Haynes v AAA Architectural Hardware Co.

[*1] Haynes v AAA Architectural Hardware Co. 2009 NY Slip Op 50219(U) [22 Misc 3d 1122(A)] Decided on February 2, 2009 Supreme Court, New York County Kornreich, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 2, 2009
Supreme Court, New York County

Gary E. Haynes, Plaintiff,

against

AAA Architectural Hardware Co., AAA KEYLOCK CO., INC., d/b/a AAA HARDWARE DISTRIBUTION, INC., and THYSSENKRUPP ELEVATOR CORPORATION as successor in interest and/or d/b/a DOVER ELEVATOR, Defendants,



111570/2005

Shirley Werner Kornreich, J.

Motion sequences 009 and 010 are hereby consolidated for disposition.

Motions before the Court

In this action for personal injuries, defendant/third-party plaintiffs AAA Architectural Hardware Co. and AAA Keylock, Inc. (collectively, AAA), move in motion sequence 009 to reargue a decision of a former Justice of the Supreme Court, dated January 2, 2008 and entered on January 7, 2008 (Decision). The Decision: 1) granted a motion by defendant/third-party defendant, Thyssenkrupp Elevator Corporation (Thyssen), to dismiss AAA's cross-claims against Thyssen based upon the anti-subrogation doctrine contained in North Star Reins. Corp. v. Continental Ins. Co., 82 NY2d 281 (1993); and 2) granted Thyssen's motion to dismiss AAA's cross-claims as barred by Workers' Compensation Law §11, on the ground that AAA had not [*2]sustained its burden of proving "grave injury." The original motion by Thyssen also asserted that it was entitled to dismissal of AAA's cross-claims on the following grounds: equitable estoppel, inapplicability of the Labor Law, and improper pleading of a breach of contract as a tort. The Decision did not reach these issues because it dismissed AAA's cross-claims based on anti-subrogation and Workers' Compensation Law §11.

Plaintiff cross-moves in motion sequence 009 for leave to extend his time to file a note of issue and to compel discovery.

Thyssen cross-moves in motion sequence 009 to dismiss AAA's cross-claims based upon all of the grounds asserted in its original motion.

In motion sequence 010, AAA moves, pursuant to CPLR 3211(a)(4) to dismiss Thyssen's cross-claims [FN1] against it, on the ground that they are the subject of a declaratory judgment action, entitled Thyssenkrupp Elevator Corp. v. Fireman's Fund Ins. Co. et al., Sup. Ct. NY Co. Index No. 107559/07 (DJ Action), pending in this court before Justice Edward Lehner.

Background

Plaintiff, Gary Haynes, an employee of Thyssen, was injured on June 6, 2005, while replacing a hydraulic jack, an elevator component, in a building located at 44 West 46 St., New York, NY, which was owned by AAA. AAA hired Thyssen to do the work, pursuant to a written contract, dated January 8, 2005 (Contract). Thyssen replaced the hydraulic jack after AAA had taken the elevator in June 2003, two years before the accident. The cost of the job was $68,000.00. David Mann, who was Thyssen's service repair supervisor in 2005, testified that a job of this nature takes two to five weeks to complete.

The amended complaint asserts causes of action against AAA and Thyssen, as successor in interest to Dover Elevator Company (Dover), for common law negligence and violations of Labor Law §§ 200, 240(1), 241(6) and 241-a. In its answer to the amended complaint, AAA asserted cross-claims against Thyssen for: 1) common law contribution and indemnification and 2) breach of contract.

Plaintiff's bill of particulars alleges that he was struck in the head by an improperly secured "large metal plate, platen plate or piston head while he was standing in the elevator pit during the performance of work, labor, alteration , renovations, construction , demolition, services and repairs...." It also alleges that defendants failed to properly design and install the elevator, the elevator pit, the elevator shaft and the object that allegedly struck plaintiff.

