Bommarito v City of New York

[*1] Bommarito v City of New York 2009 NY Slip Op 51253(U) [24 Misc 3d 1204(A)] Decided on May 27, 2009 Supreme Court, Richmond County Aliotta, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 27, 2009
Supreme Court, Richmond County

Pietro Bommarito, Plaintiff(s),

against

City of New York, Skanska USA Building, Inc., and New York City Economic Development Corporation, Defendant(s).



Skanska USA Building, Inc., f/k/a Barney Skanska Construction Company, Third-Party Plaintiff,

against

Arena Construction Co., Inc., Third-Party Defendant.



103204/05

Thomas P. Aliotta, J.

Upon the foregoing papers, the motion for summary judgment of defendant SKANSKA USA BUILDING, INC., f/k/a BARNEY SKANSKA CONSTRUCTION COMPANY, for (1) summary judgment dismissing plaintiff's Labor Law and negligence causes of action against it, and (2) granting its claim for contractual indemnification against third-party defendant ARENA CONSTRUCTION CO., INC., is denied in its entirety.

Plaintiff commenced this action to recover damages for personal injuries sustained when he fell from a ladder while demolishing a brick wall inside the Staten Island Ferry Terminal. Plaintiff was a union laborer hired by third-party defendant ARENA CONSTRUCTION CO., INC. (hereinafter "ARENA") to perform certain construction work on the St. George Ferry Terminal Modernization Project in Staten Island. Defendant NEW YORK CITY ECONOMIC DEVELOPMENT CORP. (hereinafter "EDC") had contracted with ARENA to perform certain construction work at the ferry terminal. Defendant/third-party plaintiff SKANSKA USA BUILDING, INC., f/k/a BARNEY SKANSKA CONSTRUCTION COMPANY (hereinafter [*2]"SKANSKA") was retained by ECD as "construction manager" for the project. Defendant CITY OF NEW YORK is the owner of the property on which the ferry terminal is situated. In the third-party action, defendant SKANSKA has sued third-party defendant ARENA for contractual indemnification under ARENA's contract with EDC.

In moving for summary judgment in both actions, SKANSKA contends that it is neither an owner, contractor, or agent of either with regard to the property or the project, and that it is, therefore, immune from liability under the Labor Law §§240(1) and 241(6). With regard to Labor Law §200 and plaintiff's claim of common-law negligence, SKANSKA contends that it was neither responsible for overseeing, directing, supervising or controlling any of the means or methods of work at the construction site, nor did it perform any of the work itself. Accordingly, it argues that it cannot be held liable for any injuries that may have been sustained by any of the laborers on the work site. Finally, SKANSKA contends that it did not have actual or constructive notice of any dangerous condition existing on the premises that may have caused plaintiff's accident. Therefore, it cannot be liable for common-law negligence.

In support of its motion, SKANSKA submits a copy of the EBT testimony of Melvin Glickman, an executive vice president of EDC, whose testimony indicates that SKANSKA was not hired as a general contractor for the St. George Ferry Terminal project, but that it was hired as a "construction manager" to monitor the work and coordinate work schedules with the needs of the New York City Department of Transportation (hereinafter DOT) and the various contractors in an effort to maximize efficiency, minimize interference, and monitor both the schedules for the individual projects and overall construction. According to Glickman, SKANSKA was not responsible for the means, methods, techniques, sequences and/or procedures employed by any contractor in the performance of its work, but would monitor, inspect, accept and approve the work performed, and advise EDC if a contractor's means, methods, techniques, sequences and/or procedures were either dangerous or not in the best interest of the overall project. In addition, Glickman testified that SKANSKA's contract with EDC specifically provided that it would not be deemed an agent of either EDC or the CITY in performing its duties.

SKANKSA also submits a copy of the EBT testimony of Victor Vitale, the project manager for third-party defendant ARENA, who testified that his company was retained by EDC to perform interior finish work at the ferry terminal, including fireproofing, "jibson wall" assembly, tile work, finish panel work and painting. In addition, Vitale acknowledged that ARENA's contract with EDC required ARENA, inter alia, to defend, indemnify and hold harmless the CITY, EDC and SKANSKA from any and all claims, damages, judgments, liabilities and the like arising out of the acts or omissions of itself or its subcontractors, as well as its agents, employees or material suppliers at the project site.

In further support, SKANSKA submits the affidavit of Salvator Celano, ARENA's foreman at the project, who stated that he, alone, directed and supervised the work performed at the project by ARENA's employees, including plaintiff, and that the ladder and all of the other [*3]equipment used by plaintiff and his co-workers were owned and supplied by ARENA. According to Celano, plaintiff and the other ARENA employees had been instructed to begin demolition of the facade of an interior cement block wall with sledgehammers and crowbars immediately prior to plaintiff's fall.

