Trbaci v AJS Constr. Project Mgt., Inc.

[*1] Trbaci v AJS Constr. Project Mgt., Inc. 2009 NY Slip Op 50153(U) [22 Misc 3d 1116(A)] Decided on January 16, 2009 Supreme Court, Kings County Hinds-Radix, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 16, 2009
Supreme Court, Kings County

Jetlum Trbaci, Plaintiff,

against

AJS Construction Project Management, Inc., New York Construction & Paving, Inc., and Pergament Properties, Defendant.



20538/05

Sylvia O. Hinds-Radix, J.

Upon the foregoing papers, Pergament Properties (Pergament) moves for an order: (1) pursuant to CPLR 3212, granting summary judgment in its favor dismissing plaintiff Jetlum Trbaci's claims under common law negligence and Labor Law §§200, 241 (6), 240(1), and 241-a [FN1] and defendants' cross claims; or in the alternative (2) granting summary judgment on its cross claims against AJS Construction Management Inc., (AJS) for contractual and common law indemnification or, in the alternative, (3) granting summary judgment on its cross claims against New York Construction & Paving Inc., (New York) for common law indemnification.

AJS cross-moves pursuant to the same statute, for an order: (1) granting summary judgment in its favor dismissing plaintiff's claims under common law negligence and the aforementioned Labor Law statutes and defendants' cross claims; or in the alternative, (2) granting summary judgment on its cross claims against New York for contractual and common law indemnification.

New York also cross-moves, pursuant to the same statute, for summary judgment in its favor dismissing plaintiff's claims and AJS' cross claims.

Background

The record reveals that plaintiff was employed as a mechanic plumber by MB Mechanical. On the date of the accident, he was working on the renovation of a parking lot in Staten Island that was owned by Pergament. Pergament contracted with AJS to perform the renovation work and AJS [*2]employed several subcontractors including New York. New York performed paving work including the removal of old asphalt and digging. MB Mechanical was a plumbing contractor that Pergament called to the site on an as-needed basis to work on broken water mains in the parking lot.

On November 2, 2004, plaintiff was replacing a water main in the center of a pit, that he testified, was approximately eight feet deep, four to six feet wide and approximately twenty feet long. According to plaintiff, he and two of his coworkers were digging around the water main pipe when dirt from the top and from the wall of the pit fell onto plaintiff covering him up to his waist, causing him to sustain various injuries. Thereafter, plaintiff commenced this action against Pergament, AJS and New York.

Pergament's Motion

Pergament moves for summary judgment dismissing plaintiff's claims as asserted against it, or in the alternative, for an order granting Pergament summary judgment in its favor on its cross claims for contractual and /or common law indemnification.

Labor Law § 200

Pergament argues that plaintiff's claims as based upon Labor Law §200 and common law negligence should be dismissed as asserted against Pergament because it did not exercise any control, direction or supervision over the plaintiff or his work site and did not create the alleged unsafe condition. Section 200 of the Labor Law provides in pertinent part that:

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.

This section of law codifies a landowner's, a contractor's or an employer's common-law duty to maintain a safe work site for construction workers (Lombardi v Stout, 80 NY2d 290, 294-295 [1992]; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 503 [1993]; Mordkofsky v VCV Dev. Corp., 76 NY2d 573, 577 [1990]; Jennings v Lefcon Partnership, 250 AD2d 388 [1998] , lv denied 92 NY2d 819 [1999]). Liability based on theories of common-law negligence and breach of the general statutory duty to protect health and safety will attach when the injury sustained was a result of an actual dangerous condition and then only if a defendant exercised supervisory control over the work performed on the premises (see Rizzuto v L.A. Wenger Contracting Co., Inc., 91 NY2d 343, 352-353 [1998]), or had notice of the dangerous condition which produced the injury (Sprague v Peckham Materials Corp., 240 AD2d 392, 394 [1997]; Sobelman v Norstar Bank, 226 AD2d 444, 444 [1996]; Mantovi v Nico Constr. Co., 217 AD2d 650, 651[1995]). Further, under common-law negligence, "a subcontractor may be held liable for negligence where there is an issue of fact whether the work [he or she] performed . . . created the condition that caused [the] plaintiff's injury" (Stevenson v Alfredo, 277 AD2d 218, 221 [2000]; Ryder v Mount Loretto Nursing Home Inc., 290 AD2d 892, 893 [2002]; Kelarakosv. Massapequa Water Dist., 38 AD3d 717, 719 [2007]).

