Aviles v Halsted Communications, Ltd.

[*1] Aviles v Halsted Communications, Ltd. 2009 NY Slip Op 51651(U) [24 Misc 3d 1227(A)] Decided on February 4, 2009 Supreme Court, Queens County Agate, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through August 3, 2009; it will not be published in the printed Official Reports.

Decided on February 4, 2009
Supreme Court, Queens County

Juan Carlos Aviles

against

Halsted Communications, Ltd., et al.



15924 2007

Augustus C. Agate, J.

Direct TV is in the business of selling digital satellite system equipment and providing to consumers direct broadcast satellite services delivered via specialized satellite receiving equipment. Direct TV contracted with Halsted to install and service satellite television equipment sold or rented by Direct TV. Halsted, in turn, subcontracted to VIP a portion of the services covered by its contract with Direct TV. VIP hired Fabian Lopez as a subcontractor to install a Direct TV satellite dish at the premises owned or occupied by defendants Ricardo and Isadora Bacani. Plaintiff was employed by Fabian Lopez. On September 5, 2006, while installing the Direct TV satellite system at the Bacanis' residence, plaintiff was allegedly injured when he fell off a ladder as he descended the roof. Plaintiff subsequently commenced this action against defendants under Labor Law §§ 240(1), 241(6), and 200 and common-law negligence.

It is noted that the parties' denomination of their motions as "cross motions" was incorrect because a cross motion can only be made for relief against a moving party (CPLR 2215). With the exception of that branch of plaintiff's cross motion for summary judgment against Halsted, each cross motion should have been filed as separate notices of motion for summary judgment since they were not made against the moving party, that is, Halsted (see Gaines v Shell-Mar Foods, Inc., 21 AD3d 986, 987-988 [2005]). Despite these procedural irregularities, given the absence of prejudice in light of the fact that all parties responded to the cross motions, the court, in this case, will consider the cross motions.

Furthermore, irrespective of plaintiff's objection, the improperly designated [*2]"cross cross motion" of Halsted and Direct TV will be considered herein. While it is true that multiple motions for summary judgment in the same action generally are looked upon with disfavor, more than one motion is permissible where the subsequent motion is based upon newly discovered evidence or the moving party can demonstrate other sufficient cause for granting the motion (see 2009 85th St. Corp. v WHCS Real Estate Ltd. Partnership, 292 AD2d 520 [2002]). Since Halsted and Direct TV brought their cross motion for summary judgment in their favor dismissing plaintiff's actions as opposed to Halsted's initial motion for summary judgment against VIP based on a claim of contractual indemnification, the court, in its discretion, will entertain the cross motion.

Direct TV, Halsted, and VIP cross-moved for summary judgment in their favor dismissing plaintiff's claims of violations of Labor Law §§ 240(1), 241(6), and 200 and common-law negligence. Halsted and Direct TV initially assert that the installation of the satellite dish does not constitute "altering" a "building" or "structure" within the meaning of Labor Law § 240(1) and, as such, plaintiff's work is not the type of work covered by the Labor Law. The court rejects this contention as without merit. To constitute "altering," the work being performed must entail making a significant physical change to the configuration or composition of the building or structure (see Joblon v Solow, 91 NY2d 457, 465 [1998]). By drilling holes into the exterior of the building and installing a satellite dish with its component parts on the roof of defendants Ricardo and Isadora Bacani's house, plaintiff made a significant physical change to the building, thereby warranting a finding that his activity constituted "altering" under Labor Law § 240(1) and not a "simple, routine activity" (see Tassone v Mid-Valley Oil Co., 291 AD2d 623, 624 [3d Dept 2002]; Guzman v Gumley-Haft, Inc., 274 AD2d 555 [2000]; Bedassee v 3500 Snyder Ave. Owners, Corp., 266 AD2d 250 [1999]; Di Giulio v Migliore, 258 AD2d 903 [4th Dept 1999]).

