Opinion
Index No. 713234/2018 Motion Seq. No. 1 2
01-18-2022
RICHARD OTTO, Plaintiff(s), v. PORT AUTHORITY OF NEW YORK &NEW JERSEY, LAGUARDIA GATEWAY PARTNERS, LLC, SKANSKA USA BUILDING, INC., SKANSKA WALSH JOINT VENTURE, SKANSKA INC., WALSH CONSTRUCTION and WALSH CONSTRUCTION COMPANY II, LLC, Defendant(s). PORT AUTHORITY OF NEW YORK &NEW JERSEY, LAGUARDIA GATEWAY PARTNERS, LLC, SKANSKA USA BUILDING, INC., SKANSKA WALSH JOINT VENTURE, SKANSKA INC., WALSH CONSTRUCTION and WALSH CONSTRUCTION COMPANY II, LLC, Third-Party Plaintiffs, v. GMA ELECTRICAL CORP., Third-Party Defendant.
Unpublished Opinion
Motion Dated: September 28 2021
MARGUERITE A. GRAYS, J.S.C.
The following papers numbered EF35 to EF82 read on this motion (sequence number I) by defendants/third-party plaintiffs Port Authority of New York &New Jersey ("Port Authority"), LaGuardia Gateway Partners, LLC ("Gateway Partners"), Skanska U.S. A Building, Inc., Skanska Walsh Joint Venture ("Skanska/Walsh"), Skanska Inc., Walsh Construction and Walsh Construction Company II, LLC's (hereinafter collectively referred to as "Defendants," except when referenced to individually) for an order pursuant to CPLR §3212, (1) granting summary judgment in their favor and dismissing the complaint, and (2) granting summary judgment in Defendants' favor on their third-party causes of action for contractual indemnification against third-party defendant GMA Electrical Corp ("GMA"); and on this separate motion (sequence number 2) by third-party defendant GMA pursuant to CPLR §3212(a), to dismiss the Complaint and upon such dismissal, dismissing the third-party action.
PAPERS NUMBERED
Notice of Motion Affid.-Exhibits................................ EF35-67
Answering Affid.-Exhibits.......................................... EF68-80
Reply Affid.-Exhibits.................................................. EF81-82
Upon the foregoing papers it is ordered that the motions are combined herein for purposes of this decision and determined as follows:
This labor law action arises out of an accident that allegedly occurred on February 16, 2018 at Terminal B of LaGuardia Airport in Queens County. Plaintiff. Richard Otto, a Local Union 3 electrician, employed by GMA, alleges that he slipped and fell on a piece ofwet/slick cardboard that had been placed on the ground just inside the entrance to the electricians' shanty, a trailer where the GMA employees could change clothes, eat meals and leave their personal belongings. Plaintiff alleges that on this rainy morning, the cardboard had been left in the entranceway, just inside the door, of the electricians' shanty located at a construction project for Terminal B of the LaGuardia Airport. The Port Authority was the owner of the property and leased parts of the premises to Gateway Partners. Gateway Partners retained Skanska/Walsh, a joint venture comprised of Skanska USA Building, Inc., Skanska USA Civil Northeast Inc., and Walsh Construction Company II, for design, engineering, and construction work of a large-scale construction project at Terminal B of the Airport. Skanska/Walsh subcontracted the electrical work on the project to GMA. Skanska/Walsh owned and constructed numerous shanties that were comprised of trailers stacked on top of each other. Specifically here, the shanty area was comprised of three tiers of shanties with a stair tower to climb to the second or third floors. To access the shanty area itself, plaintiff was required to swipe a job site ID at a security turnstile which was installed to prevent the public from accessing the job site, and then navigate a walkway to the shanty area. Skanska/Walsh leased the individual shanties to their subcontractors.
Plaintiff testified, upon examination before trial, that on February 16, 2018. at approximately 6:45 a.m., he arrived at Terminal B and walked to GMA's shanty to prepare for work. As Plaintiff stepped into the entranceway of the shanty, he was caused to fall on a wet/slick piece of cardboard placed on the shanty floor just inside the doorway. Plaintiff testified that as he fell down onto the floor, his lower back struck the doorframe.
According to Plaintiffs expert, Edward W. Lindh Jr., Safety Management Specialist ("SMS"), under Local Union 3 Working Rules,"[a]ll jobs start and end the workday at the shanty." Morning meetings were held there and assignments for the day were given out from the shanty. Lindh avers that "[t]he cardboard was placed over the shanty's linoleum tile floor, presumably as a door mat as it was raining outside on the day of the accident." Furthermore, according to Lindh,
"[a] shanty is a designated area for workers to coordinate a construction job's daily tasks, receive work orders, conduct safety and job meetings, review schedules, store tools and materials, and manage other job-related tasks including the start of the workday.. .The cardboard left just beyond the entrance door threshold inside the shanty that caused plaintiff to fall was not only a slip hazard due to its retention of moisture and wet soil that was carried into the shanty from the uncovered, wet pathway leading to it, but was also an unsecured obstruction that created a tripping hazard. Proper non-slip mats could and should have been provided to reduce the potential tor slipping or tripping."
