Opinion
101637/2011
03-12-2018
Joseph SILICATO and Joy Silicato, Plaintiffs, v. SKANSKA USA CIVIL NORTHEAST, INC., E.C. C.O. III Enterprises, Inc., J.F. White Contracting Company, Malcolm Pirnie, Inc., CH2M Hill, Inc., CH2M Hill New York, Inc., American Safety Consultants, LLC, Earthtech Contracting Inc. and New York City Department of Environmental Protection, Defendants. Malcolm Pirnie, Inc., CH2M Hill, Inc. and CH2M Hill New York, Inc., Third–Party Plaintiffs, v. Welsbach Electric Corp., Third–Party Defendant.
DAVIDSON & COHEN, PC (for the plaintiffs), 265 SUNRISE HWY, ROCKVILLE CENTRE, NY, 11570 Lawrence, Worden, Rainis & Bard, P.C. (for the moving defendants, Malcolm Pirnie Inc. and CH2M Hill, Inc.), 225 Broad Hollow Rod, Suite 105E, Melville, New York, 11747 London Fischer, LLP (for third-party defendant Welsbach Elec. Corp.), 59 Maiden Lane, New York, NY 10038
DAVIDSON & COHEN, PC (for the plaintiffs), 265 SUNRISE HWY, ROCKVILLE CENTRE, NY, 11570
Lawrence, Worden, Rainis & Bard, P.C. (for the moving defendants, Malcolm Pirnie Inc. and CH2M Hill, Inc.), 225 Broad Hollow Rod, Suite 105E, Melville, New York, 11747
London Fischer, LLP (for third-party defendant Welsbach Elec. Corp.), 59 Maiden Lane, New York, NY 10038
Carmen Victoria St. George, J.
Motion sequence numbers 009 and 010 are hereby consolidated for disposition.
This is an action to recover damages for personal injuries allegedly sustained by a construction worker on January 24, 2011, when he fell from the raised platform of a scissor lift, while working at a construction site located within the Catskill and Delaware Water Treatment Ultraviolet Disinfection Facility, in Valhalla, New York (the Premises).
In motion sequence number 009, defendants/third-party plaintiffs Malcolm Pirnie, Inc. (Pirnie), CH2M Hill, Inc. and CH2M Hill New York, Inc. (together, the CH2M defendants) (collectively, the Pirnie defendants) move, pursuant to CPLR 3212, for summary judgment dismissing the complaint, as well as all cross claims and counterclaims against it.
Plaintiffs Joseph Silicato (plaintiff) and Joy Silicato cross-move, pursuant to CPLR 3212, for summary judgment in their favor as to liability on the Labor Law § 240 (1) claim, as against the Pirnie defendants.
In motion sequence number 010, third-party defendant Welsbach Electric Corp. (Welsbach) moves, pursuant to CPLR 3212, for summary judgment dismissing the complaint as against the Pirnie defendants, and dismissing the third-party complaint against it.
By so-ordered stipulation dated September 15, 2016, defendants Skanska USA Civil Northeast, Inc., E.C.C.O. III Enterprises, Inc. and J.F. White Contracting Company were dismissed from this action. By stipulation dated December 10, 2013, plaintiff discontinued this action against defendants American Safety Consultants, LLC and Earthtech Contracting Inc. By decision and order dated September 20, 2012, defendant New York City Department of Environmental Protection was also dismissed. Therefore, the only remaining defendants in this action are the Pirnie defendants and third-party defendant, Welsbach.
BACKGROUND
On the day of the accident, the New York City Department of Environmental Protection (the DEP) was the owner of the Premises where the accident occurred. The City of New York hired the Pirnie defendants to serve as the construction manager on a construction project at the Premises, which entailed the building of a new water treatment facility (the Project). The City of New York also hired Welsbach, plaintiff's employer, to serve as the prime electrical contractor for the Project.
Plaintiff's Deposition Testimony
Plaintiff testified that, on the day of the accident, he was employed by Welsbach as an electrician. His work on the Project included the installation of electrical conduit in a 20–foot-high ceiling located in an area of the Premises where generators were located. John Cavanaugh and John Matteo were plaintiff's foremen. Plaintiff's ultimate supervisor was Peter McAteer. These men were Welsbach employees, and plaintiff received his daily instructions from them.