Pergament argues that plaintiff's activities were controlled, directed and supervised only by his supervisor at MB Mechanical. Pergament points to plaintiff's own testimony that his only supervisor was Michael Burt Jr. of MB Mechanical, and that this was the person who instructed him regarding the work he was performing. Pergament also points out that only plaintiff and his co-workers were present in the pit at the time of the accident. Moreover, Pergament states that it did [*3]not create the condition that caused plaintiff's injuries inasmuch as the pit was excavated by New York, which was hired by AJS, and further that Pergament exercised no supervision or control over this work.

In opposition, plaintiff maintains that Pergament's property manager Terry Bevaqua, was present at the time of the accident and argues that Pergament was involved in directing AJS' work on the project.

The retention of general supervisory control, presence at a work site, or authority to enforce safety standards is insufficient to establish the control necessary to impose liability (see Biance v Columbia Wash. Ventures, LLC, 12 AD3d 926, 927 [2004]; Shields v General Elec. Co., 3 AD3d 715, 716-717 [2004]; Sainato v City of Albany, 285 AD2d 708, 709 [2001]).

Here, the court finds that Pergament has made a prima facie showing that it did exercise the degree of supervision or control over plaintiff's work necessary to impose liability under Labor Law §200 or common law negligence. Plaintiff's opposition fails to rebut this showing. Accordingly, that branch of Pergament's motion seeking summary judgment dismissing these claims is granted and said claims are dismissed as asserted against Pergament.

Labor Law §241 (6)

Pergament and each of the co-defendants argue that plaintiff's Labor Law §241 (6) claim must fail because he has failed to allege a violation of a specific Industrial Code rule. In pertinent part, Labor Law §241(6) provides as follows:

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 the persons employed therein or lawfully frequenting such places. The commissioner may make rules to carry into effect the provisions of this subdivision, and the owners and contractors and their agents for such work, except owners of one and two-family dwellings who contract for but do not direct or control the work, shall comply therewith.

Labor Law §241(6) imposes absolute liability on owners and contractors for violation of its provisions, but only when such violation is the proximate cause of a worker's injury (Rizzuto, 91 NY2d 343; Allen v Cloutier Constr. Corp., 44 NY2d 290, 300 [1978] , rearg denied 45 NY2d 776 [1978]). Section 241(6) places a non-delegable duty upon owners and contractors to "provide reasonable and adequate protection and safety" for their workers in accordance with established rules and regulations (see Comes v New York State Elec. and Gas Corp., 82 NY2d 876,878 [1993]; Ross, 81 NY2d at 503).

In order to support a claim pursuant to this section, a plaintiff must allege that a concrete and "specific" provision of the Industrial Code has been violated; an allegation that a "general safety" standard has been violated will not support a Labor Law §241(6) claim" (Rizzuto, 91 NY2d at 349-350; Ross, 81 NY2d at 505; Borowicz v International Paper Co., 245 AD2d 682, 684 [1997]).

