Hernandez v Racanelli Constr. Co., Inc.

[*1] Hernandez v Racanelli Constr. Co., Inc. 2005 NY Slip Op 52395(U) [21 Misc 3d 1137(A)] Decided on August 18, 2005 Supreme Court, Bronx County Webber, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 18, 2005
Supreme Court, Bronx County

Maria Hernandez AND JENNIFER CORDERO, Plaintiffs,

against

Racanelli Construction Company, Inc. MENLO ASSOCIATES and NIEGO ASSOCIATES, Defendant.



Maria Hernandez, JENNIFER CALDERO, an infant over the age of 14 years by her father and natural guardian, DAVID CALDERO, and DAVID CALDERO, individually,Plaintiffs,

against

Racanelli Construction Company, Inc., Defendant,



18717/02



For Plaintiff Maria Hernandez

Spiegel and Barbato LLP

2622 East Tremont Ave

Bronx, NY 10461

For Defendants:

Racanelli

Law Office of Jeffrey S.Shein

133 South Street, Suite 104

Oyster Bay, NY 11771

Menlo

Fiedelman & McGaw

Two Jericho Plaza

Jericho, NY 11753

Niego Associates

Krieg Associates, P.C.

5 Heather Ct,

Dix Hills, NY 11746-8361

Unicorp National Developments, Inc.,

Formerly known as Epstein, Mahon & Della Jacono, Elmsford (Jonathan R. Walsh of counsel) now known as Epstein & Rayhill

565 Taxter Rd # 275

Elmsford, NY 10523

Grandview

Bivona & Cohen, P.C., New York (Joseph E. Boury of counsel)

88 Pine Street New York, New York 10005

Troy K. Webber, J.

On or about June 13, 2002, the plaintiffs MARIA HERNANDEZ and JENNIFER [*2]CORDERO commenced Action No. 1 against MENLO ASSOCIATES (hereinafter "MENLO") and co-defendants RACANELLI CONSTRUCTION COMPANY, INC. (hereinafter "RACANELLI") and NIEGO ASSOCIATES (hereinafter "NIEGO").Issue was joined by MENLO on August 7, 2002. On or about July 17, 2003, MENLO commenced a third party action against UNICORP. On September 17, 2003, UNICORP served an answer to the third-party complaint. On September 30, 2003, MENLO served an answer to UNICORP'S cross-claims. MENLO now moves for an order pursuant to CPLR §3212 requesting summary judgment on the grounds that there is no triable issue of fact. Specifically, defendant MENLO contends that they were an out of possession owner who hired UNICORP to develop a specific lot of property located at 2746-56 East Tremont Avenue. Defendant MENLO contends that they are entitled to common law indemnification on the grounds that they did not supervise, instruct, direct, or control the demotion of the building on the property at time of the accident. In a separate motion, NIEGO ASSOCIATES (hereinafter"NIEGO") cross moves for an order pursuant to CPLR §3212 also requesting summary judgment. Defendant NIEGO contends that their services as architects had nothing to do with the erection, maintenance, operation or control of the plywood barricade that ultimately collapsed and injured the plaintiffs. Defendant NIEGO contends that the maintenance of the fence was outside the scope of their employment so they had no obligation to inspect or supervise its installation or its ultimate removal.

In the interest of judicial economy the motions by co-defendants MENLO and NIEGO, and the cross-motions by the third-party defendant's, GRANDVIEW CONTRACTING CORP. (hereinafter "GRANDVIEW') and ADMIRAL INSURANCE COMPANY (hereinafter "ADMIRAL') are decided by this Court herein.

