Opinion
Index No. 724768/2020 Motion Seq. No. c004
11-29-2022
EDGAR PAGUAY, Plaintiff, v. 510 WEST 22nd STREET OWNER LLC, OMNI BUILD CONSTRUCTION INC., CAVA CONSTRUCTION CO., INC., and ROCK GROUP NY CORP., Defendants. ROCK GROUP NY CORP., MAGA Third-Party Plaintiff, v. CONTRACTING CORP., Third-Party Defendant.
Unpublished Opinion
IAS Part 12
Motion Date: October 25, 2022
HONORABLE DENIS J. BUTLER, JUSTICE
The following papers were read on this motion by plaintiff for an order pursuant to CPLR § 3212 granting partial summary judgment for his claims under Labor Law § 240(1) against all defendants; and a cross motion by defendant/third party plaintiff, Rock Group NY Corp., for an order (1) pursuant to CPLR § 3212 granting summary judgment and dismissing the complaint insofar as asserted against it; (2) pursuant to CPLR § 3212 granting summary judgment and dismissing all cross-claims insofar as asserted against it; and (3) pursuant to CPLR § 3212 granting summary judgment in favor of Rock Group NY Corp., on its third-party complaint against third-party defendant Maga Contracting Corp.
Papers Numbered
Notice of Motion, Affirmation, Exhibits.................................................................................................................E38-52
Notice of Cross-Motion, Affirmation, Exhibits......................................................................................................E93-101
Affirmation in Opposition.....................................................................................................................................E103-104
Affirmation in Opposition to Cross-Motion, Exhibits.............................................................................................E104-107
Affirmation In Opposition to Cross-Motion...........................................................................................................E108
Affirmation in Reply..............................................................................................................................................E124
Upon the foregoing papers, it is ordered that this motion is determined as follows:
This action involved an alleged workplace injury at a construction site. It is not disputed that defendant 510 West 22nd Street Owner LLC, was the owner of the premises, that defendants Omni Build Construction Inc., and Cava Construction Co., Inc., were the general contractors, and that defendant Rock Group NY Corp, (hereinafter Rock), was a subcontractor retained to construct a material hoist. Defendant Rock, in turn, subcontracted with plaintiff's employer, third-party defendant Maga Contracting, Corp, (hereinafter Maga), to supply materials and labor for constructing the material hoist.
The proponent of a motion for summary judgment carries the initial burden of presenting sufficient evidence to demonstrate as a matter of law the absence of a material issue of fact (see Alvarez v Prospect Hospital, 68 N.Y.2d 320 [1986]). Once the proponent has met its burden, the opponent must produce competent evidence in admissible form to establish the existence of a triable issue of fact (see Zuckerman v City of New York, 49 N.Y.2d 557 [1980]) . It is well settled that on a motion for summary judgment, the court's function is issue finding, not issue determination (see Sillman v Twentieth Century-Fox Film Corp, 3 N.Y.2d 395 [1957]; Pizzi by Pizzi v Bradlee's Div. Of Sto &Shop, 172 A.D.2d 504, 505 [2d Dept 1991]) . However, the alleged factual issues must be genuine and not feigned. (Gervasio v DiNapoli, 134 A.D.2d 235 [2d Dept 1987]).
"Labor Law § 240(1) imposes upon owners and general contractors, and their agents, a nondelegable duty to provide safety devices necessary to protect workers from risks inherent in elevated work sites" (Flores v Crescent Beach Club, LLC, 208 A.D.3d 560, 561 [2d Dept 2022] [internal quotation marks omitted]). To establish a prima facie case pursuant to Labor Law § 240(1), a plaintiff must demonstrate "that the risk of injury from an elevation-related hazard was foreseeable, and that an absent or defective protective device of the type enumerated in the statute was the proximate cause of the injuries alleged" (Shipkowski v Watch case Factory Associates, 292 A.D.2d 587 [2d Dept 2002]). "Whether a device provides proper protection is a question of fact, except when the device collapses, moves, falls, or otherwise fails to support the plaintiff and his or her materials" (Exley v Cassell Vacation Homes, Inc., 2022 NY Slip Op 05840 [2d Dept 2022] [internal quotation marks omitted]).
