Mercado v Caithness Long Is., LLC
2012 NY Slip Op 30854(U)
April 2, 2012
Sup Ct, NY County
Docket Number: 102473/2009
Judge: Marcy S. Friedman
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SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY
Index Number ' 10247312009
MERCADO, GREGG M.
CATHNESS LONG ISLAND LLC
M O T I O N SEQ. NO.
SEQUENCE NUMBER : 003
M O T I O N CAL. NO.
this motion to/for
Notice of Motion/ Order to Show Cause - Affidavits
Answerlng Affidavits - Exhibits
M A € p d FklEDMAN, J S G
0 FINAL DISPOSITION
0 DO NOT POST
Check if appropriate:
0 SUBMIT ORDER/ JUDG.
0 SETTLE ORDER/ JUDG.
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK -PART 57
PRESENT: Hon. Marcy S. Friedman, JSC
GREGG M. MERCADO and CATHERINE T.
Index No. 102473/2009
- against -
CAITHNESS LONG ISLAND, LLC, SIEMENS
ENERGY INC. UlWa SIEMENS POWER
GENERATION, INC., FRESH MEADOW
MECHANICAL CORP., F&S POWER, LLC, and
F&S POWER CORP.,
CAITHNESS LONG ISLAND, LLC, SIEMENS
ENERGY, INC., and F&S POWER, LLC,
- against -
FRESH MEADOW POWER, LLC,
In this Labor Law action, plaintiff seeks damages for injuries sustained on November 24,
2008 while working as a boilermaker. Defendants Fresh Meadow Mechanical Corp. and F&S
Power Corp. (FMMC and F&S Power, respectively) (the FMMC defendants) move for summary
judgment dismissing the complaint and all cross-claims. Plaintiff cross-moves for summary
judgment on his Labor Law $240( 1) and $24 l(6) claims. Third-party defendant Fresh Meadow
Power, LLC (Fresh Meadow) cross-moves for summary judgment dismissing plaintiffs Labor
Law §§240(1) and 241(6) claims and the claims ofthe Caithness defendants - Caithness Long
Island LLC (Caithness), Siemens Energy, Inc., formerly Siemens Power Generation, Inc.
(Siemens), and F&S Power, LLC (F&S, a distinct entity from F&S Power Corp.) - for contractual
and common law indemnification against third-party defendant Fresh Meadow.
Plaintiff has stipulated to discontinue this action as to F&S Power. (See Ex. L attached to
the FMMC Aff. in Support.) The Caithness defendants oppose the FMMC defendants’ motion to
dismiss plaintiffs claims against F&S Power but offer no documentary evidence to support their
assertion that F&S Power was involved in the project. This branch of the FMMC defendants’
motion is granted.
Plaintiff was employed as a boilermaker by Fresh Meadow. (P.’s Dep. at 18, Ex. 2 to P.’s
motion.) By contract dated April 12,2007, FMMC hired Fresh Meadow as a subcontractor. (Ex.
12 to P.’s motion.) Fresh Meadow employed the boilermakers at the site. (Fresh Meadow Aff.
in Support of cross-motion, 7 15.) By contract dated April 12, 2007, FMMC was hired by F&S
as a subcontractor. (Ex. 4 to P.’s motion.) F&S was hired by Siemens Power Generation, Inc.
the general contractor under a May 1,2007 construction agreement. (Ex. 11 to P.’s motion.)
Siemens was hired by Caithness as the engineering, procurement, and construction (EPC)
contractor. (Caithness Aff. in Opp. to FMMC’s motion and P.’s cross-motion, 17 6, 21.)
Caithness was the owner of the energy center being built.
At the time of the accident, plaintiff was working on a project to build a new power plant.
(P.’s Dep. at 27.) According to plaintiff, he was injured when a pipe fell from above and hit him
on the head. (Id. at 43-44.) As discussed more fully below, the parties dispute what caused the
pipe to fall.
The standards for summary judgment are well settled. The movant must tender evidence,
by proof in admissible form, to establish the cause of action “sufficiently to warrant the court as a
matter of law in directing judgment.” (CPLR 3212[b]; Zuckerman v City of New Yo&, 49 NY2d
557, 562 .) “Failure to make such showing requires denial of the motion, regardless of the
sufficiency ofthe opposing papers.” (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853
[ 19851,) Once such proof has been offered, to defeat summary judgment “the opposing party
must ‘show f’acts sufficient to require a trial of any issue of fact’ (CPLR 3212, subd. [b]).”
