Opinion
23128/2013E, 430128/2014E, 43086/2019E
01-15-2021
Ana ROSA, as Administrator of the Estate of Danny Rosa, Plaintiff, v. 47 EAST 34TH STREET (NY), L.P., CIM Group, L.P., June Electrical Corp, and Bridgestreet Corporate Housing, LLC, Defendants. 47 East 34th Street (NY), L.P., and CIM Group, L.P., Third-Party Plaintiffs, v. June Electrical Corp and Bridgestreet Corporate Housing, LLC, Third-Party Defendants. June Electrical Corp, Second Third-Party Plaintiff, v. Continental Indemnity Company, Second Third-Party Defendant.
Plaintiff is represented by Alexandra Colella, Esq., Marc J. Bern & Partners LLP, 60 East 42nd Street, Suite 950, New York, NY, 10165. Defendant/Third Party Plaintiff- 47 East 34th Street (NY), L.P. is represented by Leon R. Kowalski, Esq. and Michael J. Pearsall, Kowalski & Devito, 80 Pine Street 3rd floor, New York, NY, 10005. Defendant/Third Party Plaintiff- CIM Group, L.P. is represented by Leon R. Kowalski, Esq. and Michael J. Pearsall , Kowalski & Devito, 80 Pine Street 3rd floor, New York, NY, 10005. Defendant/Third Party Defendant/ 2nd Third Party Plaintiff - June Electric Corporation is represented by Nicholas P. Calabria, Esq., Ahmuty Demers & McManus, 200 I.U. Willets Road, Albertson, NY, 11507. Defendant/Third Party Defendant- Bridgestreet Corporate Housing LLC is represented by Michael Francis Grady, Esq. and Siobhainin S. Funchion, Esq., Wilson Elser Moskowitz Edelman & Dicker LLP, 1133 Westchester Ave., White Plains, NY, 10604. 2nd Third Party Defendant - Continental Indemnity Company is represented by Joseph S. Alonzo, Esq., Squire Patton Boggs (US) LLP, 1211 Avenue of the Americas, FL 26, New York, NY, 10036 and Steven Michael Rosato, Esq. and Shand S. Stephens, Esq., DLA Piper LLP (US), 1251 Avenue of the Americas, FL 27, New York, NY, 10036.
Plaintiff is represented by Alexandra Colella, Esq., Marc J. Bern & Partners LLP, 60 East 42nd Street, Suite 950, New York, NY, 10165.
Defendant/Third Party Plaintiff- 47 East 34th Street (NY), L.P. is represented by Leon R. Kowalski, Esq. and Michael J. Pearsall, Kowalski & Devito, 80 Pine Street 3rd floor, New York, NY, 10005.
Defendant/Third Party Plaintiff- CIM Group, L.P. is represented by Leon R. Kowalski, Esq. and Michael J. Pearsall , Kowalski & Devito, 80 Pine Street 3rd floor, New York, NY, 10005.
Defendant/Third Party Defendant/ 2nd Third Party Plaintiff - June Electric Corporation is represented by Nicholas P. Calabria, Esq., Ahmuty Demers & McManus, 200 I.U. Willets Road, Albertson, NY, 11507.
Defendant/Third Party Defendant- Bridgestreet Corporate Housing LLC is represented by Michael Francis Grady, Esq. and Siobhainin S. Funchion, Esq., Wilson Elser Moskowitz Edelman & Dicker LLP, 1133 Westchester Ave., White Plains, NY, 10604.
2nd Third Party Defendant - Continental Indemnity Company is represented by Joseph S. Alonzo, Esq., Squire Patton Boggs (US) LLP, 1211 Avenue of the Americas, FL 26, New York, NY, 10036 and Steven Michael Rosato, Esq. and Shand S. Stephens, Esq., DLA Piper LLP (US), 1251 Avenue of the Americas, FL 27, New York, NY, 10036.
Llinét M. Rosado, J.
BACKGROUND
This personal injury action arises out of an incident alleged to have occurred on January 31, 2013 at the premises located at 47-49 East 34th Street, New York, New York. Danny Rosa claimed that in the course of his employment, he was shocked and fell off a ladder while working on a piece of electrical equipment, known as a bus duct, at the premises, and he sustained burns and bodily injuries. The plaintiff's causes of action sound in common-law negligence and violations of the New York State Labor Law.
It is alleged that the defendants, 47 East 34th Street (NY), L.P. (47 East) and/or CIM Group, L.P. (CIM) were the owner of the premises (collectively referred to as the "owner entities"). It is also alleged that Bridgestreet Corporate Housing, LLC (Bridgestreet) had a lease agreement with 47 East, and Bridgestreet was a tenant and building manager of the premises. Pursuant to a Settlement Agreement and Release between CIM and June Electric Corporation (June Electric), dated April 18, 2012 (Settlement Agreement), June Electric performed all electrical work at the premises. It is alleged that Mr. Rosa had been working with June Electric for ten (10) years as of the day of the incident. Arcenio Cuevas, a former building manager of the premises from Bridgestreet, testified that Mr. Rosa came to the premises to put a cap on a bus duct. Mr. Cuevas testified that Mr. Rosa was going to use a piece of cardboard to perform his work. Mr. Cuevas instructed Mr. Rosa not to use it and not to work on the live bus duct without a rubber barrier. However, allegedly, Mr. Rosa was working on the live bus duct without a rubber barrier at the time of the accident. After the accident, on or about October 8, 2013, Mr. Rosa passed away. Mr. Rosa was never deposed before his death.
