Opinion
101207/05.
May 6, 2009.
Motions with sequence numbers 003, 004, and 005 are consolidated for disposition.
On November 23, 2004, James Rice (plaintiff) was working as a steamfitter at a construction site located at 450 West 37th Street in Manhattan. As he was attempting to drill a hole in the wall of a stairwell, he fell from a 12-foot A-frame wooden ladder, and was injured. Approximately two years later, on September 21, 2006, plaintiff died allegedly as a result of an accidental overdose of medications he was prescribed for his injuries and resulting psychological problems. Plaintiff's widow is the executrix of his estate and the individual plaintiff in this action.
In motion sequence number 003, defendant Cord Contracting Co., Inc. (Cord) moves, pursuant to CPLR 3212, for summary judgment dismissing the complaint and all cross claims against it.
In motion sequence number 004, plaintiffs move (1) pursuant to CPLR 3212, for partial summary judgment on the issue of defendants' liability under Labor Law § 240 (1); and (2) pursuant to CPLR 3126, for an order striking defendants' answers because of their alleged spoliation of the ladder from which plaintiff fell.
The motion is denominated as a cross-motion.
In motion sequence number 005, defendants West 37th Group, LLC (West 37th) and GJF Construction Corp. d/b/a Builders Group (Builders Group) (together, West 37th and Builders Group) move, pursuant to CPLR 3212, for summary judgment dismissing the complaint and all cross claims against them.
BACKGROUND At the time of plaintiff's accident, West 37th was the owner of the property, and Builders Group was the general contractor for the construction of a "performing arts center that included three theaters and three upper floors that included dance studios and some offices" (Furchak Depo., at 11). Cord was hired by Builders Group as the carpentry subcontractor. Plaintiff's employer, non-party Five Boro Associates (Five Boro), was the subcontractor hired to install sprinklers in the building. On the morning of the accident, plaintiff and his partner, Timothy Gleason (Gleason), were assigned by Five Boro's foreman, Peter Barbarito, Jr. (Barbarito), to drill a hole for a sprinkler pipe approximately 15 feet above the landing in a stairwell. The landing area was about six by five feet (Plaintiff's Depo., at 53), or five by 10 feet (Gleason Depo., at 27), or eight by six feet (Killeen Depo., at 23). At his deposition, taken approximately four months before he died, plaintiff attested that he and Gleason spoke with Barbarito, showing him the inside of the stairway and how difficult it was to get to because they could not open the ladder (Plaintiff's Depo., at 44). Barbarito allegedly "more or less said 'Make do with what you get,'" and "[j]ust do the best you can" ( id. at 44, 45). Plaintiff and Gleason asked him if he had "a smaller lift or a ladder for — inside the stairwell, really a smaller lift that would, you know — would be made for that job" (id. at 28). According to plaintiff, Barbarito did not have the equipment ("We're very short on equipment" [ id. at 46]), but "he spoke with the carpenters' foreman, and — there was a carpenter up there that we were working with side by side, and he loaned us his ladder and lift" ( id. at 29). The carpentry subcontractor was Cord ( ibid.). Plaintiff and Gleason spoke with a carpenter named Eric ( id. at 30). "We asked if we could use his lift and ladder, and he allowed us to" ( ibid.). The ladder was a wooden A-frame ( id. at 32). On the side of the ladder, in black, was the word "Cord" in approximately four-inch letters ( id. at 33). Plaintiff and Gleason asked Eric to use the ladder and lift "because we searched for something, the best thing, the safest thing we can use on the whole floor" ( id. at 35). Plaintiff and Gleason "weren't happy not having the proper tools" ( id. at 102), meaning "a smaller lift to get inside" ( id. at 103).Once they had the ladder and lift, "[t]he first thing [they] did" was to attempt to move the lift into the stairwell, but "[i]t wouldn't fit" ( id. at 63). After that, plaintiff and Gleason spent "[r]oughly 15, 20 minutes" trying to open the ladder in the stairwell ( ibid.), but the area was too small to be able to fully open the A-frame ("We tried every way possible" [ id. at 69]). They finally leaned the closed ladder against the wall, and "secured it the best we can" ( id. at 64), but still, one leg of the ladder was "just freely not butting against anything, so we got — I believe it was cinder blocks and two-by-fours, whatever it took. We measured the space from the wall to that ladder, and we had that ladder secured as if it was against the wall" ( id. at 69-70).
The wall plaintiff and Gleason had to drill through was a fireproof wall made of very thick sheetrock and studs ( id. at 40). There were roughly three inches of sheetrock on both sides of approximately three inches of metal studs in the middle, with the total wall approximately nine or 10 inches thick ( id. at 77-79; Gleason Depo., at 41 [wall was "four-inch wall, four inches from start to sheetrock to sheetrock, four inches from one side to the other with insulation in the middle"]; Killeen Depo., at 49-50 [the walls would be six inches thick]). Gleason was positioned on the opposite side of the wall from plaintiff, on the lift, and they alternated using the drill to bore through the sheetrock. When they got to the metal studs, they used tin snips to cut through them ("they're like scissors, but they are heavy duty. I had to squeeze really hard to cut the stud out. It was a battle. So that's when I fell" [Plaintiff's Depo., at 98]).
Plaintiff testified that he "heard like a cracking, some sort of cracking, like wood cracking," and "at the same time the ladder began to shift and causing me to be thrown to the ground" ( id. at 106-107; errata sheet for page 106). He fell from the "[t]hird to fourth step from the top" ( id. at 107). The fall knocked plaintiff out, but he regained consciousness while he was still on the stairwell landing, and saw Gleason and Eric, the carpenter, there with him ( id. at 110-111).
Defendants submit five pages of the deposition transcript of someone named Tyznar, who testified that Cord employees "are not allowed to give permanent permission to borrow equipment" (Tyznar Depo., at 12). The only indication of who Tyznar is and who he worked for comes in the deposition transcript of Cord's foreman, Thomas Killeen, who testified that Eric Tyznar was a Cord employee working in a staircase on the opposite side of the staircase in which plaintiff was working at the time of the accident (Killeen Depo., at 14). Tyznar attested that no one from Five Boro asked him to borrow a ladder on the day of the accident (Tyznar Depo., at 15).
Plaintiff's partner, Gleason, testified that he had a conversation with Builders Group's superintendent, Michael "Olata," about "the equipment on the job site and whose responsibility it was to bring the equipment to the job site" (Gleason Depo., at 11). Gleason told Arlotta that they were having problems with the man lift on that floor. "It was an electrical problem we had, but he was the one that I had to mention it to because [the lift] didn't belong to Five Boro" ( id. at 12). He also testified that "we did borrow the controller off of the contractor for the carpenters" ( id. at 13), specifically, from "the foreman for Cord on the job site, he had control of the box at the time that I borrowed it from him" ( id. at 19). Like plaintiff, Gleason asserted that "the first thing we tried to do was get the lift through and we found out the lift was too big to go to the height we needed. We would not have been able to use the lift because the landing was not big enough to accommodate the lift" ( id. at 31).
Builders Group's incident report shows that the proper spelling of the man's name is "Arlotta."
