Lombardi v 79 Crosby St. LLC
2012 NY Slip Op 31006(U)
April 13, 2012
Sup Ct, New York County
Docket Number: 113503/09
Judge: Doris Ling-Cohan
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publication.
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SCANNED ON411712012
SUPREME COURT OF THE STATE OF NEW YORK
- NEW YORK COUNTY
PART
36
Justice
-~
Index Number : 113503/2009
INDEX NO.
LOMBARDI, BENETTO
vs.
79 CROSBY STREET
MOTION DATE
MOTION
sEa. NO.
MOTION CAL. NO.
SEQUENCE NUMBER : 001
-
SUMMARY JUDGMENT
-__
Notice of Morion/ uraer TO snow c;auso
..
- exhibits ...
Answering Affidavits - Exhibits
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- nmaaviw
Replying Affidavits
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z
0
3
Cross-Motion:
Yes
d N o
CT
FILED
NEW YORK
COUNTY CERK'B OFFICE
JUDG
:heck one:
0 FINAL DISPOSITION
Check if appropriate:
d
J. S C.
.
0N-FINAL DISPOSIT10N
DO NOT POST
0 SUBMIT ORDER/ JUDG.
ORIS LING-COHAN
REFERENCE
0 SETTLE ORDER/ JUDG.
[* 2]
Plaintiff,
- against -
Index No. 113503/09
79 CROSBY STREET LLC, 246 LAFAYETTE LLC,
CROSBY STREET HOTEL LLC and
MAGNETIC CONSTRUCTION GROUP COW.,
Defendants.
BACKGROUND
Motion Seq. 001 & 002
FILED
N E W YORK
COUNTY CLERKS OFFICE
This case involves a workplace accident. Motion sequence numbers 001 and 002 are
consolidated for disposition. In motion sequence number 001, defendants 79 Crosby Street,
LLC, Crosby Street Hotel, LLC, and 246 Lafayette LLC (Crosby defendants) move for an award
of summary judgment dismissing the complaint and the cross claims, and on their contractual and
common-law indemnity cross claims against defendant Magnetic Construction Group Corp.
(Magnetic). In motion sequence number 002, Magnetic moves for summary judgment
dismissing the complaint and the Crosby defendants' cross claims. Plaintiff Benedetto Lombardi
cross-moves to amend his bill of particulars.
Plaintiff was injured on a construction site where a hotel was being built. Non-party
Firmdale Hotels, PLC (Firmdale) retained Magnetic to act as construction manager. Firmdale
and Magnetic entered into the AIA Document A 131 CMC-2003 Standard Form Agreement
1
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Between Owner and Construction Manager (Construction Contract). According to Paul
Underhill (Underhill), the vice-president of Crosby Street Hotel, LLC, Firmdale is the parent
company of non-party Firmdale Holdings USA, which, in turn, owns Crosby Street Hotel, LLC.
Crosby Street Hotel, LLC leased the site from 79 Crosby Street, LLC. Crosby Street Hotel, LLC
also leased 246 Lafayette Street, an adjacent property, from 246 Lafayette, LLC.
Magnetic subcontracted with Urban Foundation (Urban), plaintiffâs employer, to excavate
the site. The subcontract states Urbanâs trade to be âexcavation and foundationsâ (Crosby
Motion [Crosby], Ex. L). During his deposition, plaintiff testified that he was employed as a
laborer on the job site. He assisted various trades, including carpenters, builders, and masons.
On January 21, 2008, he was working with the carpenters removing forms. Plaintiff testified that
a form âis what they use to build the wall in order to pour concrete in, so itâs kind of like building
a boxâ (Crosby, Ex. F, at 21). One of plaintiffs daily tasks was to fetch drinks and snacks for the
coffee break, which started at 2: 10 in the afternoon. On the day of his injury, plaintiff began to
take orders from other workers, at the accustomed time at 1:45. The last person that plaintiff
took an order from was the operator of the backhoe.
