Cortes v McGuiness Condos, LLC

[*1] Cortes v McGuiness Condos, LLC 2009 NY Slip Op 52021(U) [25 Misc 3d 1210(A)] Decided on September 30, 2009 Supreme Court, Kings County Schneier, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 30, 2009
Supreme Court, Kings County

Cenovia Cortes, Plaintiff,

against

McGuiness Condos, LLC, SUPERIOR CONSTRUCTION CONSULTING CORP., ADVENTURE CONSTRUCTION CORP., J & G GENERAL CONTRACTING CORP. and A-1 SCAFFOLDING, Defendants.



McGuiness Condos, LLC Third-party Plaintiff

against

Steel Toe, Inc., Third-Party Defendant



35022/07



ATTORNEYS FOR PLAINTIFF

BLOCK, O'TOOLE & MURPHY

ONE PENN PLAZA

SUITE 5315 NEW YORK, NEW YORK 10119

212-736-5300

ATTORNEYS FOR DEFENDANT

ADVENTURE CONSTRUCTION CORP

LAW OFFICES OF MARSHALL AND BELLARD

1305 FRANKLIN AVENUE, SUITE 225

GARDEN CITY, NEW YORK, NEW YORK

516-741-8005

ATTORNEYS FOR DEFENDANT MCGUINESS CONDOS, LLC

RUBIN, FIORELLA & FRIEDMAN, LLP

292 MADISON AVENUE -11TH FLOOR

NEW YORK, NEW YORK 10017

212-953-2381

ATTORNEYS FOR DEFENDANT SUPERIOR

CONSTRUCTION CONSULTING CORP.

AHMUTY, DEMERS & McMANUS

200 I.U. WILLETS ROAD

ALBERTSON, NEW YORK, 11507

516-294-5433

Martin Schneier, J.

In this work related personal injury action plaintiff, Cenovia Cortes (Cortes), moves pursuant to CPLR § 3212, for summary judgment on his Labor Law § 240(1) claim against defendants. Defendant Superior Construction Consulting Corp. (Superior) moves to amend its answer to assert the defense that this action is barred by the Workers Compensation Law and, for summary judgment dismissing the complaint and all cross-claims against it. Defendant McGuinness Condos, LLC (McGuinness) moves for summary judgment on its indemnification claims against Superior and defendant Adventure Construction Corp. (Adventure).

Background

On January 2, 2007, plaintiff was employed by Superior as a laborer on the construction of a new five-story residential condo project located at 305 McGuinness Boulevard, Brooklyn, New York. Defendant McGuinness was the owner at the work site. Defendant Superior was the construction manager and defendant Adventure was the brickwork and masonry contractor.

At the time of the accident, Adventure's workers were using a tong to hoist bricks. The bricks were frozen and Adventure was aware that frozen brick was [*2]susceptible to slipping from the tong. As the bricks were being hoisted, they fell from the tong. A portion of a brick hit Cortes on his hard hat causing his injury.

The Note of Issue was filed on April 3, 2009 and the case is scheduled for trial on November 18, 2009.

Discussion

Summary judgment is a drastic remedy that should only be employed when there is no doubt as to the absence of any triable issues of a material fact (Kolivas v Kirchoff, 14 AD3d 493 [2nd Dept 2005]). "Issue finding, rather than issue determination is the court's function. If there is any doubt about the existence of a triable issue of fact, or a material issue of fact is arguable, summary judgment should be denied." (Celardo v Bell, 222 AD2d 547 [2nd Dept 1995]).

A party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact. (Alverez v Prospect Hosp., 68 NY2d 320 [1986]); Napolitano v. Suffolk County Dept of Public Works, 65 AD3d 676 [2d Dept 2009]). Once the movant has satisfied this obligation, the burden shifts and the party opposing the motion must now demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action (Alvarez v. Prospect Hosp., supra; Zuckerman v. City of New York, 49 NY2d 557, 560 [1980]).

Labor Law Section 240(1) provides, in pertinent part, that: "All contractors and owners.....who contract for

but do not direct or control the work, in the erection, demolition.....of a building or structureshall furnish or erect, or cause to be furnished orerected for the performance of such labor, scaffolding,hoists, stays, ladders, slings, hangers, blocks, pulleys,irons, ropes and other devices which shall be so constructed,placed and operated as to give protection to a person soemployed."

