis Lend Lease LMB, Inc. by The John Galt Corp., and the motion is otherwise denied; and it is further,
ORDERED that all other claims and cross claims asserted against LMCCC are hereby dismissed; and it is further,
ORDERED that this action shall continue as to the remaining causes of action; and it is further,
ORDERED that the caption of the action shall now read as follows:
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
x
NEIL E. NALLY,
Plaintiff,
against–Index No. 104663/2008
BOVIS LEND LEASE LMB, INC., THE JOHN GALT
CORP., and THE LOWER MANHATTAN DEVELOPMENT
CORPORATION,
Defendants.
X
And it is further,
ORDERED that the aforementioned defendants, Bovis Lend Lease LMB, Inc., The John Galt Corp., and The Lower Manhattan Development Corporation and the third-party defendant The City of New York, shall serve a copy of this order, with notice of entry, upon the County Clerk (Room 141B) and the Clerk of the Trial Support Office (Room 158), who are directed to mark the court's records to reflect the amended caption; and it is further,
ORDERED that defendants Bovis Lend Lease LMB, Inc., The John Galt Corp., and The Lower Manhattan Development Corporation and third-party defendant The City of New York, shall each serve a copy of this order upon the plaintiff with notice of entry within 20 days of its entry; and it is further,
ORDERED that, upon proof of service and notice of entry upon all parties, the Clerk of the Court is directed to enter judgment dismissing the complaint as to the City and the within matter shall be transferred to a non-City IAS Part; and it is further,
ORDERED that this constitutes the decision and order of the Court.