Opinion
41594/04.
Decided on November 10, 2009.
The plaintiff is represented by Bonina Bonina, P.C., by John Bonina, Esq., and Deborah Treotola, Esq., of counsel, the defendants the City of New York, The New York City Police Department, The New York City Department of Technology and Telecommunications are represented by Michael A Cardozo, Esq., Corporation Counsel of the City of New York, by Don H. Nguyen, Esq., of counsel, the defendants Forest City Enterprises, Forest City Tech Place Inc., First NY Management Company, Forest City Ratner Companies and FCRC Services Company are represented by Jane N. Barrett Associates, L.L.C., by Jane N. Barrett, Esq., of counsel, the defendants First NY Partners and Forest City Tech Place Associates, L.P. are represented by Hoffman Roth, L.L.P., by Jayne F. Monaham, Esq., of counsel, the defendant Thompson Overhead Door Company is represented by Chesney Murphy, LLP., by, Peter Verdirame, Esq. and Joyce Bigelow, Esq., of counsel.
Upon the foregoing papers in this action by plaintiff Antonio Quiles (plaintiff) against defendants the City of New York, the New York City Police Department (NYPD), the New York City Department of Information Technology and Telecommunications (NYDITT) (collectively, the City), Forest City Tech Place Associates, L.P., First New York Partners, Forest City Enterprises, Forest City Tech Place Inc., First New York Management Company, Forest City Ratner Companies, and FCRC Services Company L.P. (collectively, defendants) to recover damages for personal injuries sustained by him, plaintiff moves for an order granting him summary judgment in his favor on the issue of liability against defendants pursuant to sections 240 (1) and 241 (6) of the Labor Law, and setting this matter down for a trial solely on the issue of damages. Forest City Enterprises, Forest City Tech Place Inc., First New York Management Company, and Forest City Ratner Companies cross-move for summary judgment dismissing plaintiff's complaint as against them. The City moves for partial summary judgment as against Forest City Tech Place Associates, L.P. on the issue of its liability to it for contractual indemnification, requiring Forest City Tech Place Associates, L.P. to assume the defense of this action on its behalf, and directing Forest City Tech Place Associates, L.P. to reimburse it for the attorneys' fees, costs, and expenses it has incurred to date. Third-party defendant Thompson Overhead Door (Thompson) moves for summary judgment dismissing third-party plaintiffs Forest City Enterprises, FCRC Services Company L.P., and Forest City Ratner Companies' claim as against it for contribution and common-law indemnification pursuant to Workers' Compensation Law § 29, and an order severing the remaining claim in the third-party action from the main action.
FCRC Services Company L.P., which provided cleaning services at the subject premises, has been dismissed from this action by stipulation.
The City is the owner of certain land located at 11 Metrotech Center, in Brooklyn, New York. On November 17, 1993, the City entered into a 99-year ground lease with Forest City Tech Place Associates, L.P. Thereafter, 11 Metrotech Center was constructed, which is a multi-level commercial building with garages and a loading dock area. Forest City Tech Place Associates, L.P., as the owner and landlord of the building, then leased 11 Metrotech Center back to the City for use by its agencies, NYPD and NYDITT, which are the only tenants at 11 Metrotech Center.
Forest City Tech Place Inc. is the general partner of Forest City Tech Place Associates, L.P. Forest City Enterprises is the 100% owner of Forest City Tech Place Inc. 11 Metrotech Center is one of the properties in the real estate portfolio of Forest City Ratner Companies. First New York Partners is a subsidiary of Forest City Ratner Companies, and it is the managing agent for the premises. First New York Management Company is a general partner of First New York Partners.
The loading dock area is a common area that serves the entire building. Adjacent to the loading dock is the building's security office. The building's engineers designed and installed a permanent elevated steel platform to house an additional air conditioning unit requested by the security personnel whose office was located adjacent to the loading dock. The building's engineering department placed this air conditioner unit for the security office on this elevated platform.
The elevated platform is approximately six feet by six feet and 10 to 15 feet above the concrete ground, and the platform's surface is four feet eight inches from the ceiling above. The platform is in the vicinity of a large commercial roll type steel garage door, which leads to the loading dock area. The rolling steel garage door's operator/motor is recessed in the drop ceiling above the elevated platform. The rolling steel garage door is approximately 29 feet wide, 18 feet high, and 2000 pounds.
The commercial garage door at 11 Metrotech Center was damaged by a New York City Emergency Services vehicle that had been attempting to enter the garage/loading dock area as the garage door was closing. First New York Management Company, as the agent for Forest City Tech Place Associates, L.P., hired Thompson to repair and reinstall the rolling steel garage door. The repair work, as set forth in Thompson's proposal, dated June 10, 2004, and its accompanying invoice of June 17, 2004, consisted of repairing the rolling steel garage door by removing the entire curtain for a shop repair and replacing approximately 40 insulated flat slats throughout the curtain. The balance of the slats were to be serviced while they were open and laying flat on the shop bench. The curtain would then be returned to the site and reinstalled. In addition, at the same time the curtain was removed from the site, Thompson was to "pull the drum" and then replace the internal springs, bearing pins, and related parts in its shop as a preventive measure. Thompson also was to relocate the operator/motor of the garage door from on the top of the coil to a shelf mount below the coil. This included relocation, new mounting as required, and all necessary electrical extensions. The cost for the repair of the door and relocation of the operator/motor was $9,700.
Pursuant to the work proposal, the garage door was removed by Thompson for replacement of its slats, the slats were replaced in its shop, and the door was to be reinstalled by Thompson. In order to reinstall the garage door, a 27-foot pipe that was about 14 feet above ground and the curtain had to be affixed to the building's structure. In order to operate, the garage door had to be reinstalled and/or affixed to the building.
On July 30, 2004, three mechanics and two helpers were assigned to the job and sent by Thompson to reinstall the garage door. The job was to take two days to perform. The mechanics were plaintiff, Cesar Villota (Villota), and Reinaldo Correa (Correa). The two mechanics' helpers were Washington Barretto (Barretto) and Eric. Each mechanic in the crew was assigned a truck. Plaintiff drove a truck whose rear platform was a scissor lift, which brought the door to the location. Villota drove a truck that contained a crane and Correa brought a utility type truck that had various tools. All of the trucks had extension ladders. The crew did not have a foreman or supervisor. The three mechanics were "in charge" of the job.
Upon arrival at the building, the Thompson employees sought out a building representative to receive instructions on the job. In order to reinstall the commercial overhead door, the Thompson workers had to be at either end of the curtain in order to align the slats prior to bolting it into place with the end plates and mounting iron, which were attached to the wall vertically along either side of the doorway. According to plaintiff, due to the location of the elevated platform and its proximity to where the bolts had to be secured, there was no room for a lift bed truck or lift to be placed there to do the job. Plaintiff claims that because of the proximity of the platform to the mounting iron located on the side of the doorway and where the end plates had to be bolted, and since the platform could not be removed in order to install the garage curtain, it was necessary for him to stand on the elevated platform in order to install and affix the curtain to the building structure.Therefore, in order to align the slats and affix the garage curtain, plaintiff stood upon the elevated platform and Correa and Barretto stood on an elevated platform on the bed of a Thompson lift body truck on the other side of the door. Villota operated a crane to assist in raising and supporting the rolled curtain/door.