After finding that the lift could not be used in the stairwell, Gleason and plaintiff went looking for a ladder, and found "guys working on other ladders doing carpentry and we asked them if we could use this ladder, they said yes and me and [plaintiff] had to carry it up the stairs" ( id. at 32). The men they borrowed the ladder from worked for Cord ( id. at 32-33). The ladder had "just wooden feet," without rubber shoes or nonskid footing ( id. at 35). There was "no baker [scaffold], nothing we could erect ourselves from" that fit within the stairwell ( id. at 35). When they attempted to use the ladder in its open position, "[plaintiff] was five feet away from the wall. So, he can't start hammering the wall or making that hole unless we got closer" ( id. at 38). After positioning the ladder in different ways, "we determined the only way this was going to work was that the ladder would be closed and it would be leaning in a position where he was right next to the work" ( id. at 38). Shortly after plaintiff and Gleason completed making the hole they had been working on, Gleason heard a "bang . . . from below us" and "looked straight down" and saw plaintiff on the floor of the stairwell ( id. at 45). Gleason described the situation as:
[the ladder] was on its side on the staircase and at the same time he was still kind of intertwined with the bottom of the ladder as though the ladder tipped over and came back on top of him. . . . He was kind of twisted in the ladder. When I tried to get the ladder off of his body, that's when I noticed that the bottom right side of the ladder was cracked.
Q. Can you tell me what portion of the ladder was cracked?
A. The bottom step, it would be below the last step, the actual feet of the steps. There is the back part where the rungs are, that's the round part and the actual steps, the bottom of the step was broke, underneath the step was the foot was broke
( id. at 47-48). According to Gleason, while a carpenter called 911, "Jimmy and I were still alone on the landing" (id. at 50). When asked if Builders Group's superintendent, Arlotta, came to the scene of the accident, Gleason answered that he "didn't see Michael [Arlotta] there until the next day" ( id. at 51).
The day after the accident, Builders Group's superintendent, Arlotta, asked Gleason to make the statement attached as Exhibit G to plaintiff's motion ( id. at 43-44). When Gleason went back to the job site the day after the accident, he looked for the ladder, and eventually found it two floors below, "chopped up" into pieces ( id. at 52-53). In describing it, he said:
underneath the last tread, the bottom step, the first step on your climb looking at the ladder face on the right foot which is under the tread was snapped, snapped in. . . . It was snapped, it was cracked and it was still hanging on, it wasn't completely separated, it was cracked, visibly cracked and not front ways, but the side of the ladder, the actual outside rail
( id. at 78-79). He "took the broken part of the ladder and told Mr. Vargas to hold on to it" ( id. at 53).
No one had been holding the ladder at the time of the accident ( id. at 45). According to Gleason, however, the "ladder was on the concrete," and no cinder blocks or wooden blocks or plywood were used in positioning the ladder in the stairwell ( id. at 98-99). When asked if the ladder had any writing on it, Gleason replied, "Not that I can remember" ( id. at 70).
Saul Vargas (Vargas), a steamfitter and shop steward who worked for another subcontractor at the site, testified that "[t]he only thing I know about [Cord] is the name that I saw on the ladders" (Vargas Depo., at 9). When asked if his employer had any policy with respect to using another trade's equipment, he responded, "In the real life there it's to get the job done and use whatever is available" ( id. at 12). When asked whether workers would ask permission to use another trade's equipment, he responded, "Ninety percent of the time we ask for permission. The other ten per cent it just happens to be there, and you only going to take five seconds or a minute you use it" ( id. at 43).
Vargas described the stairwell as "narrow" and "very small" ( id. at 20). When presented with a hypothetical, "Assume that the area Mr. Rice was working on at the time of his accident that the ground was about six-foot-by-six-foot in diameter and he was working in the corner of the stairwell 15 feet up[,] [i]n your experience, could he have used a ladder to access that area?" (id. at 45), Vargas responded:
If he opened up the ladder to work in there, no. He would have not reached it. He would have reached out and he would have fell off. He came down. I worked in that same area but I have to get inside the hole. We had to lean the ladder up against the wall to be able to climb and get in there. There was — there was no other way humanly possible to get — put railing up against the wall but that was not made. You should have a man below holding the ladder
( id. at 46).
While he was at the scene of the accident, Vargas noticed that the ladder was "a wooden A-frame . . . that said 'Cor' o[n] the side" ( id. at 25, line 18; "C-O-R-something" [ ibid., line 20]), in "black stencil letters" ( id. at 26), and that the leg of the ladder was broken ( id. at 20).
After he went back to work, "I thought about getting — cutting off that broken piece off that ladder" ( id. at 19), and "searched for the ladder" until he "found it with all the trash in one room" ( id. at 23). He went looking for the ladder because he felt that plaintiff "would need that piece of that broken ladder . . . [f]or the lawyers" ( id. at 23, 24). When he first saw the ladder, "[o]ne of the legs was broken on it" ( id. at 27), but when he found it in the trash, "[i]t was busted up" ( ibid.). It "[l]ooked like it was pulled apart" and "like it was more in two or three pieces" (id. at 28). Vargas "cut above the broken part" ( id. at 29), took parts of the ladder away ( id. at 28), and "saved them in my house" ( id. at 33). He was not able to "cut the whole side off that had the name, in order to identify the ladder" because "[m]y car was too small to carry it" ( id. at 40).
Joseph Furchak was Builders Group's project manager at the site, responsible for, among other things, "overall scheduling, Project costing, issuing purchase orders, putting together the change orders to the owner" (Furchak Depo., at 10). In November 2004, he went to the job site probably twice a week ( id. at 21), and "[f]or sure, once a week," he walked up and down the stairwells to inspect the progress of the work ( id. at 31). According to Furchak, "[e]veryone supplied their own ladders to themselves. . . . There was no stockpile of tools" ( id. at 48, 53, 60).
Michael Arlotta was Builders Group's superintendent at the site, responsible for coordinating the work between the trades, helping to manage deliveries, conducting foremen meetings, and resolving "the minor disputes on-site that always occur" ( id. at 34). According to Furchak, Arlotta left Builders Group around February 2005, and he did not know where Arlotta is working now ( id. at 25). No affidavit or deposition testimony from Arlotta has been submitted on these motion papers.
Barbarito was the foreman working for Five Boro in November 2004 at the 450 West 37th Street job site (Barbarito Depo., at 7, 11). He testified that the ladder plaintiff fell from did not belong to Five Boro, but was "a carpenters ladder" ( id. at 19). His men told him that plaintiff fell from a carpenters' ladder, and he "saw it broken, laying on the floor" ( id. at 20). Five Boro had ladders available for its workers, "chained up the various floors when not in use," "but let me explain something; certain jobs we borrow ladders from carpenters, certain electrician, same they borrow ladders from us. If that ladder was up on the floor, he could have got one from another floor, but being that ladder was there, he might have just used it. You understand that's how we work" (id. at 20).
Q. So it's custom and practice for the contractors to use each others ladders if they are available?
A. Yes, I've been doing it all my life in construction
( id. at 21). Barbarito testified that when he saw the ladder after the accident, "[t]he bottom steps were all broken," and "[i]t said Cord on the side of it" ( id. at 22). When asked, he said he was not surprised that plaintiff was using a Cord ladder rather than one of Five Boro's, because "if I saw the ladder and nobody is using it, I use it too; that's how we been working all these years, no one said we couldn't use it" ( id. at 32). Barbarito denied ever having told plaintiff or Gleason that Five Boro was short on equipment, or that they should make do with whatever they could get, and he denied that they ever complained to him that they did not have the proper equipment ( id. at 44-45). However, he confirmed that when a worker cannot open an A-frame ladder because of a lack of space, "a proper way" to use the ladder is to lean it against a wall, as long as someone "stays and foots the ladder" ( id. at 51).
Thomas Killeen was Cord's carpenter foreman at the site in November 2004 (Killeen Depo., at 5). On the day of plaintiff's accident, two of Cord's carpenters, Ralph Neglia and Eric Tyznar, were working in the staircase across the floor from the staircase in which plaintiff and Gleason were working ( id. at 14). After the accident, Killeen asked both Neglia and Tyznar if they had lent the ladder to plaintiff, and they said, "No. Absolutely not" ( id. at 15). "[T]hey knew they weren't allowed to lend the ladder" ( id. at 42).