David Mann has appeared for a deposition on behalf of Thyssen, but the record contains only excerpts of his testimony, which appear to omit some of his responses to questions regarding the nature of the work to be performed pursuant to the Contract (pages 88 through 162, as well as other pages, are missing). He testified that the parts of the hydraulic jack include a cylinder, a plunger and a jack piston. Mann EBT, p. 75. He did not know how the accident happened (Id. at195, but he did indicate that the job involved lowering a piston into the pit (Id. at 162 and 198). Mr. Mann also testified that sometimes elevators are designed so that the platen [*3]plate is bolted to the piston, but other times it is not. Id. at 165. AAA's elevator was designed to be bolted. Id.

Plaintiff's deposition also is not reproduced in full. However, he did testify that replacing the hydraulic jack required the old jack to be disassembled and hoisted out of the pit with a chain, after which the new jack would be hoisted up. Plaintiff's EBT, pp. 252-254.

Plaintiff's alleged injuries include traumatic, permanent brain injury, a misshapen skull caused by a fracture, facial scarring and a facial droop that causes permanent squinting of the left eye. Photographs provided by plaintiff show a misshapen skull and some scarring. However, in one photograph, where plaintiff's hair had grown back, the skull asymetry is less visible. Nor do the photographs depict plaintiff squinting.

It is undisputed that plaintiff has no recollection of the accident, but that it occurred when he was working in the pit with a co-worker, Kenny Fulfaro, who has yet to appear for his deposition. That deposition was ordered by this court in September 2008. In addition, the same order directed the deposition of Thyssen's regional safety supervisor for the work, David Smith, which has not taken place. David Mann testified that he thought that Mr. Smith was on the site on the day of the accident. Mann EBT, p. 193.

The elevator in question originally was installed in June of 1984 by Dover. According to the affidavit of Thyssen's Senior Payroll Coordinator, Mary Wagner, Dover changed its name to Thyssen Elevator Company in 1999 and in 2001 the company changed its name to Thyssenkrupp Elevator Corporation. Ms. Wagner's affidavit further states that plaintiff submitted an employment application to Dover in 1998 and began working for Dover in July of that year. She annexes copies of plaintiff's employment application and federal W-2 forms for the years 1998 through 2005, which reflect the employer's name changes. The record does not contain any documents, testimony or affidavit by a person with knowledge of the facts on the issue of whether Thyssen did or did not assume the liabilities of Dover.

In the Contract, AAA agreed to indemnify Thyssen against: any and all claims, demands, suits and proceedings brought against Thyssenkrupp Elevator or our employees, including but not limited to loss, damage, injury or death that are alleged to arise from the negligence of Purchaser [AAA] or any others in connection with the presence, use, misuse, maintenance, installation, removal, manufacture, design, operation or condition of the equipment covered by this agreement or the associated areas surrounding such equipment. Your duty to indemnify does not apply to claims or losses determined to be caused by or resulting from the joint or sole negligence of Thyssen Krupp Elevator or our employees. You recognize that your obligation to Thyssenkrupp Elevator under this clause includes payment of all attorney's fees, court costs, judgments, settlements, interest and any other expenses of litigation arising out of such claims or lawsuits.

In addition, in the next paragraph of the Contract, AAA agreed to procure insurance: You expressly agree to name Thyssenkrupp Elevator as additional insured in your liability and any excess (umbrella) liability insurance policy (ies). Such insurance must insure us for those claims or losses referenced in the above paragraph, and [*4]for claims or losses arising from the sole negligence of Thyssenkrupp Elevator or our employees. You hereby waive the right of subrogation.

AAA purchased a commercial general liability policy from Fireman's Fund Insurance Companies (Fireman's) for the period February 5, 2005 through February 5, 2006 (Policy), as well as umbrella coverage issued by a Fireman's affiliate for the same period. The Policy did not name Thyssen as an additional insured. However, Thyssen contends, in this action and in the DJ Action before Justice Lehner, that Thyssen is an additional insured under Fireman's Policy based upon the following endorsement:

Any person or organization is included as an additional insured, but only to the extent that such person or organization is held liable for bodily injury ... caused your acts or omissions.

The Policy excludes indemnification for bodily injuries that the insured agreed to assume by contract, but excludes from the exclusion the following: This exclusion does not apply to liability for damages: ... (1) Assumed in a contract or agreement that is an insured contract.