Here, plaintiff admits that he did not previously allege any specific Industrial Code violation. However, he now seeks to amend his pleadings and assert that Industrial Code §§23-4.1, 23-4.2, 23-4.3 and 23-4.5 were violated. In support of this, plaintiff points out that "leave to amend the pleadings to so identify the relevant Code provision may properly be granted, even after the note of issue has been filed, where the plaintiff makes a showing of merit, and the amendment involves no new factual allegations, raises no new theories of liability, and causes no prejudice to the defendant" [*4](Galarraga v City of New York, 54 AD3d 308 (2008); see Dowd v City of New York, 40 AD3d 908 [2007]; Latino v Nolan & Taylor-Howe Funeral Home, 300 AD2d 631 [2002]; Kelleir v Supreme Indus. Park, 293 AD2d 513 [2002]). As plaintiff has previously asserted violations of various Administrative Code provisions dealing with the same issues and situations covered by the Industrial Code provisions asserted by plaintiff at this time, the court finds that plaintiff has put defendants on notice regarding the theory of liability in this case. Accordingly, to the extent that these regulations are applicable to the facts of the instant case, plaintiff is permitted to amend his pleadings to assert these Industrial Code violations.

The first regulation plaintiff contends was violated is 12 NYCRR 23-4.1 [a], entitled "General requirements," which provides:

"Stability of structures. Except in hard rock, whenever any excavation is to be performed in the vicinity of buildings, structures or utilities, the integrity, stability and structural adequacy of such buildings, structures or utilities shall be maintained at all times by the use of underpinning, sheet piling, bracing or other equivalent means to prevent damage to or failure of foundations, walls, supports or utility facilities and to prevent injury to any person. Such underpinning, sheet piling, bracing or equivalent means shall be inspected at least once each day or more often if conditions warrant. Every such inspection shall be conducted by an experienced, designated person.

It has been held that this Industrial Code provision is sufficiently specific to support a Labor Law §241 (6) violation (see Sainato v City of Albany, 285 AD2d 708 [2001]. However, this section "'appears to primarily be aimed at protecting against collapses [of structures] associated with a loss of stability created by the excavation'" (Scarso v M.G. Gen. Constr. Corp., 16 AD3d 660, 661 [2005] citing Sainato, 285 AD2d at 711). Here, there is no allegation that a structure collapsed, nor do the facts support a finding that such occurred. Accordingly, the court finds that this provision is not applicable to the facts of the instant case and plaintiff may not amend his pleading to assert a violation of this Industrial Code provision.

Plaintiff also alleges a violation of Industrial Code §23-4.3 which states that

ladders, stairways or ramps constructed in compliance with this Part (rule) shall be provided in every excavation more than three feet in depth for safe access and egress . . . Such ladders, stairways or ramps shall be installed in sufficient number and in such locations as to be readily accessible to any person wishing to enter or leave such excavation without more than 25 feet of lateral travel.

Again, it is not alleged that a ladder, stairway, or ramp, or lack thereof, caused plaintiff's accident. Thus, the court finds that any violation of this code provision was not the proximate cause of plaintiff's accident and thus this section is not applicable and cannot support a Labor Law §241 (6) claim. Accordingly, plaintiff may not amend his pleadings to assert a violation of this Industrial Code provision.

Additionally, plaintiff contends that Industrial Code §23-4.2 was violated. This section provides, in pertinent part, that any

excavation five feet or more in depth which has sides or banks with slopes steeper than those permitted in Table I of this Subpart, such sides or banks shall be provided with sheeting and shoring in compliance with this Part (rule) . . . Any trench or excavation in clay, sand, silt, loam or nonhomogeneous soil which has sides or banks more than three feet but less than five feet in depth shall be provided with side or bank protection in compliance with this Part (rule). [*5]

While this section has been held specific enough to support a Labor Law §241 (6) violation (see Davis v Manitou Constr. Co., 299 AD2d 927, 928 [2002]; Magnuson v Syosset Cmty. Hosp., 283 AD2d 404 [2001], the court finds that the pre-trial testimony is conflicting regarding the depth of the trench that plaintiff was working in. Plaintiff testified that the trench was approximately eight feet deep while Pergament's representative, Ms. Bevaqua, testified that "it was probably between three and a half and four feet deep."

In addition, the court finds that expert testimony would be necessary in order to establish the composition of the soil for the purposes of determining which 12 NYCRR 23-4.2 (a) specifications applied (see Monsegur v Modern Comfort Tech., 289 AD2d 307 [2001]). Based upon the foregoing, the court finds that there is a question of fact regarding the applicability of Industrial Code §23-4.2. and thus whether there has been a violation of said provision. As such, plaintiff may amend his pleadings and assert a violation of this Code provision.