By the decision and order of the Honorable Lizbeth Gonzalez (Justice Gonzalez), dated July 28, 2014, the court permitted the complaint to be amended to reflect the substitution of his estate's administrator, Ana Rosa. By the decision and order, dated February 21, 2019, citing Danny Rosa's autopsy report, the court found that causes of his death were the "hypertensive cardiovascular disease," and that "chronic alcoholism and pulmonary emphysema" contributed to his death. The court concluded that the manner of Danny Rosa's death was natural, and the court denied adding a wrongful death action against the defendants.
Procedural History
Pursuant to CPLR 3212, the owner entities move for an order granting summary judgment in their favor and dismissing the plaintiff's complaint, and all crossclaims and counterclaims against the owner entities [motion sequence (012)]. The owner entities submitted a copy of the pleadings; the deposition transcripts of Ana Rosa, Arcenio Cuevas, and Kristen Hewett (Zigo) ; a copy of a deed for the premises, dated October 14, 2011 (deed); a lease agreement between 47 East and Bridgestreet, dated March 1, 2012 (lease agreement); and a copy of the Occupational Safety & Health Administration (OSHA) report issued by the U.S. Department of Labor Manhattan Area Office, dated September 6, 2013 (OSHA report).
Bridgestreet filed its motion (013), dated December 2, 2019, and this Court issued a separate decision on it.
Ms. Kristen Hewett was formally known as Ms. Kristen Zigo. Her family name was changed due to her marriage in 2015.
Bridgestreet submitted an attorney's affirmation, dated October 16, 2019 in partial opposition to the instant motion. Bridgestreet opposes the owner entities' motion to the extent that they seek summary judgment on Bridgestreet's indemnification counterclaim against the owner entities. Bridgestreet submitted a copy of the pleadings; a Settlement Agreement and release, dated April 18, 2012 (Settlement Agreement); and the lease agreement.
The plaintiff submitted an attorney's affirmation, dated November 12, 2019, in opposition to the instant motion. Her submissions include a copy of the pleadings; the deposition transcripts of Ana Rosa, Arcenio Cuevas, and Kristen Zigo; and the OSHA report.
The owner entities submitted an attorney's affirmation, dated November 19, 2019, in reply to the opposition filed by the plaintiff, and in further support of the owner entities' motion for summary judgment seeking dismissal of the plaintiff's complaint, and all crossclaims and counterclaims asserted against the owner entities.
Pursuant to CPLR 3212, June Electric submitted a cross motion for summary judgment in favor of the owner entities and Bridgestreet, and dismissing the plaintiff's complaint; and dismissing the third-party complaint and all crossclaims against June Electric. June Electric submitted a copy of the pleadings; a copy of the order and decision by Justice Gonzalez, dated February 21, 2019 [motion sequence (009)]; a copy of the order and decision by Justice Gonzalez, dated July 22, 2019 [motion sequence (010)]; the Settlement Agreement; and a copy of the notice to admit, dated October 6, 2017.
The owner entities submitted an attorney's affirmation, dated December 17, 2019, in opposition to the cross motion, a copy of an affirmation in opposition to the plaintiff's motion to amend complaint, dated February 14, 2019, with a copy of Danny Rosa's autopsy report as exhibit A.
The plaintiff submitted an attorney's affirmation, dated December 19, 2019, in opposition to the cross motion, and submissions that include a copy of the pleadings; the deposition transcripts of Ana Rosa, Arcenio Cuevas, and Kristen Zigo; and the OSHA report.
June Electric submitted an attorney's affirmation, dated November 19, 2019, in reply to the opposition filed by the owner entities and the plaintiff, and a true copy of Danny Rosa's autopsy report, dated August 21, 2014.
DISCUSSION
CPLR 3212 Summary Judgment Standard of Review
Pursuant to CPLR 3212, "for a summary judgment to be granted, the moving party must make a prima-facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. ( Alvarez v. Prospect Hosp. , 68 NY2d 320, 324, 508 N.Y.S.2d 923, 501N.E.2d 572 [1986]). If the moving party produces the required evidence, the burden shifts to the nonmoving party "to establish the existence of material issues of fact which require a trial of the action." (Vega v. Restani Constr. Corp. , 18 NY3d 499, 503, 542 N.Y.S.2d 923, 501 N.E.2d 240, quoting Alvarez , 68 NY2d at 324, 508 N.Y.S.2d 923, 501N.E.2d 572)." Xiang Fu He v. Troon Mgmt., Inc. , 34 NY3d 167, 137 N.E.3d 469, 114 N.Y.S.3d 14 (2019).
Lease Agreement and Settlement Agreement
The owner entities and Bridgestreet submitted a copy of the lease agreement to show the contractual relationship between 47 East and Bridgestreet, and the terms of the lease agreement.