An "insured contract" is defined in the Policy as: That part of any ... contract .... pertaining to your business ... under which you assume the tort liability of another party to pay for bodily injury ... to a third person .... Tort liability means a liability that would be imposed by law in the absence of any contract or agreement.

The umbrella policy provides coverage for anyone insured under the primary Policy.

On October 31, 2006, Fireman's disclaimed coverage on the grounds that plaintiff's accident arose from the negligence of Thyssen and late notice.

Procedural History

An April 3, 2007 decision (Prior Decision) granted plaintiff's motion to amend his complaint to add a direct claim against his employer, Thyssen. The Prior Decision held that plaintiff had stated a cause of action against Thyssen because plaintiff alleged that Thyssen "bought the assets and liabilities of Dover." Hence, the court ruled that this was sufficient to bring plaintiff's claims within the rule of Billy v. Cons. Machine Tool Corp., 51 NY2d 152 (1980)(exclusive provisions of Workers' Compensation Law inapplicable where employer's liability arises solely from assumption by contract of obligations and liabilities of third-party tortfeasor).

Following the Prior Decision, the parties engaged in some discovery proceedings, but the witness produced by Thyssen on January 24, 2008, had no knowledge of the corporate relationship between Dover and Thyssen. EBT of David Mann, pp. 11-12.

The motion that resulted in the Decision that AAA now moves to reargue was not a motion for summary judgment. Nor did the court notify the parties that it would be treated as a motion for summary judgment, pursuant to CPLR 3212(c). Thyssen agrees that it sought [*5]dismissal, not summary judgment. Reply Affirmation of John T. McNamara, dated September 16, 2008, ¶¶ 3 and 6.

On November 14, 2007, Justice Lehner denied AAA's motion to dismiss the complaint against it in the DJ Action. AAA had moved on the ground that the same claims are pending against it in this action. Justice Lehner denied the motion because Fireman's was not a party to this case and suggested that the overlapping claims be withdrawn or dismissed by way of a motion herein.

In September 2008, this court ordered the depositions of plaintiff's co-worker, Kenny Fulfaro, and Thyssen's regional safety supervisor, David Smith. Thyssen notified plaintiff that the safety supervisor has not been employed by Thyssen since January 23, 2007. In August 2008, Thyssen provided Mr. Smith's last known address in Pennsylvania. Fulfaro and Smith have not been deposed. Hence, plaintiff has not had an opportunity to adduce the facts surrounding the accident in discovery.

Discussion

I. Motion Seq. 010

A. Dismissal of Thyssen's Claims that Duplicate its Claims in the DJ Action

Thyssen's third cross-claim against AAA is dismissed as it is identical to the fourth cause of action against AAA in the DJ Action. Both claims seek to recover damages, including attorneys' fees and costs, for AAA's failure to procure insurance for Thyssen.

In addition, Thyssen's fourth cross-claim against AAA, which seeks defense costs incurred by Thyssen in this action is dismissed as well. This cause of action duplicates the damages recoverable in the DJ Action's fourth cause of action for failure to procure insurance. Where a party fails to obtain insurance that it was obligated to obtain pursuant to a contract, it can be held liable for the full amount of the underlying liability, plus defense costs. Inchaustegui v. 666 5th Ave. Ltd. P'ship, 96 NY2d 111, 114 (2001). Thyssen's fourth cross-claim, insofar as it seeks attorneys' fees and costs incurred by Thyssen for defense of this case on the theory of contractual indemnification, duplicates the relief sought by its second cross-claim for contractual indemnification. It is not necessary to maintain a separate claim for attorneys' fees.

B. Standard for Motions to Reargue and to Dismiss

Reargument should be granted where the movant demonstrates that the court "misconstrued relevant facts or misapplied governing law." DeSoignies v. Cornasesk House Tenants' Corp., 21 AD3d 715, 718 (1st Dept. 2005). AAA's motion to reargue is granted.

