DeGabriel v Strong Place Realty, LLC

[*1] DeGabriel v Strong Place Realty, LLC 2009 NY Slip Op 52042(U) [25 Misc 3d 1212(A)] Decided on September 23, 2009 Supreme Court, Kings County Saitta, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 23, 2009
Supreme Court, Kings County

Cesar DeGabriel, Plaintiff,

against

Strong Place Realty, LLC, Strongrew Realty, LLC, and Rockledge Scaffold Corp., Defendants.



Strong Place Realty, LLC, Strongrew Realty, LLC, Third-Party Plaintiffs,

against

Citywide Concrete, Inc., Third-Party Defendant.



16495/2008



Attorney's for Plaintiff, Cesar DeGabriel

Queller Fisher Dienst Serring Washer & Kool

233 Broadway

New York, New York 10279

(212) 406-1700

Attorney's for Defendants. Strong Place Realty, LLC & Stronggrew Realty, LLC.

Traub Lieberman Straus & Shrewsberry, LLP

Attorney's at Law Mid-Westchester

Executive Park

Seven Skyline Drive

Hawthorne, New York 10632

(914) 347-2600

Attorney's for Defendants, Rockledge Scaffold Corp.

Carfora Klar Gallo Vitucci Kler Pinter & Cogna

185 Madiison avenue, 12th floor

New York, New York 10018

(212) 683-7100

Attorney's for Third-Party Defendant Citywide Concrete Inc.

Cascone & Kwepfel,LLP.

1399 Franklin Avenue, Suite 302

Garden City, New York 11530

(516) 747-1990

Wayne P. Saitta, J.

Defendants, STRONG PLACE REALTY, LLC., STRONGREW REALTY, LLC, and, ROCKLEDGE SCAFFOLD CORP., move this Court for an Order pursuant to CPLR § 3212 for Summary Judgment against the Plaintiff.

Upon reading the Notice of Motion by Chad E. Sjoquist, Esq., dated January 26th, 2009, together with the Affirmation in Support of Chad E. Sjoquist, Esq., dated January 26th, 2009, and all exhibits annexed thereto; the Memorandum of Law in Support of Chad E. Sjoquist, Esq., dated January 26, 2009; the Notice of Motion by Lisa M. Rolle, dated February 13th, 2009, together with the Affirmation in Support of Lisa M. Rolle, Esq., dated February 13th, 2009, and all exhibits annexed thereto; the Affirmation in Opposition of Olympia Rubino, Esq., Attorney for Third-Party Defendant, CITYWIDE CONCRETE, INC., dated March 3rd, 2009; the Affirmation in Opposition of Lisa M. Rolle, Esq., dated April 15th, 2009; the Affirmation in partial Opposition of Chad E. Sjoquist, Esq., dated April 17th, 2009; the Affirmation in Opposition of Ephrem J. Wertentiel, Esq., counsel for Plaintiff, dated April 24th, 2009; the Reply Affirmation of Lisa M. Rolle, Esq., dated April 29th, 2009, and all exhibits annexed thereto; the Reply Affirmation in Further Support of Chad E. Sjoquist, Esq., dated April 30th, 2009; and after argument of counsel and due deliberation thereon, Defendants' motion for Summary Judgment is herein denied in part and granted in part for the reasons set forth below.

FACTS

Plaintiff Cesar DeGabriel, (hereinafter "Plaintiff" or "DeGabriel"), seeks [*2]compensation for a workplace accident which occurred when an I-beam fell on his leg, causing him to suffer injuries.

The accident occurred on December 27, 2006 while Plaintiff was employed by Citywide Concrete, Inc., (hereinafter "Citywide"or "employer"), and working at 56 Strong Place, Brooklyn, New York. Plaintiff's supervisor at Citywide was foreman Francisco Javier Rivera, (hereinafter "Rivera" or "foreman"). Defendant Strongrew Realty LLC, (hereinafter "Strongrew" or "owner"), was the owner of the location and Defendant Strong Place, (hereinafter "Strong Place" or "general contractor"), was the general contractor. Rockledge Scaffold Corp., (hereinafter "Rockledge" or "sub contractor"), had been hired by Strong Place to provide services at the premises.Plaintiff and his co-workers had been instructed by their foreman to move some heavy wooden beams from one location to another location in the middle of the room in which they were working. The beams were too heavy for one man to carry.