However, the testimonial evidence of Mr. Cuevas and Ms. Zigo failed to demonstrate that Mr. Cuevas or Ms. Zigo personally signed and executed the lease agreement, or that they were personally familiar with the lease agreement. Mr. Cuevas and Ms. Zigo also failed to testify that the lease agreement was recorded by a person with personal knowledge of the stated facts in the lease agreement, or a person who is sufficiently familiar with the corporate records to aver that the lease agreement is what it purports to be, and that it came out of the entity's files. DeLeon v. Port Auth. of NY and N.J. , 306 AD2d 146 (1st Dept. 2003) ; see Bd. of Managers of Ruppert Yorkville Towers Condominium v. Hayden , 169 AD3d 569 (1st Dept. 2019). No additional evidence was proferred for this Court to find otherwise. The owner entities and Bridgestreet failed to lay a proper foundation, and therefore the copy of the lease agreement is inadmissible under CPLR 4518(a).
The owner entities and June Electric submitted a copy of the Settlement Agreement between 47 East and June Electric. June Electric served a notice to admit, dated October 6, 2017 as to the Settlement Agreement, dated January 23, 2012, between 47 East and June Electric to the plaintiff, the owner entities, and Bridgestreet. No party provided a sworn statement denying the Settlement Agreement or setting forth in detail the reasons why they cannot truthfully either admit or deny the Settlement Agreement within twenty (20) days. CPLR 3123(a). Accordingly, the Settlement Agreement is admissible in this case.
Protected Work under Labor Law § 240(1) and § 241(6)
The owner entities argue that the work that Mr. Rosa was assigned is not a protected work under Labor Law § 240(1) and § 241(6) because he was merely replacing a cap on the bus duct at the premises, and there is no evidence that the bus duct was malfunctioning or inoperative.
The plaintiff argues that there is a triable issue of fact as to whether Mr. Rosa was engaged in protected work because he was involved in "altering or repairing of the premises or structure" under Labor Law § 240(1) and/or involved in "construction work" under Labor Law § 241(6).
Under Labor Law § 240(1), owners, contractors, and their agents must provide proper protection to a person so employed in altering and/or repairing a building or structure.
The Court of Appeals concluded that "altering" under Labor Law § 240(1) requires making a significant physical change to the configuration or composition of the building or structure. Saint v. Syracuse Supply Co. , 25 NY3d 117 (2015) ; Joblon v. Solow , 91 NY2d 457 (1998).
Here, Mr. Cuevas testified that Mr. Rosa came to the premises to put a cap on the bus duct. Mr. Rosa did not have to extend or re-route the wiring within the bus duct or chisel a hole through a concrete wall. See Joblon , 91 NY2d at 465-66. The work that Mr. Rosa performed did not involve a significant physical change in the configuration or composition of the premises. His work may have changed the outward appearance of the bus duct; however, his work did not change the structure of the premises or the bus duct. Munoz v. DJZ Realty, LLC , 5 NY3d 747 (2005). His work was just to put a cap on the bus duct, and it was more akin to cosmetic or decorative modification than "altering" for the purpose of Labor Law § 240(1). Munoz , 5 NY3d at 748 ; Acosta v. Banco Popular , 308 AD2d 48 (1st Dept. 2003). This Court concludes that the work Mr. Rosa performed was not "altering" a building or structure under Labor Law § 240(1).
The Court of Appeals held that the work involved replacing components in the course of normal wear and tear constitutes routine maintenance, and not "repairing," or any of the other enumerated activities under Labor Law § 240(1). Abbatiello v. Lancaster Studio Assoc. , 3 NY3d 46 (2004) ; Esposito v. New York City Indus. Dev. Agency , 1 NY3d 526 (2003). The Court of Appeals and the First Department further held that although repairing a broken, inoperable, or malfunctioning item is among the statute's enumerated activities, routine maintenance to prevent malfunction or inoperability of the item is not covered activity. Izrailev v. Ficarra Furniture of Long Island, Inc. , 70 NY2d 813 (1987) ; Santiago v. Fred-Doug 117, L.L.C. , 68 AD3d 555 (1st Dept. 2009) ; see also Mata v. Park Here Garage Corp. , 71 AD3d 423 (1st Dept. 2010).
Here, Mr. Cuevas testified that it takes two minutes to put a cap on the bus duct. No extensive work was necessary, such as wiring and chiseling. Mr. Rosa merely put a cap on the bus duct. Ms. Zigo testified that there was no electrical disruption before the accident indicating the inoperability of electricity at the premises. No admissible evidence was submitted to establish a possible malfunction of an integral part of the bus duct prior to the commencement of the work and constitute "repairing" under Labor Law § 240(1). Caraciolo v. 800 Second Ave. Condominium , 294 AD2d 200, 202 (1st Dept. 2002) ; Papapetro v. Rock-Time, Inc. , 265 AD2d 174 (1st Dept. 1999). This Court concludes that the work Mr. Rosa performed was not "repairing" a building or structure under Labor Law § 240(1).