In support of their respective cross motions on the issue of liability under Labor Law §§ 240(1) and 241(6), Halsted, Direct TV, and VIP primarily contend that they are not "contractors," "owners," or "agents" within the meaning of the Labor Law because they did not exercise supervision and control over plaintiff's work. An entity is deemed a contractor within the meaning of Labor Law §§ 240(1) and 241(6) if it had the power to enforce safety standards and choose responsible subcontractors (see Williams v Dover Home Improvement, Inc., 276 AD2d 626 [2000]). Therefore, to impose liability, the defendant must have the authority to control the activity bringing about the injury so as to enable it or to avoid or correct the unsafe condition (see Damiani v Federated Dept. Stores, Inc., 23 AD3d 329, 332 [2005]). The relevant inquiry on the issue of control is not who furnished equipment and safety devices but who had control over the work being done and the authority to insist that proper safety practices be followed (see Everitt v Nozkowski, 285 AD2d 442, 443 [2001]). Furthermore, a party's status as a contractor is dependent upon whether it had the right to exercise control over the work, not whether it actually exercised that right (see Williams, 276 AD2d at 626).

Direct TV established its entitlement to judgment as a matter of law that it is not an "owner" or "contractor" within the meaning of Labor Law §§ 240(1) and 241(6) (see Lozado v [*3]Felice, 8 AD3d 633, 634 [2004]). In opposition, plaintiff failed to raise a triable issue of fact (see Domino v Professional Consulting, Inc., AD3d , 2008 NY Slip Op 9946, 2 [2d Dept 2008]). Plaintiff primarily relies upon Otero v Cablevision of NY (186 Misc 2d 651, 657 [Sup Ct, Kings County 2000], affd 297 AD2d 632 [2002]), to argue that Direct TV, like Cablevision, is a "contractor" under the Labor Law. However, in that case, Cablevision, unlike Direct TV, conceded its status as a general contractor (id. at 657). There is also nothing in the materials before this court to suggest that Direct TV retained the same degree of power as Cablevision to control the work site activity at issue, namely, the satellite dish installation by plaintiff. Rather, Cablevision's powers and duties resembled those of Halsted in the instant case. Moreover, a careful reading of the agreement between Direct TV and Halsted shows that Direct TV gave Halsted "full control over the methods, techniques, sequences, and procedures of the services performed" (emphasis added). In addition, the contract states that Halsted was required to furnish at its own expense all equipment, including "office space and supplies, office overhead, labor, skills, tools and other equipment and personnel necessary" to perform its work. Halsted was also responsible for staffing and operating Direct TV's customer service call center to handle inquiries or problems related to a Direct TV customer's installation or appointment. Therefore, the extent of Direct TV's involvement in the installation work which it assigned to Halsted was limited to general supervisory authority, which is insufficient to establish control so as to impose liability upon Direct TV under the Labor Law (see Damiani, 23 AD3d at 332).