Plaintiff testified that all his safety gear, as well as the heavy equipment such as scissor lifts, were provided by Welsbach. Plaintiff's safety gear included a hardhat, goggles, a safety harness and a five- or six-foot lanyard. Plaintiff also received general safety training, as well as aerial lift training (including the use of scissor lifts and fall arrest systems) from Welsbach. Plaintiff was advised to "try to keep [his lanyard] clipped on all the time" when using a scissor lift, or whenever working at a height of more than six feet (plaintiff's tr at 38).
Plaintiff testified that, on the day of the accident, he was installing five-inch conduit in the ceiling of the generator room, which contained metal racks for the housing of the conduit. Plaintiff's foreman directed him to obtain a scissor lift (the Lift) to access his work area. Plaintiff described the Lift as having four-foot-tall rails around all four sides of its platform. The Lift also had an extending deck, which allowed workers to expand the Lift's platform a few feet, if needed.
Plaintiff testified that he positioned the Lift beneath his work area without problem. Prior to entering the Lift, plaintiff performed a brief inspection of the Lift. He noted that the Lift's railing was slightly bent, but it otherwise looked to be functioning properly.
Shortly thereafter, plaintiff and his apprentice placed a single 10–foot section of conduit onto the Lift, entered the Lift and then attached their lanyards to tie-off points located on its platform. Operating the controls, plaintiff raised the Lift to approximately 20 feet above the ground. Once they reached the raised work area, plaintiff realized that he needed to expand the Lift's platform in order to finish installing the conduit. After expanding the platform, plaintiff unhooked his lanyard from the tie-off point, because the lanyard was too short and "was inhibiting [his] movement, and [he] couldn't get the conduit" (id. at 64). Describing the accident, plaintiff testified, in pertinent part, that,
"[W]e got [the conduit] on the rack, but it wasn't, it wasn't in a good position .... So, I had to reposition my body in a spot where I could get the pipe and get it on the rack where I knew it wasn't going to fall.
"I was looking at the pipes, and I went to use the railing as, you know, as an anchor point to push the conduit back where I wanted it to [be], and when I leaned back, there was no railing there, and down I went"
(id. at 72–73). He explained that, because a piece of the railing had not been properly pinned in place, when he extended the platform, the railing did not extend along with it, leaving the gap that he fell through. Plaintiff asserted that, typically, the Lift's railing would just extend along with the platform, automatically. Prior to his fall, plaintiff did not realize that the Lift's railing had not properly extended.
Deposition Testimony of Dinesh Patel (Pirnie's Construction Manager)
Dinesh Patel testified that, on the day of the accident, he was Pirnie's construction manager at the Project. The Pirnie defendants were hired by the DEP to provide construction management services at the Project. That said, the Pirnie defendants did not hire any of the prime construction contractors or subcontractors.
Patel's duties at the Project included performing "construction inspection services" and monitoring the progress of the work (Patel tr at 13). Pernie employed several inspectors to perform routine inspections of the work at the Project, including general safety inspections. However, these inspectors did not have any direct site safety responsibilities, and they did not inspect any of the equipment used at the site.
Patel explained that each of the prime contractors on the project had health and safety plans of their own, which they submitted to Pirnie. These safety plans were reviewed by Pirnie and then approved by the DEP. Patel also testified that Pirnie never discussed any equipment or safety concerns with Welsbach. Pirnie did, however, discuss the progress of Welsbach's work at the Project. Patel also maintained that none of the Pirnie defendants had any authority to stop work, to supervise any contractor or to direct the means and methods of any contractor's work at the Project.
Deposition Testimony of Peter McAteer (Welsbach's General Foreman)
Peter McAteer testified that, on the day of plaintiff's accident, he was Welsbach's general foreman at the Project. He explained that Welsbach was a prime contractor at the Project, in charge of electrical work. Welsbach had several other foremen at the Project, as well. McAteer and those foremen solely directed the work of the Welsbach employees. McAteer's duties on the project also included determining the means and methods of Welsbach's work, ordering materials and coordinating Welsbach's work with the other trades at the Project. He also conducted weekly safety meetings for all of the Welsbach employees.
In addition, Welsbach provided necessary equipment to its employees, including scissor lifts, half of which it owned and half of which it rented from other companies. The lifts were inspected annually, and Welsbach workers were required to perform a visual inspection of the lifts before utilizing them.
