Thompson v Mount Sinai Hosp.

[*1] Thompson v Mount Sinai Hosp. 2006 NY Slip Op 52352(U) [13 Misc 3d 1245(A)] Decided on October 18, 2006 Supreme Court, New York County Solomon, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 18, 2006
Supreme Court, New York County

Kenneth Thompson and Silvana Thompson, Plaintiffs,

against

Mount Sinai Hospital, Defendant.



115578/02

Jane S. Solomon, J.

Plaintiff Kenneth Thompson ("Thompson") claims that he was injured in a job-related accident that occurred while he was working on a construction site on the 8th or 9th floor of the premises known as the Annenberg Building of Mount Sinai Hospital ("Mount Sinai"), located at 1440-1458 Madison Avenue in Manhattan. Defendant and Third-party Plaintiff Mount Sinai owns the Annenberg Building, and Thompson alleges that Mount Sinai is liable to him for negligence and under Labor Law §§ 200, 240 and 241(6). Plaintiff [*2]Silvana Thompson, his wife, has a derivative claim.

In this motion, Third-party Defendant Matrix Mechanical Corp. ("Matrix") seeks summary judgment dismissing Mount Sinai's common law indemnification and contribution claims against it. Mount Sinai cross-moves for summary judgment dismissing the complaint and for summary judgment on its common law indemnification claims against Third-party Defendants Matrix and Morgan Contracting Corp. ("Morgan").

FACTS

Mount Sinai hired Matrix as the general contractor for a chiller plant exhaust system project at Mount Sinai's Annenberg Building. Matrix contracted with various subcontractors, including Thompson's employer Celtic Sheet Metal ("Celtic"), and Third-party Defendants Morgan and PEM Electrical Corp. ("PEM"). Matrix directed the project, did the mechanical installation for the exhaust system, and did final startup and checking-out of the exhaust fan and refrigeration monitoring systems. Morgan was responsible for general construction work and clean-up at the site. In his deposition, Matrix's Vice-President Glen Boyd ("Boyd") stated that Morgan's clean-up work applied only to cleaning debris generated by Matrix subcontractors and did not extend to cleaning the site before work began. Celtic was hired as the sheet metal subcontractor for the project.

Boyd had visited the job site periodically, but no one from Matrix was present on the day of or on a regular basis prior to Thompson's accident. Mount Sinai's assistant HVAC shop foreman Robert Jenkins ("Jenkins") maintained an office on the floor below the room in which Thompson had his accident. However, neither Jenkins nor anyone else from Mount Sinai supervised or directed Thompson's work. Thompson did speak with Jenkins on a few occasions, and Jenkins permitted Thompson to use the telephone in his office.

Although work in the site began a few months earlier, Celtic was the first Matrix subcontractor to begin work on the installation of the ventilation system for the chiller plant. Matrix provided Celtic with blueprints for the project, but only Celtic employees directed and supervised Thompson's work. Celtic supplied all of Thompson's tools, including the ladder he used.

On August 16, 1999, Thompson was installing ductwork in a mechanical room in the Annenberg Building. Thompson was only present on the site for a few days. In his deposition he testified that the room was dirty when he entered, and he saw debris on the floor, including what he described as "threaded rod" and "general construction" debris. The debris was not a product of Celtic's work. Between 8:30 and 9:00 AM, Thompson descended from a ladder from which he had been working and allegedly twisted his knee as his left foot stepped on debris on the floor. [*3]

Plaintiffs commenced this lawsuit in 2002 against Mount Sinai. Mount Sinai commenced a third-party action against Matrix alleging common law and contractual indemnification and contribution claims. Matrix commenced a second third-party action against Morgan and PEM, asserting causes of action for negligence, breach of contract and common law indemnification. Morgan counterclaimed against Matrix for contribution and indemnification and brought a cross-claim against PEM. Mount Sinai served a cross-complaint in the second third-party action for indemnification against both Morgan and PEM. Notice of Cross-motion, Exhibit K.[FN1]

PEM has declared bankruptcy, and the action is stayed against it. Mount Sinai and Matrix have agreed to discontinue their mutual contractual indemnification claims against each other. The current issues before this Court are Thompson's Labor Law and negligence claims as against Mount Sinai, and the contribution and common law indemnification issues between Mount Sinai, Matrix and Morgan.