Accordingly, the owner entities' branch of the instant motion for an order dismissing the plaintiff's Labor Law § 240(1) claim is granted.
Labor Law § 241(6) requires owners, contractors, and their agents to provide reasonable and adequate protection, and a safe workplace for the persons they employ to perform "construction" work. Liability under Labor Law § 241(6) is limited to accidents where the work being performed involves construction. Peluso v. 69 Tiemann Owners Corp. , 301 AD2d 360 (1st Dept. 2003) ; Acosta , 308 AD2d at 6;see Jock v. Fien , 80 NY2d 965 (1992). In determining what constitutes "construction" for the purpose of the statute, the courts rely on the Industrial Code. Saint , 25 NY3d at 129 ; Joblon , 91 NY2d at 466 ; Acosta , 308 AD2d at 51 ; see Jock , 80 NY2d at 968. The Industrial Code expansively defines "construction work" as "work of the types performed in the construction, erection, alternation, repair, maintenance, painting, or moving of buildings or other structures." 12 NYCRR § 23-1.4(b)(13).
Here, 47 East/CIM and June Electric entered into the Settlement Agreement to perform all work enumerated in a punch list and to remove all New York City Department of Buildings (DOB) violations related to electrical work at the premises. Mr. Cuevas testified that the punch list work was part of completing the construction of the premises, and it was being performed by June Electric on the day of the accident. Mr. Cuevas testified that Mr. Rosa came to the premises to put a cap on the bus duct on the day of the accident. Furthermore, Mr. Cuevas testified that June Electric came to the premises two or three times in January 2013 to perform punch list work.
On the other hand, Ms. Zigo testified that she was not aware of any of contractors who were working on the electrical system at the premises, and she further testified that there was no construction going on at the premises in January 2013.
Thus, based on the submitted evidence, this Court is unable to determine whether the work Mr. Rosa performed was a part of completing the construction project at the premises under Labor Law § 241(6).
Proximate Cause
The owner entities and June Electric argue that Mr. Rosa's accident was solely and proximately caused by his own conduct in voluntarily, and in contravention of express instructions, working on the bus duct without turning off the electrical power.
The Court of Appeals held that there can be no liability under Labor Law § 240(1) when there is no violation of said section, and a worker's actions are the sole proximate cause of the worker's accident. Robinson v. East Med. Ctr., LP , 6 NY3d 550 (2006) ; Cahill v. Triborough Bridge and Tunnel Auth. , 4 NY3d 35 (2004) ; Blake v. Neighborhood Hous. Servs. of N.Y.C., Inc. , 1 NY3d 280 (2003).
Here, no admissible evidence is submitted to indicate a violation of Labor Law by the owner entities. See Broggy v. Rockefeller Group, Inc. , 8 NY3d 675, 681 (2007). Mr. Cuevas testified that he told Mr. Rosa not to work on the live bus duct with the piece of cardboard. Mr. Cuevas testified that he offered to go to a hardware store to get a rubber barrier for Mr. Rosa. Mr. Cuevas further testified that Mr. Rosa and he agreed that, after Mr. Cuevas came back from the hardware store, he would shut down the electricity, and Mr. Rosa would work on the bus duct with the rubber barrier. However, Mr. Rosa did not follow Mr. Cuevas' explicit instructions, and he performed the work without the rubber barrier. The plaintiff failed to offer any admissible evidence for this Court to rebut Mr. Cuevas's testimony.
The plaintiff argues that no ladder, harness or any protective equipment was provided to Mr. Rosa. The plaintiff claimed that Mr. Rosa fell off a ladder that was not provided to him, but that he found himself in order to perform the work.
Again, Mr. Cuevas testified that Mr. Rosa agreed not to work on the bus duct before he came back from the hardware store. Mr. Cuevas had no reason to provide a ladder to Mr. Rosa at that point. As Mr. Cuevas testified, Mr. Rosa did not follow Mr. Cuevas' instruction, but he forced open the boiler room door to get a ladder without Mr. Cuevas' permission and knowledge. In addition, no admissible evidence was proffered to show that the ladder was defective.
Furthermore, a ladder and harness are not the types of safety device use to provide protection from an electric shock, and they are not directly relevant here. Shutting down the electricity at the premises, and use of a rubber barrier could protect from an electric shock. However, in this case, Mr. Rosa ignored Mr. Cuevas' instructions and worked on the bus duct without shutting down the electricity, or using a rubber barrier.
In this motion, the owner entities also argue that 12 NYCRR § 23-1.7(f), § 23-1.13, § 23-1.16, § 23-1.21(b), § 23-1.21(e), § 23-1.24, § 23-1.30, § 23-2.1, and § 23-5 claims that the plaintiff raised are inapplicable here because there is no allegation and/or evidence to support such claims.
The plaintiff failed to submit opposition to the dismissal of said sections against the owner entities, except as to 12 NYCRR § 23-1.13(b)(4), and those causes of action are deemed abandoned. See Kronick v. L.P. Thebault Co., Inc. , 70 AD3d 648 (2d Dept. 2010) ; Genovese v. Gambino , 309 AD2d 832, 766 N.Y.S.2d 213 (2d Dept. 2003) ; see also Ellis v. Emerson , 34 AD3d 1334, 825 N.Y.S.2d 608 (4th Dept. 2006).