(Zuckerman, 49 NY2d at 562.)
Labor Law (5240(1)
Defendant FMMC moves for summary judgment dismissing plaintiff‘s §240( 1) claim on
the ground that it was a subcontractor who exercised no supervisory control
authority over the
work being done when plaintiff was injured, and that it was therefore not a statutory agent for
purposes of liability under Labor Law $240(1). (FMMC Aff. in Support, 116.) It also argues
that plaintiff was the sole proximate cause of his’injury. Plaintiff cross-moves for summary
judgment on his Labor Law §24O( 1) claim. Third-party defendant Fresh Meadow seeks s~unmary
judgment dismissing plaintiffs (j240(1) claim on the ground, among others, that fact issues
remain as to whether the object that struck plaintiff was bcing hoisted or secured at the time of
injury. (See Fresh Meadow Aff. in Support, 14.) Fresh Meadow krther claims that plaintiff was
the sole proximate cause of his injury in choosing not to wear a hard hat when one was
“provided” to him.
Labor Law $240( 1) provides:
All contractors and owners and their agents, * * * in the erection,
demolition, repairing, altering, painting, cleaning or pointing of a
building or structure shall furnish or erect, or cause to be furnished
or erected for the performance of such labor, scaffolding, hoists,
stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes,
and other devices which shall be so constructed, placed and
operated as to give proper protection to a person so employed.
“The purpose of the section is to protect workers by placing the ‘ultimate responsibility’
for worksite safety on the owner and general contractor, instead of the workers thetnselves.”
(Gordon v Eastern Ry. Supply, Tnc., 82 NY2d 555, 559 ; Rocovich v Consolidated Edison
- 78 NY2d 509, 513 [ 19911.) “Thus, section 240( 1 ) imposes absolute liability on owners,
contractors and their agents for any breach of the statutory duty which has proximately caused
injury.” (Gordon, 82 NY2d at 559.)
It is well-settled that “an accident alone does not establish a Labor Law $240(1) violation
or: causation.” (Blake v Neighborhood Hous. Servs. of New
YQ& Citv. Inc., 1 NY3d 280,289
.) In order to establish liability under §240(1), it must be shown that the statute was
violated and that the violation was a contributing cause of the plaintifi’s injury.
While section 240( 1) should be construed liberally so as to effectuate its purpose, it is
well settled that the statute applies only to “elevation-related hazards.” (Ross v Curtis-Palmer
Hydro-Elec. Co., 81 NY2d 494, 500 ; Rocovich, 78 NY2d at 514.) The hazards
contemplated by the statute “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 between the elevation level where the worker is positioned and the
higher level of the materials or load being hoisted or secured.” (Rocovich, 78 NY2d at 514;
Narducci v Manhasset Bay Assocs., 96 NY2d 259 .) General hazards of the workplace are
not within the Contemplation of Labor Law §240( 1 ).
As a threshold matter, the court rejects third-party defendant Fresh Meadow’s contention
that the protection of 1,abor Law $240( I) does not apply because fact issues exist as to whether
the pipe was being hoisted or secured at the time of plaintiffs accident. It is well settled that
falling object liability “is not limited to cases in which the falling object is in the process of being
hoisted or secured.” (Ouattrocchi v F.J. Sciame Constr. CQ., 11 NY3d 757, 758-759 ; a
also Outar v Citv of Ncw York, 5 NY3d 731 ,
1 1 AD3d 593 ; VarKas v Citv of
New York, 59 AD3d 261 [ l ” Dept 20091.)
The court further rejects defendants’ claim that the cause of the accident is speculative.
While the exact cause oi‘the fall of the pipe is not known, it is undisputed that the pipe fell from
above and injured plaintiff, (P.’s Dep. at 57.) As noted above, plaintiff testified that he was hit
by a pipe that fell from the “top of the unit,” which he further describes as “ninety feet up.” (P.’s
Dep. at 49-50.) Plaintiff had previously seen the type of pipe that hit him, which he describes as
a three-foot pipe with a 90-degree elbow welded on it, when he woiked “on top of the unit.”
at 44, 5 1.) Plaintiff admitted he did not see the particular pipe that hit him prior to the accident,
but stated that a co-worker showed the object to plaintiff after it came into contact with his head.
