Opinion
Index No. 32582-2018E
09-26-2022
MICHAEL O'SHEA, Plaintiff, v. PROCIDA CONSTRUCTION CORP., THE GILBERT ON FIRST LLC, ALVIN H. BUTZ, INC. and PROCIDA- BUTZ 1912 1st AVENUE (a joint venture between PROCIDA CONSTRUCTION CORP, and ALVIN H. BUTZ. INC.), Defendants PROCIDA CONSTRUCTION CORP, and THE GILBERT ON FIRST LLC, Defendants/Third-Party Plaintiffs, v. COSAN CONSTRUCTION, Third-Party Defendant.
Unpublished Opinion
DECISION/ORDER
Elizabeth A. Taylor Judge
The following papers numbered 1 to ___ read on this motion, ___
| PAPERS NUMBERED | |
| No On Calendar of | (NYSCEF Conf. Notice #s) |
| Notice of Motion-Order to Show Cause - Exhibits and Affidavits Annexed-------------------- | 62-73, 77, 103-110 |
| Answering Affidavit and Exhibits-------------------------------------------------------------------- | 89-93, 95, 113, 115 |
| Replying Affidavit and Exhibits-------------------------------------------------------------------- | 116 |
| Affidavit------------------------------------------------------------------------------------------------------------------ | |
| Pleadings - Exhibit-------------------------------------------------------------------------------------------------------------- | |
| Stipulation - Referee's Report -Minutes--------------------------------------------------------------------------- | |
| Filed papers------------------------------------------------------------------------------------------------- | 75, 94, 96, 98, 111, 114 |
In compliance with this Part's rules, the above enumerated working copies, bearing the NYSCEF Confirmation Notice, were submitted directly to chambers for the court's review. Upon the foregoing papers and due deliberation thereof, the Decision/Order on this motion is as follows:
Motion pursuant to CPLR 3212 for an order granting plaintiff partial summary judgment on his Labor Law §§ 240(1) and 241(6) claims, is denied.
Plaintiff commenced this personal injury action seeking damages for injuries allegedly sustained on August 18, 2018, while working at the subject construction site. Pursuant to the contracts submitted, defendant/third-party plaintiff The Gilbert on the First LLC (Gilbert), owner of the site, hired defendants Alvin H. Butz, Inc. and Procida Construction Corp, as general contractors, and defendant Procida-Butz 1912 1S1Avenue hired plaintiff's employer, third-party defendant Cosan Construction (Cosan), as a subcontractor.
During his examination before trial, plaintiff Michael O'Shea testified that during his coffee break, he used the job site/timber ladder to go from the first floor to the ground floor when his foot slipped of the third rung from the bottom of the ladder, a distance of approximately three feet, causing him to fall off the ladder to the ground below. He further testified that "[i]t looked like - - the ladder was solid. It looked like a good ladder." Kyle Gaffney, Cosan's foreman, testified that using the "job site ladder" was the only way for the workers to get from the ground floor to the work area. Both the plaintiff and Gaffney testified that the "job site ladder" was routinely muddy because the ground area leading to the ladder was also routinely muddy. In opposition, Cosan argues that based upon the testimony of Michael Rogers', Procida-Butz' project manager, there were two "job site ladders" that provided access from the ground level to the upper floors of the premises: a "job site ladder" on 1st Avenue side of the premises and a "job site ladder" on the FDR side of the premises. However, when asked "[a]nd are you sure that both ladders were in existence as of April 2018? [Mr. Michael Rogers replied] I am not a hundred percent sure." Cosan submitted a copy of plaintiff's Workers' Compensation application, where Mr. O'Shea indicated that "[w]hile climbing down from the ladder onto the ground [he] lost [his] balance from [an] uneven surface...”
Based upon the record before this court, plaintiffs motion for summary judgment must be denied as there remain issues of fact, including but not limited to how and where the accident occurred.
It is noted that 12 NYCRR 23-1.7(d) and 12 NYCRR 23-1.7(e)(2) are concrete specifications for claims under Labor Law §241(6).