Plaintiff established, prima facie, entitlement to judgment as a matter of law on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1). Plaintiff testified at his deposition that the accident occurred when he was struck by a falling chain and winch that detached from a steel beam. The winch supported an elevator that plaintiff was hoisting at or around the time of the accident (see Goncalves v New 56th and Park (N.Y.) Owner, LLC, 177 A.D.3d 468 [1st Dept 2019]).
In opposition, defendants failed to raise a triable issue of fact. Defendants correctly assert that plaintiff's expert affidavit is conclusory that the winch was unable to support the weight of the elevator. Nevertheless, defendants fail to raise a question of fact on the issue of how the accident occurred. While there is contradictory testimony whether the accident occurred while the elevator was being raised, or lowered, it is uncontested that plaintiff was struck by the falling winch and chain (see Pena v Intergate Manhattan LLC, 194 A.D.3d 576, 577 [1st Dept 2021]).
Defendant Rock opposes plaintiff's motion, and asserts in the first prong of the first branch of its cross motion seeking summary judgment dismissing complaint insofar as asserted against it, that it cannot be held liable under Labor Law 240 because it lacked supervision and control over plaintiff's work. "To hold a defendant liable as an agent of the general contractor or the owner for violations of Labor Law § 240(1) ... there must be a showing that it had the authority to supervise and control the work that brought about the injury" (see Pereira v Hunt/Bovis Lend Lease All. II, 193 A.D.3d 1085 [2d Dept 2021]) . "The determinative factor is whether the party had the right to exercise control over the work, not whether it actually exercised that right" (Fiore v Westerman Constr, Co., Inc., 186 A.D.3d 570 [unpaginated] [2d Dept 2020]). Additionally, "[w]here the owner or general contractor does in fact delegate the duty to conform to the requirements of the Labor Law to a third-party subcontractor, the subcontractor becomes the statutory agent of the owner or general contractor" (Fiore v Westerman Constr. Co., Inc., 186 A.D.3d 570 [unpaginated]).
Defendant Rock, in the first prong of the first branch of its cross motion, has not established, prima facie, entitlement to judgment as a matter of law as to plaintiff's Labor Law § 240(1) cause of action. The contract between the general contractor and defendant Rock, inter alia, delegated the duty to conform to the requirements of the Labor Law to defendant Rock, and therefore defendant Rock served as an agent to the general contractor with respect to the material hoist, and "could not escape liability by delegating its work to another entity" (Mogrovejo v HG Hous. Dev. Fund Co., Inc., 207 A.D.3d 457, 461 [2d Dept 2022]; see Inga v EBS N. Hills, LLC, 69 A.D.3d 568, 570 [2d Dept 2010]).
The second prong of the first branch of Defendant Rock's cross motion seeks summary judgment dismissing plaintiff's Labor Law § 200 cause of action on grounds defendant Rock did not supervise or control plaintiff's work. "Labor Law § 200 codifies the common-law duty ... to provide employees with a safe place to work" (Rodriguez v HY 3 8 Owner, LLC, 192 A.D.3d 839, 841 [2d Dept 2021]). "Cases involving Labor Law § 200 fall into two broad categories: namely, those where workers are injured as a result of dangerous or defective premises conditions at a work site, and those involving the manner in which the work is performed" (Sanchez v BBL Constr. Services, LLC, 202 A.D.3d 847, 849 [2d Dept 2022]). Here, both categories are at issue. "[F]or liability to be imposed on a defendant where the means and methods of the work are involved, it must be shown that the defendant possessed the authority to supervise or control performance of the work" (Sanchez v BBL Constr. Services, LLC, 202 A.D.3d 847, 850) . "General supervisory authority at a work site, the right to stop a contractor's work if a safety violation is observed, or the authority to ensure compliance with safety regulations or the terms of a contract is insufficient to impose liability under Labor Law § 200" (Kauffman v Turner Constr. Co., 195 A.D.3d 1003, 1006 [2d Dept 2021] [internal quotation marks omitted]; see Kefaloukis v Mayer, 197 A.D.3d 470, 471 [2d Dept 2021]) . "Rather, the defendant must have had the responsibility for the manner in which the [plaintiff's] work is performed" (Kauffman v Turner Constr. Co., 195 A.D.3d 1003, 1006 [internal quotation marks omitted]).