Thus, remaining issue is whether there was a violation of 12 NYCRR § 23-1.13(b)(4), and whether such violation proximately caused Mr. Rosa's accident.
To support a cause of action under Labor Law § 241(6), a plaintiff must demonstrate that his or her injuries were proximately caused by a violation of an Industrial Code provision that is applicable under the circumstances of the accident. Aragona v. State , 147 AD3d 808 (2d Dept. 2017) ; Martinez v. City of New York , 73 AD3d 993 (2d Dept. 2010) ; Rivera v. Santos , 35 AD3d 700 (2d Dept. 2006) ; see Ross v. Curtis-Palmer Hydro-Elec. Co. , 81 NY2d 494, 502 (1993).
12 NYCRR § 23-1.13(b)(4) commands that "before work is started, it is to be ascertained whether the work will bring a worker into contact with an electric power circuit, and, if so, that the worker not be permitted to come into contact with the circuit without it being de-energized." DelRosario v. United Nations Fed. Credit Union , 104 AD3d 515 (1st Dept. 2013).
Even if this Court reviews the records in the light most favorable to the plaintiff, the plaintiff's Labor Law § 241(6) claim is not sustainable. Mr. Cuevas' testimony shows that Mr. Rosa was instructed not to work on the live bus duct, and Mr. Cuevas was going to provide a rubber barrier and shut down the electricity at the premises after he came back from the hardware store. Mr. Cuevas further testified that Mr. Rosa agreed to follow such instructions, however, he failed to do so. In this case, no one forced him to work on the live bus duct; no one negligently instructed him to work on the live bus duct; and no one negligently failed to shut down the electricity while Mr. Rosa was working on the bus duct. Mr. Rosa himself ignored Mr. Cuevas' instructions and the agreement with Mr. Cuevas, and he himself violated 12 NYCRR § 23-1.13(b)(4). Thus, this Court concludes that there was no violation of a safety regulation promulgated pursuant to Labor Law § 241(6) proximately caused Mr. Rosa's accident. McCullum v. Barrington Co. , 192 AD2d 489 (1st Dept. 1993).
This Court finds that the owner entities made a prima-facie showing of entitlement to judgment as a matter of law with respect to Labor Law § 241(6) claim.
Accordingly, the owner entities' motion for an order dismissing the plaintiff's complaint as to Labor Law § 240(1) and § 241(6) claims is granted.
Bridestreet's Contractual Indemnification Claim against the Owner Entities
Pursuant to the lease agreement, Bridgestreet claims that it is entitled to contractual indemnification from the owner entities, which seeks not only indemnification for any judgment against Bridgestreet, but also defense costs incurred in the litigation. Bridgestreet argues that it would be premature to dismiss Bridgestreet's contractual indemnification against the owner entities. The owner entities did not oppose or reply with respect to Bridgestreet's contractual indemnification claim in the instant motion.
As discussed above, the lease agreement is inadmissible, and this Court declines to consider it for this motion. However, this Court agrees that it is premature to dismiss Bridgestreet's contractual indemnification claim against the owner entities. Accordingly, the owner entities' motion for an order dismissing Bridgestreet's contractual indemnification claim is denied.
Contractual Indemnification Claim by the Owner Entities against June Electric
June Electric argues that the Settlement Agreement was in effect at the date of Mr. Rosa's accident, and there is no contract in effect between June Electric, CIM, and/or Bridgestreet. June Electric further argues that the Settlement Agreement does not contain any indemnity agreement, and therefore the contractual indemnification claims against June Electric must be dismissed.
It is well settled that "when a party is under no legal duty to indemnify, a contract assuming that obligation must be strictly construed to avoid reading into it a duty which the parties did not intend to be assumed." Tonking v. Port Auth. of New York and New Jersey , 3 NY3d 486, 821 N.E.2d 133, 787 N.Y.S.2d 708 (2004) ; Hooper Assoc., Ltd. v. AGS Computers, Inc. , 74 NY2d 487, 548 N.E.2d 903, 549 N.Y.S.2d 365 (1989) ; see also Suazo v. Maple Ridge Assoc., L.L.C. , 85 AD3d 459, 924 N.Y.S.2d 378 (1st Dept. 2011) ; Fresh Del Monte Produce N.V. v. Eastbrook Carbe A.V.V. , 40 AD3d 415, 836 N.Y.S.2d 160 (1st Dept. 2007).
Here, the Settlement Agreement has no language that requires June Electric to indemnify any of the owner entities. This Court declines to rewrite the Settlement Agreement and supply a specific obligation to the parties who did not spell out such an obligation. Tonking , 3 NY3d at 489. Furthermore, the owner entities failed to offer any admissible evidence for this Court to find otherwise and failed to oppose the dismissal of the contractual indemnification claim against June Electric.
Accordingly, the owner entities' third-party complaint as to their contractual indemnification claim against June Electric is dismissed.