Finally, SKANSKA submits a copy of plaintiff's EBT testimony, in which he states that he was standing on the seventh step of an eight-step ladder, removing bricks from a cement wall with a five-to-six foot piece of scrap piping, when certain pieces of the wall fell and struck the ladder, causing him to fall backwards onto the ground.

According to SKANSKA, the foregoing proof clearly establishes that plaintiff's accident was caused solely as a result of the manner in which the demolition work was performed under the direction of his employer, ARENA, which, like the other contractors, were chosen by EDC. Moreover, SKANSKA further argues that the proof shows that it performed no work at the construction site; that it lacked the authority to control or oversee any of the work performed by the contractors engaged by EDC; that it had no authority to stop the work; and that its sole obligation was to notify the CITY or EDC if the means, methods, techniques, sequences and/or procedures employed by the various contractors were dangerous. As a result, SKANSKA contends that it cannot be deemed to be an owner, general contractor, or the agent of either, and that it cannot, therefore, be held liable for plaintiff's injuries under sections 240(1) and 241(6) of the Labor Law.

With regard to plaintiff's claims under Labor Law §200 and common-law negligence, SKANSKA contends that its lack of supervision or control over plaintiff's work precludes liability under a theory of negligence. According to SKANSKA, the evidence submitted on its behalf indicates that plaintiff was directed and controlled solely by ARENA's foreman, and was never subject to direction from any SKANSKA employee. Finally, SKANKSA concludes its argument by noting that since it was not present at the site when plaintiff was injured, it cannot be charged with notice of any dangerous condition that may have been extant at that time.

With regard to its third-party claims against ARENA, SKANSKA contends that its contract with EDC requires ARENA to indemnify SKANSKA and its associated and subsidiary companies and agents from any and all claims arising out of ARENA's acts or omissions in connection with its work or arising out of ARENA's negligence. According to SKANSKA, ARENA is also contractually obligated to reimburse SKANSKA for its attorney's fees, costs and disbursements incurred in its defense of this lawsuit. As a result of this unambiguous language, SKANSKA argues that it is not required to prove any negligence on the part of ARENA in order to recover under the aforementioned indemnity clause and that, in the absence of any proof of negligence on the part of SKANSKA, it is entitled to summary judgment against ARENA based on the indemnity provision in ARENA's contract with EDC.

In opposition, plaintiff contends that issues of fact exist regarding SKANSKA's responsibility for overseeing the construction site and the work performed by the individual [*4]contractors, including plaintiff's work. According to plaintiff, SKANSKA's actual role was that of a "general contractor", to wit: overseeing the work, and exercising supervision and control over the various trades, including plaintiff's work, when the accident occurred.

In support of these contentions, plaintiff also refers to excerpts from the EBT testimony of ARENA's project manager, Victor Vitale, who claimed that SKANSKA's representatives were supervising plaintiff's work at the time of his injury, and that SKANSKA had the overall authority to stop the work if unsafe practices were detected. Plaintiff also refers to the EBT testimony of Samer Alacha, SKANSKA's project manager, who acknowledged that he and other SKANSKA supervisors had the authority to stop work if an unsafe condition or practice was observed. Moreover, Alacha testified, in effect, that SKANSKA exercised actual direction over the work being performed by ARENA employees at the time of plaintiff's injury by changing the work orders. In this regard, Alacha stated that ARENA's foreman was informed of the changes which required the demolition of the wall at issue.

The CITY, EDC and third-party defendant ARENA also oppose SKANSKA's motion, claiming that there are numerous issues of fact regarding the extent of its involvement in the means and methods of the injury-producing work, as well as its status as a "statutory agent" for purposes of the Labor Law. In support, these parties also rely on excerpts from the EBT testimony of ARENA's project manager, who stated that on the date of the accident, plaintiff was working under the direction of SKANSKA's representatives as communicated to plaintiff's foreman, Salvatore Celano. Thus, plaintiff was not working under Vitale's control on the date of his injury. In fact, according to Vitale, he would not have had the authority to stop plaintiff from working in an unsafe manner on the day in question because he did not have direct supervision over him.

Also cited as a bar to summary judgment is a copy of the "daily report" filed in connection with the project on the date of plaintiff's accident, which listed both plaintiff and his foreman, Celano, as working for SKANSKA. This is correctly alleged to raise issues regarding the extent of SKANSKA's direction and control. In addition, reference is made to that portion of the EBT testimony of SKANSKA employee Alacha, who indicated that (1) he and other SKANSKA superintendents walked the site on a daily basis in order to observe the work being performed, and (2) they had the authority to stop any unsafe work practices which they observed.