Plaintiffs testimony is undisputed. Lawrence Britt, Caithness’ construction manager,
testified that he was told soon after the accident that “a piece of pipe had fallen from fairly high
up on the HRSG (heat recovery steam generator) and struck a welder in the head.” (Britt Dep. at
6, 37, Ex. 6 to P.’s motion.) Mr. Britt estimated that the top of the HRSG is about one hundred
and twenty feet high.
(u 38.) He further identified the pipe that hit plaintiff as the type of
pipe with which steamfitters were working on the top of the HRSG at the time of plaintiff’s
accident. (Id.at 44.) The pipe identified as the pipe that hit plaintiff bears a sticker with the
name of the local steamfitters union. (Ex. D to Caithness Aff. in Opp.) Mr. Britt observed a
“gap in the toe board” on the elevated platform above the area in which plaintiff was working.
(Britt Dep. at 39.) He describcd a tocboard as “a barrier bchveen the floor elevation and it’s
usually a four-inch barrier and this would keep . . . things from falling off the grating.” (Id.)
Toeboards are installed “wherever you have a walkway grating and you’re above ground. . . .”
It is further noted that Wayne Smith, FMMC’s corporate safety director, testified that he
was told by Mr. LiPuma, a member of the safety staff hired by Siemens, that plaintiff was injured
by “a pipe that had fallen from above, and that he was wearing no hard hat.” (Smith Dep. at 13,
40, Ex. 8 to P.’s motion.) Mr. Smith stated that it was his understanding that the toeboard in
question was not installed at the time of the incident.
(Id.at 5 8 . )
inch piece of drain pipe as the pipe that fell and struck plaintiff.
Mr. Smith identified a 24 to 26
(Id at 48.)
He stated that “[i]t
was determined to have fallen from the catwalk above located at the top of the HRSG,” which hc
estimated to be about ninety feet high.
(M at 49.)
The accident report filed by Mr. Smith stated
that “[a] 30 inch section of 3/4 inch drain pipe (7 lbs. approx.) fell from approximately 100 feet
striking [plaintiff] on the top of his head. . . ” (Ex. 10 to P.’s motion.) The section of the
accident report entitled “Why did it happen” states:
2-3” gap existing between the drum house
wall and the flooring permitted the pipe length in question to fall.”
Even without consideration of Mr. Smith’s accident report, the court finds that the
testimony of plaintiff and the testimony of Mr. Britt make a prima facie showing, unxebutted by
defendants, that plaintiff was hit by a pipe that fell from above. Fresh Meadow’s claim that the
source of the pipe is unknown (see Fresh Meadow Aff. in Support, 7 24) is based on the affidavit
of Wayne Smith submitted in support of Fresh Meadow’s motion. The Smith affidavit is
inconsistent with his above-cited deposition testimony and his accident report. It is well settled
that an affidavit that is inconsistent with a party’s prior position and tailored to avoid the
consequences of deposition testimony should be rejected. (Nicholas v New York City Hous.
Auth 65 AD3d 925 [ l ” Dept 20091; DeLeon v New York City How. , W h , 65 AD3d 930 [I”
Dept 20091.) Moreover, ncither Fresh Meadow nor any of the other defendants submits any
evidence in support of the speculative assertion that the pipe was thrown rather than fell. On the
contrary, while the court does not and need not make any finding offact on the issue, the court
notes that the sole evidence in the record as to the cause of the fall is that the pipe fell through a
missing part of the toe board on the EIRSG-unit.
l h e court accordingly holds that the manner in which the accident occurred falls within
the purview of Labor Law (j240(1).
(SeeZuluaEa v P.P.C. Constr., LLC, 45 AD3d 479 [ lst Dept
20071 [partial summary judgment was proper where plaintiff was struck by a pipe that fell
several floors]; Rosa v Macy Co., 272 AD2d 87 [ l “ Dept 20001 [falling o f a heavy object from
25 or 20 feet is precisely the sort of elevation-related risk that 6240 was intended to address].)
The court further rejects FMMC’s and Fresh Meadow’s contention that plaintift’s failure
to wear a hard hat was the sole proximate cause of his injury. It is well settled that comparative
negligence is not a defense to a Labor Law §240(1) claim. (Gordou, 82 NY2d at 562.) In order
for a plaintiff‘s acts to constitute a defense to a $240( 1) claim, such acts must have been “the sole
proximate cause” of the plaintiffs injuries. (Weininger v Hagedorn & Ca., 91 NY2d 958, 960
, rearg denied 92 NY2d 875;
1 NY3d at 290.) “[Ilf a statutory violation is a
proximate cause of an injury, the plaintiff cannot be solely to blame for it.”