Prior to bolting the curtain, it had to be shifted and aligned. The curtain was elevated and held in position with the crane in order to attach it with ropes to the pipe that was along the top of the doorway. Once tied to the pipe, the crane was lowered to suspend the curtain roll from the ropes in order to align the curtain. The Thompson workers were working to align the curtain on both ends in order to secure it to the end plates (which were approximately 14 feet above ground level) by moving and pushing the curtain roll manually with their hands in combination with hand tools and the crane. After working in this manner for approximately 15 minutes, plaintiff was trying to grab and align the curtain on his end when it swayed, causing him to fall approximately 10 feet down from the platform. Upon falling, plaintiff struck the curb and concrete ground below the platform, sustaining injuries.
On December 23, 2004, plaintiff filed this action against defendants, seeking to recover damages for the personal injuries sustained by him when he fell. Plaintiff's complaint asserts that defendants owned, managed, and maintained the premises, and he alleges violations of Labor Law §§ 200, 240(1), and 241 (6). In response, defendants interposed their respective answers to plaintiff's complaint. On June 7, 2007, Forest City Enterprises, FCRC Services Company L.P., and Forest City Ratner Companies filed a third-party complaint against Thompson, alleging common-law indemnification and breach of a contract to procure insurance coverage for them and/or contractual indemnification pursuant to paragraph 14 of the June 17, 2004 work agreement with First New York Partners. Thompson has interposed a third-party answer. Depositions have been taken and documents have been exchanged in discovery. Plaintiff filed his note of issue on May 29, 2008. By order dated August 6, 2008, third-party discovery was to continue while the case remained on the calendar, and the time to file summary judgment motions was extended.
Pursuant to Labor Law § 240 (1), all owners and their agents are required to furnish or erect or cause to be furnished or erected for the performance of labor involving the "repairing" or "altering" of a building or structure scaffolding, braces, and other safety devices "which shall be so constructed, placed and operated as to give proper protection to [the worker]." Labor Law § 240 (1) imposes absolute liability upon an owner or general contractor for failing to provide "proper protection" against elevation-related hazards ( see Blake v Neighborhood Hous. Serv. of NY City , 1 NY3d 280 , 287; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 500). The duty under Labor Law § 240 (1) is nondelegable and an owner is liable for the violation of this statute "even though the job was performed by an independent contractor over which it exercised no supervision or control" ( Rocovich v Consolidated Edison Co., 78 NY2d 509, 513; see also Ross, 81 NY2d at 500). Labor Law § 240 (1) is to be construed liberally so as to accomplish the purpose for which it was framed, which is to protect workers from elevated-related hazards and "to impose the responsibility for safety practices on those best situated to bear that responsibility" ( Ross, 81 NY2d at 500; see also Rocovich, 78 NY2d at 513).
Here, there is no dispute that plaintiff suffered an injury from an elevation-related hazard or that the elevated platform on which plaintiff was working proved inadequate to protect him from harm directly flowing from the application of the force of gravity to his person ( see Ross, 81 NY2d at 500).Plaintiff contends that defendants, as the owners and/or managing agents of the owners, are absolutely liable to him for a violation of Labor Law § 240 (1) for failing to provide him with adequate safety devices to afford him "proper protection" to perform the work at issue, and that this failure was a proximate cause of his injuries. Specifically, plaintiff asserts that the elevated platform upon which he was working was an inadequate safety device as it had no guarding, toe boards, or netting to protect him from falling.
Plaintiff has submitted the expert affidavit of Michael Kaufmann, a professional engineer and a certified safety professional. Mr. Kaufmann states that he reviewed the footage captured on the building's security camera of the happening of the accident, photographs taken of the elevated platform and accident site, the incident/accident reports, the depositions taken in this matter, and the leases, agreements, and work invoice/order exchanges. In addition, Mr. Kaufmann interviewed plaintiff and performed an on-site inspection of the platform and loading dock area of the building. Based upon his on-site inspection, Mr. Kaufmann observed the dimensions of the platform. Mr. Kaufmann also noted that although there was a mesh screen in place mounted to and surrounding the platform at the time of his inspection, this was not present at the time of the accident.
Mr. Kaufmann observed that there was no attachment provided on or about the platform for securing a safety line or harness. Mr. Kaufmann notes that no safety devices, such as guarding, a harness, life line, safety line and/or netting were provided to plaintiff to provide him with protection when working at a height, as required to comply with Labor Law § 240 (1). Mr. Kaufmann opines, with a reasonable degree of engineering certainty, that defendants, as owners and/or agents thereof, violated Labor Law § 240 (1) by their failure to furnish, erect, and/or cause to be furnished or erected proper scaffolding, braces, and/or other devices, including railings, toe boards, guarding, lifelines, attachments to secure a safety line, and/or netting so as to give proper protection to plaintiff.
A plaintiff establishes a prima face violation of Labor Law § 240 (1) by showing that an elevated work platform failed to give him proper protection ( see Madalinski v Structure-Tone, Inc ., 47 AD3d 687 , 687-688; Ford v HRH Constr. Corp ., 41 AD3d 639 , 641; Dooley v Peerless Importers, Inc ., 42 AD3d 199 , 203-204). Thus, plaintiff asserts that he has made a prima facie showing of his entitlement to judgment as a matter of law on the issue of liability pursuant to Labor Law § 240 (1).
In opposition to plaintiff's motion, Forest City Tech Place Associates, L.P. and First New York Partners argue that Labor Law § 240 (1) is not applicable to this case because plaintiff has not established that the activity in which he was engaged at the time of his accident is a covered activity pursuant to Labor Law § 240 (1). Specifically, they argue that the work plaintiff was performing was not an "alteration."
In Joblon v Solow ( 91 NY2d 457, 465), the Court of Appeals defined the term "altering," within the meaning of Labor Law § 240 (1), as the making of "a significant physical change to the configuration or composition of the building or structure." Forest City Tech Place Associates, L.P. and First New York Partners assert that here, the garage door was being put back in the same location, using the same pre-existing pipe, drum, channels, and end plates that were already in place when the door was initially installed. They contend that, therefore, the requisite work did not make any significant physical change to the configuration or composition of the building or structure as is required by the Joblon definition.
Forest City Tech Place Associates, L.P. and First New York Partners' argument must be rejected. This was not a simple reattachment, but a difficult and major reinstallation of a 2,000 pound steel garage door that was connected to the operator, its power source, which had to be relocated. In order to reinstall the garage door, a 27-foot pipe that was 14 feet above the ground and the curtain had to be affixed to the building's structure. In addition, in order to operate, the garage door had to be installed and affixed to the building. Moreover, the commercial garage door that was being reinstalled in the building was intended to remain there as part of the building. It was not merely a "temporary installation," but, rather, was meant to be a permanent part of the building ( see Wade v Atlantic Cooling Tower Servs., Inc ., 56 AD3d 547 , 548-549). Thus, the work performed fits within the Joblon definition of an "alteration" ( see Sanatass v Consolidated Inv. Co., Inc ., 10 NY3d 333 , 337; Panek v County of Albany, 99 NY2d 452, 457-458; Joblon, 91 NY2d at 465; Wade, 56 AD3d at 548-549).