Plaintiff testified that, when he began taking the coffee break orders, the break itself had
not yet started, so the backhoe w s excavating. The backhoe was removing dirt and loading it
a
into a truck. When plaintiff approached the backhoe, the operator brought it to a stationary
position. Plaintiff took the order and stepped back to avoid the swing of the bucket. The bucket
stopped and plaintiff began to walk out of the work site. His back was to the backhoe. He heard
the backhoe begin to operate again. The bucket swung and the cabin moved in unison. Plaintiff
tried to get out of the machineâs way. He testified that he did not have âmuch room to
2
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maneuverâ since there was a pit to his right of 15 to 20 feet (Crosby, Ex.F, at 131). As the
bucket and cabin moved, the rear of the backhoe, also called the counterweight, swivelled and hit
plaintiff on the back, pushing him against a gate post and then to the ground. Plaintiff suffered
broken ribs, a lacerated spleen, a collapsed lung, and a fractured scapula. Plaintiff attaches a
photograph, which he says accurately depicts the kind of backhoe that struck him. It has a shovel
on one end, a back that extends beyond the cabin where the operator sits, and continuous treads,
that is, wheels like a tank (Cross motion, Ex. 2).
Plaintiff testified that he was supervised and directed by Urban personnel, Underhill
testified that he visited the site once a month, that he attended monthly meetings held by the
architect, and that no one from the Crosby defendants directed or supervised the work. Louis
Guzman, Magneticâs project executive, testified that while Magnetic held safety meetings, it did
not supervise the work by the subcontractors or instruct them. Magnetic was responsible for
overseeing the construction to ensure that it was within budget and pursuant to plans. Guzman
said that if Magneticâs onsite supervisor saw the work was not being done according to
specifications, he would notify the subcontractor to remedy the defect. At and prior to the time
of the accident, Magneticâs project superintendent (not Guzman) was the only Magnetic
employee at the site on a daily basis.
DISCUSSION
Plaintiff asserts claims for violations of Labor Law $5 200,240 (l), 241 (6),and for
common-law negligence. To obtain a grant of summary judgment, the moving party must make
a prima facie showing of entitlement to judgment as a matter of law, tendering evidence that
demonstrates that the case holds no issues of fact that can be tried (Brandâ
3
E. v Eden Cent.
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School Dist., 15 NY3d 297,302 [2010]). If the moving party succeeds in this, the other side can
avert a grant of summary judgment by showing that there are material factual issues to be tried
(id.).
The Crosby defendants present evidence that the accident took place on the site belonging
to 79 Crosby Street, LLC and not on the adjacent property belonging to 246 Lafayette Street,
LLC. According to Guzman, construction at 246 Lafayette Street began in 2009, after plaintiff's
accident on January 21, 2008. Neither plaintiff, nor Magnetic, oppose the part of the motion
seeking dismissal on behalf of defendant 246 Lafayette Street, LLC. Thus, the complaint and
cross claims are dismissed as against defendant 246 Lafayette Street, LLC.
Plaintiff does not oppose defendants' arguments pertaining to Labor Law $9 240 (1), 200,
and common law negligence. Therefore, as explained further below, since defendants make a
prima facie showing that those claims should be dismissed, such claims are dismissed against all
defendants.
Defendants argue that Labor Law 3 240 (l), known as the Scaffold Law, cannot be
maintained, since plaintiff was not engaged in any height-related activity when he w s injured.
a
The Scaffold Law, along with Labor Law $241 (6), permits property owners and contractors to
be held vicariously liable for the negligence of a third party (DiFilippo v Parkchester N,
Condominium, 65 AD3d 899, 899 [ lutDept 20091; Paul M Maintenance, Inc. v Transcontinentul
Ins. Co., 300 AD2d 209,2 11 [ 1St Dept 20021). The Scaffold Law applies to the danger of falling
from a height or being struck by a falling object that was improperly hoisted or inadequately
secured (Ross v Curtis-Palmer Hydro-Elec. Co., 8 1 NY2d 494,501 [ 19931). Here, defendants
establish, and it is not disputed, that plaintiff did not fall from a height and that he was not struck
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by a falling object.
âSection 200 of the Labor Law is a codification of the common-law duty imposed upon
an owner or contractor to provide construction ... workers with a safe place to workâ (Comes v
New York State Elec. & Gas Corp., 82 NY2d 876, 877 [1993]). Claims made pursuant to Labor
Law 8 200 fall into two categories: those where the plaintiffâs injury is caused by the manner or
method of performing the work, and those where the injury is caused by a dangerous or defective
condition at the job site (Urban v No. 5 Times Sq. Dev., LLC, 62 AD3d 553,556 [lstDept
20091). Where the alleged failwe to provide a safe workplace arises from the methods or
materials used by the injured worker, a defendant can be held liable if it directly supervised the
worker, controlling the manner in which the injury-producing work was done (Hughes v Tishman
Constr. Corp., 40 AD3d 305, 306 [lstDept 20071).