Ownership of the Premises
The owner entities argue that CIM was not the owner or contractor of the premises and cannot be liable to the plaintiff under Labor Law and common-law principles claims. It asserted that 47 East was the legal owner and landlord of the premises at the time of the plaintiff's accident.
The plaintiff contends that CIM is liable because, as a parent company of 47 East, CIM is united in interest with 47 East and Bridgestreet.
This Court found that there is no question of fact as to Labor Law § 240(1) and § 241(6) claims and dismissed the plaintiff's branch of the complaint as to said claims. Therefore, the remaining issue that is relevant here is whether CIM and/or 47 East is an owner of the premises for the purpose of Labor Law § 200 and common-law principles claims.
In this motion, the plaintiff cited Donovan v. All-Weld Prod. Corp. , to support her position; however, the plaintiff mischaracterized the case. Donovan v. All-Weld Prod. Corp. , 34 AD3d 257 (1st Dept. 2006). In the Donovan case, the First Department discussed the applicability of the relation back doctrine and held that a claim asserted against a codefendant united in interest with a timely served defendant is to relate back to the date on which plaintiff's claim was asserted against the defendant. Donovan , 34 AD3d at 257-58 ; see Buran v. Coupal , 87 NY2d 173, 178 (1995) ; Brown v. 3392 Bar Corp. , 2 AD3d 324 (1st Dept. 2003) ; Lord Day & Lord, Barrett, Smith v. Broadwall Mgt. Corp. , 301 AD2d 362 (1st Dept. 2003) ; Connell v. Hayden , 83 AD2d 30 (2d Dept. 1981). Here, the Donovan case is not applicable because the plaintiff never argued that CIM should be added as a new defendant, and therefore, the unity of the interest among the direct defendants is irrelevant.
Assuming arguendo that the Donovan case is applicable here, the plaintiff still failed to offer admissible evidence for this Court to find that CIM is united in interest with 47 East and Bridgestreet. The plaintiff argues that CIM is the parent company for 47 East, and 47 East leased its building to Bridgestreet. The plaintiff further argues that all three parties are named in this action, are agents of one another, and are all united in interest. However, the mere assertions which the plaintiff laid out do not automatically or naturally constitute the unity of the interest among them. Therefore, this Court does not agree that CIM is liable on the ground that CIM is united in interest with 47 East and Bridgestreet.
The Court of Appeals and the First Department held that a parent corporation can be held liable for the torts of its subsidiary if a parent corporation exercises complete dominion and control over the subsidiary. Billy v. Consolidated Mach. Tool Corp. , 51 NY2d 152 (1980) ; Goessel v. Club Med Sales, Inc. , 209 AD2d 356 (1st Dept. 1994) ; Garcia v. Union Carbide Corp. , 176 AD2d 219 (1st Dept. 1991) ; see also Potash v. Port Auth. of New York and New Jersey , 279 AD2d 562 (2d Dept. 2001). Complete ownership alone will not render a parent corporation liable for the torts of its subsidiary. Garcia , 176 AD2d at 219-20. Here, the plaintiff failed to provide a basis for this Court to find that CIM exercised complete dominion and control over 47 East and/or Bridgestreet. The owner entities submitted a deed showing that 47 East was the owner of the premises on October 14, 2011. On the other hand, Ms. Zigo, who was the former Bridgestreet's assistant general manager of the premises at the time of the accident, testified that CIM was the owner of the premises. In addition, as discussed above, the lease agreement was not submitted in admissible form. Thus, this Court is unable to determine the ownership of the premises on the date of the accident.
This Court finds that the inconsistencies in the submitted evidence sufficiently raise questions of fact as to whether CIM and/or 47 East is an owner of the premises.
Labor Law § 200 Claim against the Owner Entities and June Electric
The owner entities argue that 47 East and CIM cannot be liable because Mr. Rosa was injured, not by a dangerous condition, but by the manner in which he performed his work. The plaintiff, on the other hand, argues that the owner entities created the hazardous condition and had notice of such condition.
It is well established that Labor Law § 200 is a codification of the common-law duty imposed upon an owner or general contractor to provide construction site workers with a safe place to work. Rizzuto v. L.A. Wenger Contracting Co., Inc. , 91 NY2d 343, 693 N.E.2d 1068, 670 N.Y.S.2d 816 (1998) ; Comes v. NY State Elec. and Gas Corp. , 82 NY2d 876, 631 N.E.2d 110, 609 N.Y.S.2d 168 (1993) ; Ross v. Curtis-Palmer Hydro-Elec. Co. , 81 NY2d 494, 618 N.E.2d 82, 601 N.Y.S.2d 49 (1993) ; Villanueva v. 114 Fifth Ave. Assoc. LLC. , 162 AD3d 404; 78 N.Y.S.3d 87 (1st Dept. 2018) ; Hughes v. Tishman Constr., Corp. , 40 AD3d 305, 836 N.Y.S.2d 86 (1st Dept. 2007).
