Villarreal v 95 Maiden Lane LLC

[*1] Villarreal v 95 Maiden Lane LLC 2006 NY Slip Op 51134(U) [12 Misc 3d 1170(A)] Decided on May 19, 2006 Supreme Court, New York County Goodman, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 19, 2006
Supreme Court, New York County

Juan Villarreal, Plaintiff,

against

95 Maiden Lane LLC, 2 GOLD L.L.C., ATLANTIC-HEYDT, LLC, ROCKROSE CONSTRUCTION CORP., ATLANTIC-HEYDT CORPORATION, and BIG APPLE WRECKING & CONSTRUCTION CORP., Defendant. ATLANTIC-HEYDT CORP., Third-Party Plaintiff, TOWER CONSTRUCTION, INC. and BURLINGTON INSURANCE COMPANY, Third-Party Defendants. BIG APPLE WRECKING & CONSTRUCTION CORP., Second Third-Party Plaintiff, TOWER CONSTRUCTION, INC., Second Third-Party Defendant.



107979/03

Emily Jane Goodman, J.

On December 14, 2002, plaintiff was injured while he was engaged in [*2]constructing a sidewalk bridge at 95 Maiden Lane in Manhattan. This action for personal injuries ensued.

Plaintiff moves (1) for an order severing the third-party action; and (2) pursuant to CPLR 3212, for summary judgment on his complaint, and an inquest on the issue of damages. However, his papers make it clear that, in this second part of his motion, he is only seeking partial summary judgment on the issue of defendants' liability under Labor Law § 240 (1).

Defendants 95 Maiden Lane LLC (95 Maiden), 2 Gold L.L.C. (Gold LLC), Rockrose Construction Corp. (Rockrose), and Big Apple Wrecking & Construction Corp. (Big Apple) (95 Maiden, Gold LLC, Rockrose, and Big Apple together, defendants) cross-move, pursuant to CPLR 3212: (1) for summary judgment dismissing the complaint as against them; (2) for summary judgment on their claim against defendants Atlantic-Heydt, LLC and Atlantic-Heydt Corp. (together, Atlantic) for common-law indemnification and attorneys' fees, costs, and disbursements; and (3) for summary judgment in favor of Big Apple against Atlantic for breach of contract, and breach of an indemnification and hold harmless agreement; and for a declaratory order directing Atlantic to defend and indemnify Big Apple; and for a declaratory order directing Atlantic to reimburse Big Apple for its legal fees incurred in the defense of this action.

Atlantic cross-moves, pursuant to CPLR 3212, for summary judgment dismissing the complaint.

BACKGROUND

On December 14, 2002, third-party/second third-party defendant Tower Construction, Inc. (Tower) was building a sidewalk bridge over Gold Street, preparatory to demolition that Big Apple would perform at 95 Maiden Lane. In order to build the sidewalk bridge (bridge), vertical and horizontal beams had to be positioned and hooked together, and eventually decked over, in order to protect persons passing below the bridge from falling debris which would result from Big Apple's demolition work. Plaintiff, then an employee of Tower, was standing atop one of the cross beams, hooking beams together to form the bridge while a crane was delivering additional beams to his position. When the weight of the additional beams landed on the partially constructed bridge, it collapsed, and plaintiff fell with it.

Gold LLC was the owner of the property. Gold LLC contracted with non-party 2 Gold GC L.L.C. (Gold GC) for Gold GC to be the general contractor for the demolition and construction project. Gold GC subcontracted with Big Apple for Big Apple to perform the demolition and abatement work there. Big Apple sub-subcontracted with Atlantic for Atlantic to construct the bridge. Atlantic subcontracted that work out to Tower. 95 Maiden and Rockrose's roles in this matter have not been mentioned or made clear.

THE PLEADINGS

Plaintiff's further amended complaint alleges four causes of action, for common-law negligence, and violations of Labor Law §§ 200, 240, and 241. Atlantic answered, asserting two cross claims against defendants, for common-law indemnity and contribution.

At the time of their answers, 95 Maiden, Gold LLC and Rockrose answered separately from Big Apple. 95 Maiden, Gold LLC, and Rockrose's answer contains two cross claims against Big Apple, for common-law indemnification, and breach of the Gold GC/Big Apple contract to procure insurance for the benefit of those defendants. It also contains two [*3]cross claims against Atlantic, sounding in common-law indemnification, and breach of the Big Apple/Atlantic contract to procure insurance for the benefit of 95 Maiden, Gold LLC, and Rockrose. Big Apple's answer asserts one cross claim against 95 Maiden, Gold LLC, Rockrose, and Atlantic, for common-law indemnification. Big Apple then amended its cross claims, asserting four additional claims against Atlantic, for contractual indemnification (based on the Big Apple/Atlantic contract), breach of contract to procure insurance for Big Apple's benefit, and two claims sounding in common-law indemnification.