Notably, the parties have submitted the examination before trial testimony of an alleged witness, William Moreno, who states that he was present in the shanty on the date and time in question and that plaintiff did not fall on the cardboard but, instead, intentionally "lowered himself onto the floor" after entering and exiting the shanty several times.
Plaintiff commenced this action to recover damages against defendants alleging common-law negligence, and violations of Labor Law §§ 200 and 241 (6). By the instant motion, defendants move to dismiss the complaint on the ground that the shanty where plaintiff allegedly fell, was not a part of the construction site. Defendants also seek summary judgment in their favor on their contractual indemnification cause of action in the third- party complaint. In a separate motion, GMA moves to dismiss the complaint on the same grounds, to wit. that the accident occurred in an area separate and apart from the active work site and plaintiff was not engaged in any activity associated with covered work at the time of his fall. GMA also moves for dismissal of plaintiffs Labor Law §200 and common law negligence claim on the ground there is no evidence the defendants supervised, directed, or controlled the Plaintiffs work, nor is there evidence they had notice of or created the wet condition upon which Plaintiff claims he fell. Plaintiff opposes the motions.
Motion by Defendants
The branch of defendants' motion which is for summary judgment dismissing the causes of action alleging common-law negligence and violation of Labor Law § 200, is denied. "Labor Law § 200 codifies the common-law duty ... to provide employees with a safe place to work" (Bradley v Morgan Stanley &Co., Inc., 21 A.D.3d 866, 868 [2005]; see Ross v Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 505 [1993]), and applies to owners, contractors, and their agents (see Everitt v Nozkowski, 285 A.D.2d 442, 443 [2001 ]). "Where ... a plaintiffs injuries stem not from the manner in which the work was being performed, but, rather, from a dangerous condition on the premises, a general contractor may be liable in common-law negligence and under Labor Law § 200 if it has control over the work site and actual or constructive notice of the dangerous condition" (Keating v Nanuet Bd. of Educ., 40 A.D.3d 706, 708 [2007]). Here, the alleged defect, a piece of wet cardboard possibly created by the rain that day, would constitute a dangerous condition of the premises. Defendants' witness could not recall if the cardboard had been there previously, and plaintiff testified that he had seen the cardboard placed at the location previously, possibly establishing constructive notice. In short, defendants failed to establish, prima facie, that they lacked control over the conditions at the work site (see Lane v Fratello Const. Co., 52 A.D.3d 575,576 [2008]; Keating v Nanuet Bd. of Educ., 40 A.D.3d at 109; Kerins v Vassar Coll., 15 A.D.3d623,625 [2005]), and further failed to establish, prima facie, that they lacked actual or constructive notice of the alleged dangerous condition (see Keating v Nanuet Bd. of Educ., 40 A.D.3d at 709; see also Mikhaylo v Chechelnitskiy, 45 A.D.3d 821 [2007]).
The branches of the motion which are to dismiss plaintiff s Labor Law §241 [ 6] claims are also denied. In order to state a claim under Labor Law §241(6), a plaintiff must allege that the property owners violated a regulation that sets forth a specific standard of conduct and not simply a recitation of common-law safety principles (St. Louis v Town of N. Elba, 16 N.Y.3d 411, 413-14 [2011]; see e.g. Ross, 81 N.Y.2d at 501-502). Here, plaintiff rests his section Labor Law 241(6) claim on a violation of 12 NYCRR §23-1.7(d) (slipping hazard), 23-1.7(e)(1) (tripping hazard), and 23-1.7(e)(2) (other hazards).
12NYCRR §23-1.7(d) states in relevant part that:
"[e]mployers shall not suffer or permit any employee to use a iloor. passageway, walkway, scaffold, platform or other elevated working surface which is in a slippery condition. Ice, snow, water, grease and any other foreign substance which may cause slippery footing shall be removed, sanded or covered to provide safe footing."
This section is a sufficient predicate for liability under Labor Law § 241 (6) (see Rizzuto v L.A. Wenger Contracting Co., Inc., 91 N.Y.2d at 351; Boss v Integral Const. Corp., 249 A.D.2d 214, 215 [1998]).