McAteer further testified that, when he arrived at the accident location, approximately three or four hours after it happened, he observed the Lift. He noted that a portion of the Lift's top railing, which related to the extending section of the Lift, was out of position. In addition, he saw that "a pin had been removed and the rail was moved back" (McAteer tr at 74). He specifically testified that the pin was not "missing" (id. at 77). Rather, the pin was hanging on a wire cord that was attached to the lift, uninstalled. At the deposition, McAteer, who was familiar with the Lift, was shown several photographs of the Lift and noted that he could not see a pin hanging from the cord in some of the photographs.
McAteer testified that, pursuant to its prime contract with the City of New York, Welsbach hired its own site safety engineer, who performed inspections of the work site and had the authority to stop work and remedy safety issues.
The Construction Management Contract
The City of New York hired the Pernie defendants to serve as the construction manager on the Project pursuant to a construction management agreement (the Contract). The Contract identifies the Pernie defendants as "the representative of [the New York City Department of Environmental Protection, the owner of the building]" at the site (the Pirnie defendants' notice of motion, exhibit J [Exhibit J], at SR–12). The Contract states that the Pirnie defendants would "determin[e] and advis[e] the [DEP] whether the construction conforms to the plans, specifications and requirements of the construction contract documents and good construction practice" (id. at 7). The Contract gives the Pernie defendants the power to "review and comment on all aspects of the project" (id. at SR–11).
The Contract imposes a mandatory duty upon the Pirnie defendants to inform the DEP "if it becomes apparent that the means and methods of construction by the [prime contractors] will constitute or create a hazard to the work," adding that, despite this power:
"[i]t is the sole responsibility of the [prime contractors], and not the responsibility of the [Pirnie defendants], to determine the means and methods of construction .... The [prime contractors] shall be responsible for the safety of the [prime contractors'] employees, and the public and all other persons at or about the site of the work. The [prime contractors] shall be solely responsible for the adequacy and safety of all construction methods, materials, equipment and the safe prosecution of the work."
(id. at SR–12).
Among other provisions, the Pirnie defendants hired field inspectors who conducted field inspections "in conformance with all applicable codes" (id. at SR–14). The Pirnie defendants prepared daily inspection reports in which they included a variety of information including any "significant occurrences" (id. at SR–16). They monitored "equipment, material, shop, preliminary and final field tests" (id. at SR–18). The Contract also requires that the Pirnie defendants review each prime contractor's health and safety plans. Such review "shall not diminish each contractor's obligation with respect to safety ... under its construction contract" (id. at SR–21). The Contract makes the Pirnie defendants responsible for "all training necessary for its staff to monitor, oversee or otherwise inspect the work shown in the construction contract documents" (id. at SR–26). Further, the Pirnie defendants were responsible for insuring there were no environmental dangers, such as asbestos, at or in the vicinity of the site.
DISCUSSION
"[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Failure to make such prima facie showing requires denial of the motion, regardless of the sufficiency of the opposing papers" ( Alvarez v. Prospect Hosp. , 68 NY2d 320, 324 [1986] [internal citations omitted] ). Once the proponent has established this prima facie entitlement, to defeat the motion the opposing party must " ‘assemble, lay bare, and reveal his [or her] proofs in order to show his [or her] defenses are real and capable of being established on trial ... and it is insufficient to merely set forth averments of factual or legal conclusions’ " ( Genger v. Genger , 123 AD3d 445, 447 [1st Dept 2014], quoting Schiraldi v. U.S. Min. Prods ., 194 AD2d 482, 483 [1st Dept 1993] ). If there is any doubt as to the existence of a triable fact, the court must deny the motion ( Rotuba Extruders v. Ceppos , 46 NY2d 223, 231 [1978] ; see Genesis Merchant Partners, L.P. v. Gilbride, Tusa, Last & Spellane, LLC , ––– AD3d ––––, ––––, 2018 NY Slip Op 00221 [App Div, 1st Dept Jan. 11, 2018] ).
The Labor Law § 240 (1) Claim Against the Pirnie Defendants (Motion Sequence Numbers 009 and 010)
The Pirnie defendants and Welsbach move for summary judgment dismissing the Labor Law § 240 (1) claim as to the Pirnie defendants. Plaintiffs cross-move for summary judgment in their favor as to liability on said claims.
Labor Law § 240 (1), also known as the Scaffold Law, provides, as relevant:
"All contractors and owners and their agents ... in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed."