In any event, the "repairing" of a building or structure is also a covered activity under Labor Law § 240 (1). Forest City Tech Place Associates, L.P. and First New York Partners contend that the garage door was not being repaired in the sense that it was not malfunctioning, and that there was only decorative modifications, consisting of replacing the damaged slats and performing preventive maintenance. This contention, however, is without merit and belied by Thompson's written quote dated June 10, 2004. The garage door had been damaged and was in need of repairs. The work involved not only the preventive maintenance of servicing the undamaged slats and the replacement of the springs, bearing pins, and related parts, but also the replacement of 40 damaged insulated flat slats throughout the curtain as well as the moving and relocating of the operator. Thus, this required work was not routine maintenance, but constituted "repairs" and was a "covered activity" within the ambit of Labor Law § 240 (1) ( see Izrailev v Ficarra Furniture of Long Is., 70 NY2d 813, 815; Ricco v NHT Owners, LLC , 51 AD3d 897, 899; Lofaso v J.P. Murphy Assoc ., 37 AD3d 769 , 771; Davidson v Ambrozewicz, 12 AD3d 902, 903; Kerr v Louisville Hous ., 2 AD3d 924 , 926).
The City argues that a question of fact remains as to whether the platform for the air conditioning unit was an adequate safety device because there is no evidence that this platform slipped, moved, or otherwise failed. This argument is rejected. Plaintiff is not required to show that the platform itself is defective ( see Swiderska v New York Univ. , 10 NY3d 792 , 793; DeKenipp v Rockefeller Ctr., Inc ., 60 AD3d 550 , 500). Rather, the proper inquiry under Labor Law § 240 (1) is whether the platform provided proper protection to plaintiff. As discussed above, plaintiff has submitted Mr. Kaufmann's expert affidavit, asserting that the platform did not provide plaintiff with adequate protection and was the proximate cause of his fall.
Forest City Tech Place Associates, L.P. and First New York Partners further argue that they cannot be held liable under Labor Law § 240 (1) because the elevated platform was merely a shelf designed to hold an air conditioning unit, and was not provided to plaintiff for use as a work platform or as a safety device. They argue that it was not contemplated that someone would be standing on this platform performing work. They contend that the requirements of rails, toe boards, etc., thus, cannot be held to be applicable to this platform.
In support of this argument, Forest City Tech Place Associates, L.P. and First New York Partners have submitted the expert affidavit of Stuart Sokoloff, a professional engineer. Mr. Sokoloff notes that the platform was designed and built by the building engineers to store the air conditioning unit. Mr. Sokoloff states that the fact that the platform was four feet eight inches from its surface to the ceiling is evidence that it was not intended to be a platform from which to perform any type of work. Mr. Sokoloff opines, to a reasonable degree of engineering certainty, that the elevated platform was not a work platform, but actually a shelf for the storage of equipment and never intended to be a work platform. He states that as such, it was not subject to the safety requirements of the Labor Law or the New York City Building Code or OSHA provisions.
This argument by Forest City Tech Place Associates, L.P. and First New York Partners and espoused by Mr. Sokoloff's expert affidavit, however, is unavailing. Where a raised surface is the functional equivalent of a scaffold and a worker falls from that surface while performing his work, he is entitled to the protection of the Labor Law ( see Swiderska, 10 NY3d at 793; Gomez v City of New York , 63 AD3d 511 , 512; DeKenipp, 60 AD3d at 550; Hanvey v Falke's Quarry, Inc ., 50 AD3d 1237 , 1238; Dooley v Peerless Importers, Inc. , 42 AD3d 199 , 204; Watson v Hudson Valley Farms Inc., 276 AD2d 1004, 1004; Tomlins v Siltone Bldg. Co., 267 AD2d 947, 947; Frierson v Concourse Plaza Assoc., 189 AD2d 609, 610).
Here, plaintiff's expert, Mr. Kaufmann, asserts that the elevated platform blocked and prevented access to connecting the curtain to the drum, pipe and/or end plate absent standing on the platform. He states that the workers could not put another piece of equipment in the area to gain access to the end of the curtain, pipe, and end plate as the elevated platform affixed to the building was in the way. Mr. Kaufmann opines that plaintiff had to stand upon the elevated platform in order to perform the work that was contracted for by defendants. He explains that the existence of the curb in the vicinity of the elevated platform and end plate further blocked access to the end of the curtain/pipe and end plate by other means, thus requiring the use of the platform. Plaintiff has also annexed photographs depicting the position of the elevated platform. In addition, Thompson's secretary-treasurer, Edward Thompson, testified that the elevated work platform upon which plaintiff was situated was where the end plate of the door had to be mounted and where the electric operator was located (Edward Thompson's Dep. Transcript at 222-223). Furthermore, Correa testified that plaintiff had to stand on the elevated platform in order to relocate the motor and that no one ever prohibited plaintiff from standing on and using the elevated platform to perform the work (Correa's Dep. Transcript at 41-42, 74).
In response, Forest City Tech Place Associates, L. P. and First New York Partners assert that since Stanley Hamilton (Hamilton), the building facility manager, and Allen Lee (Lee), the building manager, testified, at their respective depositions, that they never witnessed anyone on the platform, its use in this manner was not contemplated (Hamilton's Dep. Transcript at 49; Lee's Dep. Transcript at 38). They point out that Hamilton testified that the building engineers would have used a one-man lift to service the air conditioner, which was kept on the sixth floor in the mechanical room (Hamilton's Dep. Transcript at 49). Lee, however, specifically testified that in order for the building engineers to service the air conditioning unit, they would "have to go up to the platform or go on the platform," and that he did not believe that there was "any other way to access the [air conditioning unit] other than going onto the platform" (Lee's Dep. Transcript at 30-31 [emphasis added]). Thus, defendants' claim that this use was unforeseeable and uncontemplated is belied by this testimony. Moreover, as noted above, defendants did not prohibit plaintiff from using the platform in this manner (Correa's Dep. Transcript at 42-43).
Defendants assert that plaintiff had proper safety devices available to him. Specifically, they state that plaintiff had a scissor lift and extension ladder provided by Thompson, and that there was also a one-man lift in the mechanical room on the sixth floor of the building. In support of this assertion, Forest City Tech Place Inc. and First New York Partners rely upon Mr. Sokoloff's expert affidavit. While Mr. Sokoloff does not specifically challenge the core assertions that the use of the platform was the most feasible method to perform the work, he opines that plaintiff could have placed the scissor lift close enough to the side where he was positioned so that he could have aligned the door without having to stand on the platform. Mr. Sokoloff further opines that even if plaintiff had to stand on the platform shelf to perform the task at hand, the placement of the scissor lift on that side, under the platform, would have afforded him a kind of safety net, wherein if he had fallen, it would have been a fall of inches onto the lift, as opposed to falling several feet onto the ground. Mr. Sokoloff also opines that plaintiff could have utilized one of the extension ladders that he and his co-workers brought to the job site. He states that using the measurements provided by Mr. Kaufmann, if plaintiff placed the extension ladder with its top resting on the overhead pipe and at the accepted safe standard 1:4 slope, the ladder would have been 39 inches from the wall, a little less from the end plate/channel depending on how far it stuck out from the wall, and the ladder would not have been obstructed by any curb. He avers that plaintiff would have been less than four feet from the end plate and could have moved the curtain, shifted the curtain, or done whatever else was needed in order to align the curtain. In addition, Mr. Sokoloff points out that the air conditioner unit could have been accessed by the one-man lift which was located in the building.