On a motion to dismiss, the facts alleged in the complaint are accepted as true and the plaintiff is entitled to the benefit of every favorable inference. Rovello v. Orofino Realty Co., 40 NY2d 633, 634 (1976); Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Wise Metals Group, LLC, 19 AD3d 273, 275 (1st Dep't. 2005).Affidavits and other evidence may be freely used to preserve inartfully pleaded claims. R.H. Sanbar Projects, Inc. v. Gruzen Partnership, 148 AD2d 316 (1st Dep't 1989).

C. Dismissal Based upon Anti-Subrogation

The third-party action should not have been dismissed based upon the anti-subrogation doctrine because, as noted in the Decision sought to be reargued, it cannot be determined as a matter of law that Thyssen was insured by Fireman's. The public policy behind the anti-subrogation rule is to prevent an insurer from representing conflicting interests where it is called [*6]upon to defend or indemnify two insureds who are covered under the same policy for the same risk. North Star Reins. Corp. v. Continental Ins. Co., 82 NY2d 281, 293 (1993).The reason for the rule is that an insurer should not be in a position where, at the peril of one of its insureds, it can manipulate the litigation so as to minimize its liability or trigger the coverage of another policy. National Union Fire Ins. Co. v. State Ins. Fund, 222 AD2d 369, 371 (1st Dep't 1995)(anti-subrogation rule does not apply where insurer does not have opportunity to manipulate or control litigation to detriment of its insured); Kazmierczak v. Town of Clarence, 292 AD2d 846 (4th Dep't 2002)(anti-subrogation rule inapplicable where third-party plaintiff and third-party defendant not insured by same insurer for same risk).

In this case, the Decision noted that there is an issue of fact as to whether Thyssen is insured under the Policy and, therefore, it cannot be said that AAA's cross-claims against Thyssen are being pursued against Fireman's own insured. The Policy provides additional insured coverage for acts arising out of AAA's negligence, but it has not been determined that AAA was negligent. The Policy also provides coverage for liability resulting from an "insured contract," for tort liability that would exist in the absence of a contract or agreement. Again, that would require a finding that AAA was negligent in some manner, which has not occurred.

Although AAA agreed in the Contract to indemnify Thyssen, that agreement does not govern the terms of the Policy, which is an agreement between AAA and Fireman's. The four corners of an insurance contract determine the coverage it provides. Sixty Sutton Corp. v. Illinois Union Ins. Co., 34 AD3d 386 (1st Dep't 2006). The insurer is a party to the insurance contract and must agree to the coverage for it to be enforceable. Stainless, Inc. v. Employers Fire Ins. Co., 69 AD2d 27, 34 (1st Dep't 1979), aff'd 49 NY2d 924 (1980). It is not enough that one of the parties to the insurance contract and a third person agree that the latter should be a beneficiary. Id. In this case, although AAA agreed to obtain insurance for Thyssen, a third party to the insurance contract between AAA and Fireman's, the Policy evinces Fireman's intention only to cover liabilities arising out of AAA's negligence. In addition, there is an unresolved issue pending in the DJ Action regarding whether Fireman's received timely notice of the claim.

Accordingly, upon reargument, this court vacates the Decision insofar as it dismissed AAA's cross-claims against Thyssen as barred by the anti-subrogation doctrine. It was internally inconsistent for the Decision to find that there was an issue of fact as to whether AAA's acts or omissions were involved and then to dismiss the cross-claims based upon anti-subrogation. The issue of fact needs to be resolved before it can be determined whether Thyssen is Fireman's insured under the Policy. In addition, the court notes that the Decision refers to summary judgment based upon anti-subrogation doctrine, when the motion was for dismissal.

D. Dismissal based upon Workmen's Compensation Law §11

The Decision held that AAA had the burden of proving that plaintiff had suffered a "grave injury," and therefore had failed to raise a triable issue of fact as to whether a claim against his employer, Thyssen, was permissible. AAA's motion to reargue this prong of the Decision is granted because Thyssen's motion was not for summary judgment and even if it were, it would have been Thyssen's burden of proof to demonstrate by competent medical evidence that plaintiff's injuries were not grave. Altonen v. Toyota Motor Credit Corp., 32 AD3d 342, 344 (1st Dep't 2006). Section 11 provides that the a third-party claim against an employer is permissible where the plaintiff has sustained severe facial disfigurement or acquired injury to the brain [*7]caused by an external physical force resulting in permanent total disability.

