Jones v Hercules Constr. Co.

[*1] Jones v Hercules Constr. Co. 2006 NY Slip Op 52501(U) [14 Misc 3d 1212(A)] Decided on October 30, 2006 Supreme Court, Kings County Balter, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 30, 2006
Supreme Court, Kings County

Timothy Jones, Plaintiff,

against

Hercules Construction Company, Defendant.



45584/97

Bruce M. Balter, J.

Upon the foregoing papers, third-party defendant Bri-Den Construction Co., Inc. (Bri-Den) moves, pursuant to CPLR 3212, for summary judgment dismissing plaintiff Timothy Jones' (plaintiff) complaint. Hercules Construction Company (HCC) cross-moves for summary judgment dismissing plaintiff's complaint and for summary judgment under its contractual indemnification claim against Bri-Den. Plaintiff cross-moves for partial summary judgment against HCC under his Labor Law §§ 240 (1) and 241 (6) causes of action. In addition, plaintiff seeks an order striking HCC's answer for failure to produce a deposition witness.

Background Facts and Procedural History

The instant action arises out of an alleged August 20, 1997 construction site accident in which plaintiff sustained various injuries. Prior to the accident, non-party United States Department of Veterans Affairs (VA) hired HCC to serve as the general contractor on a project involving the construction of a new wing on the Fort Hamilton VA Medical Center [*2]in Brooklyn, New York (the building or the hospital). Thereafter, by written subcontractor agreement dated February 8, 1996, HCC hired Bri-Den to perform certain masonry work on the project.

On the day of the accident, plaintiff was employed by Bri-Den as a laborer on the project. In particular, plaintiff was responsible for cleaning up construction debris that was generated by Bri-Den's masonry work. According to the testimony given by plaintiff at his November 10, 2003 deposition, immediately before the accident, he was picking up debris in an area where Bri-Den was constructing a brick structure to house the hospital's cooling system. Plaintiff testified that the accident occurred as he was bending down to pick up some debris below a scaffold that was approximately 15 feet high. In particular, plaintiff averred that: "I just felt pressure and next thing I know I was down on the ground and people were picking bricks up off me. It was like somebody knocked me down real fast, hard, and I felt pressure and guys were picking bricks off me." Plaintiff testified that, although he did not actually see where the bricks came from, he assumed that they fell from the scaffold. In this regard, plaintiff stated that he had seen bricks on the scaffold on previous occasions.

On July 18, 2005, plaintiff appeared for a second deposition at which he offered a somewhat different version of the accident. In particular, at his second deposition plaintiff testified: "[a]ll I remember is just feeling like pressure, and next thing I know, the ambulance people were putting me in the ambulance." Plaintiff testified that he did not know what caused the accident and that he had merely been told by an unidentified co-worker that they had "pulled bricks" off of plaintiff. In addition, plaintiff testified that he never learned where these bricks had come from. Finally, plaintiff made no mention of a scaffold at his second deposition.

On March 3, 2006 Bri-Den's president, Brian Blesi, appeared for a deposition. According to Mr. Blesi, on the day of the accident, Bri-Den had completed the masonry work on the building that was to house the hospital's power system and that all that was left to be done was clean-up work. Mr. Blesi further testified that his foreman, Zack Brown, informed him that plaintiff claimed to have been hurt when bricks fell down upon him. Mr. Blesi further testified that he was shown the location of the purported accident by either plaintiff or his shop steward, which was on the east side of the hospital. According to Mr. Blesi, there was no scaffolding or loose bricks in this area. In fact, Mr. Blesi testified that the only bricks at this location was a stack of 100 bricks which were banded together with metal straps. Based upon these observations, Mr. Blesi concluded that plaintiff could not have been injured in the manner he was alleging and that he had fabricated the entire incident.

The only other evidence before the court regarding the circumstances of the accident consists of an August 11, 2006 affidavit by one Eric Jackson. According to Mr. Jackson, he was employed as a security guard on the job site by HCC on the day of the accident. Mr. Jackson avers that, while patrolling the premises, he heard screaming coming from the west side of the construction site. When he investigated, Mr. Jackson maintains that he found plaintiff underneath a pile of bricks. Mr. Jackson states that he had observed [*3]unsecured bricks on scaffold planks prior to the accident and that these bricks were no longer present when he found plaintiff on the ground.