When asked if the ladder had any writing on it, Killeen responded, "Yes. It said Cord on the side in black Magic Marker, but not the way we usually do it. Because we write Cord in Magic Marker and then we spray paint it all in yellow, and it wasn't like that. That's why I asked whose ladder was that" ( id. at 17).
He noticed that "a piece at the bottom [of the ladder was] broken off, splintered up"; it was "still on [the ladder], but splintered" ( ibid.), and was a foot long ( id. at 18). When asked if he knew where the ladder is today, Killeen attested that "[t]hat ladder got cut up right after. The cops left and the super said, cut it up and get it out of here so nobody gets hurt" ( ibid.). He identified the "super" as Builders Group's Michael Arlotta ( ibid.). Killeen told one of Cord's workers "to get a saw and cut the ladder up so nobody uses it and gets hurt" (id. at 19).
Although Cord had baker's scaffolds available on site and Cord employees were using one in the staircase opposite from the one in which plaintiff was injured, those scaffolds were not available to plaintiff because, "Nobody could use them, but my guys. . . . Because you can't use our equipment. You got to use your own" (id. at 24-25).
Plaintiffs submitted affidavits from two experts, Shawn McKeon (McKeon) and Richard Trieste (Trieste). McKeon, a site safety manager, reviewed discovery materials, including depositions, photos, pleadings and relevant portions of the contracts (McKeon 4/17/08 Aff., ¶¶ 1, 4). He determined that the ladder from which plaintiff fell was neither safe nor adequate, and that his work required a scaffold, operating lift, safety harness, safety line and/or a safety net ( id., ¶ 8). He asserted that an A-frame ladder should not be leaned against a structure or work area, especially if no one is supporting it ( id., ¶ 11). He maintained that it is customary for a general contractor to investigate accidents, including taking pictures of the scene and equipment, obtaining witness statements, and preserving equipment. In this case, no one took pictures and Cord's employees cut up and destroyed the ladder in the presence of Builders Group's superintendent ( id., ¶ 16). McKeon opined that defendants' failure to supply adequate safety devices was a proximate cause of plaintiff's injuries and a departure from good and accepted safety practices, and constituted a violation of Labor Law §§ 240 (1) and 241 (6) ( id., ¶¶ 14-15). The provision of the Industrial Code ( 12 NYCRR Part 23) that McKeon opined was a basis for plaintiffs' Labor Law § 241 (6) claim was Industrial Code § 23-1.21 (b) (4) (iv).
Trieste, a licensed professional engineer, reviewed discovery materials, including depositions (Trieste 4/17/08 Aff., ¶¶ 1-2). He also inspected the portion of the ladder that had been preserved ( id., ¶ 7). He averred that, other than seeing that the ladder was made of wood, and that it did not have rubber shoes or nonskid feet, he had been unable to conduct a complete inspection of the ladder ( id., ¶ 6).
Cord supplied an affidavit from its expert, Vincent Ettari, a licensed professional engineer (Ettari 5/9/08 Aff., ¶ 1). Ettari examined photos of the extant piece of the ladder, plaintiffs' bill of particulars, plaintiffs' September 9, 2005 response to combined discovery demands, plaintiffs' December 8, 2005 responses to demands for expert witness information, McKeon's and Trieste's affidavits, the depositions of plaintiff, Gleason, and Vargas, plaintiffs' amended complaint, and Cord's answer to the amended complaint ( id., ¶ 8). Ettari also examined the remaining piece of the ladder and found that the wood was in remarkably good condition except for the break line, and that there were no apparent or visible defects ( id., ¶¶ 18, 19). His inspection consisted of taking measurements and photos of the piece of the ladder, and he opined that the entire ladder was not needed in order for experts to properly ascertain whether there was a latent defect therein ( id., ¶¶ 24, 21). He concluded that the ladder had been in serviceable condition, and that plaintiff's misuse of the ladder, by not complying with the requirements of Industrial code § 23-1.21 (b) (4) (iv), was the proximate cause of his injuries, i.e., that plaintiff was the sole proximate cause of his accident ( id., ¶¶ 16, 17, 23). In addition, Ettari opined that the leg of the ladder appeared to have broken as a result of the fall, and that the evidence did not support the hypothesis that the leg broke, and then the ladder fell ( id., ¶ 25).
In response to Ettari's affidavit, one of plaintiffs' experts, Trieste, supplied a supplemental affidavit (Trieste 5/21/08 Aff.). In his supplemental affidavit, Trieste disagreed with Ettari's conclusions on several points. For one thing, Trieste attested that, because the experts could not inspect the entire ladder, he could not help plaintiffs determine the ownership of it ( id., ¶ 5). In his opinion, an expert cannot render an opinion concerning whether the entire ladder was defective based on the small piece of the ladder that had been preserved ( id., ¶ 6). He maintained that Ettari had not performed the tests that he had mentioned in paragraphs 21 and 22 of his affidavit (Ettari had only taken measurements and photos), and that, therefore, Ettari could not render an opinion with any degree of certainty that the ladder cracked because it fell. Rather, the break lines were consistent with both cracking while plaintiff was on it and cracking when plaintiff fell ( id., ¶ 7).
The tests which Ettari mentioned were "wood testing on the extant piece of the ladder to determine whether or not the ladder had a latent defect" (Ettari 5/9/08 Aff., ¶ 21), and having "a Wood Laboratory test the wood for its Species Composition, its Grade Assignment, its Extreme Fiber Bending Stress Capacity (Fb), its Shear Resistance Capacity (V), and its Modulus of Elasticity (E)" because "the strength of a wooden ladder is dependent on the species and grade of the wood/lumber of which it is composed" ( id., ¶ 22).
THE PLEADINGS
Plaintiffs' amended complaint contains four causes of action, for common-law negligence, violation of Labor Law §§ 200, 240, and 241, negligence in hiring, training and supervision of employees, and loss of consortium. Cord's answer asserts cross claims for common-law and contractual indemnification against its co-defendants. West 37th and Builders Group's answer alleges one cross claim for common-law indemnification against Cord.
By Decision and Order, dated April 18, 2008, this court granted plaintiffs' motion to amend the complaint to add a cause of action for wrongful death. The motions now being decided were all filed on or before the court's decision granting the amendment. Therefore, this Decision and Order is without prejudice to future summary judgment motions on the wrongful death claim, which are timely made, pursuant Part 17 court rules.
Plaintiffs' bill of particulars asserts violations of Labor Law §§ 200, 240 (1), 240 (2), 240 (3), and 241 (6), as well as a violation of Industrial Code § 1.21 (b) (4) (iv).
Although plaintiffs' motion papers make frequent references to alleged violations of Industrial Code § 23-1.1 (b) (4), the court assumes that plaintiffs actually refer to section 23-1.21 (b) (4) (iv), as set forth in their bill of particulars. There is no such section as 23-1.1 (b) (4), and section 23-1.1 is simply the "Title and Citation" for the Industrial Code, which cannot serve as a basis for a Labor Law § 241 (6) claim.
DISCUSSION
Summary Judgment
"The proponent of a motion for summary judgment must demonstrate that there are no material issues of fact in dispute, and that it is entitled to judgment as a matter of law" ( Dallas-Stephenson v Waisman, 39 AD3d 303, 306 [1st Dept 2007], citing Winegrad v New York University Medical Center, 64 NY2d 851, 853). "'Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers'" ( Santiago v Filstein, 35 AD3d 184, 186 [1st Dept 2006], quoting Winegrad, 64 NY2d at 853). However, "[o]nce the movant makes the required showing, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of a material issue of fact that precludes summary judgment and requires a trial" ( Dallas-Stephenson, 39 AD3d at 306, citing Alvarez v Prospect Hospital, 68 NY2d 320, 324). "The court's role, in passing on a motion for summary judgment, is solely to determine if any triable issues exist, not to determine the merits of any such issues" ( Sheehan v Gong, 2 AD3d 166, 168 [1st Dept 2003], citing Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404).