Plaintiff‘acknowledged that his employer provided him with a plastic hard hat.
28.) However, he testified that at the time of his injury, hc was wearing a welding hood that
covered his face and eyes, and that he was not wearing a hard hat because the welding hood
would not fit with the hard hat. (Id.at 40-41, 55.) Mr. Smith testified that there was a type of
welding shield, as opposed to a welding hood, that could fit with the hard hat. (Smith Dep. at
Signiiicantly, however, a hard hat is not an enumerated safety device under Labor Law
$240(1). As the Appellate Division of this Department has held: “A hard hat is not the type of
safety device enumerated in Labor Law §240( 1) to be constructed, placed and operated, so as to
give proper protection from extraordinary elevation-related risks to a construction worker.”
(SinFh v E. 96 Realty Corn., 291 AD2d 216 [lSt
Dept 20021; &,
272 AD2d 87, supra.) As
there is evidencc in the record that a toe board was a type of device that could have prevented a
falling pipe, but that a part of the toe board was missing in the area above plaintiffs work space,
plaintiffs failure to wear a hard hat cannot have been the sole proximate cause of the injury.
The court has considered defendants’ remaining contentions as to the inapplicability of
Labor Law §240( 1) and finds them to be without merit. The court accordingly holds that
plaintiff is entitled to partial summary judgment as to liability on his $240(1) claim against
Caithness as the owner, Siemens as the EPC contractor, and F&S as the general contractor.
FMMC as a Statutorv A y n t under the Labor Law
Plaintiffs entitlement to summary judgment against FMMC turns on whether that
defendant was a statutory agent for purposes of liability under 5240(1). In seeking dismissal of
plaintiff’s claims against it, FMMC contends that as a subcontractor, it is not liable under the
Labor Law. The standards for imposition of liability upon a subcontractor are well settled:
“Although sections 240 and 24 1 now make nondelegable the duty of an owner or
general contractor to conf’orm to the requirement of those sections, the duties
themselves may in fact be delegated. When the work giving rise to these duties
has been delegated to a third party, that third party then obtains the concomitant
authority to supervise and control that work and becomes a statutory ‘agent’ of the
owner or general contractor. Only upon obtaining the authority to supervise and
control does the third party fall within the class of those having nondelegable
liability as an ‘agent’ under sections 240 and 241 .”
(Russin v Louis N. Picciano & Son, 54 NY2d 3 1 1 , 3 17-318 L198 11 [citations omitted].) Thus,
“[a] subcontractor can be deemed an ‘agent’ under this statute, and be held liable, if to it is
delegated the supervision and control either over the specific work area involved or the work
which gives rise to the injury.” (Headen v. Progressive Painting COQ ., 160 AD2d 3 19,320 [ 1st
Dept 19901 [decided under 15240 [ 111.j Subcontractors have been found to be agents of general
contractors not only where the subcontractors actually exercised supervision but also where
“subcontracts explicitly granted supervisory authority. . .” (Nascimento v Bridgehampton
Constr. Corn ., 86 AD3d 189, 193 [ 1’‘ Dept 201 11; Weber v Baccarat, Inc., 70 AD3d 487,488 [l”
Dept 20 101.) Evidence that a subcontractor delegated supervision and control to another
subcontractor “has been cited as forming part of the proof that the first subcontractor formerly
possessed that authority, and may justify imposing Labor Law liability on the first subcontractor
as a statutory agent of the general contractor.” (Nascimento, 86 AD3d at 193.) The standards for
determining whether a subcontractor is an agent of an owner or general contractor are the same
under Labor Law $8240 and 241. (Russin, 54 NY2d at 3 18.j
FMMC demonstrates, based on plaintiff’s deposition testimony that he was given
instructions only by his supervisor and his foreman (P.’s Dep. at 24-5)’ that FMMC did not
exercise actual supervisory authority over plaintiffs work.
