Davis v Breadstreet Holdings Corp.

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Davis v Breadstreet Holdings Corp. 2012 NY Slip Op 30870(U) March 30, 2012 Sup Ct, NY County Docket Number: 117455/06 Judge: Judith J. Gische Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. lNED ON41512012 -- [* 1] I _ I i I I . 1 I [* 2] SUPREME COURT OF TJB STATE OF NEW YORK COUNTY OF NEW YOkK:PART 10 ~ ~~ GLENN DAVIS and MICHELLE DAVIS, lhsmmuk Index Nn.: 117455/06 Scq.Nos. 004,005 and 006 -against- Present: Hon. JudithJ . BREADSTREET HOLDINGS CORPORATION, 350 PARK INVESTORS LLC,350 PARK INVESTORS J.S.C. CORPORATION, HENEOAN CONSTRUCTTON CO., INC., NASTASI & ASSOCIATES, INC. and ZIFF BROTHERS INVESTMENTS,L.L.C., Defendants. T.P. Index No.: 590486/07 ADCO ELECTRICAL COW. and NASTASI & ASSOCIATES,INC., Tbird-Pmty Defendants. I - X --- 3 -- ---1 "-c- Second T,P. Index No.: BREADSTREET HOLDINGS CORPORATION, 350 PARK INVESTORS ILC SUCCESSOR BY CONVERSION TO 350 PARK INVESTORS 490524/07 CORPORATION, SaCondThird-Party P h t i f h , -againstZFF BROTHERS INVESTMENTS, LLC Recitation, as q u i d by CPLR 2219 (a), of the papcrs considarcd i the review of these n motions: -I-I--.ccI--I--yIII-c-I --------------------- Numbered Papera $ea.No. DEFs 350 PARK, IIENEGAN, ZIFF's dmotion (CPLR3212) wLEB a f k q exhs . . . . . , . . . . 1 PLTFs' opposition w/DB aBm, exhs . . . . . .. . .. I . . . . . . , , , . . . . . .. . . .. . . . . . . . . . . . . , - 2 . [* 3] DEF NMTASI s partial opposition w/ABS affd . . .. . . . , , , , . . . . .. , . . . . . . . . , . , . , , . . . . . 3 DEFs 350 PARK, HENEGAN, ZIFF sreplyto PLTF wLEB affirm. . . , . . . . . . . . . . . . . .. . , 4 DEFs 350 PARK, HENEGAN, ZIFF rr repry t NASTASI wLEB affirm . . . . . . . . . .. . . . . . . . 5 o . Motion Sa, No. . . PLWs dmotion (CPLR 3212) w/DB af5m i support, exhs . . . ., , , ., . . .. .. . .. . . . , . .6 n DEFs 350 PARK, HENEOAN, Z F opposition wLEB a f k a i support, exhs . . . . .. . . . . .7 IFs n PLTFs reply w/DB .. .. . , . . . , . . . . . .. .. . . , , , . . . , . . . .. . . . . . . . , , , . . . . . . . . . .. . . 8 I . .. Motion Seq. No, 9116 DEF NASTASI s dmotion (CPLR3212) w/ABS a ncxhs ... . . . . , . , . . . .. . , . . . . . . . 9 n, PLTFs opposition wDB af6rrn, exhs .. .. . .. . . . . . . . . . . .. . . . .. . . . . . . .. .. .. . . . . . . . .10 DEFs 350 PARK, HENEGAN, ZIFF s partial opposition wLEB affirm . . . . , . , . . . . . . . . . . I 1 DEFNASTASI s reply w/ABS affid . . . , . . . . . . . . . . . . . . . . .. , , . . . . . . . . . . . . . . .. .. . 12 I . . 0th: Transcript of OA 12/8/11 . . .. . . . . . . . . . .. . . . . , .. . .. .. .. .. .. . . . . . . . .. . . . .. . .. . .. 1 3 I Upon theforegoingpupem, the decision and order o the court is asfolJows: f OISCHE J.; This is an action based upon alleged violations of the New York State Labor h w s ( Labor Law 0 7 sections 240 [I], [2], a d [3], 241 [q, and common law negligence. n 200 Issue was joined and plaintiffaad his note of i April 14,201 1. ThC summary judgment m motions pmently before the court were brought timely (CPLR4 3212;Brill v. Ct of New iy York, 2 NY3d &I8 [2#4]). Defendaatlsecond third-party plaintiff 350 Park Investors LLC (350 Park), defendanthhhd-partyplaintiff Henegan Constrution Co., Inc. (J%egan), defcndantlsmnd third-party dofmdmt Ziff Brothers hvatments, LLC and (a coll6Ctivdy, move putsnant to CPLR 3212, for summary judgment dismidng all claims and m g s claims as against t e ; alternativdy, 350 P r Henegan, andZiff move for s u m ~ a r y hm ak judgment on their c o n h c t d hdtmnification claims against defendantbcondthird-party daftndaxlt Ntlstasi & Page 2 of 12 [* 4] Associates, Inc. (Nastasi) (motion s q , no 004). PlainW move for partial summa^^ judgment against 350 Park Investors and Henegan as to Iiability under Labor Law 4 240 (1) (motion seq. no. 005). Finally, Nastasi moves for summary judgment W s s i n g a l I claims and CK)I claims as against it (motion scq. no. 0 6 . The motions arc consolidated for decision i this 0) n dccislodordar. Background