By summons and complaint dated November 20, 1997, plaintiff commenced the instant action against HCC alleging violations of Labor Law §§ 240 (1), 241 (6), 200, as well as common-law negligence. Thereafter, a preliminary conference was held setting down a schedule for discovery. However, little discovery actually took place and the matter was placed on inactive status due to plaintiff's incarceration in a Federal correctional facility as the result of a postal fraud conviction. After plaintiff's release from prison, the case was returned to active status and plaintiff appeared for his first deposition. By summons and complaint dated July 6, 2004, HCC commenced a third-party action against Bri-Den seeking common-law and contractual indemnification. Subsequently, plaintiff appeared for his second deposition. Bri-Den was also deposed. HCC, which is now a defunct corporation, has never appeared for a deposition. On September 22, 2005, plaintiff filed a note of issue. In an order dated February 22, 2006, following Bri-Den's motion for an extension of time in which to move for summary judgment, Hon. Donald Kurtz of this court extended the time for the filing of summary judgment motions to April 7, 2006. On or about March 30, 2006, Bri-Den filed the instant motion for summary judgment. On or about April 7, 2006, HCC filed the instant cross motion for summary judgment. On or about August 11, 2006, plaintiff filed the instant cross motion for summary judgment.

Plaintiff's Cross Motion

Plaintiff cross-moves for summary judgment against HCC under his Labor Law §§ 240 (1) and 241 (6) causes of action. However, plaintiff filed his cross motion some 11 months after he filed a note of issue and over four months after the deadline for dispositive motions set forth in Justice Kurtz's February 22, 2006 order. Moreover, plaintiff has not even attempted to demonstrate good cause for his delay. Under the circumstances, that branch of plaintiff's cross motion which seeks summary judgment against HCC is denied as untimely (Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725 [2004]; Brill v City of New York, 2 NY3d 648 [2004]).

That branch of plaintiff's cross motion which seeks an order striking HCC's answer for failing to produce a witness for deposition is also denied. While it is true that HCC has not produced a deposition witness, by filing a note of issue and certifying that discovery was complete, plaintiff waived any right he may have had to seek sanctions against HCC for failing to comply with discovery (Malloy v Madison Forty-Five Co., 13 AD3d 55, 57 [2004]; Simpson v City of New York, 10 AD3d 601, 602 [2004]).

Plaintiff's Labor Law § 240 (1) Claim

Bri-Den moves, and HCC cross-moves for summary judgment dismissing plaintiff's Labor Law § 240 (1) cause of action. In so moving, these parties argue that there is no evidence that plaintiff was injured by falling material inasmuch as plaintiff was unable to definitively testify as to what caused his injuries. Bri-Den and HCC further argue that there is insufficient evidence to draw an inference that plaintiff was struck by bricks falling from a scaffold above plaintiff given Mr. Blesi's testimony that the work on the subject building [*4]was complete on the day of the accident, that there was no scaffold in the area of the accident, and that the only bricks at the accident site were securely fastened together with metal bands. Finally, Bri-Den and HCC argue that even if plaintiff was struck by bricks falling from a scaffold, Labor Law § 240 (1) is inapplicable in this case since there is no evidence that the bricks were being hoisted or secured at the time of the accident.

In opposition to Bri-Den and HCC's respective motions to dismiss his Labor Law § 240 (1) claim, plaintiff argues that there is clear evidence that his accident was caused by a violation of the statute in the form of Mr. Jackson's sworn affidavit. In particular, plaintiff notes that Mr. Jackson found plaintiff on the ground beneath a pile of bricks next to a scaffold. In addition, Mr. Jackson averred that earlier in the day, he had seen unsecured bricks on the scaffold and that these bricks were no longer present after the accident. Finally, Mr. Jackson claims that prior to the accident, there were other instances where objects and materials fell from the bricklayer's scaffolds. Under the circumstances, plaintiff argues that the trier of fact could infer that plaintiff was struck by bricks that fell from the scaffold and that the bricks were a load that required securing under Labor Law § 240 (1).