Halsted failed to establish, prima facie, that it is not an "owner" or a "contractor" under Labor Law §§ 240(1) and 241(6) because the contracts between Direct TV and Halsted and Halsted and VIP show that Halsted was given many of the powers and duties of a general contractor (see Nienajadlo v Infomart NY, LLC, 19 AD3d 384 [2004]). As previously discussed, Direct TV gave Halsted the authority to exercise "full control over the methods, techniques, sequences, and procedures" of the installation services to be provided under their contract. There is no dispute that Halsted was also authorized to hire responsible subcontractors and pay them. In addition, the subcontract between Halsted and VIP demonstrates that Halsted coordinated and executed the satellite dish installation and repair work assigned to it by Direct TV. Halsted required VIP to provide a list of its technicians, who were to obtain SBCA certification, undergo a background check, wear Direct TV uniforms, carry photo identification cards, and view training videos provided by Halsted. Moreover, the work was to be completed to Halsted's satisfaction given that the subcontract initially states that VIP must perform services in a "workmanlike manner and in strict accordance with any applicable plans and specifications as determined by Halsted" (see Otero, 186 Misc 2d at 657). At his deposition, Halsted's director of field operations further testified that a Direct TV customer would obtain services through a procedure by which Halsted transmitted via e-mail to VIP a work order providing them with customer information, instructions regarding a particular installation and the necessary equipment, and the time frame within which the technician was to arrive at the work site. Halsted's reporting requirements, as outlined in Schedule A of the subcontract, demanded that all technicians call Halsted upon arrival at a customer's residence and communicate to Halsted on a real time basis the status of each work order, including informing Halsted of problems with an installation as well as changes to a work order, which were subject to approval by Halsted. Upon [*4]completion of a work order, the technician must send to Halsted a "Statement of Work," a form which was also provided by Halsted. Although Halsted representatives only occasionally visited the subcontractor's technicians at a work site, Schedule A and Schedule B1 of the subcontract, with which all technicians were required to be familiar, supplied detailed instructions regarding the policies and procedures by which to perform installations. Finally, pursuant to the sub-subcontract between VIP and Fabian Lopez, which was also drafted by Halsted, the sub-subcontractor agreed to be bound by these same terms and conditions. Under such circumstances, the extent to which Halsted had control over the Direct TV satellite dish installation work at issue shows that Halsted was acting as a general contractor for purposes of the Labor Law (see Mooney v PCM Dev. Co., 238 AD2d 487, 488 [1997]). Since Halsted failed to meet its prima facie burden of establishing its entitlement to judgment as a matter of law, the sufficiency of plaintiff's opposition papers with respect to Halsted need not be considered (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Fabbricatore v Lindenhurst Union Free Sch. Dist., 259 AD2d 659 [1999]).

VIP also failed to satisfy its initial burden of establishing, prima facie, that it is not an "owner" or a "contractor" within the meaning of Labor Law §§ 240(1) and 241(6). A subcontractor may be held liable under those sections of the Labor Law where it has become a statutory "agent" of the owner or general contractor by virtue of having been delegated the concomitant authority to supervise and control the plaintiff's work or work area (see Russin v Picciano & Son, 54 NY2d 311, 318 [1981]). Therefore, liability will attach under Labor Law §§ 240(1) and 241(6) only if it is evinced that VIP is a statutory "agent" of Halsted. In this case, VIP was authorized to hire and pay responsible subcontractors pursuant to the subcontract between Halsted and VIP (see Williams, 276 AD2d at 626). In fact, the vice-president of VIP testified at her deposition that VIP would interview potential sub-subcontractors and choose them based on their experience and SBCA certification. She further stated that VIP would assign a work order to a particular sub-subcontractor based on geographic location and provide that sub-subcontractor with the necessary materials for the work order, including the antennas, satellite dishes, and receivers. In addition, VIP would supply the sub-subcontractors with Direct TV shirts to wear while performing installations at a customer's residence. Most importantly, despite the fact that Halsted maintained primary decision-making authority, the section of the subcontract between VIP and Halsted regarding the use of sub-subcontractors for performance of installation services stated that VIP would remain liable and responsible for the services and "shall otherwise assure compliance with all provisions of [the] Agreement." This language suggests that VIP was contractually delegated the authority to supervise and control the work of its sub-subcontractors so as to ensure that the sub-subcontractor would perform the installation services in conformity with the terms and conditions required of VIP under its subcontract with Halsted (see Larabee v Triangle Steel, Inc., 86 AD2d 289, 292 [3d Dept 1982]). The sub-subcontractor Fabian Lopez was similarly obligated to provide services in accordance with the terms of the sub-subcontract and the subcontract. As such, VIP acted as a statutory agent of the general contractor Halsted for Labor Law purposes. Given that VIP failed to meet its prima facie burden, the sufficiency of plaintiff's opposition papers with respect to VIP need not be considered (see Zuckerman v City of New York, 49 NY2d 557 [1980]). [*5]

The court next turns to Direct TV, Halsted, and VIP's cross motions for summary judgment to dismiss plaintiff's causes of action asserted against them under Labor Law § 200 and common-law negligence. To be held liable under Labor Law § 200 and common-law negligence, a defendant must have the authority to control the activity which brings about the plaintiff's injury to enable it to avoid or correct the unsafe condition (see McLeod v Corporation of Presiding Bishop of Church of Jesus Christ of Latter Day Sts., 41 AD3d 796, 798 [2007]). Plaintiff withdrew his Labor Law § 200 and common-law negligence causes of action asserted against VIP and, therefore, those claims are hereby dismissed as to that defendant.