Atlantic's third-party complaint alleges four causes of action against the third-party defendants: (1) as against Burlington Insurance Company for breach of its insurance policy; and (2) as against Tower, for breach of an Indemnity Agreement, common-law indemnification, and contribution.

Plaintiff's amended bill of particulars alleges, as a basis for his Labor Law § 241 (6) claim, that defendants violated the following sections of the Industrial Code: 12 NYCRR 23-1.5, 23-1.15 (a)-(f), and 23-1.17 (a)-(e).

DISCUSSION

"The proponent of a motion for summary judgment must establish that there are no material issues of fact in dispute and that it is entitled to summary judgment as a matter of law" (Mazurek v Metropolitan Museum of Art, 27 AD3d 227 [1st Dept 2006]). The movant does this by coming forward with "competent admissible evidence establishing a prima facie entitlement to judgment" (Thomas v Journal Register Co., 24 AD3d 988, 989 [3d Dept 2005]).

Big Apple and Atlantic's Alleged Agency

Defendants argue that Big Apple cannot be held liable to plaintiff under the Labor Law because it was not an "agent" of the owner or general contractor. In support of its cross motion, Atlantic argues that it was not an owner, general contractor, or agent of an owner or general contractor, and thus, that the Labor Law does not apply to it. Clearly, Atlantic was neither the owner nor the general contractor on the job. The issue of whether it was an agent of either or both requires some consideration. A party is deemed to be an agent of an owner or general contractor under the Labor Law when it has supervisory control and authority over the work being done where a plaintiff is injured (see Labor Law §§ 200, 241 [6]; Russin v Picciano & Son, 54 NY2d 311, 318 [1981]). To impose such liability, the defendant must have the authority to control the activity bringing about the injury so as to enable it to avoid or correct the unsafe condition (id.). It is not a defendant's title that is determinative, but the amount of control or supervision exercised [citation omitted]. ... [G]eneral supervision ... is insufficient to impose liability under the Labor Law

(Damiani v Federated Department Stores, 23 AD3d 329, 331-332 [2d Dept 2005]).

With Respect to Big Apple

The evidence here indicates that Big Apple did not in any way control or supervise plaintiff's work (see Plaintiff's Depo., at 132; Greenberg Depo., at 14; Greenberg 11/17/05 Aff., ¶ 6). Plaintiff testified that no one from Big Apple was on site on the day of his [*4]accident, and that he did not remember ever seeing anyone from Big Apple at the jobsite (Plaintiff Depo., at 80). Therefore, since Big Apple exercised no supervision of plaintiff's work, Big Apple was not an "agent" of the owner or general contractor of the site, and cannot be held liable to plaintiff under the Labor Law.

The part of defendants' cross motion which seeks summary judgment dismissing the complaint is granted as to Big Apple.

With Respect to Atlantic

As the testimony in this matter makes clear, James Kenny, the operator of the crane, was the only employee of Atlantic that was at the site on the day of the accident (Breslin 10/17/05 Aff., ¶ 14), and his duties there were limited to delivering the supplies and materials needed by Tower to erect the bridge (id., ¶ 15). While Kenny raised and lowered the beams that were being delivered, it was Tower's workers that secured and released the beams in the sling, and it was Tower's foreman, John Butler, who told Kenny where to put the loads (Plaintiff's Depo., at 34, 85). Plaintiff, a Tower employee, was atop one of the header beams, engaged in connecting the newly lifted beams to the leg beams. There is no evidence that Atlantic had any supervisory control over plaintiff or his work, such that it would become liable as an "agent" under the Labor Law.

Therefore, Atlantic's cross motion which seeks summary judgment dismissing the complaint as against it is granted.

When a complaint against a party is dismissed in its entirety, "[t]he third-party action[] 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]). Therefore, Big Apple's second third party complaint and its cross claims are dismissed, and Atlantic's third-party complaint and the two cross claims alleged against defendants are also dismissed.[FN1]

Defendants' Cross Motion

Since the roles played by Rockrose and 95 Maiden have not been made clear, and defendants' papers and arguments have made no mention of Rockrose or 95 Maiden, let alone presented a prima facie showing that they are entitled to summary judgment, the part of the cross motion which seeks summary judgment dismissing the complaint is denied with respect to these two defendants.