Here, defendants show, and it is not disputed, that they did not control or supervise the
work leading to the injury ( i d ;see also Singh v Black Diamonds LLC, 24 AD3d 138, 140 [lBt
Dept 20051). General supervisory authority is not enough to constitute the kind of control needed
to hold a party liable (id.). An owner or a general contractorâs presence and encouragement, or
the fact that it holds safety meetings, or that it has the power to stop the work for safety reasons
does not amount to the requisite level of supervision (Hughes, 40 AD3d at 307; Smith v McClier
Corp., 22 AD3d 369,371 [lst Dept 20051; Buccini v 1568 Broadway Assoc., 250 AD2d 466,
468-469 [ 1.st Dept 1998I).
Where the workplace is rendered unsafe by a dangerous condition,
dn owner
or contractor
is liable if it created the dangerous condition or if it had actual or constructive notice of the
condition and failed to remedy it (Mendoza v Highpoint Assoc., X,
LLC, 83 AD3d 1, 9 [ 1â Dept
5
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201 11; Minorczyk v Dormitory Auth. ofthe State ofN. Y,, 74 AD3d 675 [lstDept 20101). In cases
where the plaintiff is injured due to a dangerous condition, whether a defendant controlled or
supervised the manner in which plaintiff worked is irrelevant (Sedu v Epstein, 72 AD3d 455,455
[ 1st Dept 20 lo]). Defendants establish, and it is not disputed, that they had no notice of any
dangerous condition on the job site and that they created none.
The Crosby defendants point to the Construction Contract provision that the contractor
âshall supervise and direct the Workâ and âshall be solely responsible for and have control over
construction means, methods, techniques ...â (Crosby, Ex.H, 7 3.3.1). Where, as here, the
contractor does not direct and control the work, this provision does not render the contractor
liable for accidents to workers (see McCarthy v Turner Constr., Inc., 17 NY3d 369,377-378
[20113, aflg 72 AD3d 539 [lstDept 20101, uflg 24 Misc 3d 1245[A], 2009 NY Slip Op
5 1889[U], 1 [Sup Ct, NY County 20091 [containing the same contractual provision]; Smith, 22
*
AD3d at 371). Magnetic is, therefore, not liable pursuant to the contract.
Labor Law 5 241 (6) imposes a nondelegable duty upon owners, contractors, and their
agents to âprovide reasonable and adequate protection and safety to construction workersââ
(Comes, 82 NY2d at 878). Recovery pursuant to Labor Law 6 241 (6) does not require a
showing that defendants exerted supervision or control over plaintiffâs work (Ross, 81 NY2d at
502). To state a claim under this statute, the plaintiff must identify an Industrial Code regulation
that the defendant violated ( i d ) . Whether the plaintiff has alleged a sufficiently specific
provision of the Industrial Code and whether the condition alleged is within the scope of the
Industrial Code regulation are legal issues for the court to decide (Messina v City ofiVew York,
300 AD2d 121, 123 [lntDept 20021).
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Plaintiff alleges that defendants violated sections 23-9.4 (h) (4) and (5), and 23-9.5 (c) of
part 23 (Protection in Construction, Demolition, and Excavation Operations) of the Industrial
Code. In pertinent part, 12 NYCRR 23-9.4 provides the following.
Power Shovels and Backhoes Used for Material Handling
Where power shovels and backhoes are used for material handling, such equipment and
the use thereof shall be in accordance with the following provisions:
(h) General operation. ...
(4) Unauthorized persons shall not be permitted in the cab or immediately
adjacent to any such equipment in operation.
(5) Carrying or swinging suspended loads over areas where persons are
working or passing is prohibited.
Defendants contend that section (h) (4)does not apply to plaintiff, as he was not an
âunauthorized personâ; as an employee of a subcontractor, he was authorized to be at the site.
The regulation does not apply to employees as they are not regarded as unauthorized persons
(Carroll v Counw of Erie, 48 AD3d 1076, 1078 [4IhDept 20081). Plaintiff contends that the
regulation applies to employees who were not authorized to be next to the backhoe, such as
himself. He also points to the fact that he was taking snack orders and not performing a laborerâs
work of construction, demolition, or excavation when the accident took place.