Cord's Motion (motion sequence number 003)
Cord seeks summary judgment dismissing the complaint and all cross claims asserted as against it.
Labor Law § 240 (1)
Labor Law § 240 (1) imposes absolute liability on owners, contractors and agents for their failure to provide workers with safety devices that properly protect against elevation-related special hazards. Breach of the statutory duty must be the proximate cause of the injury. The statute is to be interpreted liberally to accomplish its purpose
( Striegel v Hillcrest Heights Development Corp., 100 NY2d 974, 977). The "core objective" of the Legislature in enacting the provisions of section 240 (1) was to ensure that adequate safety devices would be provided to prevent falls and injury to workers ( see e.g. Lopez v Melidis, 31 AD3d 351, 351 [1st Dept 2006]; see also Ross v Curtis-Palmer Hydro-Electric Co., 81 NY2d 494, 501 [section 240 (1) designed to prevent accidents in which "ladder or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person"]). Section 240 (1) "imposes a nondelegable duty upon owners and contractors to provide safety devices necessary for the protection of workers subject to the risks inherent in elevated work sites" ( Valdivia v Consolidated Resistance Co. of America, 54 AD3d 753, 754 [2d Dept 2008]; see also Lodato v Greyhawk North America, LLC, 39 AD3d 491, 493 [2d Dept 2007] [agents of owners and contractors also have nondelegable duties "to provide workers with proper safety devices and adequate protection"]).
Cord contends that it is not subject to the strictures of the Labor Law because it was neither the owner, contractor or an agent of either of them. It is true that Cord was not the owner or general contractor. It was the carpentry subcontractor for the project. The question is whether it was an agent of either the owner, West 37th, or the general contractor, Builders Group.
An agency relationship for purposes of section 240 (1) arises only when work is delegated to a third party who obtains the authority to supervise and control the job. Where responsibility for the activity surrounding an injury was not delegated to the third party, there is no agency liability under the statute
( Blake v Neighborhood Housing Services of New York City, 1 NY3d 280, 293; see also Walls v Turner Construction Co., 4 NY3d 861, 864, citing Blake, 1 NY3d at 293; Morales v Spring Scaffolding, 24 AD3d 42, 46 [1st Dept 2005], citing Russin v Louis N. Picciano Son, 54 NY2d 311, 317-318).
Here, there is no evidence that Cord was delegated or had any responsibility for anything or anyone other than its own carpentry work and workers. There is no evidence that it had authority to supervise or control the injury-producing activities in which plaintiff was engaged. Thus, Cord was not an agent of West 37th or Builders Group, and it is not liable to plaintiff under Labor Law §§ 240 (1) and 241 (6).
Therefore, the part of plaintiffs' motion which seeks summary judgment on the issue of Cord's liability under Labor Law § 240 (1) is denied. The part of Cord's motion which seeks summary judgment dismissing plaintiffs' Labor Law §§ 240 (1) and 241 (6) causes of action is granted.
Labor Law § 200 and Common-Law Negligence
Labor Law § 200 is a codification of the common-law duty imposed upon an owner or general contractor to provide construction workers with a safe work site [citation omitted]. "An implicit precondition to this duty . . . is that the party charged with that responsibility have the authority to control the activity bringing about the injury to enable it to avoid or correct an unsafe condition" ( Russin v Louis N. Picciano Son, 54 NY2d 311, 317 [1981])
( Perrino v Entergy Nuclear Indian Point 3, LLC, 48 AD3d 229, 230 [1st Dept 2008]; see also Buckley v Columbia Grammar Preparatory, 44 AD3d 263, 272 [1st Dept 2007] [same]).
There are two distinct standards applicable to section 200 cases, depending on the kind of situation involved. In matters which involve a dangerous condition, the statute applies "to owners and contractors who either created a dangerous condition or had actual or constructive notice of it" ( Linares v United Management Corp., 16 AD3d 382, 384 [2d Dept 2005]).
Here, although plaintiffs contend that the "unsuitable and unsafe ladder" was a dangerous condition (Amended Complaint, ¶¶ 68-73), the situation is actually one involving the means and methods by which plaintiff was performing his work ( see Egan v Monadnock Construction, 18 Misc 3d 1125 [A], 2006 NY Slip Op 52603[U], *6 [Sup Ct, Bronx County 2006], affd 43 AD3d 692 ["An A-frame ladder in a narrow corridor leaning against a wall does not constitute a defective or unsafe condition"]).
Where a claim under Labor Law § 200 is based upon alleged defects or dangers arising from a subcontractor's methods or materials, liability cannot be imposed on an owner or general contractor unless it is shown that it exercised some supervisory control over the work [citation omitted]. . . . General supervisory authority is insufficient to constitute supervisory control; it must be demonstrated that the contractor controlled the manner in which the plaintiff performed his or her work, i.e., how the injury-producing work was performed [citations omitted]
( Hughes v Tishman Construction Corp., 40 AD3d 305, 306 [1st Dept 2007]; see also Buckley, 44 AD3d at 272 [same] ; Fischetto v LB 745 LLC, York, 43 AD3d 810, 810 [1st Dept 2007] [section 200 claim dismissed because dangerous condition "arose from plaintiff's employer's methods over which defendant property owner exercised no supervisory control"]).
Here, it is clear that, while Cord may have loaned its ladder to plaintiff, that was the extent of its contact with him. There is no evidence that Cord supervised or controlled or directed plaintiff's work, nor is there any evidence that it was authorized to do so ( see Wysocki v Balalis, 290 AD2d 504, 505 [2d Dept 2002] [supplying scaffold not tantamount to supervision, direction, or control of plaintiff's work]). As such, it cannot be held liable to plaintiff under Labor Law § 200 or common-law negligence ( see e.g. Tomyuk v Junefield Assoc., 57 AD3d 518, 521 [2d Dept 2008] [subcontractor that had no authority to supervise or control injury-producing work not liable for injury to other subcontractor's employee]; Vargas v New York City Transit Authority, 54 AD3d 579, 583 [1st Dept 2008] [subcontractor from whom ladder was borrowed "was entitled to dismissal of all claims against it [because it] was not in contractual privity with plaintiff's employer, . . . it had no supervision, direction or control over plaintiff's work, and . . . it had no duty to provide him with equipment adequate for the performance of his work"]).
Although the court agrees that Cord does not owe a duty to plaintiff based on the cases cited above, Cord's citation to Duggan v National Constructors Engineers ( 223 App Div 163 [1st Dept 1928]) and Ehrlich v C.B.S. Columbia, Inc. ( 16 Misc 2d 793 [Sup Ct, Queens County], affd 9 AD2d 943 [2d Dept 1959], affd 8 NY2d 1113) is puzzling. The court would expect that Duggan would be cited by plaintiffs, and not Cord. Predictably, in reply, plaintiffs adopt Duggan and maintain that the case supports them, not Cord.
In Duggan, the "'made in a minute ladder'" was constructed and erected by a subcontractor and was the only way to descend from the fifteenth floor. Thus, "it was thus necessary for the plaintiff and all other workmen to use the ladder constructed and erected" by that subcontractor ( Duggan, 223 App Div at 165). In concluding that the subcontractor who lent the ladder to the plaintiff was liable under Labor Law § 240, the Court found that "[a]n obligation under the circumstance here disclosed arises in an owner or contractor who erects a ladder to anticipate that it will be used by persons engaged in occupations in the construction of the structure but not in his employ [emphasis added]" ( id. at 166). The court further reasoned that:
Where the nature of the construction and the commingling of the employees in a common object at the time of the erection of a ladder requires it, a person who constructs a scaffold or erects a ladder to be used in the performance of labor in the erection of a building has a duty incapable of delegation, not merely to his own employees, but to all others making use of the structure for that purpose, to make such instruments of performance safe. The mere fact that it was used by one not an employee of the defendant does not discharge the latter of liability where a duty exists of making a safe scaffold or ladder for use of employees in the performance of the work [emphasis added]
(id).