There was a pile of metal I-beams on the floor between where the wood beams were and where they were to be moved such that the wood had to be moved around the I-beams. The I-beams had been placed there by the sub-contractor in a single stack three or four beams high. Each beam was about 10" in height. They were not secured together or secured to the ground.

Plaintiff and five other men carried twenty to twenty five wood beams to the specified location by walking around the I beams. When there were approximately ten to twelve wood beams remaining to be moved, one of the men working with the Plaintiff was moved to another task so the remaining beams were moved by Plaintiff and four co-workers. Plaintiff and his co-workers then began moving the wooden beams by sliding them across the metal I-beams. While moving the last beam, two of the workers used their feet to push the final wooden beam across the stack of metal I-beams, and dislodged one of the metal beams, causing it to fall on Plaintiff's leg.

The Plaintiff filed suit against the Defendants, claiming violations of sections 240(1), 241(6) and 200 of the New York State Labor Law.

ARGUMENTS

The owner and general contractor argue that Plaintiff's claim pursuant to Labor Law §240(1) should be dismissed as Plaintiff was not exposed to any elevation related risk. They further argue that there was no specific violation of any industrial code which supports a claim under Labor Law §241(6). They argue that they did not supervise or control Plaintiff's work and therefore Labor Law §200 must be dismissed. They further argue they are entitled to summary judgment on the sub-contractor's cross-claims for common law indemnification and contribution as they were not negligent. Finally the owner and general contractor argue that they are entitled to contractual indemnification from Plaintiff's employer.

The sub-contractor Rockledge moves seeking dismissal of the complaint. It argues that the Labor Law §240(1) claim should be dismissed as Plaintiff was not exposed to any elevation related risk. It further argues that since it is neither the [*3]owner nor general contractor, it cannot be held liable for any violation of the industrial code pursuant to §241(6). The sub-contractor further argues that Labor Law §200 does not apply to it, as the accident was unforeseeable and the sub-contractor was not the proximate cause of the accident.

Plaintiff opposes the motions arguing that the object that fell on his foot was an unsecured, falling object which invokes the protections of Labor Law §240(1). Plaintiff argues that Defendants' violation of Industrial Code §23-1.7(e)(2) provides a basis for a claim under Labor Law §241(6). He further argues that the owner and general contractor had actual and constructive notice of the dangerous condition on the work site, specifically the unsecured stack of I beams, making them liable under Labor Law §200, and common law negligence.

Plaintiff argues that the sub-contractor created the hazard by stacking and not securing the I-beams and therefore the sub-contractor is liable under Labor Law §200 and common law negligence.

Finally the sub-contractor Rockledge argues that it has no contractual obligation to indemnify the owner or Plaintiff's employer because the contract only required them to indemnify the general contractor. The sub-contractor further argues that they do not have to indemnify the general contractor because they did not proximately cause the accident and were not the sole cause of the accident.

ANALYSIS

Labor Law §240(1)

Labor Law §240(1), known as the "scaffold" law, was enacted to impose non-delegable, strict liability upon property owners and general contractors for injuries which result from construction activities involving a significant risk due to elevation. "To establish liability under Labor Law §240(1), a plaintiff must demonstrate a violation of the statute and that such violation was a proximate cause of his or her injuries" (Reinoso v Ornstein Layton Mgt., Inc., 19 AD3d 678, 678 [2005]). A plaintiff must show that they were subject to particular risk because of "the relative elevation at which the task [had to] be performed or at which materials or loads [had to] be positioned or secured". Rocovich v Consolidated Edison Co., 78 NY2d 509, 514 (1991).

In Rocovich v Consolidated Edison Co., 78 NY2d 509, 514 (1991), the Court of Appeals set forth when elevation related activities were intended to fall within the protections of §240(1).

The various tasks in which these devices are customarily needed or employed share a common characteristic. All entail a significant risk inherent in the particular task because of the relative elevation at which the task must be performed or at which materials or loads must be positioned or secured. The contemplated hazards are those related to the effects of gravity where protective devices are called for either because of a difference between the elevation level of the required work and a lower level or a difference [*4]between the elevation level where the worker is positioned and the higher level of the materials or load being hoisted or secured. See also Kaferstein v J.P. Morgan Chase & Co., 9 Misc 3d 1078, 805 NYS2d 265 N.Y.Sup., 2005.