While Mr. Sokoloff thus speculates that there may have been another means which could possibly have been used by plaintiff, the evidence shows that plaintiff was never directed to use any of these other methods. With respect to the scissor lift, Villota testified that the truck with the scissor lift was being used in the position that it was in to perform work so that it could not be moved (Villota's Dep. Transcript at 351-352). Moreover, Villota testified that the workers did not think about using the truck with the scissor lift to gain access to the area where plaintiff was working ( id.), and, therefore, at the time of the accident, they were not aware of any other method to perform the work. As to the use of a ladder, Villota specifically testified that he and the other two mechanics made the decision to use the elevated platform for the reason that they "couldn't put a ladder there" because the platform was located in a place that made it impossible to use a ladder in that spot ( Id. at 143-144).
Where, as here, the uncontroverted testimony establishes that defendants did not furnish plaintiff with a safety device adequate to provide him with proper protection, this is sufficient to establish the liability of the defendants, even if he brought with him ladders or a scissor lift, but did not use them; the mere presence of other safety devices at the work site does not diminish the defendants' liability ( see Murphy v Islat Assoc. Graft Hat Mfg. Co., 237 AD2d 166, 166; Neville v Deters, 175 AD2d 597, 597).
As to the one-man lift, it (as previously noted) was not present on the immediate work site area, but was kept in the sixth floor mechanical room and was not provided to the workers on the day of the accident (Hamilton's Dep. Transcript at 49-50). The fact that another more suitable safety device may have been available somewhere else at the work site is insufficient, as a matter of law, to permit defendants to escape liability under Labor Law § 240 (1) ( see Garcia v 1122 E. 180th St. Corp., 250 AD2d 550, 551-552; McLean v Vahue Son Bldrs., 210 AD2d 999, 999; Heath v Soloff Constr., 107 AD2d 507, 512).
Thus, the mere presence of the aforementioned devices at the work site is not enough to establish that plaintiff was provided with an appropriate safety device under Labor Law § 240 (1) ( see Williams v City of Niagara Falls , 43 AD3d 1426 , 1427; Marin v Levin Props. LP , 28 AD3d 525 , 525). It was entirely reasonably foreseeable that plaintiff would use the platform which was present at the immediate work area and which was the most feasible and practical, if not the only, means of access to perform the required work at the elevated work site ( see Barraco v First Lenox Terrace Assoc., 25 AD3d 427, 428; Griffin v New York City Tr. Auth. , 16 AD3d 202 , 203; Crimi v Neves Assoc., 306 AD2d 152, 153; Brennan v RCP Assoc., 257 AD2d 389, 391).
The City argues that a question of fact exists as to whether the area surrounding the air conditioning unit was a permanent fixture, as opposed to the functional equivalent of an elevated work area. The City, relying upon Milanese v Kellerman ( 41 AD3d 1058 , 1060), argues that since the platform was installed prior to plaintiff's accident by the building's engineers, there is a question of fact as to whether it was a "device" within the meaning of Labor Law § 240 (1). The City's reliance upon Milanese ( 41 AD3d at 1060-1061) is misplaced. In Milanese ( 41 AD3d at 1059-1061), the plaintiff was taking the stairway from the first to the second floor when the stairway collapsed, and summary judgment was denied because the stairway was a "permanent" passageway between the parts of a building, as opposed to a tool or device to gain access to an elevated work site. Here, in contrast, the elevated platform was not a normal appurtenance to the building such as a staircase, but was used to protect plaintiff from an elevation-related hazard ( see Brennan, 257 AD2d at 391; Santamaria v 1125 Park Ave. Corp., 249 AD2d 16, 17). The fact that the platform was permanently affixed to the building is of no moment ( see Spiteri v Chatwal Hotels, 247 AD2d 297, 298-299; Drivas v Breger, 244 AD2d 160, 160). The elevated platform served conceptually and functionally as a scaffold ( see Becerra v City of New York, 261 AD2d 188, 189).
Defendants assert that it was plaintiff's own decision to go on and use this elevated platform and that this was the sole proximate cause of his injuries. "[W]here a plaintiff's own actions are the sole proximate cause of the accident, there can be no liability"( Cahill v Triborough Bridge Tunnel Auth. , 4 NY3d 35 , 39). However, "if a statutory violation is a proximate cause of an injury, the plaintiff cannot be solely to blame for it" ( Blake, 1 NY3d at 290; see also Robinson v East Med. Ctr., LP. , 6 NY3d 550 , 554). "[R]egardless of the precise manner in which the accident occurred, a defendant is not absolved from liability where . . . a plaintiff's injuries were at least partially attributable to the defendant's failure to provide protection as mandated by the statute" ( Cammon v City of New York , 21 AD3d 196 , 201). Comparative negligence is not a defense to a Labor Law § 240 (1) claim ( see Dalaba v City of Schenectady , 61 AD3d 1151 , 1152; Davidson, 12 AD3d at 904; Podbielski v KMO-361 Realty Assocs., 294 AD2d 552, 553-554).
Here, defendants have not established that any other safety device was placed so as to provide proper and adequate protection to plaintiff ( see Ewing v ADF Constr. Corp. , 16 AD3d 1085 , 1086). Thus, since plaintiff has established a statutory violation, plaintiff's conduct in using this platform did not make his conduct the sole proximate cause of his accident ( see Gordon v Eastern Ry. Supply, 82 NY2d 555, 562; Pichardo v Aurora Contrs., Inc. , 29 AD3d 879 , 880-881).
Defendants further assert that plaintiff was a recalcitrant worker who caused his own fall. Specifically, they assert that plaintiff was a recalcitrant worker because he was told by Villota on several occasions to stop what he was doing so that a helper, Eric, could access the area of the curtain where plaintiff was located and had the curtain partially aligned, in order to help him. Defendants state that instead, plaintiff continued working on the platform, leaned over to reach the curtain, and grabbed for it and it carried him over. Mr. Sokoloff opines that if plaintiff had listened to the instructions to stop working, the accident would not have occurred.
Contrary to this argument, however, the actual deposition testimony of Villota does not support defendants' argument that plaintiff failed to follow a safety instruction. Rather, Villota testified, at his deposition, that plaintiff had stated to him that he needed help in order to install a screw inside a hole because he "almost had it" and that, in response, he told Eric to go over and help him (Villota's Dep. Transcript at 169-170). Villota testified that "[they] stopped and waited for Eric" and "then [he] told Eric, go and help [plaintiff]" ( Id. at 169). Villota explained that he could not see Eric at that point, but that he heard him moving his ladder, and that Eric was on the side of the curtain closer to the loading dock at the time when he heard plaintiff scream as he fell ( Id. at 171-172). Villota specified that only 30 seconds had passed from the time that plaintiff had asked for help until the time he fell ( Id. at 173).