Labor Law § 240(1) provides, in pertinent part, that:

"All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, [or] altering . . . 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 enacted to "prevent those types of accidents in which the scaffold, hoist, stay, 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" (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [1993]). In order to accomplish this goal, the statute places the responsibility for safety practices and safety devices on owners, general contractors, and their agents who "are best situated to bear that responsibility" (id. at 500; see also Zimmer v Chemung County Perf. Arts, 65 NY2d 513, 520 [1985]). "The duty imposed by Labor Law § 240(1) is nondelegable and . . . an owner or contractor who breaches that duty may be held liable in damages regardless of whether it has actually exercised supervision or control over the work" (Ross at 500). Furthermore, the statute is to be construed as liberally as possible in order to accomplish its protective goals (see Martinez v City of New York, 93 NY2d 322, 326 [1999]).

However, given the exceptional protection offered by Labor Law § 240(1), the statute does not cover accidents merely tangentially related to the effects of gravity. Rather, gravity must be a direct factor in the accident as when a worker falls from a height or is struck by a falling object (Ross, 81 NY2d at 501; Rocovich v Consolidated Edison Co., 78 NY2d 509, 513 [1991]). Moreover, the mere fact that a worker is stuck by a falling object is insufficient [*5]to implicate the statute. Labor Law § 240(1) only protects workers against objects that fall while being hosted or secured because of the inadequacy of a safety device enumerated in the statute (Narducci v Manhasset Bay Assocs., 96 NY2d 259, 268 [2001]; Gambino v Massachusetts Mut. Life Ins. Co., 8 AD3d 337, 338 [2004]).

Here, Bri-Den and HCC have made a prima facie showing that Labor Law § 240 (1) is inapplicable in this case. In particular, as the movants point out, plaintiff possessed little knowledge as to what exactly caused his injuries. At his first deposition, plaintiff was unable to testify as to whether the bricks that ended up on top of him actually fell from a scaffold. At his second deposition, plaintiff indicated that he had no first hand knowledge as to whether bricks were even involved in his accident. Moreover, plaintiff had no knowledge of where these bricks might have come from and made no mention of any scaffolding at the accident site. In addition, Mr. Blesi's testimony indicated that there was no scaffolding or loose bricks in the area where the accident occurred. Under the circumstances, the burden shifts to plaintiff to raise a triable issue of fact with respect to the alleged Labor Law § 240 (1) violation.

The court finds that Mr. Jackson's affidavit is sufficient to raise an issue of fact regarding the applicability of Labor Law § 240 (1). While it is true that not all falling object cases are covered under the statute, contrary to Bri-Den and HCC's argument, the statute's coverage is not limited to cases where the falling object was being hoisted at the time of the accident. Labor Law § 240 (1) also applies when a worker is struck by an unsecured falling object, and, given the "nature and purpose of the work being performed at the time of the accident, there was a significant risk that [the unsecured object] would fall" (Bornschein v Shuman, 7 AD3d 476, 478 [2004]; see also, Portillo v Roby Anne Dev., 32 AD3d 421 [2006]; Coque v Wildflower Estates Dev., Inc., 31 AD3d 484 [2006] Costa v Piermont Plaza Realty Inc., 10 AD3d 442, 444 [2004]). Inasmuch as Mr. Jackson's affidavit indicates that there were bricks on the scaffold shortly before the accident, that these bricks were no longer on the scaffold after the accident when he found plaintiff covered with bricks, and that the bricks were placed on loose planks on a scaffold without any guard rails, there is sufficient evidence to allow the trier of fact to conclude that plaintiff was injured by falling construction material that was improperly secured for purposes of Labor Law § 240 (1).

In reaching this determination, the court is not unmindful of the fact that there are credibility questions with respect to plaintiff's version of the accident inasmuch as Mr. Jackson's affidavit as well as plaintiff's deposition testimony conflict with the deposition testimony of Mr. Blesi as respects the presence of scaffolding and loose bricks in the area of the accident. However, in the context of Bri-Den and HCC's summary judgment motions, the court must view "the evidence in the light most favorable to the plaintiff and accord the plaintiff the benefit of every reasonable inference" (Schuhmann v McBride, 23 AD3d 542, 543 [2005]).

Accordingly, those branches of Bri-Den's motion and HCC's cross motion which seek summary judgment dismissing plaintiff's Labor Law § 240 (1) claim are denied.