Here, however, there is no evidence that Cord provided plaintiff with an obviously defective ladder akin to the shoddy made in a minute ladder provided in Duggan or that there was a "commingling of the employees in a common object" so as to apply Duggan to the case at bar.
In Ehrlich, the court considered plaintiff's contention that "'while not obliged to furnish equipment, once furnished, it has to be in a safe condition' [citations omitted]" ( Ehrlich, 16 Misc 2d at 798). After considering the cases which the plaintiff had cited for that proposition, including Duggan, the court concluded that the lending subcontractor "merely gave a passing permission to plaintiff . . . to use the scaffold. Such permission did not obligate the lender . . . 'to guard against injury from a patent peril or from a source manifestly dangerous' of which the workers were aware [citation omitted]" ( id. at 800). Thus, the decision rested on the fact that those who borrowed the scaffold were aware of its defect (that it had no railings) and chose to use it anyway. Here, the evidence is that both plaintiff and Gleason considered the ladder seemed fine" and "stable" (Plaintiff's Depo., at 49-50; Gleason Depo., at 67). In any event, Ehrlich is not helpful to plaintiffs or defendants as it is merely a case which distinguishes Duggan.
Accordingly, the part of Cord's motion which seeks summary judgment dismissing plaintiffs' Labor Law and common-law negligence causes of action is granted.
Negligent Hiring, Training and Supervising
Although no one has discussed the third cause of action, for negligent hiring, training and supervision of defendants' employees, summary judgment dismissing this claim is granted in Cord's favor. The court has found that no cause of action sounding in common-law negligence lies as against Cord, and that the mere furnishing of the ladder to plaintiff does not subject Cord to such liability.
Wrongful Death
Summary judgment dismissing the wrongful death claim is granted. Since plaintiffs' causes of action as against Cord have been dismissed, the wrongful death claim must also be dismissed. Loss of Consortium
The loss of consortium claim is derivative ( Holmes v City of New Rochelle, 190 AD2d 713, 714 [2d Dept 1993]), and since all of plaintiffs' causes of action as against Cord have been dismissed, summary judgment dismissing this claim must also be granted.
West 37th and Builders Group's Cross Claim against Cord for Common-Law Indemnification
West 37th and Builders Group assert a cross claim against Cord for common-law indemnification. "The principles of common-law indemnification allow the party held vicariously liable to shift the entire burden of the loss to the actual wrongdoer" ( Frank v Meadowlakes Development Corp., 6 NY3d 687, 691). "To establish a claim for common-law indemnification, 'the one seeking indemnity must prove not only that it was not guilty of any negligence beyond the statutory liability but must also prove that the proposed indemnitor was guilty of some negligence that contributed to the causation of the accident' [citations omitted]" ( Perri v Gilbert Johnson Enterprises, Ltd., 14 AD3d 681, 684-685 [2d Dept 2005]).
This court has dismissed plaintiffs' complaint as against Cord. When a complaint against a party is dismissed in its entirety, "[t]he third-party actions and all cross claims are dismissed as a necessary consequence" of that dismissal ( Turchioe v AT T Communications, 256 AD2d 245, 246 [1st Dept 1998]). Thus, the part of Cord's motion which seeks summary judgment dismissing this cross claim is granted.
In sum, Cord's motion is granted in its entirety.
Plaintiffs' Motion (motion sequence number 004)
In light of the above, plaintiffs' motion for summary judgment in their favor on the issue of Cord's liability under Labor Law § 240 (1) is denied.
West 37th and Builders Group
As the owner and general contractor, defendants West 37th and Builders Group are subject to the strictures of Labor Law § 240 (1). But they maintain that they are not liable, as plaintiff himself was the sole proximate cause of his injuries because he chose to "misuse" the ladder when he could have simply gone to his foreman, Barbarito, and requested the proper equipment and another task to do until that equipment arrived. They contend that this course of action would have been the "normal and logical response" to not having the proper equipment available to do his work ( see Montgomery v Federal Express Corp., 4 NY3d 805, 806).
Where a "plaintiff's actions [are] the sole proximate cause of his injuries, . . . liability under Labor Law § 240 (1) [does] not attach" [citations omitted]. Instead, the owner or contractor must breach the statutory duty under section 240 (1) to provide a worker with adequate safety devices, and this breach must proximately cause the worker's injuries. These prerequisites do not exist if adequate safety devices are available at the job site, but the worker either does not use or misuses them
( Robinson v East Medical Center, LP, 6 NY3d 550, 554; see also Blake v Neighborhood Housing Services of New York City, 1 NY3d at 290 ["if a statutory violation is a proximate cause of an injury, the plaintiff cannot be solely to blame for it. Conversely, if the plaintiff is solely to blame for the injury, it necessarily means that there has been no statutory violation"]).
Nevertheless, "the Labor Law does not require a plaintiff to have acted in a manner that is completely free from negligence" ( Hernandez v Bethel United Methodist Church of New York, 49 AD3d 251, 253 [1st Dept 2008]). It is well-settled that "[e]ven if the plaintiff was partially at fault, a worker's contributory negligence is not a defense to a Labor Law § 240 (1) claim" ( Moniuszko v Chatham Green, Inc., 24 AD3d 638, 639 [2d Dept 2005]; see also Spages v Gary Null Associates, 14 AD3d 425, 426 [1st Dept 2005] [comparative negligence is not a defense]; Samuel v Simone Dev. Co., 13 AD3d 112, 113 [1st Dept 2004] [comparative negligence is not a defense]). As long as the failure of a safety device is "a cause of plaintiff's injury" ( Tavarez v Weissman, 297 AD2d 245, 247 [1st Dept 2002]; see also Hernandez v 151 Sullivan Tenant Corp., 307 AD2d 207 [1st Dept 2003]; Orellano v 29 East 37th Street Realty Corp., 292 AD2d 289 [1st Dept 2002]), or a "contributing" cause of the fall ( see Blake, 1 NY3d at 287; Futo v Brescia Building Co., 302 AD2d 813 [3d Dept 2003]), it cannot be said that plaintiff's actions were the sole proximate cause of his accident. In such a situation, the plaintiff's actions would be, at most, a "concurrent cause" of the accident ( see Elkins v Robbins Cowan, Inc., 237 AD2d 404 [2d Dept 1997]), or contributory or comparative negligence ( see e.g. Hernandez v 151 Sullivan Tenant Corp., 307 AD2d 207, supra; see also Miraglia v H L Holding Corp., 36 AD3d 456, 457 [1st Dept 2007]; Pearl v Sam Greco Construction, 31 AD3d 996, 997 [3d Dept 2006]), neither of which is a defense to a section 240 (1) claim. "A plaintiff under Labor Law § 240 (1) need only show that his injuries were at least partially attributable to defendant[s'] failure to take statutorily mandated safety measures to protect him from risks arising from an elevation differential. There may be more than one proximate cause of a workplace accident [internal quotation marks and citations omitted]" ( Pardo v Bialystoker Center Bikur Cholim, 308 AD2d 384, 385 [1st Dept 2003], revd on other grounds 10 AD3d 298 [1st Dept 2004]).