" ‘ Labor Law § 240 (1) was designed to prevent those types of accidents in which the scaffold ... 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’ " ( John v. Baharestani , 281 AD2d 114, 118 [1st Dept 2001], quoting Ross v. Curtis–Palmer Hydro–Elec. Co ., 81 NY2d 494, 501 [1993] ). Importantly, Labor Law § 240 (1)"is designed to protect workers from gravity-related hazards ... and must be liberally construed to accomplish the purpose for which it was framed" ( Valensisi v. Greens at Half Hollow, LLC, 33 AD3d 693, 695 [2d Dept 2006] [internal citations omitted] ).
Not every worker who falls at a construction site is afforded the protections of Labor Law § 240 (1), and "a distinction must be made between those accidents caused by the failure to provide a safety device ... and those caused by general hazards specific to a workplace" ( Makarius v. Port Auth. of NY & N. J. , 76 AD3d 805, 807 [1st Dept 2010] ). Instead, liability "is contingent upon the existence of a hazard contemplated in section 240 (1) and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein" ( Narducci v. Manhasset Bay Assoc. , 96 NY2d 259, 267 [2001] ). Therefore, to prevail on a section 240 (1) claim, a plaintiff must show that the statute was violated, and that this violation was a proximate cause of the plaintiff's injuries ( Cahill v. Triborough Bridge & Tunnel Auth. , 4 NY3d 35, 39 [2004] ).
Initially, as the Pirnie defendants are not owners or general contractors, it must be determined whether they can be considered agents of either, such that potentially liable exists under the statute.
"When the work giving rise to [the duty to conform to the requirements of Labor Law §§ 240 (1) and 241 (6) ] has been delegated to a third party, that third party then obtains the concomitant authority to supervise and control that work and becomes a statutory ‘agent’ of the owner or general contractor. Only upon obtaining the authority to supervise and control does the third party fall within the class of those having nondelegable liability as an ‘agent’ under sections 240 and 241"
( Russin v. Louis N. Picciano & Son , 54 NY2d 311, 318 [1981] ). Accordingly, for a party to be "vicariously liable as an agent of the property owner for injuries sustained under the statute," it must have "had the ability to control the activity which brought about the injury" ( Walls v. Turner Constr. Co., 4 NY3d 861, 863–864 [2005] ).
The Pirnie defendants argue that, as a construction manager that did not control the activity which brought about plaintiff's injury, i.e. the maintenance and operation of the Lift, they are not proper Labor Law defendants. They note that there is language in the Contract which expressly limits the scope of their work to coordinating the trades and general monitoring and reporting services. In opposition, plaintiffs argue that, pursuant to the Contract, the Pirnie defendants did, in fact, have the requisite authority under the Contract to be considered agents for the purposes of Labor Law § 240 (1).
The Court rejects the Pirnie defendants' argument, finding that there is an issue of fact as to the Pirnie defendants' liability under the statute. Although the Contract places sole responsibility on the prime contractors for the means and methods of construction, the safety of their employees, and the adequacy of the construction equipment, this does not absolve the Pirnie defendants of liability under Labor Law § 240 (1) if, in fact, they operated as owner, general contractor, or agent for one of these entities. If that were the case, owners and general contractors could evade Section 240 (1) liability simply by inserting such language into the contract. This, in turn, would vitiate the impact of the statute.
Furthermore, despite the existence of other entities nominally serving as general contractors, there is an issue of fact as to whether the Pirnie defendants had sufficient control at the worksite to render them liable under this statutory provision (see Natoli v. City of New York , 32 AD3d 507, 507 [2nd Dept 2006] [even where there was a general contractor, trial court had properly denied summary judgment in favor of Pirnie due to the existence "of a triable issue of fact as to whether [Pirnie] was a contractor or an agent subject to liability"] ). The contract itself provides that Pirnie defendants would serve as the "representatives" of DEP at the construction site (Exhibit J, at SR–12). As detailed above, the Contract also grants them broad power with respect to its supervision of the work site. In addition, although the Pirnie deposition indicates that the Pirnie defendants had no power to issue a stop work order, there is testimony by Welsbach that conflicts with this statement—particularly, by indicating that the Pirnie defendants issued a stop work order after the accident at issue here occurred (see Beyea v. Malcolm Pirnie, Inc. , 298 AD2d 940, 940–41 [4th Dept 2002] [granting summary judgment against Pirnie where, among other things, Pirnie had the power to issue a stop work order] ). Thus, as in Salsinha v. Malcolm Pirnie, Inc. (76 AD3d 411, 411 [1st Dept 2010] ), which also involved a contract between Pirnie and the DEP, the issue of the Pirnie defendants' liability under Labor Law § 241 (6)"cannot be determined as a matter of law." The Pirnie defendants and Welsbach's motion is denied insofar as it seeks to dismiss the Labor Law §§ 240 (1), 241(6), and 200 claims against them on this basis.