The Court of Appeals has ruled that with respect to a brain injury, there must be proof of "unemployability in any capacity." Rubeis v. Aqua Club Inc., 3 NY3d 408, 417 (2004). Thyssen presented no medical evidence on its motion in chief relating to whether plaintiff was employable. The only proof it submitted was plaintiff's deposition, in which he testified that he could "foresee" himself operating a construction elevator and that he was going to contact his union to see if that were possible. This was not competent medical proof.

AAA also claims that plaintiff's facial disfigurement is grave. Severe facial disfigurement is an injury that alters the plaintiff's natural beauty, symmetry or appearance, or otherwise deforms the face so that a reasonable person would regard the condition as abhorrently distressing, highly objectionable, shocking or extremely unsightly. Fleming v. Graham, 10 NY3d 296, 301-302 (2008). Thyssen offered no proof other than plaintiff's bill of particulars to demonstrate that the disfigurement was not severe.

Lastly, the Decision on §11 was inconsistent with the Prior Decision that plaintiff could assert a claim directly against Thyssen on the ground that plaintiff alleged that Thyssen acquired the liabilities of Dover, a separate entity. Billy v. Cons. Machine Tool Corp., 51 NY2d 152 (1980)(exclusive provisions of Workers' Compensation Law inapplicable where employer's liability arises solely from assumption by contract of obligations and liabilities of third-party tortfeasor). Although Thyssen presented an affidavit by its Senior Payroll Coordinator, Mary Wagner, stating that Dover merely changed its name to Thyssen, it did not produce documentation to prove that there was no assumption of liabilities and its deposition witness, Mr. Mann, testified that he had no knowledge of the corporate relationship between Dover and Thyssen. In addition, the facts relating to how the accident happened, which might bear on the original design and installation of the elevator by Dover, have not been fully explored in discovery, as Thyssen's eye-witnesses have not been produced.

For all of the foregoing reasons, upon reargument, Thyssen's motion to dismiss AAA's cross-claims based upon Workers' Compensation Law §11 is denied without prejudice to its right to move for summary judgment based upon that provision at the close of discovery.

E. Estoppel to Assert the Cross-Claims

It is necessary to reach the other bases for Thyssen's original motion to strike AAA's cross-claims, as the rulings made in the Decision are no longer dispositive.

Thyssen's original motion asserted that because AAA failed to obtain insurance, in breach of the Contract, it is estopped to assert cross-claims for indemnification and contribution in the event that Thyssen is found to be negligent. Thyssen argues that to permit AAA to assert the cross-claims is to allow it to benefit from its own wrong, citing Fundamental Portfolio Advisors, Inc. v. Tocqueville Asset Mgmt., L.P., 7 NY3d 96 (2006) and BWA Corp. v. Alltrans Express U.S.A., Inc., 112 AD2d 850 (1st Dep't 1985).

The elements of a claim for estoppel are: (1) a false representation by the defendant or concealment of material facts, or, at least, conduct calculated to convey the impression that the facts are otherwise than and inconsistent with, those which the party subsequently seeks to assert; (2) intention, or at least expectation, that such conduct will be acted upon by the other party; and, (3) in some situations, knowledge, actual or constructive, of the real facts. BWA Corp. v. Alltrans Express U.S.A., Inc., supra at 853. The party asserting estoppel must show with respect [*8]to himself: (1) lack of knowledge of the true facts; (2) reliance upon the conduct of the party estopped; and (3) a prejudicial change in his position. Id. Estoppel cannot be invoked where each of the parties had equal means of ascertaining the true facts. Goldberg v. Colonial Life Ins. Co., 284 A.D. 678, 681 (1st Dep't 1954).