Industrial Code (12 NYCRR) § 23-1.7(e)(1) provides, in pertinent part, that "[a]H passageways shall be kept free from accumulations of dirt and debris and from any other obstructions or conditions which could cause tripping" (Industrial Code [12 NYCRR] §23-1.7[e][l]). Industrial Code (12 NYCRR) § 23-1.7(e)(2) provides, "[t]he parts of floors, platforms and similar areas where persons work or pass shall be kept free from accumulations of dirt and debris and from scattered tools and materials and from sharp projections insofar as may be consistent with the work being performed." Industrial Code (12 NYCRR) § 23-1.7(e)(1) and (2), are both sufficiently specific to support a claim pursuant to Labor Law § 241(6) (see Jara v New York Racing Ass'n, Inc., 85 A.D.3d 1121, 1123-24 [2011]; Mugavero v Windows By Hart, Inc., 69 A.D.3d 694, 696 [2010]; McDonagh v Victoria's Secret, Inc., 9 A.D.3d 395, 396 [2004]).
Defendants argue, primarily, that the provisions of the Industrial Code alleged by Plaintiff do not apply or were not violated because Plaintiffs accident did not occur in a work area. In response, plaintiff contends that receiving the workday's assignment and preparing for work was ancillary to the construction work about to be performed minutes later, and within the context of construction work he had already performed for two months leading up to the accident. The protections afforded workers under Labor Law §241 [6] are not limited to the actual site of the construction (Gonnerman v Huddleston, 78 A.D.3d 993, 995 [2010]). "Generally, the scope of a work site must be reviewed as 'a flexible concept, defined not only by the place but by the circumstances of the work to be done'" (Id.; Adams v Alvaro Constr. Corp., 161 A.D.2d 1014, 1014 [1990]).
Here, although there is evidence that the shanty was set apart from where plaintiff was performing electrical work, it cannot be said as a matter of law that the location of the shanty was not part of the construction site (Gerrish v 56 Leonard LLC, 147 A.D.3d 511,515 [2017], affd, 30 N.Y.3d 1125 [2018](there is no set distance which would automatically include or exclude applicability of Labor Law § 241 [6])). There is an issue of fact as to whether the plaintiff was injured in a "working area" as defined by 12 NYCRR 23-1.7 (e) (2) (see Harkin v City of New York, 69 A.D.3d 901, 902 [2010]; Lane v Fratello Constr. Co., 52 A.D.3d 575, 575-576 [2008]; McDonagh v Victoria's Secret, Inc., 9 A.D.3d at 396; Dalanna v City of New York, 308 A.D.2d 400 [2003]; see generally Rizzuto v L.A. Wenger Contr. Co., 91 N.Y.2d 343). Defendants failed to demonstrate that the area where the plaintiff was injured did not constitute a "working area" within the meaning of this provision (see Lane v Fratello Const. Co., 52 A.D.3d 575, 576 [2008]; Owen v Schulmann Constr. Corp., 26 A.D.3d 362, 363 [2006]; Laboda v VJV Dev. Corp., 296 A.D.2d 441 [2002]). Furthermore, the Court finds that the doorway where plaintiff was injured constitutes a passageway within the meaning of the regulation, and plaintiff raised an issue of fact as to whether the proximate cause of his injury was a tripping hazard within the passageway (see McCullough v One Bryant Park, 132 A.D.3d 491. 492 [2015]; Thomas v Goldman Sachs Headquarters, LLC. 109 A.D.3d 421,421-422 [2013]).
Finally, the branch of the motion by defendants which is for summary judgment in their favor on their third-party claims for contractual indemnification is denied. Paragraph 18.1 of the agreement between Skanska/Walsh and GMA requires the latter to indemnify the Port Authority, Gateway Partners and Skanska/Walsh for any claims arising out of or related to GMA's work. "[A] party seeking contractual indemnification must 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 [2009]). In contrast, where a question of fact exists regarding the owner's negligence, a conditional order of summary judgment for contractual indemnification must be denied as premature (Bellefleur v Newark Beth Israel Med. Ctr., 66 A.D.3d 807. 808 [2009]; see State of New Yorkv Travelers Prop. Cas. Ins. Co., 280 A.D.2d 756, 757-758 [2001]). Here, as there are triable issues of fact as to whose negligence, if any, caused the plaintiffs accident, the Court cannot conditionally grant that defendants' motion for summary judgment in its favor on their claim for contractual indemnification. Under such circumstances, it would be premature to award summary judgment on that cause of action (see Bellefleur v Newark Beth Israel Med. Ctr .,66 A.D.3d at 808-09; see generally George v Marshalls of MA, Inc.,6\ A.D.3d 925, 930 [2009]).
Motion by GMA
For the reasons set forth above, the branches of the motion by GMA which are to dismiss the Complaint on the same grounds proffered by defendants, are denied. Relatedly, as the motion to dismiss the complaint is denied, the branch of GMA's motion which seeks dismissal of the third-party action, is also denied.
Conclusion
The branches of the motion by defendants for summary judgment dismissing the Complaint, and for summary judgment in their favor on their contractual indemnification claim in the Third-Party Complaint, are denied.
The branches of motion by GMA which are to dismiss the Complaint on the same grounds proffered by defendants, are denied. The branch of the motion by GMA which is to dismiss the Third-Party7 Complaint, is also denied.