DISCUSSION

Labor Law § 240 Claim

Labor Law § 240 was designed to prevent those types of accidents in which a scaffold, ladder, or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person, by placing ultimate responsibility for work site safety practice on the owner or general contractor. Ross v. Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494 (1993); Rocovich v. Consolidated Edison Co., 78 NY2d 509 (1991). Mount Sinai's motion for summary judgment dismissing Thompson's claim under Labor Law § 240 is granted, because Thompson's injury resulted from stepping off a ladder and tripping on debris at the work site. This is not the type of elevation-related accident contemplated under that statute. See Nieves v. Five Boro Air Conditioning Refrigeration Corp., 93 NY2d 914 (1999).

Labor Law § 241(6) Claim

Mount Sinai's motion for summary judgment dismissing [*4]Thompson's claim under Labor Law § 241(6) is denied. Thompson alleges that the threaded rod and other debris located on the floor where he was working constituted a violation of Industrial Code 12 NYCRR 23-1.7(e), which applies to tripping hazards. Specifically, that regulation provides that "the parts of floors, platforms and similar working area where persons work or pass shall be kept free from accumulations of dirt and debris and from scattered tools and materials and from sharp projections insofar as maybe consistent with the work being performed."

The cited Industrial Code provision is applicable here, and the First Department has ruled that it is "sufficiently concrete and specific in its requirements to support" a Labor Law 241(6) claim. Smith v. McClier Corp., 22 AD3d 369 (1st Dept. 2005).

Labor Law § 241(6) imposes a nondelegable duty upon Mount Sinai as owner, regardless of its control or supervision at the work site. See Violette v. Armonk Associates, L.P., 849 F. Supp. 923 (1994); Coleman v. City of New York, 91 NY2d 821 (1997). Accordingly, Mount Sinai's argument that it had no role, active or otherwise, in Thompson's work is unpersuasive.

Moreover, the Court of Appeals, has held that "[s]ince an owner or general contractor's vicarious liability under section 241(6) is not dependent on its personal capability to prevent or cure a dangerous condition, the absence of actual or constructive notice sufficient to prevent or cure must also be irrelevant to the imposition of Labor Law § 241(6) liability." Rizzuto v. L.A. Wenger Contracting Co., 91 NY2d 343 (1998). Thus, Mount Sinai's argument that it lacked notice of the conditions of the mechanical room does not dispose of Thompson's Labor Law § 241(6) claim.

Finally, the First Department has held that when an Industrial Code violation is established by record evidence, an expert opinion is not necessary to establish a plaintiff's prima facie case. Murphy v. Columbia University, 4 AD3d 200 (1st Dept. 2004). As Thompson's bill of particulars alleges a violation of § 23-1.7(e) and he has supported the allegation with uncontradicted evidence, Thompson was not required to submit expert testimony to show a causal nexus between the claimed Industrial Code violations and his accident.

Labor Law § 200 and Common Law Negligence Claims

Mount Sinai's motion for summary judgment dismissing Thompson's claim under Labor Law § 200 is denied. The statute 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." Shipkowski v. Watch Case Factory Associates, 292 AD2d 589 (2nd Dept. 2002). Liability attaches to the owner under Labor Law § 200 only where injuries are sustained as a result of dangerous conditions at the work site. Akins v. [*5]Baker, 247 AD2d 562 (2nd Dept. 1998). In order to succeed, the plaintiff must also prove either that the owner(1) exercised supervision and control over his work, or (2) the owner actual or constructive notice of the unsafe conditions that caused the accident. Id.

Thompson's allegation is that Mount Sinai was aware of the mechanical room conditions which caused his accident. It is thus irrelevant that Mount Sinai did not supervise his work. See Murphy v. Columbia University, supra; Calaway v. Metro Roofing and Sheet Metal Works, Inc. 284 AD2d 285 (1st Dept. 2001); Roppolo v. Mitsubishi Motor Sales of America, Inc., 278 AD2d 149 (1st Dept. 2000).