Here, estoppel does not lie. Thyssen relies on AAA's contractual promise alone to establish that AAA misrepresented that it had obtained insurance covering Thyssen. Hence, Thyssen is not alleging a post-contractual misrepresentation, but rather a breach of contract claim. Estoppel also does not lie because Thyssen had equal means of discovering the facts by requesting a copy of the promised policy. Thyssen is essentially arguing that AAA's cross-claims would allow it to recover back what Thyssen is entitled to recover for breach. Thyssen has asserted a claim for breach of contract for failure to procure insurance, by which it can recoup its damages from AAA. Moreover, Thyssen claims in the DJ Action that it is insured by the Fireman' Policy. That issue is before Justice Lehner in the DJ Action, not before this court. If Thyssen is correct, AAA did procure insurance and there was no breach. Additionally, one of the grounds for Fireman's disclaimer is that Thyssen failed to give timely notice to the insurer. In the event that Justice Lehner upholds Fireman's disclaimer for late notice, AAA would not be profiting from its own wrong.

Lastly, neither the indemnification clause nor the insurance clause required AAA to procure insurance for Thyssen's partial negligence and, as that factual issue is unresolved, Thyssen's motion must be denied. AAA was not required to indemnify Thyssen for "claims or losses resulting from the joint or sole negligence of Thyssen," and AAA's insurance obligation was to insure Thyssen for claims arising from Thyssen's sole negligence and "for those claims or losses referenced in above paragraph" containing the indemnification clause, i.e., for AAA's negligence. Hence, there is no contractual agreement barring AAA from seeking contribution for Thyssen's partial negligence, even if the Fireman's Policy does not cover Thyssen for reasons other than lack of notice by Thyssen. It is possible that if both AAA and Thyssen are found to be negligent, Thyssen could be entitled to partial contractual indemnification only. Brooks v. Judlau Contracting, Inc., 11 NY3d 204 (2008).

F. Cross-Claims Improperly Recast Breach of Contract as Torts

Even where the parties have entered into a contract, a separate cause of action for tort can exist where there is a violation of a "legal duty independent of the contract itself." Clark-Fitzpatrick, Inc. v. L.I.R.R., 70 NY2d 382, 389 (1987). AAA's claims for indemnification and contribution allege that Thyssen caused plaintiff's injuries in whole or in part. AAA may assert a claim for contribution and indemnification against Thyssen because those claims are based upon Thyssen's alleged breach of its common law and statutory duties to use due care to protect plaintiff from injuries.

Contribution lies where the contributing party had a part in causing or augmenting the injury for which contribution is sought. Raquet v. Braun, 90 NY2d 177, 183 (1997). Contribution is available whether or not the culpable parties are allegedly liable for the injury under the same or different theories, and the remedy may be invoked against concurrent, successive, independent, alternative and even intentional tortfeasors. Id. Similarly, the key element of a common-law cause of action for indemnification is liability that arises from the principle that every one is responsible for the consequences of his own negligence, and if another [*9]person has been compelled to pay the damages which ought to have been paid by the wrongdoer, they may be recovered from him. Id.

Thus, AAA's contribution and indemnification claims arise from Thyssen's alleged negligence in causing plaintiff's injuries, a tort liability. The claims are not based on Thyssen's breach of the Contract with AAA.

G. Applicability of the Labor Law

Plaintiff's bill of particulars cited violations of Labor Law §§ 200, 240(1), 241(6) and 241-a. Thyssen's motion seeks dismissal as a matter of law of AAA's cross-claims to the extent that they are predicated on those statutes, on the ground that the Labor Law does not apply to this case as a matter of law. Thyssen claims that repairs are not covered under these statutes.

Labor Law 240(1) applies to the "erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure." Repairs are included, even if they do not take place at a construction site, so long as they are not "routine maintenance." Izrailzev v. Ficara, 70 NY2d 813 (1987)(repair of electrical sign); Esposito v. N.Y.C. Indus. Dev. Agency, 1 NY3d 26 (2003)(240(1) applies to repairs that are not routine maintenance); Joblon v. Solow, 91 NY2d 457, 463-464 (1998)(repairs that are not routine maintenance). The statute applies to workers who are engaged in repairing an elevator that is out of service. Spiteri v. Chatwal Hotels, 247 AD2d 297, 298 (1st Dep't 1998). AAA's principal, Richard Ira Brown, testified that the elevator was out of service for two years before plaintiff came to repair it. EBT AAA by Richard Ira Brown, p. 41.