In addition, because the Pirnie defendants' evidence creates numerous issues of fact concerning whether they had sufficient control to render them liable, plaintiffs are not entitled to summary judgment as to liability as against the Pirnie defendants. Plaintiffs have not satisfied their burden of proof, which is the same as that applicable to the underlying motion (see Dong Ming Huang v. State of New York . 41 Misc 3d 1203 [A], 2013 NY Slip Op 51566 [U], *13 [Ct Cl, NY County 2013] ). Plaintiffs have not satisfied this burden (see, e.g., GCP Capital Group LLC v. Monday Properties Investments, LLC , 92 AD3d 554, 555 [1st Dept 2012] [applying this standard in affirming trial court's denial of cross-motion for summary judgment).
The Labor Law § 241 (6) Claim Against the Pirnie Defendants (Motion Sequence Numbers 009 and 010)
The Pirnie defendants and Welsbach move for summary judgment dismissing the Labor Law § 241 (6) claim as to the Pirnie defendants. Labor Law § 241 (6) provides, in pertinent part, as follows:
"All contractors and owners and their agents, ... when constructing or demolishing buildings or doing any excavating in connection therewith, shall comply with the following requirements:
* * *
(6) All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, [and] equipped ... as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places."
Labor Law § 241(6) imposes a nondelegable duty of reasonable care upon owners and contractors " ‘to provide reasonable and adequate protection and safety’ to persons employed in, or lawfully frequenting, all areas in which construction, excavation or demolition work is being performed" ( Rizzuto v. L.A. Wenger Contr. Co. , 91 NY2d 343, 348 [1998] ; see also Ross, 81 NY2d at 501—502 ). Importantly, to sustain a Labor Law § 241 (6) claim, it must be shown that the defendant violated a specific, "concrete" implementing regulation of the Industrial Code, rather than a provision containing only generalized requirements for worker safety ( Ross, 81 NY2d at 505 ). Such violation must be a proximate cause of the plaintiff's injuries ( Annicaro v. Corporate Suites, Inc. , 98 AD3d 542, 544 [2d Dept 2012] ).
As stated above, there is an issue of fact as to whether the Pirnie defendants exercised sufficient control to be liable under the Labor Law. Thus, dismissal of the Labor Law § 241 (6) claim is not warranted on this basis. Nor can the Pirnie defendants prevail on their argument concerning the remaining violations alleged by plaintiff—that is, Industrial Code §§ 23–1.15 and 23–5.1 (j). The provisions are not, as the Primie defendants allege, too vague to support a claim (see Macedo v. J.D. Posilico, Inc. , 68 AD3d 508, 510 [1st Dept 2009] ). Their additional argument, as to Section 23–1.15, is premised on their position that plaintiff was the sole proximate cause of the action. Contrary to the Pirnie defendants' position, even if plaintiff were negligent he would not be considered the sole proximate cause of his injuries because the defect in the scissor lift is, at the least, a contributing cause of the accident (see Wilk v. Columbia University , 150 AD3d 502, 503 [1st Dept 2017] ). Thus, the Pirnie defendants have not satisfactorily supported their position.
The Common–Law Negligence and Labor Law § 200 Claims Against The Pirnie Defendants (Motion Sequence Numbers 009 and 010)
The Pirnie defendants and Welsbach move for summary judgment dismissing the common-law negligence and Labor Law § 200 claims as against the Pirnie defendants. 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" ( Singh v. Black Diamonds LLC , 24 AD3d 138, 139 [1st Dept 2005], citing Comes v. New York State Elec. & Gas Corp. , 82 NY2d 876, 877 [1993] ). Labor Law § 200 (1) states, in pertinent part, as follows:
"All places to which this chapter applies shall be so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein or lawfully frequenting such places. All machinery, equipment, and devices in such places shall be so placed, operated, guarded, and lighted as to provide reasonable and adequate protection to all such persons."