Defendants also argue that plaintiff was recalcitrant in that he was standing too close to the edge of the platform since he was six inches from the edge when he fell (Plaintiff's Dep. Transcript at 137-138). This does not, however, show that plaintiff was recalcitrant. There is no evidence that plaintiff was ever instructed or directed not to stand too close to the edge or that he deliberately refused to obey any safety instructions. Furthermore, plaintiff's actions, in reaching for and trying to grab a heavy curtain that was swaying when he was standing about six inches from the edge of the platform, was not the sole proximate cause of his injuries and, as noted above, any comparative fault on the part of plaintiff is not a defense to a Labor Law § 240 (1) claim.
Defendants additionally assert that plaintiff was a recalcitrant worker because he chose not to wear a hard hat on the day of the accident, failed to wear a safety harness or belt, and did not attach himself to anything to ensure that he would not fall from the platform. In order to raise a recalcitrant worker defense based on a failure to use safety devices sufficient to defeat a plaintiff's motion for summary judgment based on a violation of Labor Law § 240 (1), however, a defendant must establish that plaintiff "had adequate safety devices available; that he knew both that they were available and that he was expected to use them; that he chose for no good reason not to do so; and that had he not made that choice he would not have been injured'" ( Kosavick v Tishman Constr. Corp. of NY , 50 AD3d 287, 288, quoting Cahill, 4 NY3d at 40).
Here, plaintiff never refused to use a safety device ( see Picardo, 29 AD3d at 880). Plaintiff testified that he was never provided with a safety harness or belt by his employer (Plaintiff's Dep. Transcript at 64-65). Edward Thompson (who, as noted above, is the secretary/treasurer of Thompson) testified that he did not give any of Thompson's employees safety harnesses or hard hats to use with respect to this job (Thompson's Dep. Transcript at 223-224).
There is no evidence whatsoever that plaintiff's conduct was solely to blame for his fall or that plaintiff was recalcitrant in deliberately refusing to use a safety device that was provided to him ( see Stolt v General Foods Corp., 81 NY2d 918, 920; Dalaba, 61 AD3d at 1152; Garcia, 250 AD2d at 551-552). Thus, inasmuch as plaintiff did not decline the use of appropriate safety devices, there is no issue of fact raised to support a recalcitrant worker defense ( see Pichardo, 29 AD3d at 880). Consequently, since plaintiff has established prima facie that the elevated platform failed to give him adequate protection in violation of Labor Law § 240 (1), and defendants have failed to raise a triable issue of fact, plaintiff's motion for partial summary judgment on the issue of liability pursuant to Labor Law § 240 (1) as against the "owners" or "agents" must be granted ( see CPLR 3212[b]).
As previously discussed, the City was the owner of the land at 11 Metrotech Center. As such, the City may be held liable as an "owner" under Labor Law § 240 (1) ( see Coleman v City of New York, 91 NY2d 821, 822-823; Adimey v Erie County Indus. Dev. Agency, 89 NY2d 836, 837-838; Wong v City of New York , 65 AD3d 1000 , 1001; Duffield v Will's Equip. Repair, 55AD3d1365, 1366 [2008]; Douvartidis v State of New York , 2 AD3d 485 , 486; Silk v Turk, 294 AD2d 896, 896; Mejia v Moriello, 286 AD2d 667, 668; Sperber v Penn Cent. Corp., 150 AD2d 356, 358). Forest City Tech Place Associates, L.P. is the owner of the 11 Metrotech Center building and it, therefore, is an "owner" under Labor Law § 240 (1). First New York Partners is the managing agent for Forest City Tech Place Associates, L.P. pursuant to an agreement dated October 6, 1993, in which Forest City Tech Place Associates, L.P., as owner, expressly appointed First New York Partners as its agent to manage, operate, and maintain 11 Metrotech Center. As such, First New York Partners is liable as an "agent" of the owner under Labor Law § 240 (1) ( see Labor Law § 240; Pineda v 79 Barrow St. Owners Corp., 297 AD2d 634, 635-636).
In support of their cross motion, Forest City Enterprises, Forest City Tech Place Inc., First New York Management Company and Forest City Ratner Companies served only their notice of cross motion with no annexed pleadings or supporting affidavits or other documents. Instead, their defense counsel references and relies upon her previously served opposition to plaintiff's motion. In these papers, Forest City Enterprises, Forest City Tech Place Inc., First New York Management Company, and Forest City Ratner Companies argue that they have only an indirect financial interest in the premises and should not be held liable under the Labor Law as owners or agents of the property.
As noted above, pursuant to Labor Law § 240 (1), all "owners and their agents" are absolutely liable for a violation of that section. The term "owners" under the Labor Law, however, has "not been limited to the titleholder" ( Copertino v Ward, 100 AD2d 565, 566; see also Markey v C. F. M. M. Owners Corp., 51 AD3d 734, 737; Kwang Ho Kim v D W Shin Realty Corp., 47 AD3d 616, 618; Ampolini v Long Is. Light. Co., 186 AD2d 772, 773; Young v Norton, 175 Misc 2d 175, 178-179).
Forest City Enterprises, Forest City Tech Place Inc., First New York Management Company, and Forest City Ratner Companies argue that plaintiff has not established that they qualify as an "owner" or managing "agent" of the owner of 11 Metrotech Center. They contend that they had no direct or indirect control over the activities of 11 Metrotech Center. They assert that they were not present at the property, that they did not hire plaintiff's employer, Thompson, or create a hazard, and that they did not construct or authorize the use of the platform at issue.
The purpose of the Labor Law, however, is to impose a nondelegable duty upon owners and their agents to provide reasonable and adequate protection and safety to workers "regardless of the absence of control, supervision or direction of the work" ( Celestine v City of New York, 86 AD2d 592, 593, affd 59 NY2d 938; see also Sanatass, 10 NY3d at 339; Collins v West 13th St. Owners Corp. , 63 AD3d 621 , 622). "The Court of Appeals has unequivocally held that" [l]iability rests upon the fact of ownership and whether [the owner] had contracted for the work or benefitted from it are legally irrelevant'" ( Otero v Cablevision of NY, 297 AD2d 632, 634, quoting Coleman, 91 NY2d at 822; see also Gordon, 82 NY2d at 560; Sperber, 150 AD2d at 358). "[E]ven the lack of any ability' on the owner's part to ensure compliance with the statute is legally irrelevant" ( Sanatass, 10 NY3d at 340; see also Coleman, 91 NY2d at 823).