On July 12,2006, the day of his accident, plaintiff G l a Davis (Davis) wns working as an e l h c i a n for third-party defendant ADCO Electrid Corp. (ADCO) at a renodon project inside a building, owned by 350 Park, and located i midtown Manhattan. The project involved n the renovation of mven floors of the building for an incoming tenant, Ziff. Ziff retained Henegan as the general contractor, and Henagan hired Nastaslt 88 the carpentry subcontractor and ADCO as the electrical subcontractor. On the day of his awi&nt, Davis, with the help of an apprentice elaCtrician, was installing b r a c b on the ceiling of the third floor to support soffit lighting (Davis Deposition, at 26-29). Davis stepped off an eight-foot ladder, onto stacked sheetrock i order to g& n EUXUSS to the nmt area where the brackets had to be W l d The top piece of sheetrock, which was cantilevered and unsupported from beneath d e n Davis stepped onto it, dislodged and Davis fell to the g r o u n d , injuring his ankle (d at 73-78). The sheetrock was pIacad there by Nastasl, as it I . anticipated using the material to build ceilings and walls. DISCUSSION S ~ m judgment must b granted i the proponent makes a prima facie showing of y f entitlement to judgment as a mattm of law, tendering sufiicicnt evidence t demonstrate the o Page 3 of 12 [* 5] absencc of any nmtdaf issuos of fact, and tbo opponent fails to rabut that showing (Brandy B. va n Cent. School Dist., 15 NY3d 297,302[2010], quotingAlvurez v Prospect Hosp., 68 N m d 320,324 119861). H o w e r , if the moving party fails t make a prima facie showing, the o c w must d a y the motion, regardaso thg s@ciancy of the opposirrgpqws (Smalls Y o f AJIIndzcs., k., 10 NY3d 733,735.[ZOOS], quotingAlvarez, 68 NY2d at 324). I. Plahtiffs CIaima A p b t Nastasi Nastasi argues that plaintiffs Labor Law 6 200 and common-law negligence claims should be disrnissed, BS against it, because it did not control Davis s work. Nastasi submits Davis s depositiontestimony, in which Davis states that he took dimtion only fiom other ADCO employaes (Davh Deposition, at 32-33,37-38), Davis doen not contest that Nastasi did not supervise his work. As Davis s accident m cawed by the method and manner of his w o k liability amnot be imposed on Nastasi mder h b o r Law 3 200 and common-law ncgligonct unlms it i shown that it exercised some supmiwry control over tho work (Hugh Y Tishman s Cornti-. Cdp,, 40 AD3d 305,306 [Ist Dept 2007J). Since the parties agree that Nastasi did not excrcise ~upervi~ory control over plaintiers work, Nastasi Is entitled to dismissaI of plaintiffs Labor Law 0 200 and common-law negligence claim 89 against it. As these a plaintiffs only m claims against Nastasi, the complaint Jrs dismissad as against Nastasi. IL Labor Jaw 8 240 (1) Plaintiffs move for ~zammary judgment on b i r Labor Law 0 240 (1) claims as against 350 Park, the propwty owner, and Hemgan, the constructjon manager, on the subject ranovation project Initially, 350 Park and Henegan s argument that pIaintifXb export fidavit from Kathleen H o p b (Hopkins) should be precluded, is denied. Thera is no evidence tbst any delay Pagt4of 12 [* 6] hmaking export disclostrrc was intentional or wilful (Hernandez-Vegav Zwmgsr-Pesiri XadfoZogyGroup, 39 AD3d 710,711 [2d Dept 20071 blding that CPLR 3101 (d) (1) (i) does not ''mmdatc that a party be pmludal from proffering e x p r t testimony merely because of noncompliance with the statute,unlass thme is evidence of htentional or willful failure.to disclose and a &owing of prejudice by the opposing party" [ixlternd quotationmarb and citation OmittdJ). Plahtiffi make a prima facie &owing of entitlement to p d a l summary judgtnent as to liability under d o n 240 (1) against 350 Park and Hanagan by presenting cvidenm that Davis was injured as a result oftheir failure to provide "adequate protection against a risk arising h m a physically si@cmt elevation differential" (Runner v New York Stock Exch, Inc., 13 NY3d 559,603 [2009]). Plaintiffs submit Davis's daposition testimony, i which ha