The proponent of a summary judgment motion must make a prima facie showing of its entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (see Alvarez v. Prospect Hosp., 68 NY2d 320). Once that initial burden has been satisfied, the burden shifts to the party opposing the motion to produce sufficient evidence to raise a triable issue of fact (id.). The court's only role in passing upon such a motion is to determine whether an issue of fact exists; it is not expected or allowed to determine the merits of such issues (see Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395). Moreover, it is well settled if there is any doubt as to the existence of a triable issue, the motion should be denied (see Rotuba Extruders v. Ceppos, 46 NY2d 223, 230). [*5]

With regard to violation of the Labor Law §§240(1) and 241(6), liability may be imposed upon contractors and owners and those parties who have been delegated the authority to supervise and control the work such that they become the statutory agents of either (cf. Russin v. Picciano & Son, 54 NY2d 311, 318). In this regard, the title by which a party is known in, e.g., a contract, is not determinative of the issue, and a party with essentially the same duties as a contractor or owner's agent will be held responsible in like measure (see Kenny v. Fuller Co., 87 AD2d 183, 189-190).

Here, it is the opinion of this Court that material issues of fact have been raised which prevent this Court from determining, as a matter of law, whether SKANSKA lacked sufficient supervisory authority or control over the worksite to render it immune from liability to plaintiff under Labor Law §§240(1) and 241(6). Particularly relevant in this regard is the presence of proof tending to establish that SKANSKA's supervisors were present at the construction site on a daily basis, and were more closely involved with the overall direction and supervision of the work than would be typical of a "construction manager" (see Walls v. Turner Constr. Co., 4 NY3d 861, 863). In addition, there is proof suggesting that plaintiff, through his foreman, was working directly under the supervision and control of SKANSKA on the date of his injury. In this regard, the EBT testimony of ARENA's supervisor, Victor Vitale, suggests that SKANSKA played a more pivotal role in supervising and/or directing plaintiff's work on the day in question than it now claims. However, the same testimony indicates that plaintiff and his foreman were union laborers, hired and paid directly by ARENA. Moreover, ambiguity can be found (1) in the clause in ARENA's EDC contract, which obligates ARENA to provide laborers to work under the direction of either the construction manager (SKANSKA) or ARENA, and (2) Vitale's testimony that both plaintiff and his foreman were listed as laborers under the direction of SKANSKA in that day's "daily report". Thus, contrary to the position proffered by SKANSKA's witness, Vitale claims that plaintiff was not working under his direct supervision on the date of the accident, but that SKANSKA, which was directing plaintiff's activities, had the authority to stop plaintiff's work if any unsafe practices were observed. Probative in this regard, is some evidence that the work which plaintiff was performing at the time of the accident was the result of a change-order initiated by SKANSKA but conveyed to plaintiff (and ARENA's other laborers) through their own foreman, Celano.

Under these circumstances, it is the opinion of this Court that the extent and scope of SKANSKA's authority to supervise and control the jobsite cannot be determined as a matter of law (see Kenny v. Fuller, 87 AD2d 183, 190; see also Carollo v. Tishman Constr. & Research Co., 109 Mis.2d 506, 508-509). Similar considerations of the extent of SKANSKA's supervision and control over the work being performed by plaintiff at the time of his injury, and its notice of any alleged unsafe condition preclude dismissal of so much of the complaint against SKANSKA as is predicated on allegations of common- law negligence and violation of Labor Law§200 (see Akins v. Baker, 247 AD2d 562, 563).

Finally, SKANSKA's request for summary judgment on its claim for contractual indemnification is premature given the material issues of fact raised with regard to its role, if any, [*6]in plaintiff's injury. If it is ultimately determined to be without any fault of its own, its statutory liability under Labor Law §§240(1) and 241(6) may prove to be fully recompensable under the ARENA/EDC contract (see Brown v. Two Exch. Plaza Partners, 76 NY2d 172). On the other hand, if SKANSKA is found to have been actively negligent, it may forfeit any right to indemnification for damages attributable to its acts. Although SKANSKA may eventually prevail upon any subsequent claim for partial indemnification based on its individual percentage of fault (compare Brooks v. Judlau Contr., Inc., 11 NY3d 204, 208-209 with Itri Brick & Concrete Corp. v. Aetna Cas. & Sur., Co., 89 NY2d 786), any such determination must await the outcome at trial.

Accordingly, it is

ORDERED that the motion of defendant SKANSKA USA BUILDING, INC., for summary judgment dismissing plaintiff's Labor Law and common-law negligence claims against it, and for summary judgment on its third-party cause of action for contractual indemnification against third-party defendant ARENA CONSTRUCTION CO., INC., is denied in its entirety.

E N T E R,

/s/________________________

Hon. Thomas P. Aliotta

J.S.C.

Dated: May 27, 2009

OCA e-submission: no Judge E-Mail