There are two distinct standards applicable to section 200 cases, depending on the kind of situation involved: (1) when the accident is the result of the means and methods used by a contractor to do its work, and (2) when the accident is the result of a dangerous condition that is inherent in the premises (see McLeod v. Corporation of Presiding Bishop of Church of Jesus Christ of Latter Day Sts., 41 AD3d 796, 797–798 [2d Dept 2007] ; see also Griffin v. New York City Tr. Auth. , 16 AD3d 202, 202 [1st Dept 2005] ). "Under either liability standard, the common-law duty of the owner to provide a safe place to work, as codified by Labor Law § 200 (1), has also been extended to include the tools and appliances without which the work cannot be performed and completed" ( Chowdhury v. Rodriguez , 57 AD3d 121, 128–129 [2d Dept 2008] ).
As discussed previously, the accident was caused because the Lift's extendable safety rail failed to extend, causing plaintiff to fall from the Lift's platform. Here, while the Pirnie defendants argue that the accident was caused due to the means and methods of the work at issue, the accident occurred because plaintiff was supplied with defective equipment.
Under section 200, an owner, its agent, or the general contractor may not be liable "where the accident arises out of a defect in the subcontractor's tools, equipment, or methods of operation" ( Vilardi v. Berley , 201 AD2d 641, 644 [2d Dept 1994] ; see also Ortega v. Puccia , 57 AD3d 54, 62 [2d Dept 2008], citing Persichilli v. Triborough Bridge & Tunnel Auth., 16 NY2d 136, 145 [1965] ["the duty to provide a safe place to work is not breached when the injury arises out of a defect in the subcontractor's own plant, tools and methods, or through negligent acts of the subcontractor occurring as a detail of the work"] ). "When a defendant lends allegedly dangerous or defective equipment to a worker that causes injury during its use, in moving for summary judgment that defendant must establish that it neither created the alleged danger or defect in the instrumentality nor had actual or constructive notice of the dangerous or defective condition" ( Lam v. Sky Realty, Inc. , 142 AD3d 1137, 1138—39 [2d Dept 2016] ). However, where "a worker's injury results from his or her employer's own tools or methods, ... a defendant ... [would] be liable only if possessed of authority to supervise or control the work" ( Chowdhury v. Rodriguez , 57 AD3d at 130 ). Because, as stated above, there is an issue of fact as to the Pirnie defendants' control, summary judgment is not proper on this issue.
The Cross Claims Against The Pirnie Defendants (Motion Sequence Number 009)
The Pirnie defendants move for summary judgment dismissing all cross claims as against them. There do not appear to be any remaining cross claims against the Pirnie defendants, as they are the sole remaining defendants in this action. To the extent that any cross claims do remain, due to this Court's decision they remain in the case and are not entitled to summary judgment dismissing such claims as against them.
The Third–Party Action (Motion Sequence Number 010)
Welsbach argues that if the complaint is dismissed as against the Pirnie defendants, the third-party action by the Pirnie defendants against it should be dismissed as moot. As the Pirnie defendants remain in the action, the Court denies summary judgment dismissing the third-party complaint against Welsbach.
CONCLUSION AND ORDER
For the foregoing reasons, it is hereby
ORDERED that the motion of defendants/third-party plaintiffs Malcom Pirnie, Inc., CH2M Hill, Inc. and CH2M Hill New York, Inc. (collectively, the Pirnie defendants) (motion sequence number 009), pursuant to CPLR 3212, for summary judgment dismissing the complaint, as well as all cross-claims against them, is denied and; and it is further
ORDERED that plaintiffs Joseph and Joy Silicato's cross-motion, pursuant to CPLR 3212, for partial summary judgment in their favor as to liability on the Labor Law § 240 (1) claim against the Pirnie defendants is denied; and it is further
ORDERED that third-party defendant Welsbach Electric Corp.’s (Welsbach) motion (motion sequence number 010), pursuant to CPLR 3212, for summary judgment dismissing the complaint as against the Pirnie defendants, as well as dismissing the third-party complaint as against it, is denied; and it is further
ORDERED that the caption is amended to reflect the prior discontinuances and the dismissal of certain of the defendants, to read as follows:
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK: PART 34
x
JOSEPH SILICATO and JOY SILICATO,
Plaintiffs,
against-
MALCOLM PIRNIE, INC., CH2M HILL, INC., and CH2M
HILL NEW YORK, INC.
Defendants.
x
MALCOLM PIRNIE, INC., CH2M HILL, INC. and CH2M
HILL NEW YORK, INC.,
Third–Party Plaintiffs,
against-
WELSBACH ELECTRIC CORP.,
Third–Party Defendant.
x
The Clerk is directed to amend the caption accordingly, and the parties are to use the amended caption in all further proceedings regarding this case.