Finally, plaintiff alleges that Industrial Code §23-4.5 was violated. This section sets forth specific requirements for timber bracing systems used in the sheeting and shoring of excavations and is thus specific enough to support a Labor Law §241 (6) violation (see Adamczyk v Hillview Estates Dev. Corp., 226 AD2d 1049 [1996]). However, as discussed above regarding the alleged violation of 23-4.2, questions of fact exist regarding the depth of the excavation in which plaintiff was working and whether shoring is required. Thus, questions of fact exist at this time regarding whether this Code provision was violated and can thus support a Labor Law §241 (6) cause of action. As such, plaintiff may amend his pleadings and assert a violation of this Code provision.

In light of the questions of fact regarding the applicability of Industrial Code §§ 23-4.2 and 4.5 and whether said provisions were violated, that branch of Pergament's motion seeking summary judgment dismissing plaintiff's claim as based upon Labor Law §241 (6) is denied.

Cross Claims for Contractual and Common Law Indemnification

Pergament also seeks summary judgment in its favor on its cross claims against AJS for contractual and common law indemnification or, in the alternative, summary judgment on its cross claims against New York for common law indemnification. It is well settled that "[a] party is entitled to full contractual indemnification [for damages incurred in a personal injury suit] provided that the intention to indemnify can be clearly implied from the language and purposes of the entire agreement and the surrounding facts and circumstances'" (Drzewinski v Atlantic Scaffold & Ladder Co., 70 NY2d 774 [1987]). Here, in support of its cross motion, Pergament points to the contract between AJS and Pergament. Section 3.18.1 of the contract provides that

the Contractor (AJS) shall indemnify and hold harmless the Owner (Pergament) . . . from and against claims, damages, losses and expenses, including but not limited to attorneys' fees, arising out of or resulting from performance of the Work, provided that such claim, damage, loss or expense is attributable to bodily injury, sickness, disease or death . . . , but only to the extent caused by the negligent acts or omissions of the Contractor, a Subcontractor, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, regardless of whether or not such claim, damage, loss or expense is caused by a party indemnified hereunder.

Pergament contends that New York was a subcontractor of AJS and was the entity that dug the hole that plaintiff was in at the time of the accident. Thus, Pergament argues, New York created the unsafe condition and AJS is contractually obligated to indemnify Pergament if it is found to be liable under plaintiff's Labor Law §241 (6) claim. [*6]

In opposition, AJS maintains that although New York was AJS' subcontractor, it was common for Pergament to deal directly with New York regarding water main breaks. AJS contends that there came a point when New York started to work directly for Pergament. However, in reply, Pergament points out that New York only worked directly for Pergament after AJS was no longer working at the site, which occurred after plaintiff's accident took place.

The indemnification provision in the contract between Pergament and AJS here is broad in that it clearly requires AJS to indemnify Pergament for all claims "arising out of, or resulting from the performance of the Work . . . but only to the extent caused by the negligent acts or omissions of Contractor [AJS], a Subcontractor or anyone directly or indirectly employed by them . . ."

Accordingly, as the court has found that any liability that Pergament may have for plaintiff's Labor Law §241 (6) claim would be solely based upon its status as an owner, the above-referenced indemnity provision is enforceable, and Pergament is entitled to a conditional order of summary judgment on its contractual indemnity third-party claim against AJS (see Tkach v City of New York, 278 AD2d 227, 229 [2000]; Pope v Supreme-K.R.W. Constr. Corp., 261 AD2d 523 [1999]).