While the Court of Appeals decision in Narducci v Manhasset Bay Associates, 96 NY2d 259 (2001) appeared to limit a plaintiff's ability to bring a Section 240 "falling object" claim exclusively to situations where the object was in the process of being hoisted or secured, that Court held in later cases that falling objects not in the process of being hoisted or secured may also trigger §240 protections, specifically to falling objects which should have been secured, or were improperly secured. (Outar v City of New York, 5 NY3d 731 [2005]; Quattrocchi v F.J. Sciame Constr. Co., Inc, 11 NY3d 757 [2008].) The Second Department in Outar v City of New York, 286 AD2d 671, 730 NYS2d 138 (2nd Dept 2001), held that 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. The Second Department has distinguished cases where unsecured materials fall from above a worker from situations where an object is dropped by a worker or co-worker.

In Outar, althoughthe dolly which fell on the plaintiff was not being hoisted, it was stored unsecured on a ledge five and half feet above the plaintiff. The Second Department held that the "height differential was sufficient to implicate the special protections afforded by Labor Law §240(1)". Id.

The Outar Court went on to distinguish the Court of Appeals decision in Rodriguez v Tietz Ctr. for Nursing Care (84 NY2d 841), noting that the special protections afforded by Labor Law §240(1) were not implicated in that case "since the plaintiff was injured when the beam he and his co-workers were carrying dropped from their hands. The fall of an object carried by hand, unlike the fall of the unsecured dolly here, does not implicate the special protections afforded by Labor Law §240(1)".

In Carroll v Timko Contr. Corp., 264 AD2d 706, 694 NYS2d 744, the Second Department found no violation of §240(1) where "[t]he injured plaintiff was not working at an elevated work site, nor was he struck by an object positioned at a higher level. The mere fact that he was lifting a heavy object did not give rise to liability pursuant to Labor Law §240(1)".

The recent cases appear to draw a line between situations where the object falls from above a worker and where an object is not over the plaintiff's head.

In Screiner v.Cremose Cheese Corp., the Second Department did not find a violation of §240(1) where plaintiff was struck by an unsecured wooden pallet which was elevated four feet above the floor. 202 AD2d 657, 609 NYS2d 322 (2nd Dept 1994).

In Lucas v Fulton Realty Partners, LLC, 60 AD3d 1004, 2009 Slip Op 02567, the Second Department held that an unsecured load of sheet metal elevated eight to ten feet above ground level constituted a violation of §240(1).

In Cruz v Neil Hospitality, LLC, 50 AD3d 619, 855 NYS2d 219 (2nd Dept 2008), [*5]the Court held that §240(1) did not apply, stating "The beam was not elevated above the work site, but rather was at the same level as the plaintiff". Here the Court found that the Plaintiff was exposed to the "usual and ordinary dangers of a construction site, and not the extraordinary elevation risks envisioned by Labor Law §240(1)". Cruz, supra , citing Rodriguez v Margaret Tietz Center for Nursing Care, Inc., 84 NY2d 841, 616 NYS2d 900 (1994). See also Lehner v Dormitory Authority of State of NY, County of Erie, 201 AD2d 948, 607 NYS2d 820 (4th Dept 1994).

The gravity related risk alleged in this case is a I-beam which was knocked off the top of a stack of I-beams. The issue is whether the I-beam was sufficiently elevated in relation to the Plaintiff that it constituted a hazard and should have been secured.

Although the exact configuration of the I-beams is unclear, it is undisputed that the stack was three to four I-beams high, and that each I-beam was 10 inches in height. This would make the height of the top of the stack less than four feet high.

The I-beams were being used as a conduit to slide a very heavy object from one location to another. Given that beams were stacked on the floor and the height of the stack of I-beams was a mere 40 inches and not above the Plaintiff, there is not a sufficient height differential to come within the scope of Labor Law §240(1).