Forest City Tech Place Inc. is a general partner of Forest City Tech Place Associates, L.P., the landlord and building owner of 11 Metrotech Center. "A partnership is liable for the tortious act of a partner, and a partner is jointly and severally liable for the tortious acts chargeable to the partnership" ( Zuckerman v Antenucci, 124 Misc 2d 971, 972; see also Partnership Law § 26 [a] [1]; Pedersen v Manitowoc Co., 25 NY2d 412, 419; Matter of Peck, 206 NY 55, 62; Somer Wand v Rotondi, 219 AD2d 340, 343-344; Lindner v Kew Realty Co., 113 AD2d 36, 46). While Forest City Tech Place Inc. is a limited partnership, Partnership Law § 121-303 provides that the general partners of a limited partnership may be held liable for the liabilities of the limited partnership ( see Schaufler v Mengel, Metzger, Barr Co., 296 AD2d 742, 744). Thus, Forest City Tech Place Inc., as the general partner of the building owner, Forest City Tech Place Associates, L.P., pursuant to Partnership Law § 121-303, may be held responsible for the liabilities of Forest City Tech Place Associates, L.P.
Moreover, Forest City Tech Place Inc. is a signatory to the ground lease and the space/ tenant leases, on behalf of Forest City Tech Place Associates, L.P. Furthermore, Forest City Tech Place Inc. had the right to approve work being done at 11 Metrotech Center. While Stephen Tuttle (Tuttle) (who testified as the representative of Forest City Tech Place Inc.) did testify that he did not know if Forest City Tech Place Inc. could "solely" act to approve or stop work, Tuttle testified that Forest City Tech Place Inc. had the right to give its input on work being done at 11 Metrotech Center (Tuttle'sDep. Transcript at 202-203). Thus, Forest City Tech Place Inc. qualifies as an "owner" pursuant to the Labor Law and summary judgment in plaintiff's favor on his Labor Law § 240(1) claim as against it is warranted ( see CPLR 3212[b]).
Forest City Enterprises contends that it cannot be held liable as an "owner" under the Labor Law because it is not named in the lease or the deed to the property. It further contends that it is not an agent of the owner because it is not named in the building's management agreement.
Forest City Enterprises asserts that it is a national real estate developer conducting business in New York State, and that it monitors lawsuits brought against properties in its portfolio, including 11 Metrotech Center. It states that it has insurance responsibilities for properties in its portfolio, including procuring general liability insurance.
Forest City Enterprises, however, is the 100% owner of Forest City Tech Place Inc., which, as noted above, is the general partner of Forest City Tech Place Associates, L.P. Forest City Enterprises is a multi-billion dollar real estate company that is principally engaged in the ownership, development, acquisition, and management of real estate. Tuttle, who testified as the representative of Forest City Enterprises, stated, at his deposition, that the website of Forest City Enterprises specifically references 11 Metrotech Center as one of its properties. While Tuttle testified that the listing of the properties on its website means "some degree of affiliation between Forest City Enterprises and these properties, which means "less than a full ownership interest in the property or less than Forest City Enterprises . . . having a direct ownership interest in the property," he conceded that it "reflect[ed] some ownership interest in the properties" that were listed on that document and that this "includ[ed] 11 Metrotech Center" (Tuttle's Dep. Transcript at 136-138). Furthermore, Forest City Enterprises procures insurance for 11 Metrotech Center, and shared in and derived a financial benefit from the revenue generated by 11 Metrotech Center.
In addition, as evidenced by the deposition testimony of Tuttle, Forest City Enterprises is a named additional insured as an affiliated organization to Forest City Tech Place Associates, L.P. on general liability insurance policies pertaining to 11 Metrotech Center (Tuttle's Dep. Transcript at 114, 116-117). Forest City Enterprises concedes that "it requires that it be named as an additional insured in properties where [it] holds some financial interest or where repair work is being done." In fact, Forest City Enterprises alleges, in its third-party complaint against Thompson, that the contract for the work at 11 Metrotech Center required that Thompson obtain insurance for it and to indemnify it for any incidents occurring in connection with its work.
Additionally, incident reports for accidents occurring on or at 11 Metrotech Center are on Forest City Enterprises' letterhead (Tuttle's Dep. Transcript at 171). Forest City Enterprises has financial control in the properties forming Forest City Ratner Companies' property portfolio, including 11 Metrotech Center ( Id. at 41, 332-333). Forest City Enterprises also has access to the records and leases pertaining to 11 Metrotech Center ( Id. at 75), and is involved with claim inquiries regarding accidents occurring at 11 Metrotech Center. Thus, plaintiff has raised issues of fact as to whether Forest City Enterprises had an ownership interest in 11 Metrotech Center sufficient to charge it with liability as an "owner" pursuant to Labor Law § 240 (1) ( see Sanatass, 10 NY3d at 340; Rottkamp v American Ref-Fuel Co. of Hempstead, 251 AD2d 644, 645).
Forest City Ratner Companies argues that it cannot qualify as an "owner" or agent" of the owner in that it is merely a real estate developer in New York. Forest City Ratner Companies is a holding company established for the benefit of its investors. 11 Metrotech Center is one of the properties which Forest City Ratner Companies lists in its portfolio as having been developed by it, and Forest City Ratner Companies has a financial stake in the premises. Forest City Ratner Companies' agents and /or employees are involved in the construction, leasing, and management of 11 Metrotech Center, and they oversee the finances for the property. Forest City Ratner Companies is an affiliate organization with Forest City Enterprises, and Forest City Enterprises has a substantial financial investment in the properties forming Forest City Ratner Companies' property portfolio, including 11 Metrotech Center. In addition, Forest City Ratner Companies is named as an additional insured as an affiliated organization to Forest City Tech Place Associates, L.P. on general liability insurance policies pertaining to 11 Metrotech Center.
Thus, plaintiff has raised triable issues of fact as to whether Forest City Ratner Companies meets the definition of an "owner" pursuant to the Labor Law. Summary judgment dismissing plaintiff's complaint as against Forest City Ratner Companies must, therefore, be denied ( see Sanatass, 10 NY3d at 340; Rottkamp, 251 AD2d at 645).
First New York Management Company is a general partner of First New York Partners, which is the building manager for 11 Metrotech Center. As discussed above, a general partner is responsible for the torts of its partnership ( see Partnership Law § 26 [a] [1]; Lindner, 113 AD2d at 46). Moreover, First New York Management Company was explicitly listed as the "agent" for Forest City Tech Place Associates, L.P. on the invoice from Thompson, and the work proposal dated June 10, 2004 was addressed to First New York Management Company. Thus, First New York Management Company entered into the contract with Thompson, on behalf of Forest City Tech Place Associates, L.P., for the work at issue ( see Markey, 51 AD3d at 737; Pineda, 297 AD2d at 635-636). First New York Management Company, therefore, was an "agent" of the owner under the Labor Law ( see Labor Law § 240). Consequently, summary judgment in plaintiff's favor on his Labor Law § 240(1) claim as against First New York Management Company must be granted ( see CPLR 3212 [b]).
The court now turns to plaintiff's motion insofar as it seeks summary judgment in his favor on his Labor Law § 241 (6) claim. Pursuant to Labor Law § 241 (6), all owners and their agents must properly equip and guard areas in which construction work is being performed so as to provide reasonable and adequate protection and safety to workers. "Construction work" includes the repair or altering of a structure ( see Joblon, 91 NY2d at 466; Piccione v 1165 Park Avenue, 258 AD2d 357, 357). Under Labor Law § 241 (6), owners and their agents are vicariously liable for allowing a condition to exist which is violative of any of the concrete specifications of the Industrial Code ( see Rizzuto v L.A. Wenger Constr. Co., 91 NY2d 343, 350; Ross, 81 NY2d at 501-502). However, owners and their agents are not absolutely liable, meaning that liability can be reduced by reason of the injured worker's own negligence ( see Rizzuto, 91 NY2d at 350; Long v Forest-Fehlhaber, 55 NY2d 154, 161).