STATEMENT OF FACTS

On April 29, 2002, plaintiffs Maria Hernandez and Jennifer Cordero allegedly sustained personal injuries when they were struck on the head by wooden boards that fell during the demolition of a building while walking adjacently to a construction site located at 2746-56 East Tremont, Bronx, NY. The falling plywood came from a fence (or a barricade) that was built to secure the construction site. The premise in question is owned by MENLO. On October 2, 2001 and on February 24, 2004, MENLO and UNICORP executed two (2) fee-based Development Agreements to develop an Eckerd Drug Store. On October 16, 2001, NIEGO entered into a contract with UNICORP to obtain building permits from the Department City of New York. UNICORP then hired RACANELLI as the general contractor. Thereafter RACANELLI hired GRANDVIEW as a subcontractor to remove debris and perform the demolition of the old building.

DISCUSSION

On a motion for summary judgment, defendant must come forward with evidentiary proof in admissible form in support of its defense sufficient to direct judgment in its favor as a matter of law. Zuckerman v. City of New York, 49 NY2d 557 (1980); Somoza v. St. Vincent's Hospital and Medical Center of New York, 192 Ad2d 429 (1st Dept. 1993). If defendant meets the initial burden, then the plaintiff must present sufficient evidentiary proof to establish the existence of a material issue of fact. Zuckerman, at 560.

Summary judgment is a drastic remedy and should not be granted where there may exist any triable issue. Andre v. Pomeroy, 35 NY2d 361 (1974); Moskowitz v. Garlock, 23 Ad2d 943 (3rd Dept. 1965). Nor should it be granted where it is even arguable that there is a triable issue. Barrett v. Jacobs, 255 NY 520 (1931). This Court's determination is one of issue finding not issue [*3]determination. Cohen v. Herbal Concepts Inc., 100 AD2d 175 (1st Dept. 1984), aff'd 63 NY2d 379 (1984).

Here, there is no genuine issue of material fact as to whether MENLO and NIEGO controlled, supervised or were involved in the work performed at the construction site that caused injury to the plaintiffs. Zuckerman v. City of New York, 49 NY2d 557 (1980); see also Morales v. 569 Avenue, LLC 17 AD3d 418, 419 (Appellate Division, Second Dept. 2005). Specifically, there is no showing that the construction site located at 2746-56 East Tremont nor the wooden fences that surrounded such property was within MENLO's and NIEGO's dominion and control. Id. The record indeed shows that MENLO and NIEGO never exercised or attempted to exercise any oversight over the work performed at the construction site. In Ortega v. Catamount Construction Corporation, the appellate court held that the trial court correctly granted the owner common-law indemnity against the construction manager, regardless of whether any actual negligence by the latter had been proven, since it is undisputed that the former did not exercise any actual control or supervision over the work, and hired the latter to exercise such control and supervision.See 264 AD2d 323 (Appellate Division 1999). Here, it is undisputed that MENLO was an out of possession owner during the time of the accident. According to Ed Miller's (Director of Real Estate for Northeast Operations of UNICORP) testimony, UNICORP was hired by MENLO pursuant to a Development Agreement to arrange for the construction of a new Eckerd Drug Store. (Miller transcript-pg. 20, line 2 through pg. 21, line 12). UNICORP was also responsible for submitting plans and permits to the Building Department of the City of New York. Id. UNICORP in turn hired RACANELLI as the general contractor, and NIEGO as the architect to submit any plans and specifications to the Department of the City of New York and to gather any applications and/or permits for the completion of the new building. It has been held that a general contractor has a duty of general supervision over the work and is responsible for keeping the premises' safe. See Lipman v. Well-Mix Concrete, Inc. v. Ardizzone, 138 NYS2d 316, 319 (Supreme Ct. 1954). It is clear that in this case RACANELLI failed to discharge their duty as a general contractor to the plaintiffs.Id. According to Daniel Byrnes' testimony, the site supervisor for RACANELLI, RACANELLI built the barricade fence that collapsed and injured the plaintiffs. See paragraph 11 of the UNICORP Affidavit. Furthermore, when an employee or independent contractor assumes the duty of performing an act which is dependent upon his personal care and attention, and an injury arises by their lack of care and attention, such person is liable to the owner of the property if he is called upon to pay and does pay the damages arising from such negligence. See Scott v. Curtis, 195 NY at 428-29. Specifically, when an owner of property is held to respond in damages for injuries to another merely because of his ownership and not by reason of participation in the negligence of the principle wrongdoer, he is entitled to indemnification from the one primarily at fault. See Tipaldi v. Riverside Memorial Chapel, Inc., 273 A.D. 414 (App. Div. 1948); see also State of New York v. C.T. Brickman and Associates Inc., 233 AD2d 812, 813 (Supreme Ct., Appellate Division 1996). Here, according to Michael D' Angelo, (Partner and Manager of MENLO) MENLO never entered into any contracts or agreements with RACANELLI. (D'Angelo transcript-pg. 33, lines 7-16). In fact, according to Mr. Byrnes, employees from GRANDVIEW were in the process of demolition and removing debris when an excavator they were using malfunctioned causing the barricade fence to collapse unto the sidewalk. (Byrnes transcript-pg. 44 lines 23 to 25). Furthermore, a laborer from GRANDVIEW testified that at the time of the accident he was trying to direct traffic into the street while the demolition by the excavator was taken place. See paragraph 16 of the Unicorp Affidavit. Clearly, [*4]it was GRANDVIEW and RACANELLI and not MENLO or NIEGO that was controlling and supervising the work performed at the construction site during the time of the accident. As such, this Court grants indemnification to MENLO ASSOCIATES from UNICORP NATIONAL DEVELOPMENTS, INC. and RACANELLI CONSTRUCTION COMPANY, INC.

