Ficalora v Ciampa 162 LLC

[*1] Ficalora v Ciampa 162 LLC 2009 NY Slip Op 50386(U) [22 Misc 3d 1131(A)] Decided on March 9, 2009 Supreme Court, Richmond County McMahon, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 9, 2009
Supreme Court, Richmond County

Mario Ficalora, Plaintiff,

against

Ciampa 162 LLC, Defendant(s).



100542/2007

Judith N. McMahon, J.

On February 22, 2005, the plaintiff fell off a ladder and sustained personal injures in his capacity as the electrical foreman at defendant CIAMPA 162 LLC's [hereinafter "CIAMPA"] premises located at 89-44 162nd Street, in Queens County, New York. At the time of the accident the plaintiff was employed by third-party defendant RICO Electric Inc., [hereinafter "RICO"][FN1] who was hired by defendant/third-party plaintiff CIAMPA to perform electrical work on the aforementioned project site in Queens. The facts are essentially undisputed, in that, at the time of the accident, the plaintiff placed an unsecured ladder on an uneven surface on the sixth floor of the building to drill a hole for cable wire. As the plaintiff was drilling the hole the drill came into contact with rebar and caused the drill to spin. This caused the plaintiff and the ladder to shake and fall.

The plaintiff commenced this action on January 11, 2007, for damages sustained as a result of the fall. Issue was joined and discovery is complete. Presently, third-party defendant RICO is moving for summary judgment seeking to dismiss the third-party complaint on the ground that, inter alia, no indemnity agreement exists between itself and defendant/third-party plaintiff CIAMPA. Further, plaintiff is moving for summary judgment on liability on his New York Labor Law § 240(1) cause of action on the ground that strict liability is imposed for contractors. Lastly, defendant/third-party plaintiff CIAMPA is moving for summary judgment [*2]dismissing plaintiff's complaint on the ground that, inter alia, the plaintiff's own negligence is the sole proximate cause of the accident, and for additional discovery.

It is well settled that summary judgment is a drastic remedy that should not be granted where there is any doubt as to the existence of triable issues of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Herrin v Airborne Freight Corp., 301 AD2d 500, 500-501 [2d Dept 2003]). The party moving for summary judgment bears the initial burden of establishing its right to judgment as a matter of law (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]), and in this regard " the evidence is to be viewed in a light most favorable to the party opposing the motion, giving [it] the benefit of every favorable inference" (Cortale v Educational Testing Serv., 251 AD2d 528, 531 [2d Dept 1998]). Nevertheless, upon a prima facie showing by the moving party, it is incumbent upon the party opposing the motion to produce "evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Alvarez v Prospect Hosp., 68 NY2d at 324; see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

I.Third-Party Defendant RICO's motion for summary judgment

The facts surrounding the third-party contractual indemnification claim are as follows; on August 23, 2004, third-party defendant RICO submitted a purchase order to Joseph Ciampa, from defendant/third-party plaintiff CIAMPA for the work to be performed at the jobsite. Defendant/third-party plaintiff CIAMPA contends two additional purchase orders were submitted dated March 30, 2005, and May 27, 2005, and provided the court with said documents. The additional orders address work which may not have been contemplated in the original purchase order. Third-party defendant RICO contends that no further purchase orders were exchanged.

On February 22, 2005, the subject accident occurred. Thereafter, a document entitled "Agreement: Indemnity and Insurance Coverage" is signed by the principals of defendant/third-party plaintiff CIAMPA and third-party defendant RICO, namely, Joseph Ciampa and Barry Hirsch. The document is dated January 1, 2005. Third-party defendant RICO contends that this document was not signed until March or April, and that Barry Hirsch has no recollection of the document ever being entered into between the parties. Further, RICO contends the document was backdated, was not executed with any consideration and the address for the job site is inaccurate and, as such, does not bind RICO for indemnification. Defendant/third-party plaintiff CIAMPA contends the document was executed properly on the aforementioned January 1, 2005 date and seeks to enforce the agreement for indemnification.

"While owners and general contractors owe nondelegable duties under the Labor Law to plaintiffs who are employed at their worksites, these defendants can recover in indemnity, either contractual or common-law, from those considered responsible for the accident."(Kennelty v. Darlind Constr., Inc., 260 AD2d 443, 446 [2d Dept., 1999]; Daniels v. Bohn/Fiore, 300 AD2d 341, 341-342 [2d Dept., 2002]). Further, it is well settled that "[a] party is entitled to full contractual indemnification 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" (Kennelty v. Darlind Constr., Inc., 260 AD2d 443, 446 [2d Dept., 1999]; Lazzaro v. MJM [*3]Industries, 288 AD2d 440, 441 [2d Dept., 2001]).

Here, in opposition to third-party defendant RICO's prima facie showing of entitlement to summary judgment, the defendant/third-party plaintiff CIAMPA has successfully raised questions of fact (Alvarez v Prospect Hosp., 68 NY2d at 324; see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Cortale v Educational Testing Serv., 251 AD2d 528, 531 [2d Dept 1998]). Specifically, CIAMPA has established questions of fact regarding whether the agreement was executed in connection with this project and whether the parties intended the agreement to be back-dated as some work was already performed as of January or March of 2005. Clearly, various questions of fact exist sufficient to warrant denial of summary judgment.