Defendant Rock demonstrated, prima facie, that it only had general supervisory authority over third-party defendant Maga's work at the material hoist work site. Defendant Rock's employee testified at a deposition that defendant Rock delegated to third-party defendant Maga the responsibility to provide the labor to construct the material hoist and that "it was [Maga's] responsibility to take care of the job."
Plaintiff's pleadings, however, also sound in premise liability. "[L]lability under Labor Law § 200 ... may be imposed upon a subcontractor where it had control over the work site and either created the allegedly dangerous condition or had actual or constructive notice of it" (Uhl v D'Onofrio Gen. Contractors, Corp., 197 A.D.3d 770, 772 [2d Dept 2021]; see Rodriquez v HY 38 Owner, LLC, 192 A.D.3d 839, 841). Defendant Rock failed to demonstrate, prima facie, that it did not have control over the material hoist work site, or prove the last time it inspected the material hoist work site necessary to demonstrate the lack of notice (see White v Vil, of Port Chester, 92 A.D.3d 872, 876 [2d Dept 2012]) .
The third prong of the first branch of defendant Rock's cross motion seeks summary judgment dismissing plaintiff's Labor Law § 241(6) cause of action. "Labor Law § 241(6) imposes upon owners and general contractors, and their agents, a nondelegable duty to provide reasonable and adequate protection and safety for workers, and to comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor" (Jarnutowski v City of Long Beach, 2022 NY Slip Op 06474 [2d Dept 2022]). "[P]laintiff must allege that defendant violated an Industrial Code regulation that sets forth a specific standard of conduct and [is] not simply a recitation of common-law safety principles" (Toussaint v Port Auth. of New York and New Jersey, 38 N.Y.3d 89, 94 [2022] [internal quotation marks omitted]).
Here, plaintiff's bill of particulars allege that defendants violated: Industrial Code 23-1.7 (12 NYCRR § 23-1.7) which concerns protection from general hazards; Industrial Code 23-6 (12 NYCRR § 23-6) which concerns material hoists; and Industrial Code 23-7 (12 NYCRR § 23-7) which concerns personnel hoists. While defendant Rock properly asserts that Industrial Codes 23-1.7 and 23-7 do not appear applicable, Rock has not demonstrated, prima facie, that it did not violate Industrial Code 23-6, or that Industrial Code 23-6 otherwise does not apply to this matter.
Defendant Rock has not established prima facie entitlement to summary judgment under the second branch of its cross motion which seeks to dismiss all cross claims and counterclaims insofar as asserted against it, as defendant Rock has not established its freedom from negligence in this matter.
The third branch of defendant Rock's cross motion seeks summary judgment on its third-party action for contractual indemnification against third-party defendant Maga. "A party's right to contractual indemnification depends upon the specific language of the relevant contract" (Keller v Rippowam Cisqua School, 208 A.D.3d 654, 655 [2d Dept 2022] [internal quotation marks omitted]). "[A] party seeking contractual indemnification pursuant to a contract relative to the construction of a building must prove itself free from negligence, because to the extent its negligence contributed to the accident, it cannot be indemnified therefor" (Moqrovejo v HG Hous. Dev. Fund Co., Inc., 207 A.D.3d 461, 463 [2d Dept 2022]) . Insofar as defendant Rock has not demonstrated, prima facie, its freedom from negligence in this matter, it has not demonstrated entitlement to judgment as a matter of law on its contractual indemnification claim.
Accordingly, it is hereby
ORDERED that plaintiff's motion for summary judgement on the issue of defendants' liability on its Labor Law § 240(1) cause of action is GRANTED; and it is further
ORDERED that the first branch of the cross motion by defendant Rock Group NY Corp., seeking summary judgement dismissing the complaint insofar as asserted against it is DENIED; and it is further
ORDERED that the second branch of the cross motion by defendant Rock Group NY Corp., seeking summary judgement dismissing all cross claims and counterclaim insofar as asserted against it is DENIED; and it is further
ORDERED that the third branch of the cross motion by defendant and third-party plaintiff Rock Group NY Corp., seeking summary judgement on its third-party cause of action for contractual indemnification against third-party defendant Maga Contracting Corp., is DENIED.
Any requests for relief not specifically addressed herein are DENIED.
This constitutes the Decision and Order of the court.