In respect to NIEGO's motion, third-party defendant's, GRANDVIEW and ADMIRAL INSURANCE COMPANY (hereinafter "ADMIRAL") argue that since the erection of the temporary fence violated New York City Building Code §27-1021, which deals with the protection of sidewalks and fences during construction, NIEGO should be found liable. They argue that as the applicant for a fence permit, NIEGO agreed to comply with all applicable laws and rules with respect to construction of the fence or to see that other did so. This Court disagrees. Contrary to GRANDVIEW's and ADMIRAL's argument, the record as a whole simply does not raise a question of fact as to whether NIEGO designed, directed or controlled the barricade fence that collapsed and injured the plaintiffs. NIEGO merely assisted RACANELLI in obtaining a fence permit. In moving for summary judgment, NIEGO contends that his contract with UNICORP did not impose upon him any duties or obligations of the construction site in question. This Court agrees. There is no material issue of fact as to whether NIEGO designed, supervised, operated, or controlled the barricade fence that collapsed and caused injury to the plaintiffs. NIEGO'S contract with UNICORP clearly states that it would "not be responsible, have control, or be in charge of construction and shall have no responsibility for construction means, methods, techniques, or sequences of procedure for safety of [sic] precautions and programs in connection with the work, for the acts or omissions of the contractors, subcontractor, or any other person performing any of the work, or for failure of any of them to carry out of the work in strict accordance with the drawings." It is evident from the aforesaid contractual provisions that NIEGO had no supervisory powers and duties. See Welch v. Grant Development Co., Inc., 120 Misc 2d 493, 497 (Supreme Ct. 1983). Furthermore, in Brown v. Gamble Const., Inc., the Court held that architects are under no duty to supervise unless they expressly agree to do. According to both Labor Law §§240 and 241 architects are exempt from liability when their services do not involve directing or controlling the work in question. See 120 Misc 2d 493, 497-98; see also Boyd v. Lepera and Ward P.C., 275 AD2d 562, 564 (2000); see also Feltt v. Owens, 247 AD2d 689 (1998). As such, this Courts holds that NIEGO'S activities did not extend beyond obtaining permits from the Building Department of the City of New York and therefore is entitled to summary judgement as a matter of law.

The aforesaid constitutes the opinion, decision, and order of the Court.

Dated: August 18, 2005

Bronx, New York

Troy K. Webber J.S.C.