Labor Law §241(6)

"To sustain a cause of action against an owner and general contractor under Labor Law § 241(6) for failure to provide adequate safety measures, the plaintiff must allege [that] a concrete specification of the [Industrial] Code has been violated' , as opposed to general safety standards". Boho v City of New York, 266 AD2d 173, 697 NYS2d 331, (2nd Dept 1999), quoting Rizzuto v Wenger Contr. Co., 91 NY2d 343, 350, 670 NYS2d 816, 693 NE2d 1068. Marooney v 125 West 31st Street Associates, LLC, 20 Misc 3d 1129(A), Slip Copy, 2008 WL 3081659 (Table) N.Y.Sup.,2008.

Plaintiff cites Sections 23-1.7(e)(2), and 23-2.1, among other sections.

Section 23-1.7(e)(2), provides: (e) Tripping and other hazards. (2) Working areas. The parts of floors, platforms and similar areas where persons work or pass shall be kept free from accumulations of dirt and debris and from scattered tools and materials and from sharp projections insofar as may be consistent with the work being performed.

Although 23-1.7 has been found to be a sufficient predicate for liability under [*6]Labor Law §241(6), Lane v Fratella Construction Co., 52 AD3d 575, 860 NYS2d 177 (2nd Dept 2008), in this case Plaintiff did not trip. Further, given the size of the stack of beams, they did not constitute a tripping hazard. See Militello v 45 W. 36th St. Realty Corp., 15 AD3d 158, 789 NYS2d 23 (1st Dept 2005).

Plaintiff also cites Section 23-2.1. Maintenance and Housekeeping, which provides,(a) Storage of material or equipment. (1) All building materials shall be stored in a safe and orderly manner. Material piles shall be stable under all conditions and so located that they do not obstruct any passageway, walkway, stairway or other thoroughfare.

A violation of Section 23-2.1 has also been found to be a sufficient predicate for

a violation of Labor Law §241(6). Castillo v 3440 LLC, 46 AD3d 382, 847 NYS2d 575, (1st Dept 2007). See also Herman v St. John's Episcopal Hosp., 242 AD2d 316, 678 NYS2d 635 (2nd Dept 1997), holding [Section 23-2.1 of the Industrial Code] require[s] compliance with concrete specifications' (Ross v Curtis-Palmer Hydro-Elec. Co. 81 NY2d 494, 505, 601 NYS2d 49, 618 NE2d 82), and, thus, may serve as valid predicate for liability under Labor Law § 241(6). Farina v Plaza Constr. Co., 238 AD2d 158, 655 NYS2d 952; Cafarella v Harrison Radiator Div. of Gen. Motors, 237 AD2d 936, 654 NYS2d 910; White v Sperry Supply & Warehouse, 225 AD2d 130, 134, 649 NYS2d 236; White v Farash Corp., 224 AD2d 978, 637 NYS2d 558).

Section 23-2.1 of the Industrial Code requires material piles to be stable under "all conditions". The material pile in this case, a stack of I-beams, was unsecured. There is a question of fact as to whether the stack of I beams was stable under the conditions present at the time of the accident, which precludes granting summary judgment dismissing Plaintiff's Section 241(6) claim.

Labor Law §200 and Negligence

"To establish liability against an owner or general contractor pursuant to the Labor Law provision requiring landowners to provide workers with a reasonably safe place to work, it must be established that the owner or general contractor exercised supervision and control over the work performed at the site, or had actual or constructive notice of the allegedly unsafe condition." McKinney's Labor Law 220.

Common law and §200 impose a duty upon employers to provide their employees with a safe place to work. It applies to owners, contractors, or their agents, who had control over, or supervised the work, or who created the dangerous condition and had actual or constructive notice of it. Kim v Herbert Construction. Co., 275 AD2d 709, 713 NYS2d 190 (2nd Dept 2000).

Neil McEntee, Estimator for Rockledge, the sub-contractor, testified that the I-beams may have been stacked and that stacking I-beams is dangerous.

Where the dangerous condition is created by a contractors methods the owner can not be held liable. Zavesky v Decato 223 AD2d 642, 636 NYS2d 419 (2nd Dept [*7]1996). There is no duty imposed upon an owner or general contractor to inspect the machinery and tools furnished by a subcontractor, which that contractor exclusively possesses and controls; nor any duty, after an inspection disclosing defects, to repair defective appliances. Iacono v Frank & Frank Contr. Co. 259 NY 377 (1932).