II.Plaintiff and defendant/third-party plaintiff's motions for summary judgment

New York Labor Law § 240(1) "imposes liability upon owners and contractors who fail, in accordance with the statute, to provide or erect safety devices necessary to give proper protection to workers exposed to elevation-related hazards. In order for Labor Law § 240(1) to apply, the plaintiff must show more than simply that an object fell causing injury to a worker. A plaintiff must show that the object fell while being hoisted or secured, because of the absence or inadequacy of a safety device of the kind enumerated in the statute'" (Mentesana v. Bernard Janowitz Constr. Co., 44 AD3d 721, 723 [2d Dept., 2007]). Further, it is well settled that "[n]ot every worker who falls at a construction site, and not every object that falls on a worker, gives rise to the extraordinary protections of Labor Law § 240(1). Rather, liability is contingent upon the existence of a hazard contemplated in Section 240(1) and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein" (id.).

Here, summary judgment is clearly inappropriate on plaintiff's cause of action alleging violations of New York Labor Law § 240(1) (Alvarez v Prospect Hosp., 68 NY2d at 324; see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Questions of fact clearly exists regarding whether the plaintiff was provided with adequate safety equipment to work at an elevation. Specifically, defendant/third-party plaintiff CIAMPA contends that all safety equipment was provided for and that no complaints existed that the proper safety equipment was not supplied. However, plaintiff, in opposition, sufficiently establishes that adequate safety equipment to work from an elevation was not provided. As such, summary judgment is inappropriate.

III.Defendant's remaining summary judgment motions

With respect to defendant's summary judgment motion based upon Labor Law § 200, it is well settled that New York Labor Law § 200 "is but a codification of the common-law duty of a landowner to provide workers with a reasonably safe place to work" (Hunter v. R.J.L. Dev., LLC, 44 AD3d 822 [2d Dept., 2007]; Haider v. Davis, 35 AD3d 363 [2d Dept., 2006]; Basso v Miller, 40 NY2d 233, 241 [1976][finding "an owner of real property has a duty to maintain the property in a reasonably safe condition"]). As a result, when an injury occurs "[i]f the allegedly dangerous condition arises from the contractor's methods and the owner or general contractor exercises no supervisory control over the operation, liability does not attach under the common [*4]law or under Labor Law § 200" (Ferrero v. Best Modular Homes Inc., 33 AD3d 847, 849-850 [2d Dept., 2006]).

Here, the court notes that in opposition to defendant's prima facie showing of entitlement to summary judgment as a matter of law, the plaintiff has failed to oppose the motion. As a result, summary judgment will be granted with respect to plaintiff's causes of action based upon New York Labor Law § 200 and common law negligence.

Lastly, under New York Labor Law § 241(6) "[a] contractor may be liable to an injured worker under Labor Law § 241 (6) even absent evidence of control or supervision of the injury-producing event, where a failure to comply with specific safety rules and regulations set forth in the Industrial Code of the State of New York was a substantial factor in bringing about the injury-causing event" (Locicero v. Princeton Restoration, Inc., 25 AD3d 664, 666 [2d Dept., 2006]). Further, "[t]o support a cause of action pursuant to Labor Law § 241 (6), a plaintiff must demonstrate that his or her injuries were proximately caused by a violation of an Industrial Code provision which sets forth specific safety standards" and additionally, "the provision must be applicable to the facts of the case" (Ferrero v. Best Modular Homes. Inc., 33 AD3d 847, 849-850 [2d Dept., 2006]). Here, the plaintiff alleges violations of Industrial Code § 23-1.21[FN2] which provides the general safety requirements for ladders. Plaintiff's allege the defendant CIAMPA violated Industrial Code § 23-1.21 by failing to provide level footing for the ladder because of the uneven floor. In opposition to the defendant's prima facie showing, the plaintiff has raised questions of fact in regard to the alleged Industrial Code violation sufficient to defeat a motion for summary judgment (id.).

IV.Discovery

Defendant/third-party plaintiff CIAMPA's request for additional authorizations and an additional independent medical exam with respect to the plaintiff's claim for diabetes, is hereby denied.

Accordingly, it is

ORDERED that third-party defendant RICO's motion for summary judgment is hereby denied, and it is further

ORDERED that plaintiff's summary judgment motion on liability pursuant to New York Labor Law § 240(1) is hereby denied, and it is further

ORDERED that defendant/third-party plaintiff CIAMPA's motion for summary judgment is hereby granted, only with respect to the plaintiff's causes of action based upon New York Labor Law § 200, and denied in all other respects, and it is further [*5]

ORDERED that plaintiff's cause of action based upon Labor Law § 200 is dismissed, and it is further

ORDERED that defendant/third-party plaintiff CIAMPA's motion requesting additional discovery is hereby denied, and it is further

ORDERED that all other requests for relief are hereby denied, and it is further,

ORDERED that the Clerk enter judgment accordingly.

Dated: March 9, 2009E N T E R,

____________________________________

Hon. Judith N. McMahon

Justice of the Supreme Court Footnotes

Footnote 1:Rico Electric Inc., was known as Hirsch Electrical at the inception of the project.

Footnote 2:The plaintiff specifically references the following sections of New York Industrial Code § 23-1.21 "(4) Installation and use . . . (ii) All ladder footings shall be firm. Slippery surfaces and insecure objects such as bricks and boxes shall not be used as ladder footings . . . (3) Stepladder footing. Standing stepladders shall be used only on firm, level footings. When work is being performed from a step of a stepladder 10 feet or more above the footing, such stepladder shall be steadied by a person stationed at the foot of the stepladder or such stepladder shall be secured against sway by mechanical means." 12 NYCRR § 23-1.21