In order to recover on a cause of action pursuant to Labor Law § 240(1), there must be a breach of the statutory duty to provide adequate safety devices, and this breach must proximately cause the worker's injury. (Robinson v. East Medical Center, LP, 6 NY3d 550, 554 [2006]);Blake v Neighborhood Hous. Servs. of NY City, 1 NY3d 280 [2003]; Gittleson v Cool Wind Ventilation Corp., 46 AD3d 855, 856 [2d Dept 2007]). [*3]

Once a violation and proximate cause are established, the liability of the owner and contractor is absolute in that the recovery will not be reduced by any contributory negligence on the part of the worker (Bland v. Manocherian, 66 NY2d 452, 459 [1985]; Moniuszko v Chatham Green, Inc., 24 AD3d 638, 639 [2d Dept 2005]).

In the instant case, the fact that a brick fell on plaintiff causing injury while being hoisted because of the failure to provide adequate safety devices is sufficient to meet the plaintiff's prima facie burden of showing entitlement to summary judgment as a matter of law. In opposition, the defendants argue that plaintiff was the sole proximate cause of his injury and that he was a recalcitrant worker. In support of the argument that plaintiff was a recalcitrant worker, defendants submit that Cortes had been directed to leave the area where the accident occurred while the bricks were being hoisted. Cortes did leave the area, but returned prematurely and contrary to his instructions.

The finding that the failure to provide adequate safety devices on the hoisting equipment was a proximate cause of the injury precludes a finding that plaintiff was the sole proximate cause of his injury. As the Court of Appeals has explained: "Under Labor Law § 240 (1) it is conceptually impossible for a statutory violation (which serves as a proximate cause for a plaintiff's injury) to occupy the same ground as a plaintiff's sole proximate cause for the injury. Thus, if a statutory violation is a proximate cause of an injury, the plaintiff cannot be solely to blame for it. Conversely, if the plaintiff is solely to blame for the injury, it necessarily means that there has been no statutory violation."

(Blake v. Neighborhood Housing Services of New York City, Inc., supra, at 290-291 [2003]).

Defendants also argue that Cortes was a "recalcitrant worker." The recalcitrant worker defense "requires a showing that the injured worker refused to use the safety devices that were provided by the owner or employer" (Gordon v Eastern Ry. Supply, 82 NY2d 555, 562-563 [1993], citing Stolt v General Foods Corp., 81 NY2d 918, 920 [1993]). "[A]n owner who has provided safety devices is not liable for failing to "insist that a recalcitrant worker use the devices'" (Cahill v. Triborough Bridge and Tunnel Authority, 4 NY3d 35, 39 [2004], quoting, Smith v Hooker Chems. & Plastics Corp., 89 AD2d 361, 365 [4th Dept 1982]). However, as the Court of Appeals has stated: [*4] "an instruction by an employer or owner to avoid using unsafe equipment or engaging in unsafe practices is not a "safety device" in the sense that plaintiff's failure to comply with the instruction is equivalent to refusing to use available, safe and appropriate equipment (Stolt v General Foods Corp., supra; see also, Hagins v State of New York, 81 NY2d 921, 922-923). Evidence of such instructions does not, by itself, create an issue of fact sufficient to support a recalcitrant worker defense."

(Gordon v Eastern Ry. Supply, supra, at 563).

Accordingly, the allegation that Cortes ignored instructions is insufficient to create an issue of fact regarding a Labor Law §240(1) violation.

In addition, Adventure opposes plaintiff's motion on the ground that it was neither the owner nor general contractor. A subcontractor may be held liable when "it has control of the work being done and the authority to insist that proper safety practices be followed" (Kehoe v. Segal, 272 AD2d 583, 584 [2000]). In the instant case, plaintiff has established that Adventure controlled the hoisting of the bricks.

Superior moves to amend its answer to assert the defense that the plaintiff's action against it is barred by the Workers Compensation Law and, for summary judgment dismissing the complaint and all cross-claims against it. The motion to amend the answer is granted without opposition.

Superior meets its prima facie burden of establishing entitlement to summary judgment as a matter of law by submitting the May 7, 2009, determination by the Workers' Compensation Board where it determined that Superior was Cortes' employer. There is no opposition by the plaintiff. Accordingly, Superior's motion for summary judgment is granted with respect to the plaintiff's claims. Superior also argues that the Workers' Compensation Board determination has established its prima facie burden of showing entitlement to summary judgment on the common-law indemnification claims asserted against it by McGuinness and Adventure.

The Workers Compensation Law bars claims for indemnification and contribution unless the plaintiff has suffered a grave injury (Schuler v. Kings Plaza Shopping Center and Marina, Inc., 294 AD2d 556, 559 [2d Dept 2002]). In opposition, McGuinness, relying on the Court of Appeals decision in Liss v. Trans Auto Systems, Inc. (68 NY2d 15 [1986]), argues that it is not bound by the Workers' Compensation Board decision because it did not participate in the proceedings. However, in Konior v. Zucker (299 AD2d 320 [2d Dept 2002]), the Appellate Division, Second Department ruled that the Workers' Compensation [*5]Board decision was "conclusive and binding on the Courts." Because Konior postdates Liss and, arose on a nearly identical set of facts, this Court is bound by the Konior decision. Thus, McGuiness has failed to raise a triable issue of fact in opposition and Superior's motion for summary judgment on the cross-claims asserted by McGuiness and Adventure against Superior is granted.