To support plaintiff's Labor Law § 241 (6) claim, plaintiff's expert engineer, Michael Kaufmann, asserts that defendants have violated various Industrial Code Rule 23 sections. These include 12 NYCRR 23-1.7 (b)(1)(i), which provides that "[e]very hazardous opening into which a person may step or fall shall be guarded . . . by a safety railing constructed and installed in compliance with this Part (rule)." Mr. Kaufmann asserts that in the case at bar, there was no safety railing. However, "the step or fall must be into an opening' in the surface where an employee is walking or working, not off the edge" ( Lambert v J.A. Jones Constr. Group, LLC , 18 Misc 3d 800 , 804; see also Smith v McClier Corp. , 38 AD3d 322 , 323). Thus, this section is inapplicable to the case at bar.
While Mr. Kaufmann also cites the regulations set forth in 12 NYCRR 23-1.15, 23-1.16, and 23-1.17, which set forth standards for safety railings, safety belts, and life nets, respectively, these regulations are inapplicable here because plaintiff was not provided with any of these devices ( see Kwang Ho Kim, 47 AD3d at 619; Dzieran v 1800 Boston Rd., LLC. , 25 AD3d 336 , 337; Luckern v Lyonsdale Energy Ltd. Partnership, 281 AD2d 884, 887). In addition, while Mr. Kaufmann cites 12 NYCRR 23-1.5, that section, which deals with the health and safety protection required, sets forth only general safety standards, and, thus, does not constitute a basis for a claim under Labor Law § 241 (6) ( see Meslin v New York Post , 30 AD3d 309 , 310; Sajid v Tribeca N. Assoc., L.P. , 20 AD3d 301 , 302).
Mr. Kaufmann, however, also asserts that defendants violated 12 NYCRR 23-1.22 (c) (2), which provides that "[e]very platform more than seven feet above the ground . . . shall be provided with a safety railing constructed and installed in compliance with this Part (rule) on all sides . . ." Here, the elevated platform was more than 10 feet above the ground and did not have any safety railing.
Defendants argue that 12 NYCRR 23-1.22 is not applicable in this case because plaintiff was not supplied with a work platform, but a shelf designed to hold an air conditioning unit. However, as previously discussed, the subject platform was being used as a safety device and "a working area" ( see Bryant v General Elec. Co., 221 AD2d 687, 689-690). Thus, defendants have failed to establish that they did not violate this provision or that it was not applicable to plaintiff's accident ( see Danchick v Contegra Servs., 299 AD2d 923, 924).
The violation of an Industrial Rule constitutes some evidence of negligence ( see Rizzuto, 91 NY2d at 349; Ramputi v Ryder Constr. Co. , 12 AD3d 260 , 261; Paolangeli v Cornell Univ., 296 AD2d 691, 693; Daniels v Potsdam Cent. School Dist., 256 AD2d 897, 898). Defendants, however, are free to raise the defense of comparative negligence ( see Rizzuto, 91 NY2d at 350; Ramputi, 12 AD3d at 261). Therefore, inasmuch as there are triable issues of fact as to whether the violation alleged was a substantial factor in causing plaintiff's injuries, plaintiff is not entitled to summary judgment in his favor on his Labor Law § 241 (6) claim ( see Shaheen v Hueber-Breuer Constr. Co., Inc. , 4 AD3d 761 , 762-763; Paolangeli, 296 AD2d at 693).
In support its motion, the City points out that Forest City Tech Place Associates, L.P. has a contractual obligation to indemnify it, pursuant to section 20.1 of the November 17, 1993 lease between them, which requires full contractual indemnification from any liabilities or damages, including attorneys' fees arising from any injuries occurring on the premises, unless caused by injuries arising out of the City's own negligence or tortious acts. In addition, the City points to section 20.3 of the lease, which required, upon its demand, that Forest City Tech Place Associates, L.P. undertake the defense of any action for which it is entitled to indemnification. By letter dated June 18, 2009, the City made a formal demand upon Forest City Tech Place Associates, L.P. to defend and indemnify it in this action. The City argues that, pursuant to the express terms of the indemnification clause in the lease, it is entitled to full contractual indemnification from Forest City Tech Place Associates, L.P.
It is well established that "[a] party is entitled to full contractual indemnification provided that the intention to indemnify can be clearly implied from the language and purposes of the entire agreement and the surrounding facts and circumstances'" ( Drzewinski v Atlantic Scaffold Ladder Co., 70 NY2d 774, 777, quoting Margolin v New York Life Ins. Co., 32 NY2d 149, 153). In the absence of a showing of negligence on the part of the indemnitee, General Obligations Law § 5-322.1 does not bar the enforcement of contractual indemnification for vicarious liability imposed under the Labor Law ( see Brown v Two Exch. Plaza Partners, 76 NY2d 172, 178-181; Giangarra v Pav-Lak Constr., Inc. , 55 AD3d 869 , 871; Lesisz v Salvation Army , 40 AD3d 1050 , 1051).
Here, the contractual indemnification clause explicitly provides for full indemnification to the City. It has been shown that the City had no responsibility with respect to the maintenance and repair of the building ( see Nina Aber's [who testified as the City's representative] Dep. Transcript at 27-28). There is no showing that there was any negligence on the part of the City with respect to the work at issue. Its liability under the Labor Law is solely vicarious based on it being an "owner" of the land in question.
Forest City Tech Place Associates, L.P., in opposition to the City's motion, argues that the City has not shown that it was free from negligence so as to entitle it to indemnification. Forest City Tech Place Associates, L.P. contends that the City was negligent because a New York City Emergency Services or Fire Department vehicle caused the initial damage to the overhead commercial garage door, thus necessitating the work in reinstalling the garage door that occasioned plaintiff's accident. Specifically, Forest City Tech Place Associates, L.P. contends that since the garage door's slats were damaged when it was hit by a New York City Emergency Services or Fire Department vehicle, this constituted negligence on the part of the City, which set in motion a chain of events leading to plaintiff's accident. It asserts that if not for the fact that the City's vehicle damaged the garage door's slats, plaintiff would not have been present on that day reattaching the garage door.
Although the issue of proximate cause is generally one for the jury to determine, in certain instances, "only one conclusion may be drawn from the established facts" and the question of proximate cause may be decided as a matter of law ( Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315). Such a determination may be made with regard to the non-liability of a defendant who "merely furnished the condition or occasion for the occurrence of the event," but was not one of its causes ( Sheehan v City of New York, 40 NY2d 496, 503; see also Derdiarian, 51 NY2d at 316).