Here, it is uncontested that the proper safety device to do the work within the small stairwell would have been a scaffold or a man lift. However, Five Boro had no lifts or scaffolds at the site (Plaintiff's Depo., at 37; Barbarito Depo., at 40 [Five Boro had no electronic lifts on site that day]; id. at 52-53 [Five Boro had no baker's scaffolds on site that day]). The only lift which plaintiff saw on site was the defective one that Gleason was using (Plaintiff's Depo., at 72; Gleason Depo., at 11 [lift was not working properly]), and plaintiff did not observe any scaffolds on site that day (Plaintiff's Depo., at 73-74). Gleason also attested that no other baker's scaffolds or lifts were available for their use that day (Gleason Depo., at 35, 97 ["We had no scaffolding"]).
In the absence of a lift or scaffold, and if an A-frame ladder cannot be opened in the space available, the A-frame can be used in its closed position, leaned against a wall, as long as someone holds it secure (Barbarito Depo., at 26, 51; Vargas Depo., at 46). It is uncontested that no one footed the ladder for plaintiff, and that he and Gleason were working on opposite sides of the wall through which they were attempting to drill a hole.
The evidence is clear that the proper equipment which would have allowed plaintiff to perform his work safely was not available on site that day. This is not a case where equipment was available, but a plaintiff chose not to use it ( see Robinson v East Medical Center, 6 NY3d at 553 [eight-foot ladders were available on site, and plaintiff knew where they were]; Montgomery v Federal Express Corp., 4 NY3d at 806 ["ladders were readily available"]; Meade v Rock-McGraw, Inc., 307 AD2d 156, 159 [1st Dept 2003] ["a number of (ladders) were available at the worksite"]). Nor is this a case of a plaintiff choosing to improperly use an A-frame ladder within a space that may have been able to be accessed by a different-sized A-frame that could have been used in its open position ( Meade, 307 AD2d at 159). Here, there was no other available device that could fit in the stairwell, and "there was no other way humanly possible" to position the ladder except by leaning it against the wall in its closed position (Vargas Depo., at 46). Rather, this case is a case in which an unsecured ladder collapsed, and no other safety devices were provided ( see Vargas v New York City Transit Authority, 54 AD3d at 583 [plaintiff was not the sole proximate cause of his injury when he fell from an A-frame ladder, which he leaned in a closed position against a boiler because the ladder, when opened, was too short for the job]).
Moreover, it cannot be said that plaintiff's alleged failure to ask Barbarito for the proper equipment and to do something else until it arrived was the sole proximate cause of his injuries. Section 240 (1) requires owners, contractors, and their agents to furnish, or cause to be furnished, safety devices "which shall be so constructed, placed and operated as to give proper protection to a person so employed." West 37th and Builders Group had a nondelegable duty to provide appropriate safety devices that could be placed and operated within the stairwell that day. They did not. Their failure to fulfill that duty was a proximate cause of plaintiff's injuries. Any contributory negligence on plaintiff's part is irrelevant once a finding of a violation of the statute and proximate cause have been found ( see e.g. Wise v 141 McDonald Avenue, LLC, 297 AD2d 515, 517 [1st Dept 2002]; Angeles v Goldhirsch, 268 AD2d 217, 217 [1st Dept 2000]).
Therefore, the part of plaintiffs' motion which seeks summary judgment on the issue of West 37th and Builders Group's liability under Labor Law § 240 (1) is granted. The part of West 37th and Builders Group's motion which seeks summary judgment dismissing plaintiffs' section 240 (1) cause of action is denied.
Plaintiffs' Bill of Particulars
Plaintiffs' bill of particulars alleges violations of Labor Law §§ 240 (2) and (3), which concern "scaffolding or staging more than twenty feet from the ground or floor" (subsection 2), and weight requirements for scaffolding (subsection 3). These provisions are inapplicable to this matter, and, to the extent that such causes of action have been pleaded, they are dismissed.
Spoliation
"Spoliation is the destruction of evidence" ( Kirkland v New York City Housing Authority, 236 AD2d 170, 173 [1st Dept 1997] ; see also Squitieri v City of New York, 248 AD2d 201, 202 [1st Dept 1998] [spoliation is "(w)hen a party alters, loses or destroys key evidence before it can be examined by the other party's expert"]). "The Supreme Court has broad discretion in determining the appropriate sanction for spoliation of evidence" ( De Los Santos v Polanco, 21 AD3d 397, 397 [2d Dept 2005] ; see also Barber v Roger P. Kennedy General Contractors, 302 AD2d 718, 720 [3d Dept 2003]). "Under New York law, spoliation sanctions are appropriate where a litigant, intentionally or negligently, disposes of crucial items of evidence involved in an accident before the adversary has an opportunity to inspect them" ( Kirkland, 236 AD2d at 173; see also Amaris v Sharp Electronics Corp., 304 AD2d 457, 457 [1st Dept 2003]).
To impose a sanction for spoliation of evidence, it must be established that the individual to be sanctioned was responsible for the loss or destruction of evidence crucial to the establishment of a claim or defense, at a time when he was on notice that such evidence might be needed for future litigation
( Haviv v Bellovin, 39 AD3d 708, 709 [2d Dept 2007]).
"Where a party destroys essential physical evidence such that its opponents are 'prejudicially bereft of appropriate means [to either present or] confront a claim with incisive evidence,' the spoliator may be sanctioned by the striking of its pleading [citation omitted]" ( Friel v Papa, 36 AD3d 754, 755 [2d Dept 2007]), or by "preclud[ing] the defendant from controverting the plaintiffs' prima facie showing regarding the existence of a defect and the defendant's notice of it" ( Erdely v Access Direct Systems, 45 AD3d 724, 727 [2d Dept 2007]; see also Yi Min Ren v Professional Steam-Cleaning, 271 AD2d 602, 603 [2d Dept 2000] [party responsible precluded from offering evidence as to item's condition]), or by instructing the jury that it may draw negative inferences from the missing evidence ( see Laurence Ins. Gp., Inc. v KPMG Peat Marwick, LLP, 5 AD3d 918 [3d Dept 2004]). "[T]he sanction of dismissal of a pleading may be imposed even absent willful and contumacious conduct if a party has been so prejudiced that dismissal is necessary as a matter of fundamental fairness" ( Friel, 36 AD3d at 755; see also Herrera v Matlin, 303 AD2d 198, 198 [1st Dept 2003] [loss of evidence due to negligence that "deprives plaintiff of any means of establishing a prima facie case, is no less prejudicial because of its inadvertence and warrants the striking of defendant's answer"]). "Because striking a pleading is a drastic sanction to impose in the absence of willful or contumacious conduct, the prejudice that results from the spoliation must be considered in order to determine whether such drastic relief is necessary as a matter of fundamental fairness" ( De Los Santos, 21 AD3d at 398, citing Favish v Tepler, 294 AD2d 396, 396 [2d Dept 2002]; see also Lawson v Aspen Ford, 15 AD3d 628, 629 [2d Dept 2005], quoting Favish, 294 AD2d 396, supra).
"However, where 'the evidence lost is not central to the case or its destruction is not prejudicial, a lesser sanction, or no sanction, may be appropriate' [citation omitted]" ( Deveau v CF Galleria at White Plains, LP, 18 AD3d 695, 696 [2d Dept 2005]). "Furthermore, where the plaintiffs and defendants are equally affected by the loss of the items in their investigation of the accident and neither have reaped an unfair advantage in the litigation, it is improper to dismiss a pleading on the basis of spoliation of evidence" ( De Los Santos v Polanco, 21 AD3d at 398, citing Lawson v Aspen Ford, 15 AD3d at 629-630). Sanctions for spoliation will be denied when "the plaintiffs fail [] to show that the evidence destroyed was central to their case or that they were prejudiced by its destruction" ( Friel v Papa, 36 AD3d at 755). Moreover, "[i]n the absence of pending litigation or notice of a specific claim, a defendant should not be sanctioned for discarding items in good faith and pursuant to its normal business practices" ( Conderman v Rochester Gas Electric Corp., 262 AD2d 1068, 1070 [4th Dept 1999]).