Finally, Superior moves for summary judgment on McGuiness' cross-claim for contractual indemnification. Superior meets its prima facie burden of showing entitlement to summary judgment as a matter of law through its averments that there is no signed contract containing an indemnification provision. In opposition, McGuiness' argues that the indemnification clause in an unsigned contract should be enforced because the conduct of the parties transformed it into an implied contract. McGuiness relies on Jemzura v. Jemzura (36 NY2d 496 [1975]), where the Court of Appeals stated: "[a] contract implied in fact may result as an inference from the facts and circumstances of the case, although not formally stated in words (Miller v Schloss, 218 NY 400, 406; Wells v Mann, 45 NY 327, 331), and is derived from the "presumed" intention of the parties as indicated by their conduct (Martin v Campanaro, 156 F2d 127, 129, cert den 329 US 759). It is just as binding as an express contract arising from declared intention, since in the law there is no distinction between agreements made by words and those made by conduct (Matter of Ahern v South Buffalo Ry. Co., 303 NY 545, 560, 561, affd sub nom. South Buffalo Ry. Co. v Ahern, 344 US 367)"

id. at 503-04). In the instant case, there is no conduct whatsoever regarding the indemnification clause. Therefore, there is no basis for an implied contract.

McGuiness cross-moves for summary judgment on its contractual and common law indemnification claims against Superior and Adventure. The cross- motion is denied as moot with respect to Superior in view of the court's prior determination herein.

With respect to McGuiness' cross- motion for contractual indemnification against, Adventure, the indemnity provision of the contract between McGuiness and Adventure states: "SECTION 12.2 INDEMNITY REQUIREMENTSThe Trade Contractor shall, to the fullest extent permitted by law and at its own cost and expense, indemnify and defend The Owner and the Construction Manager, the Architect and their officer, partners, agents and employees (the "Indemnities"), and save them harmless from and against [*6]any and all claims, damages, losses, liabilities, suits, judgments, actions and all expenses (including attorneys fees and disbursements) arising out of any negligent or wrongful act, error or omission or breach of contract or infringement of any patent right by the Trade Contractor or any of its subcontractors or suppliers of any tier in connection with the performance of the Work hereunder; provided that nothing shall require the Trade Contractor to indemnify or hold harmless an indemnify hereunder to the extent such claim is caused by the negligence of Indemnity. The foregoing indemnity shall not be construed to negate, abridge or otherwise reduce any other right or obligation of indemnity which would other wise exist as to any Indemnity hereunder. The foregoing indemnity shall include, without limitation, bodily injury and death of any employee of the Trade Contractor and shall not be limited in any way by any limitation on the amount or type of damages, compensation or benefits payable under any applicable workers compensation, disability benefits or other similar employee benefits acts."

McGuiness meets its prima facie burden of establishing entitlement to summary judgment by tendering the contract, submitting evidence that the injury was caused by the wrongful act of Adventure and, submitting evidence that it was free from negligence (Weitz v. Anzek Const. Corp., 65 AD3d 678 [2d Dept 2009]). In opposition, Adventure fails to raise a triable issue of fact. Accordingly, the motion for summary judgment on the contractual indemnification claim is granted.

"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 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" (Perri v. Gilbert Johnson Enterprises, LTD., 14 AD3d 681, 684-685 [2d Dept 2005] [citations omitted]). McGuiness meets its prima facie burden by demonstrating that it is free from negligence and that Adventure had the authority to direct, supervise, and control the work which caused the plaintiff's injury. In opposition, Adventure fails to raise a triable issue of fact. Accordingly, McGuiness' motion for summary judgment on its claim for common-law indemnitification is granted.

Conclusion

In sum, plaintiff's motion for summary judgment on his claim pursuant to Labor Law § 240(1) is granted as against Adventure and McGuiness and denied as [*7]to Superior.

Superior's motion to amend its answer is granted. Superior's motion for summary judgment is granted and the complaint and all cross-claims against it are dismissed.

McGuiness' cross-motion for summary judgment is denied as against Superior. McGuiness' cross-motion for summary judgment is granted with respect to its claims for contractual and common law indemnification against Adventure.

This constitutes the Decision and Order of the Court.

__________________

J.S.C.