It cannot be said that Mount Sinai lacked actual or constructive notice of the debris on the floor as a matter of law. This is not a case where an employee was the first to arrive on site and the owner could not possibly have known of the site's conditions. Cf. Sprague v. Peckham Materials Corp., 240 AD2d 392 (2nd Dept. 1997). There is evidence suggesting that the type of debris involved (threaded rod) was on the floor prior to Thompson's arrival at the work site and was not an integral part of his job. See Harvey v. Morse Diesel International, Inc., 299 AD2d 451 (2nd Dept. 2002). The parties are not in agreement with whether Mount Sinai or Morgan was the party charged with clearing the debris from the site prior to Thompson beginning his work. Plaintiffs further contend that Mount Sinai may have had actual notice of the condition through Jenkins, its employee, because his office was below the accident site and he had conversations with Thompson. It is undisputed that Jenkins did not direct Thompson's work, and there is no indication that he visited the site while Thompson was working. In short, the allegation that he was aware of the condition is entirely speculative.

Mount Sinai's Motion for Summary Judgment on its Common Law Indemnity Claims Against Matrix and Morgan

In order for Mount Sinai to succeed in its common law indemnification claims against either Matrix or Morgan, it must first show that it neither controlled nor supervised the work site and that its own negligence did not contribute to Thompson's harm. See Priestly v. Montefiore Medical Center, 10 AD3d 493. (1st Dept. 2004); Mangano v American Stock Exch., 234 AD2d 198 (1st Dept. 1996). In addition to showing its own lack of negligence, Mount Sinai must also show that the party from whom indemnification is sought was either negligent or that such party [*6]supervised or controlled the work that gave rise to Thompson's accident. Priestly v. Montefiore Medical Center, supra; Mangano v American Stock Exch., supra.

While it is clear that Mount Sinai did not control Thompson's work, there are questions of fact with respect to the origin of the debris in the mechanical room, and whether Mount Sinai may have created the allegedly hazardous condition or was the party charged with the responsibility for picking up the debris that led to Thompson's injury. As Mount Sinai cannot show as a matter of law that it was not negligent in conditions of the mechanical room, this court must deny its cross-motion for summary judgment on its common law indemnity claims against Matrix and Morgan.

Matrix's Motion for Summary Judgment to Dismiss Mount Sinai's

Claim for Common Law Indemnity and Contribution Against It

In order for Matrix to succeed in its motion for summary judgment dismissing Mount Sinai's common law indemnity and contribution claims against it, Matrix must show either (1) that Mount Sinai was negligent, or (2) that Matrix was not negligent and did not supervise or direct Thompson's work. See Priestly v. Montefiore Medical Center, supra; Mangano v American Stock Exch., supra.

As indicated above, Mount Sinai's negligence cannot be decided as a matter of law. On the other hand, the fact that Celtic used blueprints supplied by Matrix is insufficient to show that it directed Thompson's work. Similarly unpersuasive is Mount Sinai's assertion that Matrix dictated the scope, pace nature and timing of Thompson's work. Because there is no evidence that negligence on Matrix's part led to Thompson's injury, and because no one but Celtic directed, supervised or controlled Thompson's work the day of the accident, Matrix's motion for summary judgment dismissing Mount Sinai's common law indemnity claim against it is granted.

As Mount Sinai has not opposed that part of Matrix's motion seeking dismissal of Mount Sinai's claim for contribution, that part of Matrix's motion is likewise granted. There are no fact questions that Matrix may be liable to Mount Sinai in contribution for Thompson's injuries.

Accordingly, it hereby is

ORDERED that Matrix's motion for summary judgment dismissing Mount Sinai's common law indemnity and contribution claims are granted, and the third-party complaint (index number 590063/2004) is dismissed; and it further is

ORDERED that Mount Sinai's cross-motion for summary judgment is granted to the extent that Plaintiffs' claim under [*7]Labor Law § 240 is dismissed, and the cross-motion is otherwise denied; and it further is

ORDERED that the Clerk of the Court is directed to enter partial judgment accordingly; and it further is

ORDERED that counsel shall appear in Part 55 for a pre-trial conference on November 13, 2006 at 2:00 PM.

Dated: October , 2006

ENTER:

______________________

J.S.C. Footnotes

Footnote 1: The second third-party caption includes only Matrix as plaintiff and Morgan and PEM as defendants. Although it is not clear that Mount Sinai may assert cross-claims in a third-party action to which it is not a party, Morgan accepts that Mount Sinai has asserted a claim against it, and the mechanics of Mount Sinai's claim against Morgan may be addressed at the pre-trial conference scheduled herein.