Labor Law § 200 requires this Court to first find that CIM and/or 47 East is an owner to consider whether CIM and/or 47 East is liable under Labor Law § 200. However, as mentioned above, this Court found that there are questions of fact as to whether CIM or 47 East is an owner of the premises. Therefore, for the purpose of resolving the instant motion, this Court analyzes the submitted evidence and determines whether the owner entities made a prima-facie showing of entitlement to judgment as a matter of law as to the plaintiff's Labor Law § 200 and common-law claims.
The Court of Appeals and the First Department held that an implicit precondition to the duty which Labor Law § 200 and common-law principles impose is that the party to be charged with that obligation have the authority to control the activity bringing about the injury to enable it to avoid or correct an unsafe condition. Rizzuto , 91 NY2d at 352 ; Comes , 82 NY2d at 877 ; Ross , 81 NY2d at 505 ; Russin v. Louis N. Picciano & Son , 54 NY2d 311, 429 N.E.2d 805, 445 N.Y.S.2d 127 (1981) ; Hughes , 40 AD3d at 306. Only general supervisory authority over a plaintiff's work is insufficient to establish liability under Labor Law § 200 or common-law principles. James v. Alpha Painting & Constr. Co., Inc. , 152 AD3d 447, 59 N.Y.S.3d 21 (1st Dept. 2017) ; Hughes , 40 AD3d at 306. Furthermore, an owner or general contractor should not be held responsible under Labor Law § 200 and common-law principles for the negligent acts of others over whom the owner or general contractor had no direction or control. Comes , 82 NY2d at 877 ; Ross , 81 NY2d at 505 ; Russin , 54 NY2d at 317.
Liability under Labor Law § 200 and common-law principles require not only direct supervision or control over the injury-producing work, but also actual or constructive notice of the dangerous condition that caused plaintiff's injury. Makarius v. Port Auth. of NY and N.J. , 76 AD3d 805 (1st Dept. 2010) ; Maldonado v. Metro. Life Ins. Co. , 289 AD2d 176, 735 N.Y.S.2d 111 (1st Dept. 2001). The notice must call attention to the specific defect or hazardous condition, and its specific location to be sufficient for corrective action to be taken. Gordon v. American Museum of Nat. History , 67 NY2d 863, 492 N.E.2d 774, 501 N.Y.S.2d 646 (1986) ; Mitchell v. New York Univ. , 12 AD3d 200, 784 N.Y.S.2d 104 (1st Dept. 2004).
Here, Ms. Zigo testified that the employees of CIM did not come to the premises on a daily basis. Although she testified that she could not remember specifically, she stated that there may have been someone inspecting apartments other than an employee of Bridgestreet. She further testified that Mr. Cuevas was the main contact point of the owner entities.
Mr. Cuevas testified that Tony Nezaj, his direct supervisor and a senior property manager for the premises, reports to Jeff Mack from First Service Residential which manages the building and collects rents for CIM.
After reviewing the testimonial evidence and the Settlement Agreement, this Court is unable to determine that CIM and/or 47 East had authority to control the activity bringing about Mr. Rosa's accident; that CIM and/or 47 East had authority to control Mr. Rosa's work through June Electric or Bridegstreet; and that CIM and/or 47 East only had general supervisory authority over Mr. Rosa's work. In addition, from the submitted evidence, this Court is unable to determine whether CIM and/or 47 East created or had notice of the hazardous condition.
However, the Court of Appeals and the First Department have held that the Labor Law § 200 duty does not extend to hazards which are "part of or inherent in" the very work being performed or to those hazards that may be readily observed by reasonable use of the senses in light of the worker's age, intelligence and experience. Gasper v. Ford Motor Co. , 13 NY2d 104 (1963) ; Bodtman v. Living Manor Love, Inc. , 105 AD3d 434 (1st Dept. 2013) ; Bombero v. NAB Constr. Corp. , 10 AD3d 170 (1st Dept. 2004) ; Isola v. JWP Forest Elec. Corp. , 262 AD2d 95 (1st Dept. 1999) (holding that the hazardous condition was open and obvious, and there was no duty to warn plaintiff of such condition); Brezinski v. Olympia & York Water St. Co. , 218 AD2d 633 (1st Dept.1995) (holding that there is no duty to warn a worker or his employer of dangers and conditions that are open and obvious, either pursuant to Labor Law § 200 or common-law negligence principles).
In this case, from the submitted evidence, this Court is unable to determine with certainty that the electric shock was the "part of or inherent in" the very work Mr. Rosa performed, or such hazardous condition was readily and reasonably observed by Mr. Rosa.
Finally, the owner entities cited the Barros and Gaisor cases and argue that the owner entities are not liable because Mr. Rosa was engaged in remedying the defect that caused his injuries. Barros v. Bette & Cring, LLC , 129 AD3d 1279 (3d Dept. 2015) ; Gaisor v. Gregory Madison Ave., LLC , 13 AD3d 58 (1st Dept. 2004). However, the cases are dissimilar with this case because the defendants in those cases had no control over the hazardous condition. Furthermore, from the submitted evidence, this Court is unable to determine that Mr. Rosa was engaged in remedying the defect.
This Court finds that the submitted evidence sufficiently raise questions of fact as to the owner entities' liability under Labor Law § 200. Accordingly, the owner entities' branch of the instant motion dismissing the plaintiff's Labor Law § 200 claim against CIM and 47 East is denied.