tcstifid that he n w 1 installing brackets in the ceiling, appxhately 19 10 feet from the ground, and that he was not provided my safoty device that would allow him to reach the ailing above the sheetrock without stepping on the sheetrock which, plainly, i not m adequate safety device (see Davis Deposition, s at 69-78), More specifically, Davis testified that piIw of sheetrock littered the third flmr and obritmctad his work i many arcas, and that while no one instructed him to stand on the sheetrock n in order to perform his w & his ADCO suparvlsors, as well as Hemgan's suptrvisor, and o Nastasi's foraman all observcd him working h m 0x1 top ofpiles of shcehoch and placing his ladder on top of the shwtmck i order to reach the ceding (id. at 67-70). Jobn Del Vwchio, n Nastasi's foreman, could not rememkr if he was on tha third floor on thq day of Davia's accrdmt, but he statcd that it is "a C U T ~ ~ ~ O Q for workers to stand on a pile of sheetmk i thing" n Pagc5of 12 [* 7] order to carry out their work (Del Vccchio Deposition, at 46). Davis also testified that his supemisors, as well as those of Hanegan and Nastasi observed his work i order to see if he could do it f s enough to mabla the partiah n at wordination of trades that the supervisors had agreed upon (Davis Deposition, at 7 ) and thst it 3, would have taken approximately two days for Nastasi to have moved all of the sheetrock fiom places where he needed to place his ldder to do the bracket installation he had been assigned (id a 165). Nastasi s Del Vecchio tatified that,if moved by hand by three workers, each pile of t sheetrock would take three men 20 & t to move @el Vechio Deposition, a 33). More ua t g m d l y , Del Vecchio stated that Nastasi tries to place sheetrock piles i areas that will not n obstruct work because [w]a don t like moving if (id. at 75). Finally, plainti& axpert, Hopkins, opincs i his sworn afWavitthat i the absence of moving the stored material8 out of n n Davis s way, the proper safety device would have bean a a scissorlift scaffoldwith a d l w d platform that wuld have extondd o v a the stored m a h i a h (Hopkins =davit, 1 12). In opposition, 350 Park and Hcnegan argw that they are not liable, as Davis w a the Bole ~ proximate cause of his accident. IDafmdanQsubmit deposition testimony from Nastasi s Del Vecchio, Steven Valmti (Vdtati), a s u p e r i n e t for Hene,gan, and k c Ycc (Yee), a foreman for Hanagan, and aach of t m dmy ever sbeing any workcrs placing a ladder on top of a pile of h sheetrock None of them, howver, testifies t having witnessed plaintiff I accident (Valenti o Deposition, at 86; Valmti Daposition, at 53,73;Yee Deposition, at 84-86). Defendarm also submit the dcrposition testimony of ADCO s foreman, J a m McKinley (McKinley), who testified that, gatorally, he had occasionally sdbn workers standing on piles of Page6of 12 [* 8] sheetrock b do work @4cKinley Deposition, at 33-34), but that he did not w plaintiff do so at the subject renovation project. H also t & that the proper procedure would have been to ask o o d Henagan to move the sheetrock ra+fier than t try to work on top of it (id. at 6 - 9Momver, in o 46. a s w m &davit submitted by defendants, Yee, Hmegan s foreman slates that an a-frame dolly, and a pallet jack were both present on the wdcsitc, and that one could have betn u34d by Hamgan employees to move the sheetrock pilcs (Ye Affidavit, 13;see also Valend Midavit, 7 13). Finally, defendants submit a sworn dlidavit from ADCO s foreman, McKinley, in which he states that while he does not recall witnessing Davi8 s accident, he was working nearby. McKinley states the accident occurred on a table with a pica of sheetrock on top of it, rather t a a pile of sheetrock (McKnIay Mfidavit, fl10,13-17). hn McKinley added that he was unaware of any time constraints on Davis and that he did not rush him along as he did his job (d, i . n29-30,34). Nom of this testimony raise an issue of fact as to whether Davis was the sole proximate cause of his accident. T m is no testimony that Davis knew he was