However, where an accident is caused not by the method of work, but by a condition of the workplace, a plaintiff need not prove that the owner or construction manager supervised or controlled the work, only that they had notice of the dangerous condition. Griffin v NYCTA, 16 AD3d 202 , 791 NYS2d 98 (1st Dept 2005).

In Lane v Fratella Construction Co., 52 AD3d 575, 860 NYS2d 177 (2008), the Second Department reversed the lower court's dismissal of a claim under Labor Law §200 where a pile of debris created by subcontractors on the work site constituted a defective condition on the premises. In that case the general contractor failed to show that it lacked actual or constructive notice of the defect as a matter of law. See also Keating v Naiant Bd. of Educ., 40 AD3d 706, 835 NYS2d 705 (2nd Dept 2007).

In this case, the decision to slide the wooden beams across the stack of I-beams comes within the category of a contractor's method, but the stack of I-beams on the floor could be considered to be a dangerous condition.

Schneur Plotkin testified at his deposition that he is an employee and sole member of Strong Place Realty, LLC. Plotkin further testified that he was "on-site on a daily basis making sure that the job [was] getting done.." Although he could not recall the specific configuration of the I-beams, he testified that he saw the I-beams grouped together. Plotkin also testified that Strong Place Realty had an onwnership interest in Strongrew Realty LLC, and an interest in the property.

Plotkin's daily presence at the work site and his observation of the I-beams are sufficient to raise issue of fact as to whether the general contractor and the owner knew about the stack of I-beams. As there are questions of fact both as to whether the stack of I-beams was a dangerous condition, and whether Strongrew and Strong Place had constructive notice of the condition, granting them summary judgment on Plaintiff's §200 and negligence claims is not appropriate.

Similarly Rockledge has not shown it is entitled to summary judgment on the §200 and negligence claims. It is not disputed that Rockledge, the sub-contractor placed the unsecured pile of I-beams at the work site. The foreman of Citywide, Plaintiff's employer testified to having notified the sub-contractor, repeatedly that materials were left at the work site in a sloppy manner, impeding Citywide from doing its work.

A jury could reasonably conclude that Rockledge created the condition, and that the condition was dangerous, and therefore the sub-contractor should be held liable for Plaintiff's injuries.

Indemnification claims

[*8]Strongrew and Strong Place each are seeking contractual indemnification from Citywide, Plaintiff's employer.

The contract between Strong Place and Citywide provides that Citywide is to indemnify Strong Place as general contractor and Strong Grew as the owner. Citywide has submitted no opposition to the motion for summary judgment for contractual indemnification.

Strong Place and Strongrew also seek contractual indemnification from Rockledge. Rockledge as subcontractor agreed to indemnify Strong Place, as general contractor, against all claims "caused directly and solely by Rockledge Scaffold Corporation, its employees or other person under the direct and immediate control of Rockledge's Scaffold Corporation". The contract does not provide that Rockledge will indemnify Strongrew, the owner. Rockledge in turn seeks common law indemnification and contribution from Strongrew and Strong Place.

There are still questions of fact as to which of the Defendants if any are negligent and what percentage of fault they may bear. It would be premature to grant summary judgment on any of the claims for indemnification or contribution arising from a violation of Labor Law §200 or the negligence of any of the parties.

Also it would be premature to grant Stongrew or Strong Place summary judgment on its claims for indemnification for any liability imposed on them pursuant to Labor Law §241(6) because it has not yet been determined that either is liable under that section. Also, as to the claim for contractual indemnification against Rockledge, it has not been determined if Rockledge was a proximate cause of Plaintiff's injury, whether they were the sole cause. Further, to the extent any of the indemnitees were found to be negligent, any indemnification would have to reflect the percent of fault attributed to them.

WHEREFORE, it is hereby ordered that Defendants' motions for summary judgment dismissing Plaintiff's claim pursuant to Labor Law §240(1) are granted; the motions to dismiss Plaintiff's claim pursuant to Labor Law §241(6) are denied, the motions to dismiss Plaintiff's claims pursuant to Labor Law §200 and common law negligence are denied; Strongrew, Strong Place's and Rockledge's motions for summary judgment on their claims for indemnification are denied; and it is hereby Ordered that Plaintiff's claim pursuant to Labor Law §240(1) is dismissed.

This shall constitute the decision and order of the court.

ENTER,

_______________________________

JSC