Cross-motion "for summary judgement for contractual defense and indemnity against the Third-Party Defendant Cosan Construction Corp.," is denied.
Pending the outcome of the main action, a court may grant conditional judgment on the issue of contractual indemnification, provided that the party seeking such a determination establishes that it is free from negligence (Fritz v JLG Indus., Inc., 193 A.D.3d 641 [1st Dept 2021]; Sanchez v. 404 Park Partners, LP, 168 A.D.3d 491, 493, 92 N.Y.S.3d 9 [1st Dept. 2019]; Arriola v City of New York, 128 A.D.3d 747, 748-49 [2d Dept 2015]).
Paragraph 11.1 of the indemnity provision of the contract between Procida-Butz 1912 1st Avenue and Cosan reads:
To the fullest extent permitted by law, Subcontractor agrees to defend, indemnify and hold harmless Contractor and Owner and any other parties which General Contractor is required to defend, indemnify and hold harmless, and their agents, servants and employees, from and against any claim, cost, expense or liability (including attorney's fees and including costs and attorney's fees incurred in enforcing this indemnity) attributable to bodily injury, sickness, disease, or death, or damage to or destruction of property (including loss of use thereof), caused by, arising out of,
resulting from or occurring in connection with the performance of the Work by Subcontractor, its subcontractors and suppliers of any tier, or their agents, servants or employees, and includes claims by its employees, whether or not caused in part by the active or passive negligence of or other fault of a party indemnified hereunder; provided, however, Subcontracter's duty hereunder; shall not arise if such injury, sickness, disease, death, damage or destruction is caused by the sole negligence of a party indemnified hereunder. Subcontractor's liability shall not be limited to by the provisions of any Workers Compensation or similar act.
Paragraph 8.6.1 of the contract between cross-movant and Gilbert provides that cross-movant shall provide all tools, equipment and temporary structures necessary, and comply with all applicable codes, laws, ordinances, rules, and regulations in relation to the work performed. Based upon the record before this court, cross-movant failed to establish entitlement to summary judgment. There remain issues of fact, including but not limited to whether cross-movant may only be vicariously liable to plaintiff and not actually negligent.
It is noted that where a client is represented by counsel, a motion on behalf of the client shall include the attorney's affirmation in support to summarize counsel's legal position (see 2PT1 West's McKinney's Forms Civil Practice Law and Rules § 5:18[d]; Petralia v New York State Dept, of Labor, 191 A.D.3d 1466 [4th Dept 2021], rearg denied, 193 A.D.3d 1442 [4th Dept 2021], and appeal dismissed, 37 N.Y.3d 1036 [2021], reconsideration denied, 37 N.Y.3d 1138 [2022] [Court held that although respondent asserts that it raised its adequate-remedy contention in its memorandum of law to that court, the memorandum of law is not part of the record on appeal and thus cannot evidence respondent's preservation of that particular contention]).
It is further noted that on January 27, 2020, plaintiff filed a "Verified Amended Complaint" reflecting the above caption. NYSCEF indicates that on January 28, 2020, the Clerk noted "[a]s per Amended Verified Complaint Caption has been updated." It is further noted that a stipulation, signed by all parties, was filed on November 1, 2019, to discontinue the main action against defendant The Gilbert Apartments LLC and to add Alvin H. Butz, Inc. and Procida-Butz 1912 1st Avenue (a joint venture between Procida Construction Corp, and Alvin H. Butz, Inc.), as party defendants to the main action (CPLR 3025[b]; see Nikolic v Fedn. Empl. &Guidance Serv., 18 A.D.3d 522, 524 [2d Dept 2005] [Where the period described in CPLR 3025(a) has expired, a plaintiff's service of an amended summons and complaint without leave of court or a stipulation of all parties "was a nullity"]).
See the letter filed on December 7, 2021, regarding the papers filed on this motion and cross-motion.
The foregoing shall constitute the decision and order of this court.