As to the liability of Direct TV and Halsted under Labor Law § 200 and common-law negligence, said defendants met their prima facie burdens by demonstrating that they did not exercise supervision or control over the manner of the injured plaintiff's installation of the satellite dish at issue (see Capolino v Judlau Contr., Inc., 46 AD3d 733, 735 [2007]). In opposition, plaintiff failed to raise a triable issue of fact. When a claim arises out of alleged defects or dangers in the methods or materials of the work rather than the condition of the premises, where as here, recovery against the owner or general contractor cannot be had under the common-law or Labor Law § 200 unless it is shown that the party to be charged had the authority to supervise or control the performance of the work (see Cambizaca v New York City Tr. Auth., AD3d , 2008 NY Slip Op 9937, 2 [2d Dept 2008]; Ferrero v Best Modular Homes, Inc., 33 AD3d 847 [2006]). In his affidavit and deposition testimony, plaintiff stated that the ladder upon which he fell was provided by his employer, Fabian Lopez, that only his employer provided him with instructions concerning the installation of the satellite dish, and that no one from Direct TV or Halsted ever gave him instructions or directions regarding the performance of his work. Moreover, the general supervisory authority of Direct TV and Halsted over the installation work is insufficient to establish liability under Labor Law § 200 for plaintiff's accident (see Kajo v E.W. Howell Co., Inc., 52 AD3d 659, 661-662 [2008]).

With respect to plaintiff's cross motion for partial summary judgment under Labor Law § 240(1), a plaintiff must establish that the statute was violated and that the violation was a proximate cause of his or her injuries (see Blake v Neighborhood Hous. Servs. of NY City, 1 NY3d 280 [2003]). Inasmuch as Labor Law § 240(1) is inapplicable to Direct TV because it is not a "contractor" within the meaning of the Labor Law, plaintiff failed to meet its prima facie burden as to that defendant (see Fajardo v Clark, ___ AD3d ___, 2008 NY Slip Op 9747, 2 [2d Dept 2008]). However, plaintiff established entitlement to judgment as a matter of law that Halsted and VIP violated Labor Law § 240(1) and that the violation was a proximate cause of plaintiff's injuries. According to plaintiff's deposition testimony, while installing a Direct TV satellite dish, plaintiff fell from a 20-foot aluminum ladder when descending the roof of a building owned or occupied by defendants Ricardo and Isadora Bacani. Plaintiff further testified at his deposition that the ladder from which he was exiting the roof had a bent foot and "slid backwards," thus causing him to fall to the ground below. It is well-settled that a fall caused by the movement, collapse, or shifting of a safety device, such as a scaffold or ladder, constitutes prima facie evidence of a Labor Law § 240(1) violation (see Nimirovski v Vornado Realty Trust Co., 29 AD3d 762, 762-763 [2006]). Furthermore, plaintiff's affidavit and deposition testimony [*6]indicate that the ladder was not secured to the house at the time of the accident and plaintiff was not provided with any safety devices to prevent his fall (see Danielewski v Kenyon Realty Co., LLC, 2 AD3d 666, 667 [2003]). In opposition, Halsted and VIP failed to present any evidence contradicting plaintiff's prima facie showing and, thus, they failed to raise a triable issue of fact.