Here, the fact that a City vehicle caused the initial damage to the commercial garage door is so far removed from and so remote in time, place, and cause to plaintiff's accident that the City's actions cannot be held to have been the proximate cause or a substantial factor in causing plaintiff's injuries. The City vehicle's initial action in damaging the garage door merely furnished the occasion for plaintiff's injuries, as plaintiff's fall during the work resulting therefrom "was not a normal or foreseeable consequence of any situation created'" by the City ( Scarver v County of Erie , 2 AD3d 1384 , 1386, quoting Ortiz v Jimtion Food Corp., 274 AD2d 508, 508; see also Rodriguez v Pro Cable Servs. Co. Ltd. Partnership, 266 AD2d 894, 895; Wells v Finegan, 177 AD2d 893, 894; Falcone v City of New York, 170 AD2d 575, 576).
Thus, inasmuch as the City's liability in this action as an "owner" under the Labor Law is purely vicarious, it is entitled to full contractual indemnification from Forest City Tech Place Associates, L.P. ( see Brown, 76 NY2d at 180-181). The City also would be entitled to common-law indemnification from Forest City Tech Place Associates, L.P. ( see Chapel v Mitchell, 84 NY2d 345, 347-348; Glielmi v Toys R Us, 62 NY2d 664, 666-667).
Forest City Tech Place Associates, L.P.'s additional argument that the City's motion should be denied because the lease annexed to the City's affirmation was not placed before the court in admissible form, must be rejected. The lease was authenticated by the City's witness, Nina Aber, during her deposition (Nina Aber's Dep. Transcript at 28), and the lease was signed by officials from both the City and Forest City Tech Place Associates, L.P. The lease was also kept in the regular and ordinary course of business for the City ( Id. at 37-39), and Forest City Tech Place Associates, L.P. does not dispute that the lease was valid and in effect at the time of plaintiff's accident.
Forest City Tech Place Associates, L.P.'s further argument that the City's motion should be denied because it has only attached its answer with cross claims and not copies of the complete pleadings in this action, is unavailing. Copies of the pleadings are otherwise before the court ( see Breytman v Olinville Realty, LLC , 46 AD3d 484 , 485; Welch v Hauck , 18 AD3d 1096 , 1098). Thus, the City's motion as against Forest City Tech Place Associates, L.P. must be granted ( see CPLR 3212 [b]).
Thompson, in its motion, seeks to dismiss third-party plaintiffs Forest City Enterprises, FCRC Services Company, L.P., and Forest City Ratner Companies' first cause of action for common-law indemnification against it. Pursuant to Workers' Compensation Law § 11, "[a]n employer shall not be liable for contribution or indemnity to any third person based upon liability for injuries sustained by an employee acting within the scope of his or her employment unless such third person proves through competent medical evidence that such employee has sustained a grave injury'" as defined in that statute.
As noted above, Thompson was plaintiff's employer. Edward Thompson (who, as noted above, is the secretary-treasurer of Thompson) attests, in his sworn affidavit, that Thompson had obtained and had in effect a policy of Workers' Compensation insurance for its employee, including plaintiff, at the time of plaintiff's accident ( see Workers' Compensation Law§ 29 [6]). While plaintiff was, at a certain point, temporarily quadriplegic, this was not permanent, and the paralysis contemplated by Workers' Compensation Law § 11 is permanent paraplegia ( see Bradt v Lustig, 280 AD2d 739, 741). Thompson has submitted the medical affirmation of its expert neurologist, Audrey Marie DeJesus, M.D. In her May 4, 2007 report, Dr. DeJesus did not find plaintiff to have quadriplegia as of the date of her examination of plaintiff. Thompson also submits the report, dated November 30, 2006, of Michael J. Carciente, M.D., third-party plaintiffs' expert neurologist.
The third-party plaintiffs do not dispute that plaintiff did not suffer a "grave injury" nor do they oppose Thompson's motion insofar as it seeks dismissal of their first cause of action for contribution and common-law indemnification. Thus, inasmuch as plaintiff did not suffer a "grave injury" as defined in Workers' Compensation Law § 11, the third-party action for contribution or indemnification against Thompson is barred and must be dismissed ( see Guijarro v R.H. Constr. Corp., 290 AD2d 485, 486).
Thompson, in its motion, also seeks to sever the third-party plaintiffs' second cause of action for contractual indemnification, which alleges a breach of an insurance procurement agreement. Pursuant to CPLR 603, a court may order a severance of claim "[i]n furtherance of convenience or to avoid prejudice."
In support of this branch of its motion, Thompson contends that the differences in the third-party action from the main action warrants a severance of these two actions. Thompson argues that the second cause of action against it focuses on the providing of insurance coverage and/or the existence of an indemnification agreement given by it to the third-party plaintiffs.
Thompson also contends that its need for discovery in the third-party action requires that these two actions be severed. Thompson asserts that the third-party plaintiffs have not yet provided sufficient discovery to it regarding their counsel fees or their insurance premiums. Thompson argues that discovery is not complete in the third-party action, whereas the main action is ready for trial.
Thompson's arguments must be rejected. The main action and the third-party action involve common factual and legal questions which should be tried together ( see Neckles v V W Credit, Inc., 23 AD3d 191, 192; Williams v Property Servs. , 6 AD3d 255 , 256; Sichel v Community Synagogue, 256 AD2d 276, 276). It does not appear that there will be substantial delay or prejudice to Thompson without such a severance.
As noted above, the third-party action was commenced on June 7, 2007 and plaintiff's note of issue was filed on May 29, 2008. Thompson has participated in the discovery conducted herein. While Thompson claims that a response by the third-party plaintiffs to its notice for discovery and inspection was insufficient, it has not made any motion to compel further discovery. Moreover, the discovery sought involving billing matters are ancillary to the main issues herein, and severance would result in unnecessary duplication of litigation. Thus, Thompson's motion, insofar as it seeks a severance of the third-party action from the main action, must be denied.
Accordingly, plaintiff's motion, insofar as it seeks summary judgment in his favor on the issue of liability on his Labor Law § 240 (1) claim as against the City, Forest City Tech Place Associates, L.P., First New York Partners, Forest City Tech Place Inc., and First New York Management Company, is granted. Plaintiff's motion, insofar as it seeks summary judgment in his favor as against Forest City Enterprises and Forest City Ratner Companies, and to the extent that it seeks summary judgment on his Labor Law § 241 (6) claim, is denied. Forest City Enterprises, Forest City Tech Place Inc., First New York Management Company, and Forest City Ratner Companies' cross motion for summary judgment dismissing plaintiff's complaint as against them, is denied. The City's motion for partial summary judgment as against Forest City Tech Place Associates, L.P. on the issue of its liability to it for contractual indemnification, requiring Forest City Tech Place Associates, L.P. to assume the defense of this action on its behalf, and directing Forest City Tech Place Associates, L.P. to reimburse it for its reasonable attorneys' fees, costs and expenses, which it has incurred to date, is granted. Thompson's motion is granted insofar as it seeks summary judgment dismissing Forest City Enterprises, FCRC Services Company L.P., and Forest City Ratner Companies' claim as against it for contribution and common-law indemnification, and is denied insofar as it seeks an order severing the remaining claim in the third-party action against it from the main action.
This constitutes the decision and order of the court.