Turning to June Electric's liability under Labor Law § 200, this Court is also unable to determine June Electric liability based on the submitted evidence.
The plaintiff testified that Mr. Rosa was working for June Electric on the date of the accident. Mr. Cuevas testified that Mr. Rosa reported to his direct supervisor, Mr. Ray, and that the direct supervisor supervises or controls Mr. Rosa's work.
Mr. Cuevas was unable to testify as to Mr. Ray's family name.
It is highly likely that June Electric had the authority to control the activity bringing about Mr. Rosa's injury. However, from the submitted evidence, this Court is unable to determine whether June Electric had actual and constructive notice of the hazardous condition.
Accordingly, this Court finds that there is a question of material fact as to the owner entities and June Electric's liability under Labor Law § 200 and common-law principles.
Labor Law § 200 and Common-Law Indemnification Claims against June Electric
In the third-party complaint, the owner entities seek contribution and/or common-law indemnification against June Electric, and June Electric cross moves to dismiss such claims.
It is well settled that in the case of common-law indemnification, the one seeking indemnity must prove not only that it was not negligent in any manner beyond the statutory liability but must also prove that the proposed indemnitor was negligent in some parts that contributed to the causation of the accident for which the indemnitee was held liable to the injured party by virtue of some obligation imposed by law. Correia v. Prof'l Data Mgmt., Inc. , 259 AD2d 60, 693 N.Y.S.2d 596 (1st Dept. 1999) ; see Martins v. Lettle 40 Worth Assoc., Inc. , 72 AD3d 483, 899 N.Y.S.2d 30 (1st Dept. 2010) ; Picchione v. Sweet Constr. Corp. , 60 AD3d 510, 875 N.Y.S.2d 42 (1st Dept. 2009) ; Priestly v. Montefiore Med. Ctr./Einstein Med. Ctr. , 10 AD3d 493, 781 N.Y.S.2d 506 (1st Dept. 2004).
As discussed above, this Court found that there are questions of material fact as to whether the owner entities and/or June Electric had the authority to control Mr. Rosa's work, and whether the owner entities and/or June Electric had actual or constructive notice of the hazardous condition.
Accordingly, June Electric's branch of the cross motion for an order dismissing the owner entities' common-law indemnification and/or contribution claims against June Electric is denied.
Grave Injury
June Electric argues that Mr. Rosa did not suffer a grave injury due to the accident, and that in her decision and order, dated February 21, 2019, Justice Gonzalez concluded that Mr. Rosa's death was due to natural causes and was not caused by the allegations of negligence in this case.
The owner entities argue that the decision and order by Justice Gonzalez never addressed the issue of whether Mr. Rosa suffered a grave injury.
In motion sequence (009), the plaintiff moved to amend the pleadings to add a wrongful death action against the defendants pursuant to CPLR 3025(b). Justice Gonzalez reviewed the submitted evidence and denied the plaintiff's motion because Mr. Rosa's autopsy report did not demonstrate a sufficient basis to add a wrongful death cause of action to the plaintiff's complaint.
Here, as the owner entities argued, Justice Gonzalez's decision and order did not address whether Mr. Rosa sustained a grave injury due to the accident. Additionally, Mr. Rosa's autopsy report itself does not establish whether he sustained a grave injury due to the accident. June Electric failed to offer any additional admissible evidence for this Court's consideration. This Court is unable to determine whether Mr. Rosa suffered a grave injury due to the accident, and June Electric failed to eliminate issues of material fact as to the grave injury allegedly Mr. Rosa sustained.
Accordingly, it is hereby
ORDERED, that the owner entities' branch of the motion (012) to dismiss the plaintiff's Labor Law § 240(1) and § 241(6) claims is granted; and it is further
ORDERED, that the plaintiff's complaint as to Labor Law § 240(1) and § 241(6) is dismissed; and it is further
ORDERED, that the owner entities' branch of the motion (012) to dismiss the plaintiff's Labor Law § 200 claim is denied; and it is further
ORDERED, that the owner entities' branch of motion (012) to dismiss Bridgestreet's contractual indemnification claim is denied; and it is further
ORDERED, that June Electric's branch of the cross motion to dismiss the owner entities' contractual indemnification claim against June Electric is granted; and it is further
ORDERED, that the owner entities' branch of the third-party complaint as to the contractual indemnification claim is dismissed; and it is further
ORDERED, that June Electric's branch of the cross motion to dismiss Labor Law § 200 and common-law principles claims against June Electric is denied; and it is further
ORDERED, that June Electric's branch of the cross motion to dismiss the contribution claim, and Labor Law § 200 and common-law principles indemnification claims against June Electric is denied; and it is further
ORDERED, that the plaintiff, the owner entities, Bridgestreet, and June Electric shall appear for a compliance conference on April 6, 2021 at Bronx County compliance conference part; and it is further
ORDERED, that the owner entities are directed to serve a copy of this order with notice of entry on the plaintiff, Bridgestreet, and June Electric within thirty (30) days from the date of entry.
This constitutes the decision and order of the court.