In contrast, the court finds that FMMC was delegated supervisory authority under its
contract with F&S. Section 2.1 of the contract between F&S and FMMC states that the
subcontractor shall “assume toward the Contractor all obligations and responsibilities which the
. . . assumes toward
the EPC Contractor and the Architect.” (Ex. E to Caithness’ Aff.
in Opp.) The contract requires FMMC to furnish all labor and supervision for mechanical piping
and boilermaking. (Ex. E, Attachment B.) It further provides that F&S shall not give
instructions to FMMC employees unless designated as authorized representatives of FMMC
$3.2.2), and that FMMC shall “supervise and direct the Subcontractor’s work, and shall
cooperate with the Contractor in scheduling and performing the Subcontractor’s Work to avoid
conflict, delay in or interfcrence with the Work of the Contractor . . . .” (&
As discussed above, at the time of plaintiffs injury, pipes like the one that hit plaintiff
were being used at the top of the unit by steamfitters. (See supra at 5 . ) The contract between
F&S and FMMC shows that FMMC had authority over mechanical piping and boilermaking.
Mr. Smith also expressly testiljed that FMMC had 60 to 80 of its own steamfitters on site and
four to six foremen to supervise the steamfitters, ironworkers and laborers. (Smith Dep. at 8 1-
Based on the clear terms of the contract between F&S and FMMC, as well as FMMC’s
own testimony, the court holds that F&S delegated supervisory authority to FMMC, and that
FMMC is a statutory agent under the Labor Law. Plaintiff is accordingly also entitled to partial
summary judgment as to liability against FMMC on his Labor Law §240( 1) claim.
Labor Law 8241(6) claim
Labor Law $24l(6) provides:
All contractors and owners and their agents *
the following requirements:
* * shall comply with
6.All areas in which construction, excavation or demolition work
is being performed shall be so constructed, shored, equipped,
guarded, arranged, operated and conducted as to provide
reasonable and adequate protection and safety to the persons
employed therein or lawfully frequenting such places.
It is well settled that this statute requires owners and contractors and their agents ‘“to
provide reasonable and adequate protection and safety for workers and to comply with the
specific safety rules and regulations promulgated by the Commissioner of the Department of
(Ross,81 NY2d at 501-502.)In order to maintain a viable claim under Labor Law
$24l(6); the plaintiff must allege a violation of a provision of the Industrial Code that mandates
compliaiice with “concrete specifications,” as opposed to a provision that “establish[es] general
“The former give rise to a nondelegable duty, while the latter do
U “[Wlhether or not plaintiff was himself negligent may require an apportionment of
liability but does not absolve defendants of their own liability under section 24 1(6).”
Swissotel New York, Inc., 262 AD2d 11 1, 114 [19‘ Dept 19991,! dismissed 94 NY2d 858
Although plaintiffs Bill of Particulars cites numerous sections of the Industrial Code, in
plaintiff’s moving papers, plaintiff alleges only that defendants violated $23-1.7(aj(l),’
23-1.7(a)( 1) provides:
Every place where persons are required to work or pass that is normally exposed to
falling inaterial or objects shall be provided with suitable overhead protection. Such
overhead protection shall consist of tightly laid sound planks at least two inches thick
fiill size, tightly laid three-quarter inch exterior grade plywood or other material of
equivalcnt strength. Such overhead protection shall be provided with a supporting
pertaining to overhead hazards, and $23-1.1 5,2 pertaining to safety railings. (P.’s Memo of Law
attached to P.’s Cross-Motion, at 19-2 1.)
Defendant Fresh Meadow argues that 12 NYCRR 23-1.7(a)(l) and 12 NYCRR 23.1-15
are inapplicable because they do not impose a specific duty and are not relevant to the manner in
which the accident occurred. (Fresh Meadow Aff. in Support, 77 43-4.) Fresh Meadow also
argues that plaintiffs claim should fail because plaintiff did not provide expert affidavits to
support his claim.
These sections are sufficiently specific to support liability under Labor Law $241(6).
(See Zuluagp, 45 AD3d 479, supra; Donohue v CJAM Assocs.. LLC, 22 AD3d 710 [2ndDept
20051.) Fresh Meadow fails to make any showing as to why compliance with the above
Industrial Code provisions is not a matter within the ken of a layperson.
As to 12 NYCRR 23-1.7(a)( 1), defendant represented, albeit without citations to any
evidence in the record, that scaffolding was erected in the area where plaintiff was working at the
time of his injury. The existence of scaffolding in plaintiffs work area itself raises a triable issue
of fact as to whether this was an area normally exposed to falling objects that required overhead
protection. (& FMMC Aff in Opp., 7 6.) Conversely, plaintiff has failed to demonstrate as a
matter of law that additional safety devices were required. Therefore, summary judgment is
structure capable of supporting a loading of 100 pounds per square foot.