Labor Law § 200 and Common-Law Negligence

"It is settled that § 200 of the Labor Law 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" (Biafora v City of New York, 27 AD3d 506 [2d Dept 2006]; Singh v Black Diamonds LLC, 24 AD3d 138, 139 [1st Dept 2005]). In situations, like this one, where the accident resulted from the contractor's method of performing its work, liability under section 200 "may not be assigned absent proof that the defendant exercised some supervisory control over the work in the course of which the plaintiff was injured" (DeSimone v Structure Tone, 306 AD2d 90, 90 [1st Dept 2003]; see also Locicero v Princeton Restoration, 25 AD3d 664 [2d Dept [*5]2006]).

There is no evidence that the owner of the site, Gold LLC, exercised any supervisory control over plaintiff's work. Therefore, the part of defendants' cross motion which seeks summary judgment dismissing the complaint is granted as against Gold LLC on the common-law negligence and Labor Law § 200 claims.

Labor Law § 240 (1)

"Labor Law § 240 (1) imposes absolute liability upon owners and contractors for their failure to provide workers with safety devices that properly protect against elevation related hazards" (Keaney v City of New York, 24 AD3d 615, 617 [2d Dept 2005]). The liability is imposed "for any breach of the statute that proximately causes a worker's injury" (Moniuszko v Chatham Green, Inc., 24 AD3d 638, 638 [2d Dept 2005]). "The contemplated hazards are those related to the effects of gravity where protective devices are called for either because of a difference between the elevation level of the required work and a lower level or a difference between the elevation level where the worker is positioned and the higher level of the materials or load being hoisted or secured" (Rocovich v Consolidated Edison Co., 78 NY2d 509, 514 [1991])

(Suwareh v State of New York, 24 AD3d 380, 381 [1st Dept 2005]).

At least two Appellate Division, First Department, cases have held that a fall caused by part of a completed sidewalk bridge giving way stated a claim under Labor Law § 240 (1) (see Clifford v Lehr Construction Corp., 258 AD2d 353, 354 [1st Dept 1999]; Ageitos v Chatham Towers, 256 AD2d 156, 156-157 [1st Dept 1998]). More recently, the First Department has held that a plaintiff, working without safety devices, who fell from a platform that was being constructed, stated a cause of action under section 240 (1) (see Dzieran v 1800 Boston Road, LLC, 25 AD3d 336, 337 [1st Dept 2006]). Here, too, the evidence establishes that plaintiff was not provided with any safety device that might have prevented his injuries. The failure to provide any safety devices for a worker's protection when he is exposed to an elevation-related risk is a violation of Labor Law § 240 (1) (see e.g. id.).

Accordingly, that part of defendants' cross motion which seeks summary judgment dismissing the complaint is denied as against Gold LLC with respect to the Labor Law § 240 (1) claim.

Labor Law § 241 (6)

"Labor Law § 241 (6) imposes a nondelegable duty upon owners and contractors to provide reasonable and adequate protection and safety to construction workers' [citations omitted]" (Giza v New York City School Construction Authority, 22 AD3d 800, 801 [2d Dept 2005]). "In order to support a cause of action pursuant to Labor Law § 241 (6), a plaintiff must demonstrate that his or her injuries were proximately caused by a violation of an Industrial Code regulation that is applicable to the circumstances of the accident" (Biafora v City of New York, 27 AD3d 506, supra ; see also Locicero v Princeton Restoration, 25 AD3d 664, supra ), and which "sets forth specific safety standards" (Giza v New York City School Construction Authority, 22 AD3d at 801). [*6]

Of the sections of the Industrial Code which plaintiff has alleged in his amended bill of particulars, section 23-1.5 ("General responsibility of employers") is insufficient to support a section 241 (6) claim (see Maldonado v Townsend Ave. Enterprises, 294 AD2d 207 [1st Dept 2002]); and sections 23-1.15 ("Safety railing") and 23-1.17 ("Life nets") are inapplicable, since neither of these devices was provided to plaintiff. Without that premise, regulations concerning the properties and construction of such devices do not apply (see Dzieran v 1800 Boston Rd., LLC, 25 AD3d 336 [1st Dept 2006]).[FN2]

In his papers in opposition to defendants' cross motion, plaintiff alleges that defendants violated section 23-1.16 (b) of the Industrial Code ("Safety belts, harnesses, tail lines and lifelines") (Shandell 11/29/05 Affirm. in Opp. and Reply, ¶ 24). This provision requires that harnesses provided by employers to their employees shall be used "at all times" while attached to a tail line or lifeline that is securely attached or anchored, so that if the worker were to fall, the fall would not exceed five feet (see Kyle v City of New York, 268 Ad2d 192 [1st Dept 2000]). It is undisputed that plaintiff was wearing a harness at the time of his accident, but that the harness was not attached to anything. Thus, the part of defendants' summary judgment cross motion which seeks dismissal of plaintiff's Labor Law § 241 (6) claim as against Gold LLC is denied.