Common Law Indemnification

Pergament also seeks summary judgment in its favor on its common-law indemnification cross claims asserted against AJS. In order to obtain common-law indemnity against a party, the claimant must prove that "the proposed indemnitor was guilty of some negligence that caused or contributed to the accident or, in the absence of any negligence, that the proposed indemnitor had the authority to direct, supervise, and control the work giving rise to the injury" (Mid-Valley Oil Co., Inc. v Hughes Network Sys., Inc., 54 AD3d 394, 395-396 [2008]; see also Perri v Gilbert Johnson Enterprises, LTD., 14 AD3d 681, 685 [2005]). Here, as will be discussed below, the court has determined that AJS was not negligent and did not otherwise control or supervise plaintiff's work. Accordingly, that branch of Pergament's motion seeking summary judgment on its claim for common-law indemnification from AJS is denied.

AJS' Cross Motion

AJS cross moves for summary judgment in its favor dismissing plaintiff's claims under common law negligence and Labor Law §§200 and 241 (6) and defendants' cross claims; or in the alternative (2) granting summary judgment on its cross claims against New York for contractual and common law indemnification.

AJS argues that plaintiff's Labor Law §200 and common law negligence claims should be dismissed as asserted against it because it did have the requisite degree of supervision and control over the injury producing activity. AJS points out that the accident occurred in the evening and that no one from AJS was on the site at that time and thus could not have been supervising or directing plaintiff's work.

In opposition, plaintiff claims that a representative of AJS was present at the time of the accident. However, the court notes that plaintiff's pretrial testimony contradicts this, inasmuch as he testified that his accident occurred between 11:00 and 12:00 in the evening, and that the only people present were his two helpers and his supervisor Michael Burt from MB Mechanical.

Additionally, New York opposes this branch of AJS' cross motion arguing that Pergament's representative testified that she was present and witnessed the accident, that she believed that the accident occurred in the late afternoon and that someone from AJS was present when the accident [*7]occurred. New York further argues that AJS s representative, Anthony Sclafani, testified that AJS was responsible for the safety conditions on the site.

As discussed above, 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]). The right to generally supervise the work, to stop the contractor's work if a safety violation is noted, or to ensure compliance with safety regulations does not amount to the supervision and control of the work site necessary to impose liability on an owner or general contractor pursuant to Labor Law § 200 (Dennis v City of New York, 304 AD2d 611, 612 [2003]; see also McLeod v Corporation of Presiding Bishop of Church of Jesus Christ of Latter Day Saints, 41 AD3d 796, 797-798 [2007].

Here, the record reveals that AJS did not create the injury producing condition and failed to exercise the requisite degree of supervision and control necessary to impose liability. Accordingly, that branch of AJS' cross motion seeking summary judgment dismissing plaintiff's Labor Law §200 and common law negligence claim as asserted against AJS is granted.

AJS also seeks dismissal of plaintiff's Labor Law §241 (6) claim. As the court has found that questions of fact exist regarding whether Industrial Code §§ 23-4.2 and 4.5 were violated and can thus support a Labor Law §241 (6) cause of action that branch of AJS' cross motion seeking summary judgment dismissing this cause of action against AJS is denied.

Finally, AJS seeks summary judgment on its claims for contractual and common law indemnification asserted against New York. AJS argues that New York created the trench in which plaintiff was working and that collapsed onto him causing his injuries. In order to establish a claim for common-law indemnification "the one seeking indemnity must prove not only that it was not guilty of any negligence beyond the statutory liability but must also prove that the proposed indemnitor was guilty of some negligence that contributed to the causation of the accident" (Correia v Professional Data Mgmt., 259 AD2d 60, 65[1999]; see Mid-Valley Oil Co., Inc. v Hughes Network Sys., Inc., 54 AD3d 394, 395-396 [2008]; Perri v Gilbert Johnson Enterprises, LTD., 14 AD3d 681, 685 [2005] or "in the absence of any negligence" that the proposed indemnitor "had the authority to direct, supervise, and control the work giving rise to the injury" (Hernandez v Two E. End Ave. Apt. Corp., 303 AD2d 556, 557 [2003]; see also Kelly v City of New York, 32 AD3d 901 [2006]; Coque v Wildflower Estates Developers, Inc., 31 AD3d 484 [2006]; Perri, 14 AD3d at 684-685). Where more than one party might be responsible for the accident, summary judgment granting indemnification against one party is improper (see Freeman v National Audubon Soc'y, 243 AD2d 608, 609 [1997]).