Plaintiff's Labor Law § 241 (6) Claim[*6]

Bri-Den moves and HCC cross-moves for summary judgment dismissing plaintiff's Labor Law § 241 (6) claim against HCC. In so moving, these parties argue that the New York State Industrial Code regulations (12 NYCRR 23 et seq.) that plaintiff relies upon are either too general to support such a claim, or are inapplicable given the circumstances of the accident. In opposition to this branch of Bri-Den and HCC's respective motions, plaintiff argues that he has a viable Labor Law § 241 (6) claim to the extent that he relies upon violations of 12 NYCRR 23-1.7(a)(1) and 23-2.1(a)(2).

Labor Law §241(6) provides, in pertinent part, that:

"All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to persons employed therein or lawfully frequenting such places."

Labor Law § 241(6), which was enacted to provide workers engaged in construction, demolition, and excavation work with reasonable and adequate safety protections, places a nondelegable duty upon owners and general contractors, and their agents to comply with the specific safety rules set forth in the Industrial Code (Ross, 81 NY2d at 501-502). Accordingly, in order 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 given the circumstances of the accident, and sets forth a concrete standard of conduct rather than a mere reiteration of common-law principals (id. at 502; Ares v State, 80 NY2d 959, 960 [1992]; see also Adams v Glass Fab, 212 AD2d 972, 973 [1995]).

12 NYCRR 23-1.7(a)(1) provides, in pertinent part that, "[e]very place where persons are required to work or pass that is normally exposed to falling materials or objects shall be provided with suitable overhead protection." While this regulation is specific enough to support a Labor Law § 241 (6) claim, there is no evidence that accident site was "normally exposed to falling materials" (Portillo, 32 AD3d at 421). Accordingly, this regulation may not serve to support plaintiff's Labor Law § 241 (6) claim.

12 NYCRR 23-2.1(a)(2) provides, in pertinent part that, "[m]aterial and equipment shall not be placed or stored so close to the edge of a floor platform or scaffold as to endanger any person beneath such edge." This regulation is sufficiently specific to support a Labor Law § 241 (6) claim and Mr. Jackson's affidavit is sufficient to raise an issue of fact as to whether plaintiff's injuries were proximately caused by a violation of this provision (Rosado v Briarwoods Farm, Inc., 19 AD3d 396, 399 [2005]). Consequently, Bri-Den and HCC's motions to dismiss plaintiff's Labor Law § 241 (6) claim must be denied to the extent that plaintiff relies upon a violation of § 23-2.1(a) (2).

Finally, the court notes that plaintiff has cited to numerous Industrial Code regulations in his bill of particulars which he does not discuss in the papers before the court. Accordingly, plaintiff has, in effect, conceded that these remaining regulations may not serve [*7]to support his Labor Law § 241 (6) claim. In any event, in reviewing these regulations, it is clear that they are either of a general nature, or inapplicable given the facts of this case.

Plaintiff's Labor Law § 200/Common-Law Negligence Claims

Bri-Den and HCC move to dismiss plaintiff's Labor Law § 200 and common-law negligence claims against HCC. In so moving, these parties argue that there is no evidence that plaintiff's accident was caused by HCC's negligence or that HCC had notice of any dangerous condition that may have caused the accident. In opposition to this branch of Bri-Den's and HCC's motions, plaintiff concedes that there is no evidence that the accident was caused by HCC's negligence or that HCC had notice of the alleged dangerous condition presented by the bricks on the scaffold. However, plaintiff argues that this lack of evidence is the result of HCC's failure to produce a deposition witness. Consequently, plaintiff maintains that his Labor Law § 200 and common-law negligence claims should not be dismissed.

Labor Law § 200 is merely a codification of the common-law duty placed upon owners and contractors to provide employees with a safe place to work (Kim v Herbert Constr. Co., 275 AD2d 709, 712 [2000]). Liability for causes of action sounding in common-law negligence and for violations of Labor Law § 200 is limited to those who exercise control or supervision over the methods that plaintiff employs in his work, or who have actual or constructive notice of, or are otherwise responsible for an unsafe condition that causes an accident (Aranda v Park East Constr., 4 AD3d 315 [2004]; Akins v Baker, 247 AD2d 562, 563 [1998]).

As all the parties concede, there is no evidence that HCC controlled or supervised plaintiff's work or otherwise created or had notice of any dangerous condition that may have caused the accident. Furthermore, given the fact that plaintiff's note of issue indicated that all discovery was complete and made no mention of any outstanding HCC deposition, plaintiff may not rely upon HCC's failure to appear for a deposition as a basis for defeating the motions to dismiss plaintiff's Labor Law § 200 and common-law negligence claims. Accordingly, those branches of Bri-Den and HCC's respective motions which seek summary judgment dismissing plaintiff's Labor Law § 200 and common-law negligence claims against HCC are granted.