Defendants' Cross Claims Against Atlantic

As set forth above, defendants' cross claims against Atlantic are dismissed because Atlantic is no longer in the case. Thus, the part of defendants' cross motion which seeks relief based on their cross claims against Atlantic is denied.

Atlantic's Cross Motion

Atlantic's cross motion is granted, as set forth above.

Plaintiff's Motion

For Severance of the Third-Party Action

The third-party actions were severed on consent by status conference order, dated January 12, 2006. Therefore, plaintiff's request is denied as moot.

For Summary Judgment on His Labor Law § 240 (1) Claim

In light of the discussion of the law and facts relating to the Labor Law § 240 (1) claim in this matter, this part of plaintiff's motion is granted as against Gold LLC, the owner of the premises, but is denied as to the other defendants.

CONCLUSION

Accordingly, it is

ORDERED that the part of plaintiff's motion which seeks severance of the third-party action is denied as moot; and it is further

ORDERED that the part of plaintiff's motion which seeks summary judgment on his complaint is denied as to all defendants with respect to his common-law negligence and Labor Law § 200 claims; is denied as to Big Apple Wrecking & Construction Corp., Atlantic-Heydt Corporation, Atlantic-Heydt, LLC, Rockrose Construction Corp., and 95 Maiden Lane LLC with respect to his Labor Law §§ 240 (1) and 241 (6) claims; and is granted as to 2 Gold L.L.C. with respect to his Labor Law §§ 240 (1) claim, and with respect to his Labor Law § 241 (6) claim to the extent that such claim is based on Industrial Code § 23-1.16 (b); and it is [*7]further

ORDERED that the part of defendants 95 Maiden Lane LLC, 2 Gold L.L.C., Rockrose Construction Corp., and Big Apple Wrecking & Construction Corp.'s cross motion which seeks summary judgment dismissing the complaint is granted as to 2 Gold L.L.C. only with respect to the common-law negligence and Labor Law § 200 claims; is denied with respect to 95 Maiden Lane LLC and Rockrose Construction Corp. on all of plaintiff's claims; and is denied as to 2 Gold L.L.C. with respect to the Labor Law § 240 (1) claim, but with respect to the Labor Law § 241 (6) claim, is denied only insofar as that claim is based on Industrial Code § 23-1.16 (b); and it is further

ORDERED that the part of defendants 95 Maiden Lane LLC, 2 Gold L.L.C., Rockrose Construction Corp., and Big Apple Wrecking & Construction Corp.'s cross motion which seeks summary judgment dismissing the complaint, as well as Atlantic-Heydt, LLC and Atlantic-Heydt Corp.'s cross motion which seeks the same relief are granted as to Big Apple Wrecking & Construction Corp., Atlantic-Heydt Corporation, and Atlantic-Heydt, LLC, and the complaint is severed and dismissed as against Big Apple Wrecking & Construction Corp., Atlantic-Heydt Corporation, and Atlantic-Heydt, LLC, and the Clerk is directed to enter judgment in favor of these defendants, with costs and disbursements as taxed by the Clerk; and it is further

ORDERED that the second third-party complaint and Big Apple Wrecking & Construction Corp.'s cross claims, as well as Atlantic-Heydt, LLC and Atlantic-Heydt Corp.'s third-party complaint and the two cross claims alleged against defendants are dismissed; and it is further

ORDERED that the part of defendants 95 Maiden Lane LLC, 2 Gold L.L.C., Rockrose Construction Corp., and Big Apple Wrecking & Construction Corp.'s motion which seeks summary judgment as against Atlantic-Heydt, LLC and Atlantic-Heydt Corp. on defendants' cross claims against Atlantic-Heydt, LLC and Atlantic-Heydt Corp. is denied as moot; and it is further

ORDERED that the remainder of the action shall continue.

Dated: May 19, 2006

ENTER:

_______________________________________

J.S.C. Footnotes

Footnote 1:The third-party actions were severed on consent by status conference order, dated January 12, 2006, and therefore the dismissal of third-party claims herein is without prejudice to those claims (or cross claims) being pursued in the severed action.

Footnote 2:The court also notes that there is no such section as 23-1.15 (f).