Section 240(1) does apply to protect workers from the fall of unsecured materials or loads, where it is foreseeable that they may fall on a worker. Outar v. City of NY, 5 NY3d 731 (2005); Buckley v. Columbia Grammar Prepatory, 44 AD3d 265 (1st Dep't 2007)(test is whether there is foreseeable gravity related risk to laborer of falling object that ought to be secured). Thyssen's motion based upon Labor Law 240(1) is denied because there are allegations that the object that fell on plaintiff was part of an unsecured hydraulic jack located at an elevation level above plaintiff. It is clear that hoists were involved in moving the load. As plaintiff's co-worker and Thyssen's former regional safety manager have not testified as to how the accident occurred, it would be premature to dismiss the Labor Law 240(1) claim as a matter of law at this juncture.

Thyssen is correct that Labor Law 241(6) applies only to injuries arising in the context of construction, demolition, or excavation in a building or structure. Esposito v. N.Y.C. Indus. Dev. Agency, supra; Spiteri v. Chatwal Hotels, supra. Similarly, Labor Law 241-a applies only to workers engaged in construction and demolition. Nevins v. Essex Owners, Corp., 259 AD2d 384, 385 (1st Dep't 1999). AAA's deposition witness admitted that the work was the replacement of a hydraulic jack only, and the Contract refers to a repair. However, based upon the testimony adduced so far, the two to five week job on an elevator that had not worked for two years involved construction. See, Franco v. Jay Cee of NY Corp., 36 AD3d 445 (1st Dep't 2007); Riccio v. NHT Owners, LLC, 51 AD3d 897, 899 (2d Dep't 2008). Accordingly, AAA's cross-claims against Thyssen based upon violations of Labor Law 241(6) and 241-a are not dismissed.

Finally, the cross-claims are sustainable to the extent that they seek recovery based upon Labor Law 200, which codifies the common law duty of general contractors, who supervise, direct or control the work, to provide a safe work place. Nevins v. Essex Owners, Corp., supra at 316. Liability under §200 can attach where repairs are made in a location that is not a [*10]construction site. Lanzilotta v. Lizby Assocs., 216 AD2d 229, 230 (1st Dep't 1995)(elevator repair); Wein v. Amato Props., LLC, 30 AD3d 506 (2d Dep't 2006)(repair of boiler); Cocchia v. Rapid Addressing Machine Co., 223 NY 628 (1918)( repair of machine in factory). Here, there is no question that Thyssen directed and controlled plaintiff's work.

H. Motion to Extend Note of Issue and Compel Disclosure

Plaintiff is entitled to further disclosure and an extension of time to file the note of issue. A schedule will be set at the disclosure conference ordered by this decision. Accordingly, it is

ORDERED that AAA's motion (sequence 010) is granted solely to the extent that Thyssen's third and fourth cross-claims against AAA in Thyssen's answer to the amended complaint are dismissed because they duplicate claims pending in another action in this court, and in all other respects the motion is denied; and it is further

ORDERED that AAA's motion (sequence 009) to reargue Thyssen's motion to dismiss AAA's cross-claims is granted and, upon reargument, this court's Decision dated January 2, 2008 and entered on January 7, 2008 is hereby vacated, and Thyssen's cross-motion to dismiss AAA's cross-claims against it is denied in its entirety; and it is further

ORDERED that plaintiff's cross-motion (sequence 009) to extend his time to file a note of issue and to compel discovery is granted to the extent that the parties are directed to appear for a disclosure conference on February 19, 2008 at 9:30 a.m., in Part 54, Room 1227, of the courthouse located at 111 Centre Street, New York, NY, at which time the note of issue date will be extended, and needed discovery will be scheduled; and it is further

ORDERED that pending the conference, there is no stay of disclosure.

Dated: February 2, 2009ENTER:

________________________________

J.S.C. Footnotes

Footnote 1: Thyssen's claims against AAA originally were asserted as counter-claims in the third-party action. After plaintiff amended the complaint to name Thyssen as a direct defendant, Thyssen's third-party counter-claims were reasserted as cross-claims in its answer to the amended complaint.