23- 1-15 provides:
Whenever required by this Part (rulo), a safety railing shall consist as a minimum of
an assembly constructed as follows:
(c) A one inch by four inch toeboard except when such safety railing is installed at grade or
ground level or is not adjacent to any opening, pit or other area which may be occupied by any
denied as to both plaintiff and defendants on the Labor Law §241(6) claim based on this section.
As to Industrial Code section 23- 1.15 regarding toc boards, the deposition testimony of
Mr. Britt and Mr. Smith, as well as the accident report (See supra at 5-6), state that at least one
section of toeboard was missing, creating a gap through which objects may have fallen. Plaintiff
therefore makes a prima facic showing that the missing toeboard was in violation of the concrete
specifications of the Labor Law, and led to his injury, That plaintiff was not wearing a hard hat
does not, without more, raise a triable issue of fact as to whether non-compliance with this
Industrial Code section was a proximate cause of plaintiffs injury. Plaintiffs cross-motion for
summary judgment as to liability based on a violation of 12 NYCRR 23.1-1 5 should accordingly
Labor Law 6200
Defendant FMMC moves for summary judgment on plaintiffs Labor Law 5200 claim.
Labor Law §200( 1) provides in pertinent part:
All places to which this chapter applies shall be so constructed, equipped,
arranged, operated and conducted as to provide reasonable and adequate
protection to the lives, health and safety of all persons employed therein or
lawfully frequenting such places. All machinery, equipment, and devices in such
places shall be so placed, operated, guarded, and lighted as to provide reasonable
and adequate protection to all such persons.
Labor Law 5200 is a codification of the common law duty imposed upon an owner or
contractor to provide construction workers with a safe place to work. (See Comes v New York
State Elec. & Gas Corn., 82 NY2d 876, 877 [ 19931.) Recent cases have clarified that liability
under section 200 may arise in two circumstances: where workers are injured as a result of the
manner in which the work is performed, or where they are injured as a result of a dangerous
condition on the site. (Makarius v Port Auth. of New York and New Jersey, 76 AD3d 805, 808
[Roman, J., concurring], 8 17 [Moskowitz, J., concurring] [ l ” Dept 20101, citislR Ortega v Puccia,
57 AD3d 54,61 [2ndDept 20081.)
It is well settled that “[wlhere the alleged defect or dangerous condition arises from the
contractor’s methods and the owner exercises no supervisory control over the operation, no
liability attaches to the owner under the common law or under Labor Law 9200.” (Comes, 82
NY2d at 877; see also Ross, 81 NY2d at 505 [same for general contractor]; Reilly v Newireen
ASSOCS., AD2d 214 [lst Dept 20031, lv denied 100 NY2d 508.) The rationale for this rule is
that “[aln implicit precondition to [the] duty to provide a safe place to work is that the party
charged with that responsibility have the authority to control the activity bringing about the injury
to enable it to avoid or correct an unsafe condition.’’
(See Russin, 54 NY2d at 3 17.) Liability
does not attach “solely because the owner had notice of the allegedly unsafe manner in which the
work was performed.” (COmeS, 82 NY2d at 878; Ortega, 57 AD3d at 6 1.)
Where, however, the injury arises out of “a dangerous condition on the site,” ratherthan
“the methods or materials” used by the worker OF his employer, it is “not necessary to show that
[the owner or general contractor] exercised supervisory control over the manner of performance
of the injury-producing work,” only that it “had notice of the condition.” (Minorcqk v
Dormitory Auth. of State of New York, 74 AD3d 675 [ 1st Dept 20101; Seda v Epstein, 72 AD3d
455 [lst Dept 20101; Murphy v Columbia Univ., 4 AD3d 200 [ l ” Dept 20041.) “General
awareness” that a dangcrous condition may be prcsent is insufficient. (See Gordon v American
Museum ofNatura1 History, 67 NY2d 836, 83 8 [ 19861.) “The notice must call attention to the
specific defect or hazardous condition and its specific location.” (Mitchcll v New York Univ., 12
AD3d 200, 201 [lSt
Dept 20041.) Furthermore, constructive notice of a defect requires that the
“defect must be visible and apparent and it must exist for a sufficient length of time prior to the
accident to permit defendant’s employees to discover and remedy it.” (Gordon, 67 NY2d at
Defendants dispute which party was responsible for installing and inspecting toeboards.