Finally, Halsted moved for summary judgment on its cross claim for contractual indemnification as asserted against VIP. The court initially rejects VIP's argument that Halsted's motion should be denied for failure to append a complete set of the pleadings to its motion as required by CPLR 3212(b), namely Halsted's verified answer in which it asserts the cross claim for indemnity against VIP. Generally, the movant's failure to include a copy of the pleadings in the papers supporting a motion for summary judgment requires denial of the motion (CPLR 3212[b]; see Roach v AVR Realty Co., LLC, 41 AD3d 821, 825 [2007]). However, the court will consider Halsted's motion for summary judgment despite its failure to submit its verified answer with its moving papers since copies of the pleadings are both filed with this court and submitted in support of the parties' respective cross motions and, thus, they are available for the court's consideration (see Novack v New York City Dept. of Education, 19 Misc 3d 1103A, 1103A n 1 [Sup Ct, Kings County 2008]).

Halsted met its prima facie burden on its cross claim against VIP for contractual indemnification (see Argueta v Pomona Panorama Estates, Ltd., 39 AD3d 785, 786 [2007]). The right to contractual indemnification depends upon the specific language of the contract (see Kader v City of NY, Hous. Preserv. & Dev., 16 AD3d 461, 463 [2005]). Here, the indemnification clause at issue expressly provided that VIP would indemnify Halsted for "any and all claims, damages, losses and expenses, including but not limited to attorneys' fees, arising out of or resulting from [VIP's] performance under [the] Agreement." The indemnification provision further indicated that VIP would be liable "to the extent caused in whole or in part by negligent acts or omissions of persons directly or indirectly employed by" VIP or "anyone for whose acts it may be liable regardless of whether or not such damage, loss or expense is caused in part by a party indemnified hereunder" (see Cunningham v Alexander's King Plaza, LLC, 22 AD3d 703, 707 [2005]). It is undisputed that plaintiff was an employee of VIP's sub-subcontractor, Fabian Lopez, a person indirectly employed by VIP. It is also undisputed that plaintiff's injury occurred when he was installing a satellite dish and, thus, arose out of or resulted from VIP's performance of its subcontract with Halsted. Since the accident fell within the parameters of the subject indemnification clause, Halsted is entitled to contractual indemnity against VIP (see Lesisz v Salvation Army, 40 AD3d 1050, 1052 [2007]). Moreover, although, as argued by VIP, an indemnification agreement that purports to indemnify a party for its own negligence is void under General Obligations Law § 5-322.1, such an agreement does not violate the General Obligations Law if, where as here, it authorizes indemnification "to the fullest extent permitted by law" (see Giangarra v Pav-Lak Contr., Inc., 55 AD3d 869, 870-871 [2008]).

In opposition, VIP failed to raise a triable issue of fact. The language of the indemnification provision obligates VIP to indemnify Halsted for the negligent acts or omissions of Halsted, VIP, and anyone directly or indirectly employed by VIP, which would include VIP's [*7]sub-subcontractor Fabian Lopez. It does not, by its terms, limit indemnification only to claims arising out of the negligence of VIP in the performance of the subcontracted work (see Tobio v Boston Props., Inc., 54 AD3d 1022, 1023-1024 [2008]). Therefore, Halsted is entitled to indemnification against VIP, including reasonable attorney's fees incurred in Halsted's defense of the within action (see Tobio, 54 AD3d at 1023-1024; Grimes v Pyramid Cos., 237 AD2d 940 [4th Dept 1997]).

Accordingly, Halsted's motion for summary judgment seeking contractual indemnification against VIP is granted. The cross motion for summary judgment on the issue of liability under Labor Law § 200 and common-law negligence in favor of VIP is granted. In all other respects, the cross motion is denied. Plaintiff's cross motion for partial summary judgment under Labor Law § 240(1) is granted only as against Halsted and VIP. In all other respects, plaintiff's cross motion is denied. The improperly designated "cross cross motion" of Direct TV and Halsted is granted only to the extent that the complaint insofar as asserted against Direct TV is dismissed in its entirety and plaintiff's Labor Law § 200 and common-law negligence causes of action asserted against Halsted are dismissed. In all other respects, the "cross cross motion" is denied.

Dated: February 4, 2009

AUGUSTUS C. AGATE, J.S.C.