On the issue of spoliation, West 37th and Builders Group assert that "the ladder was not destroyed!" (Monahan 5/2/08 Affirm, in Opposition, ¶ 8) because Vargas managed to salvage the broken bottom leg of the ladder, and the parties' experts have been able to examine it. West 37th and Builders Group conclude that plaintiffs were therefore not prejudiced, and argue that the part of plaintiffs' motion which seeks sanctions for spoliation should be denied.
The ladder was in fact destroyed. The uncontroverted evidence is that a Cord employee cut or broke up the ladder at the direction of Cord's foreman, Killeen, who was directed to do so by Builders Group's superintendent, Arlotta, and that the dismembered ladder was then dumped in a room with other trash.
As a threshold issue, the court must determine whether the item lost, altered or destroyed was a "key" piece of evidence. "Generally, courts characterize 'key' evidence as the actual product, parts or components involved in the accident; that is, the physical item which allegedly caused the accident" ( Dekenipp v Rockefeller Center, Inc., 17 Misc 3d 1138 [A], 2007 NY Slip Op 52329[U], at *9, citing Amaris v Sharp Electronics Corp., 304 AD2d 457, supra; Squitieri v City of New York, 248 AD2d at 202; and Kirkland v New York City Housing Authority, 236 AD2d 170, supra).
In this case, Vargas preserved the portion of the ladder which broke, and that portion has been examined by the parties' experts. It is uncontested that the ladder had no rubber shoes or nonskid feet. It is uncontested that the A-frame ladder was not in its open position at the time of the accident, but that it was leaned against a wall in the stairwell, with no one footing it.
Plaintiffs maintain that the destruction of the entire ladder has prevented their investigation into the ownership and condition of the ladder. In their first cause of action, for negligence, plaintiffs allege that the individual defendants owned the ladder, had a duty to keep the ladder in a safe condition, and that they permitted a dangerous condition to exist at the property, i.e., the ladder which was unsuitable and unsafe for the performance of plaintiff's work.
However, with respect to investigating the condition of the ladder, plaintiffs have not shown that they are "'prejudicially bereft of appropriate means [to either present or] confront a claim with incisive evidence' [citation omitted]" ( Friel v Papa, 36 AD3d at 755) as a result of the loss of all but a small piece of the ladder.
With respect to West 37th and Builders Group, it has not been alleged or shown that either West 37th or Builders Group was the owner of the ladder. As such, plaintiffs' inability to inspect the full ladder with respect to the issue of its ownership by West 37th and Builders Group is not problematic. Nor does the ladder's destruction hamper plaintiffs in their prosecution of their negligence claim as against West 37th and Builders Group. As will be seen in the discussion below of West 37th and Builders Group's motion, plaintiffs' cause of action sounding in negligence does not lie as against these defendants, and this would be the court's determination even if plaintiffs had had the opportunity to inspect the full ladder. Further, as discussed previously, plaintiffs prevailed on their Labor Law 240 (1) claim against West 37th and Builders Group. Thus, plaintiffs' inability to inspect the ladder did not prejudice them or deprive them of incisive evidence regarding their claims against West 37th and Builders Group.
With respect to Cord, the destruction of the ladder has not prevented plaintiffs from substantiating their claim for negligence. Even if plaintiffs had had access to the full ladder, the negligence claim as against Cord had to be dismissed for the reasons stated above. Therefore, the part of plaintiffs' motion which seeks sanctions against defendants for the alleged spoliation of the ladder is denied.
Defendants West 37th and Builders Group's Motion (motion sequence number 005)
Labor Law § 240 (1)Because plaintiffs have established their entitlement to judgment as a matter of law on their Labor Law § 240 (1) cause of action as against West 37th and Builders Group, the part of West 37th and Builders Group's motion which seeks summary judgment dismissing this claim is denied.
Labor Law § 200 and Common-Law Negligence
As set forth above, this case involves a situation where the dangerous condition arose out of the subcontractor's methods or materials. Thus,
liability cannot be imposed on an owner or general contractor unless it is shown that it exercised some supervisory control over the work [citation omitted]. . . . General supervisory authority is insufficient to constitute supervisory control; it must be demonstrated that the contractor controlled the manner in which the plaintiff performed his or her work, i.e., how the injury-producing work was performed [citations omitted]
( Hughes v Tishman Construction Corp., 40 AD3d at 306).
There is no evidence indicating that either West 37th or Builders Group supervised the manner in which plaintiff did his work. Rather, plaintiff's foreman, Barbarito, attested that plaintiff received any instruction he needed from Barbarito (Barbarito Depo., at 41).
Plaintiffs maintain, however, that certain sections of the West 37th/Builders Group contract require that Builders Group "shall be solely responsible for and have control over construction means, methods, techniques, sequences and procedures and for coordinating all portions of the Work under the Contract . . . "(West 37th/Builders Group Contract, ¶ 3.3.1), and that "[t]he Contractor shall be responsible to the Owner [West 37th] for acts and omissions of the Contractor's employees, Subcontractors and their agents and employees . . ." ( id., ¶ 3.3.2).
While these provisions indicate that Builders Group might be answerable to West 37th for any failure to exercise its contractual obligation to control subcontractors' construction means, methods, techniques, sequences and procedures, liability to plaintiffs requires that the authority be exercised ( see e.g. Hughes, 40 AD3d at 306; Smith v 499 Fashion Tower, LLC, 38 AD3d 523, 525 [2d Dept 2007]; Peay v New York City School Construction Authority, 35 AD3d 566, 567 [2d Dept 2006]; DeSimone v Structure Tone, 306 AD2d 90, 90 [1st Dept 2003]; Artiga v Century Management Co., 303 AD2d 280, 280-281 [1st Dept 2003]).
Since there is no evidence that West 37th and Builders Group exercised any authority to supervise or control plaintiff's work, the part of West 37th and Builders Group's motion which seeks summary judgment dismissing plaintiffs' Labor Law § 200 and common-law negligence causes of action is granted.
Labor Law § 241 (6)
Section 241 (6), which imposes a nondelegable duty upon an owner or general contractor to see to it that the construction, demolition and excavation operations at the workplace are conducted so as to provide for the reasonable and adequate protection of the workers, is not self-executing. To establish liability under the statute, a plaintiff must specifically plead and prove the violation of an applicable Industrial Code regulation. The Code regulation must constitute a specific, positive command, not one that merely reiterates the common-law standard of negligence. The regulation must also be applicable to the facts and be the proximate cause of the plaintiff's injury [internal citations omitted]
( Buckley v Columbia Grammar and Preparatory, 44 AD3d at 271).
As has been held many times, "violation of an administrative regulation promulgated pursuant to statute . . . is ' simply some evidence of negligence which the jury could take into consideration with all the other evidence bearing on that subject'" ( Rizzuto v L.A. Wenger Contracting Co., 91 NY2d 343, 349, quoting Allen v Cloutier Construction Co., 44 NY2d 290, 298). Thus, a finding of a violation of the Industrial Code and of section 241 (6) is not a finding of negligence as a matter of law ( see e.g. Long v Forest-Fehlhaber, 55 NY2d 154, 161 ["violation of the administrative rules adopted pursuant to the authorization of subdivision 6 of section 241 of the Labor Law cannot rise to the level of negligence as a matter of law"]; Brinson v State of New York, 178 AD2d 457, 458 [2d Dept 1991] [violation of section 241 (6) is considered some evidence of negligence, but "would not establish negligence as a matter of law"]), and the liability imposed upon a defendant under section 241 (6) may be completely vicarious.