Lawrence Britt of Caithness testified that Siemens was responsible for installing the toeboards,
but that they were actually installed by F&S. (Britt Dep. at 41,42.) Wayne Smith of FMMC
slated that Mark Cilla, project superintendent for F&S, directed the installation of the toeboards.
(Smith Dep. at 100.) The Caithness defendants assert that Mr. Cilla was actually an employee of
FMMC. (Caithness Aff. in Opp., 7 5 1.) Albert Chowlansky, site manager for Siemens at the
time of the accident, testified that Mark Cilla was an employee of F&S. (Chowlansky Dep. at 7-
8;10, 19.) The Caithness defendants claim that F&S had no employees at the site, and all
personnel present on behalf of F&S were employed by either FMMC or non-party Scalamandre.
(Caithness Aff. in Opp., 7 7.) Mr. Smith testified that F&S had the responsibility of inspecting
the toe guards after installation, as did Siemens. (Smith Dep. at 12s.) Mr. Britt testified it was
the responsibility of Mr. LiPuma, a safety consultant hired by Siemens, to inspect the toeboards
after they were installed by F&S.
As to notice of a gap in the toeboard, Lawrence Britt testified that the toeboard in
question was in an unusual location, and was overlooked. (Britt Dep. at 41 ,) Wayne Smith
testified, in contrast, that the toeboard was not installed at the time of the accident because the
“schedule and progress of the job site did not at that time dictate that toeboards were required to
be installed at that location based on the activity that we were engaged in at the time.” (Smith
Dep. at 62-3.)
In short, whether a missing toeboard involves the means and methods of performing the
work or a dangerous condition at the work site, there is a conflict in the evidence as to which
defendant was responsible for installing and inspecting the toe boards. FMMC therefore has not
eliminated triable issues offact as to its liability under section 200.
?’he branch of Fresh Meadow’s motion to dismiss the Caithness defcndants’ claims for
common law indemnification is granted without opposition. The branch of Fresh Meadow’s
motion to dismiss the Caithness defendants’ claim for contractual indemnification is granted
without opposition to the extent of dismissing the claim except to the extent that any recovery by
plaintiff exceeds the $1,000,000 policy limits of the National Union Fire Insurance Company
policy number 0007 1 1201.
It is accordingly hereby ORDERED that the motion of defendant Fresh Meadow
Mechanical Corp. and F&S Power Corp. for summary judgment is denied except that the branch
of the motion seeking to dismiss claims against F&S Power Corp. is granted; and it is further
ORDERED that the branch of the cross-motion of Fresh Meadow Power, LLC for
summary judgment dismissing plaintiffs Labor Law claims is denied; and it is hrther
ORDERED that the branch of the cross-motion of Fresh Meadow Power, LLC for
summary judgment dismissing the claim of third-party plaintiffs Caithness Long Island LLC,
Siemens Energy, Inc., and F&S Power, LLC is granted to the extent ofdismissing third-party
plaintiffs’ claim for common law indemnification, and dismissing third-party plaintiffs’ claim for
contractual indemnification io the extent that any recovery by plaintiff exceeds the $1,000,000
policy limits of the National Union Fire Insurance Company policy number 00071 1201; and it is
ORDERED that the cross-rnotion of plaintiff for summary judgment as to liability on his
Labor Law $240( 1) is granted against defendants Caithness Long Island LLC, Siemens Energy,
Inc., F&S Power, LLC, and Fresh Meadow Mechanical Corp.; and it is further
ORDERED that the cross-motion of plaintiff for summary judgment as to liability on his
Labor Law $24l(6) claim is granted against defendants Caithness Long Island LLC, Siemens
Energy, Inc., F&S Power, LLC, and Fresh Meadow Mechanical Corp. to the extent it is based on
Industrial Code section 23.1-15, and denied to the extent it is based on Industrial Code section
23.1-7; and it is further
ORDERED that an assessment on damages shall be held at the time of trial, or after any
other disposition of the underlying action, upon the filing of a note of issue and payment of the
proper fees, if any.
This constitutes the dccision and order of the court.
Dated: New York, New York
April 2, 2012
G@Ks M ’ C E