expected, or was instructad, h to have Hmegan move the sheetrock out of his way rather tban work around the sheetrock, andlor perform his work atop the sheetrock when necassary (see Torres Y Our Townhouss, LLC, 91 AD3d 549,549 [lst Dept 20121 holding thatthe sole proximate cause defense not applicable w h there was no evidence presentad that plahtif ¬knewhe WBS expectad to use a safety device while parforming his work], citing Gallagher Y N m Yurk Post, 14 NY3d 83,88 [2010]). Moreover, whether plaintiff stepped onto a sheetrock pile or a table covered by sheetrock in order to Izach the ceiling is immaterial to the question of whether defendants violated the statute because naithcr is an adequate d e t y device. Page 7 of 12 [* 9] As plaintiffhas made aprimafucie showing that his accident was proximately caused by a violation of Labor IAW6 240 (I), but defendant3 h v e failed to rebut that showing by raising material issues of fact, plaintiff is entitled to partial SMunary judgment against 350 Park and Henegan as to liability under h h r Law Q 240 (1). Consequently, the branch of defetldants motion that s d c s dismissal of plaintiffs Labor Law 53 240 (1) motion is denied, III. Plltintif ¬ s Other ClPIma Against 350 P A Henegan, m d Wff Labor ]Law 88 240 (2) and 240 (3) Plaintiffs hava not addressed 350 Park, Henegan, and Ziff 8 argument that these d o n s of the Labor Law are inapplicable. As p l a h W ~~ t address this k u o i its responding o n brief indicates an intmtion t abandon [these] [bases] of liability (Gary Y FZair Bmerage Corp., o 60 AD3d 413,413 [lst Dept 2009]),plaintiff9 claims under Labor JAW $8 240 (2) and 240 (3) arc hereby severed and dismisstd B . Labor Law 8 200 350 Park Henegan, and Zif ¬arguc that plaiatiffs Labor Law 8 200 and common-law rregllgence claim must be cbnisssd as against them, because they did not have s u p w i s q control over Davis s work, Defmdants submit Davis s deposition testimony, i which he states n that he took direction only from othm ADCO employees (Plaintiffs Deposition, a 32-33,37t 38). As plaintiffs faiI to rebut this pinut facie showing of untitlcment to judgtnent as-a matter of law, 350 Park, Henegan, and m r entitIcd to sllmttlaryjudgmmti thair favor, dimissing ae n plaMf ¬s Labor Law 8 200 and common-lawnegliganca claims aa against them. C. Labor Law 8 241 (6) PIahtifE~ claim that defendants violated the following provisions ofthe himtrialCode [* 10] and that those c b Violations were a proximate auw of Davis s bjurim: 12 NYCRR 23-1.7 (e) o (2), 12 NYCRR 23-1.7 (f), and 12 NYCRR 23-2.1 (a) (1). 12 NYCRR 23-1.7 (0, entitled Vertical passage, i plainly not applicable since Davis s s accident did not involve [s)tainrays, ramps or runways. Similarly, 12 NYCRR 23-2.1 (a) (1) is not applicable since the accident took place on an open am^ i the n third floor of the building, rather than a passagcway, walkway, Stairway or other thoroughfare (see Barrios v Bodon Props. LLC, 55 AD3d 339,340[lst Dept 20081). Defendants, homer, fail to make a prima facie showing of entitlancnt to judgment with raspact to 12 NYCRR 23-1.7(e) (2). The regulation, wbich applies to [tJrippingand other hazards in [w]arhg areas provich that [tlho parts of floor#, platforms, and similar arcas where parsons work or pass shall be kept fka fmm accumulations of dirt and debris and from scattered tools and matarids and h m sharp projections insofar as m y be consistent with the work bing perfomd 350 Park, Hencgan, and Zif ¬arguc, relying on Isoh v J W Forest Elm. Corp. (267 AD2d 157 [lst Dapt 1 W )that the sheetrock was not a scatted material for pupses of this 9J, regulation, since Nastasi intentionally placed it on the flwr i fhtheranca of its work n Defendants, however, have faded to show, conclusively,that the sheetrock was an integralpaxt of the work being @ormcd, i.e., plaintiffs installation of brackets for aoffit lighting (0rZin.o v 2 Gold U C , AD3d 54 1,54 I [1s Dept 20091). Irola, i contrast, involved an elactrid 63 t n conduit tbat was to become part of the floor on which it w89 lying, and