HCC's Contractual Indemnification Claim

HCC cross-moves for contractual indemnification against Bri-Den. In support of this branch of its motion, HCC points to paragraph 1.6 of the rider to the subcontract agreement between the parties. In particular, this paragraph provides:

"[Bri-Den] to the fullest extent permitted by law, hereby agrees to assume the entire responsibility and liability for and defense of and to pay and indemnify [HCC] against any loss, expense or liability and will hold [it] harmless from and pay any loss, damage, cost or expense (including . . . legal fees . . . ) which [HCC] incur[s] because of injury to . . .any person . . . arising out of, in connection with, or as a consequence of the performance of the Work and/or any act or omission of [Bri-Den] or any of its . . . employees." [*8]

Here, since plaintiff was a Bri-Den employee and the accident clearly arose out of Bri-Den's work, HCC reasons that it is entitled to contractual indemnification against Bri-Den.

In opposition to this branch of HCC's motion, Bri-Den argues that the subject indemnification clause is unenforceable under General Obligations Law § 5-322.1 since HCC maintained direction, control, and supervision over the job site. In support of this claim, Bri-Den has submitted an affidavit by Mr. Blesi in which he claims that HCC actively supervised its subcontractors and their employees on a daily basis, and therefore, if the accident happened in the manner in which plaintiff alleges, it was due in part to HCC's failure to properly supervise plaintiff's work. In addition, Bri-Den argues that, since Mr. Blesi testified that the work in the area of the accident site was completed on the day of the accident, the accident did not arise out of Bri-Den's work.

There is no merit to Bri-Den's argument that the indemnification clause is inapplicable because its work was completed on the accident date. In fact, it is undisputed that plaintiff was a Bri-Den employee who was performing work on the project at the time he was injured. Equally without merit is Bri-Den's claim that the indemnification clause is unenforceable under General Obligations Law § 5-322.1. As Bri-Den itself pointed out in support of its motion to dismiss plaintiff's Labor Law § 200 and common-law negligence claims, there is no evidence that HCC had notice of any dangerous condition or was otherwise negligent in this case. In addition, there is nothing in either plaintiff or Mr. Blesi's deposition testimony which indicates that HCC exercised any control or supervision over plaintiff's work. In fact, this testimony indicates that plaintiff was supervised by Bri-Den personnel. Finally, the self serving claims in Mr. Blesi's affidavit presents a feigned issue of fact that conflicts with Mr. Blesi's deposition testimony, as well as the previous position taken by Bri-Den when it moved to dismiss the Labor Law § 200 and common-law negligence claims against HCC (see Anderson v Olympia & York Tower B Co., 14 AD3d 520, 521 [2005]). Accordingly, HCC is entitled to contractual indemnification against Bri-Den (Cabrera v Board of Educ. of the City of New York, __AD3d__, 2006 NY Slip Op 07307 [2nd Dept, Oct. 10, 2006]; Damiani v Federated Dept. Stores, Inc., 23 AD3d 329, 331 [2005]).

Summary

In summary, the court rules as follows: (1) that branch of plaintiff's cross motion which seeks partial summary judgment against HCC under his Labor Law §§ 240 (1) and 241 (6) claims is denied as untimely; (2) that branch of plaintiff's cross motion which seeks an order striking HCC's answer is denied; (3) those branches of Bri-Den's motion and HCC's cross motion which seek summary judgment dismissing plaintiff's Labor Law § 240 (1) claim against HCC are denied; (4) those branches of Bri-Den's motion and HCC's cross motion which seek summary judgment dismissing plaintiff's Labor Law § 241 (6) claim against HCC are denied to the extent that plaintiff relies upon a violation of 12 NYCRR 23-2.1(a)(2); (5) those branches of Bri-Den's motion and HCC's cross motion which seek summary judgment dismissing plaintiff's Labor Law § 200 and common-law negligence claims against HCC are granted; and (6) that branch of HCC's cross motion which seeks contractual indemnification against Bri-Den is granted. [*9]

This constitutes the decision and order of the court.

E N T E R,

J. S. C.