Here, the court finds that any liability that AJS might have would be purely statutory and that there are questions of fact regarding whether New York's negligence caused or created the condition leading to plaintiff's accident. Accordingly, that branch of AJS's motion seeking summary judgment on its claim for common law indemnification from New York is denied. Similarly, that branch of AJS' cross motion seeking summary judgment on its claim for contractual indemnification is denied. A careful reading of the purchase order between AJS and New York reveals that it does not contain a contractual indemnification provision.

New York's Cross Motion[*8]

New York cross-moves for summary judgment in its favor dismissing plaintiff's claims and AJS' cross claims. With respect to the plaintiffs' cause of action alleging common-law negligence and a violation of Labor Law §200,

New York contends that there is no evidence that New York negligently performed its duties at the site.

As discussed above, the court finds that the pre trial testimony raises a triable issue of fact as to whether the pit in which plaintiff was working, which was excavated by New York, needed to be shored or braced, and thus, whether New York was negligent in its performance of work at the site creating an unreasonable risk of harm that was the proximate cause of the injured plaintiff's injuries (see Dunham v Hilco Constr. Co., 89 NY2d 425, 429 [1996];Marano v Commander Elec., Inc., 12 AD3d 571, 572-573 [2004]; Mennerich v Esposito, 4 AD3d 399, 401 [2004]; Davis v Manitou Constr. Co., 299 AD2d 927 [2002]; Ryder v Mount Loretto Nursing Home, 290 AD2d 892 [2002]; Goettelman v Indeck Energy Servs. of Olean, 262 AD2d 958, 959 [1999]). Accordingly, the court finds that New York has not sustained its burden of establishing that it did not supervise or control the excavation which caused the plaintiff's injury (Mennerich v Esposito, 4 AD3d 399, 401 [2004]; see Farrington v Bovis Lend Lease LMB, Inc., 51 AD3d 624 [2008]; Mennerich , 4 AD3d at 399; Crespo v Triad, Inc., 294 AD2d 145, 146 [2002]; Everitt v Nozkowski, 285 AD2d 442, 443 [2001]; Kim v Herbert Constr. Co., 275 AD2d 709, 713 [2000]). Accordingly, that branch of New York's cross motion seeking dismissal of plaintiff's common law negligence claim against New York is denied.

New York also seeks dismissal of plaintiff's Labor Law §241 (6) claims as asserted against it. However, the court notes that where, as here, liability is predicated on a hazardous condition of the work site premises, rather than plaintiff's work methods, a defendant subcontractor is liable for injuries caused by a hazardous condition in the area of the work delegated to the subcontractor and over which it had authority (see Russin v Louis N. Picciano & Son, 54 NY2d 311, 318 (1981); Morales v Spring Scaffolding, Inc., 24 AD3d 42, 46-47 [2005]; Smith v McClier Corp., 22 AD3d 369, 371 [2005]; Piazza v Frank L. Ciminelli Constr. Co., Inc., 12 AD3d 1059, 1060 [2004]). As discussed above, the court finds that plaintiff has asserted specific Industrial Code provisions, sufficient to support a Labor Law §241 (6) cause of action, however, there are questions of fact regarding whether said provisions were violated. Accordingly, that branch of New York s cross motion seeking dismissal of plaintiff's Labor Law §241 (6) motion is denied.

New York's cross motion also seeks dismissal of AJS' cross claims for contractual and common law indemnification. For the reasons stated above, that branch of New York's cross motion seeking dismissal of AJS's cross claim for contractual indemnification is granted and that branch that seeks dismissal of the claim for common law indemnification is denied.

The foregoing constitutes the decision and order of the court.

E N T E R,

J. S. C. Footnotes

Footnote 1:The court notes that plaintiff concedes that Labor Law §§240 (1) and 241-a are not applicable to the facts of his case.