the plaintiff was working on constrwtq the floor (Isola,267 AD2d at 157-158). Since dofcndants fdl to make a prima facie showing wiih respect t the inapplicability of o Page 9 of 12 [* 11] 12 NYCRR 23-1.7 (2), the branch of 350 Park, Henegan, and ZiRs motion that satlss (e) dismissal of plainWa Labor h w 5 241 (6)must be denied. I. V Contmctual Indamniticatioa 350 Park, Hencgan, and Ziff contend that they am entitled to contractual indemnificdon from Nastasi. Hmegmand Nastasi executed a purchasb order dated April 3,2009, which contains the following indemnification provision: Ta the fullest extcnt permitted by law, Subcontractor shall mcbmmfy and hold hamless Owner, Construction Manager, owtlcr s consultants, the buildhg landlord ... from and against all c h , damages, lo= and expensas, including, but not limited to, attorneys fees, arising out of or resulting from the parformancc of Subcontractor s Work, provick (dc) that such claim, damage, loas or axpcnse is attributable to bodily injury ...regardless of whether o not it i 4hpart by aparty indamnifiedhereunder ... r s (Henagan-Nastasi Purchase Order, (3emralRequiremen@, § 6. ) Under the p w b i n g agreement, Ziffis tho Owner, 350 Park is %e building landlord, Davis s accident plainly arose out ofN- s work, bacause Davis fell when he t i d t step on re o Nastasi s sheutrock and the sheetrock gave way. The that Nastasi ralles on i urging 3 n different result, such as W m h Comtr. Co., Inc. v Admiral Im. (10 NY3d 411 [2008])and Co. P e p v Centerfor Javfsh History, Inc. (59 AD3d 277 [1st Dept 20091) are unpersuasive, as thost cases involved mom tenuous c a d links than the o between Nastasi leaving sheetrock around m the w m a d plaintiff falling becsuac of it. As the indemnification provision is triggered, the n branch of 350 P r Henegatl, and ZB s motion that gbeks contractual h k m d b t i o n against ak N~tstasi grmtd As a consequnnca, &e branch of Nastasi smotion that seaks dismissal of 350 is Page 10 of 12 [* 12] coNcLusIoN In accordance with tha foregoing, It is hereby ORDERED that h e branch of d d e n d a d m n d third-party plaintiff 350 Park Invmtoxs LLC, defendandthird-partyplaintSHenegan Comtruction Co., and defendmtkcond W-parfy defendant Ziff Brothers Investments, LLC S motion (motion s q . no. 004) e k i n g &missal of plahMs complaint is granted only to the extent that plaintiffs Labor Law §§ 200,240 (2), and 240 (3) claims me dismise and it i M e r s ORDERED that the branch of defendadsecond third-party plaintiff 350 Park Investors LLC,defmdanthhird-party plaintiff Henem Construction Co., and defendadssecondthird-party defendant Z BBrothm hvestmtnts, LLC s motion that seeb summary judgment on tbtir i contmctual indemnification claim against defendant Nastasi & Associ&s, h .is grant* and it c isfurther ORDERED that plahtifh modon for partial summaryjudgment as to liability under Labor Law 9 240 (I) EU against dcfondant/sccond third-partyplaintiff 350 Park Investors U C and clefendant&hird-partypIaintZfHenagau Cmstmction Co. (motion scq. no. 005) i grantad; s and it is furthm ORDERED that defendant/tbird-party ddmdant Nastasi & Associates, hc. s motion for summary judgment (motion scq. no. 006) is p t e d only t the extent that plainiifls complaint is o dismissad as against it, with costs and disbursements to said defendant m taxed by tho Clerk upon the submission of an appropriate bill of costs; and it i further s ORDERED that this m e is ready to be t i since the note of issue has been filad; the rd Pagellof 12 [* 13] h 0 plaintiffsball serve a copy of this decision and ordar on the Mediator assigned to this c890 aa well as to t e Offica of Trial Support so the casc can l scheduled for trial after the next h m scheduled mediation (May 4,2012); and it is fiather ORDERED that any relief mqtmted but not specikally addressed i hereby M e & and s it is f'urthm ORDERED that this constitutes the decision and order of the court. Dated: New York, New Yo& March 30,2012 So ordmd: F Page 12 of 12

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