Because the duty to ensure that operations at construction, demolition and excavation sites are conducted so as to provide for the reasonable and adequate protection of workers is nondelegable (Buckley, 44 AD3d at 271), a party may be vicariously liable under the statute even without any negligence on its part ( see e.g. Rizzuto, 91 NY2d at 351 [owners and general contractors "vicariously liable, irrespective of (their) ability to direct, control or supervise the construction site or the activity connected therewith"]; McGuinness v Hertz Corp., 15 AD3d 160, 161-162 [1st Dept 2005] [absent evidence of active negligence, defendant subject only to vicarious liability]; Fresco v 157 East 72nd Street Condominium, 2 AD3d 326, 328 [1st Dept 2003] [no evidence that general contractor failed to provide eye protection; liability "purely vicarious"]; Farina v Plaza Construction Co., 238 AD2d 158, 158 [1st Dept 1997] [defendant had no notice of dangerous condition; section 241 (6) liability "only vicarious"]; Elezaj v P.J. Carlin Construction Co., 225 AD2d 441, 443 [1st Dept 1996], affd 89 NY2d 992 [no evidence that defendant controlled plaintiff's work; liability was "entirely vicarious" under section 241 (6)]). The reason for this vicarious liability, even without fault, is because "the 'apparent intent [of the 1969 amendment to section 241 (6)] was to compel owners and general contractors to become more concerned with the safety practices of subcontractors, because they would be exposed to liability without regard to control over the work' [citation omitted]" ( Rizzuto, 91 NY2d at 352).
Whether an owner or general contractor is found liable under the statute because of its own negligence or because the liability is vicarious, a plaintiff's own negligence can be raised as a valid defense to a section 241 (6) claim ( see e.g. Wells v British American Development Corp., 2 AD3d 1141, 1144 [3d Dept 2003] [issues of fact whether claimed violation was proximate cause of injury, as well as questions concerning worker's comparative fault]; Edwards v C D Unlimited, Inc., 295 AD2d 310, 311 [2d Dept 2002] ["owner or general contractor may raise any valid defense to the imposition of liability . . . including contributory and comparative negligence"; issues of fact as to injured worker's comparative negligence]; Spages v Gary Null Associates, 14 AD3d at 426; Ramputi v Ryder Construction Co., 12 AD3d 260, 261 [1st Dept 2004]).
The Industrial Code provision upon which plaintiffs rely is Industrial Code § 23-1.21 (b) (4) (iv):
(b) General requirements for ladders.
***
(4) Installation and use.
***
(iv) When work is being performed from ladder rungs between six and 10 feet above the ladder footing, a leaning ladder shall be held in place by a person stationed at the foot of such ladder unless the upper end of such ladder is secured against side slip by its position or by mechanical means. When work is being performed from rungs higher than 10 feet above the ladder footing, mechanical means for securing the upper end of such ladder against side slip are required and the lower end of such ladder shall be held in place by a person unless such lower end is tied to a secure anchorage or safety feet are used.
This section has been held to be sufficiently specific to support a section 241 (6) claim ( see e.g. Vargas v New York City Transit Authority, 54 AD3d at 581-582; Montalvo v J. Petrocelli Construction, 8 AD3d 173, 176 [1st Dept 2004]).
It is uncontested that no one was holding the ladder while plaintiff was on it, that the ladder itself had no safety feet, and that the ladder was not secured mechanically at either its upper or lower end.
However, West 37th and Builders Group contend that Industrial Code § 23-1.21 (b) (4) (iv) is inapplicable in this matter because plaintiff was not standing higher than 10 feet from the ground when he fell, citing an OSHA regulation that requires that rungs be "not less than 10 inches (25 cm) apart, nor more than 14 inches (36 cm) apart" (OSHA § 1926.1053 [a] [3] [i]), and plaintiff's testimony that he was on the third or fourth rung from the top of the 12-foot ladder when he fell (Plaintiff's Depo., at 88) ( see Monahan 5/2/08 Affirm. in Opp., ¶¶ 21-22). As an initial matter, West 37th and Builders Group have completely misquoted the Industrial Code section, averring that "Industrial Code § 23-1.1 (b) (4)" provides that
[w]hen work is being performed from rungs higher than 10 feet above the ladder footing, mechanical means for securing the upper end of such ladder against side slip are required and the lower end of such ladder shall be held in place by a person unless such lower end is tied to a secure anchorage or safety feet are used
( id., ¶ 20). Even assuming, however, that West 37th and Builders Group are correct that plaintiff would have been at least two feet, five inches from the top of the 12-foot ladder when he fell, that puts plaintiff nine and a half feet above the ladder's footing, which is within the six-to 10-foot parameters set forth in the Code section. Thus, Industrial Code § 23-1.21 (b) (4) (i) is applicable here, and the failure to comply with its provisions was a proximate cause of plaintiff's injuries. A violation of the Code section has been established.
Thus, even though West 37th and Builders Group have been found to be without negligence, and their liability under section 241 (6) is vicarious only, the part of West 37th and Builders Group's motion which seeks summary judgment dismissing plaintiffs' Labor Law § 241 (6) cause of action must be denied.
Negligent Hiring, Training and Supervising
Although no one has discussed the third cause of action, for negligent hiring, training and supervision of defendants' employees, summary judgment dismissing this claim is granted in West 37th and Builders Group's favor. The court has found that no cause of action sounding in common-law negligence lies as against West 37th and Builders Group.
Loss of Consortium
The loss of consortium claim is derivative ( Holmes v City of New Rochelle, 190 AD2d at 714). Since the Labor Law §§ 240 (1) and 241 (6) causes of action remain as against West 37th and Builders Group, summary judgment dismissing the loss of consortium claim must be denied.
Cord's Cross Claims Against West 37th and Builders Group
Because the action has been dismissed as against Cord, Cord's cross claims against West 37th and Builders Group are also dismissed. The part of West 37th and Builders Group's motion which seeks summary judgment dismissing these claims is denied as moot.
CONCLUSION
Accordingly, it is
ORDERED that Cord Contracting Co., Inc.'s motion (motion sequence number 003) for summary judgment is granted, and the complaint and cross claim are severed and dismissed as against defendant Cord Contracting Co., Inc., and the Clerk is directed to enter judgment in favor of this defendant, with costs and disbursements as taxed by the Clerk; and it is further
ORDERED that the remainder of the action shall continue; and it is further
ORDERED that the part of plaintiffs' motion (motion sequence number 004) which seeks summary judgment on the issue of Cord Contracting Co., Inc.'s liability under Labor Law § 240 (1) is denied; and it is further
ORDERED that the part of plaintiffs' motion (motion sequence number 004) which seeks summary judgment on the issue of West 37th Group, LLC and GJF Construction Corp. d/b/a Builders Group's liability under Labor Law § 240 (1) is granted; and it is further
ORDERED that the part of plaintiffs' motion (motion sequence number 004) which seeks sanctions against defendants for their alleged spoliation of evidence is denied; and it is further
ORDERED that the part of West 37th Group, LLC and GJF Construction Corp. d/b/a Builders Group's motion (motion sequence number 005) which seeks summary judgment dismissing plaintiffs' §§ 240 (1) and 241 (6), and loss of consortium causes of action is denied; and it is further
ORDERED that the part of West 37th Group, LLC and GJF Construction Corp. d/b/a Builders Group's motion (motion sequence number 005) which seeks summary judgment dismissing plaintiffs' Labor Law § 200 and common-law negligence causes of action is granted; and it is further
ORDERED that the part of West 37th Group, LLC and GJF Construction Corp. d/b/a Builders Group's motion (motion sequence number 005) which seeks summary judgment dismissing Cord Contracting Co., Inc.'s cross claims is denied as moot.
This Constitutes the Decision and Order of the Court.