Section 23 does not define âunauthorizedâ or âauthorizedâ; however, it frequently
employs both terms, as follows: â[u]nauthorized personsâ should be prevented from entering a
construction site (12 NYCRR
8 23- 1.18 [c] [I]); someone must be stationed at an âopening to
prevent unauthorized entranceâ (12 NYCRR
6 23-2.5 [b] [6]);
where there is danger,
âunauthorized entry ... or unauthorized useâ of certain devices are not allowed (12 NYCRR $
23- 1.32); â[nlo unthorized personâ shall remove certain materials (id,); â[nlo unauthorized
and
person shall enter the cabâ of a mobile crane (12 NYCRR
5 23-8.2 [h] [i]).
A âDesignated Personâ is â [a] person selected and directed by an employer or his
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authorized agent to perform a specific task or dutyâ (12 NYCRR
ij 23-1.4 [b] [17]). Some tasks,
such as â[hleat treating of chains ... shall be performed only by the manufacturer or his
authorized agentâ (1 2 NYCRR
6 23-6.2 [e]).
Cranes must be inspected by a âcompetent,
designated employee or authorized agent of the ownerâ (12 NYCRR
6 23-8.1 [b] [ 11).
âEvery
designated person authorized to control public vehicular traffic shall be provided with a flag or
paddle ... â (12 NYCRR
4 23-1.29 [b]).
Section 2 1, which applies to window cleaners, has this definition. âAuthorized. Specified
by rule or resolution of the board for use in complying with the provisions of this Partâ (1 2
NYCRR 6 21.2 [c]). The dictionary defines authorize as â[Tlo give legal authority; to empowerâ
and â[TJo formally approve; to sanctionâ (Blackâs Law Dictionary [Westlaw 9th ed 20091).
From the above, the court concludes that âauthorizedâ means, as determined by a
laborerâs employer or supervisor. The word in the regulation is used in the same way as the word
is used in everyday life. Part 23, in contrast to Part 2 1, leaves the question of who is authorized
or unauthorized to the persons involved. Plaintiff was authorized by his supervisor to be where
he wm when the accident happened. He testified that his supervisor gave him the task of taking
coffee break orders. Thus, plaintiff was not an âunauthorized personâ, to whom 12 NYCRR
5
23-9.4 (h) (4)would apply.
The parties disagree over how to interpret the few cases citing subsection (h) (4). In one
instance, the injured worker, described as a form setter, was unloading a flatbed truck parked
near the backhoe, when it crushed him. As a member of the work crew, courts have held that a
worker could not be unauthorized (Ferreira v Ct @New York, 20 10 WL 2007566,20 10 NY
iy
Misc Lexis 1950,2010 NY Slip Op 3 1037U, *16 [Sup Ct, Kings County 20101, revd in part on
8
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other grounds 85 AD3d 1103, 1105 [2d Dept 201 11; accord Carroll, 48 AD3d at 1078 [worker
struck by excavator while removing a measuring rod from a trench]; Mingle v Barone Dev.
Corp., 283 AD2d 1028, 1028-1029 [4IhDept 20011 [worker struck by a backhoe while cleaning a
pipe that was to be placed in a trench]).
Plaintiff argues that these cases do not apply to him, since those workers were injured
while performing work related to the work that the backhoe was performing, such as digging a
trench. Whether the Labor Law protects a worker injured while performing a non-construction
task is often raised. In most cases, the plaintiff argues that a particular regulation applies to him;
here, plaintiff argues that it does not. Nonetheless, the case law is instructive. To determine
whether the Labor Law protects a particular worker in a particular situation, the court examines
the workerâs role on the job site as a whole (Gray v Ct ofNew York, 28 Misc 3d 1093, 1100
iy
[Sup Ct, Kings County 20101, revd on other grounds 87 AD3d 679 [2d Dept 201 11). In Gray,
the plaintiff was hired to perform construction. Although at the time of the accident, he was not
performing construction work but asking a truck driver for union identification, he was covered
by the regulation asserted under Labor Law $ 241 (6).
An employee need not be working on an assigned duty or actual construction work at the
time of the injury to be entitled to the protection of section 241 (6) (see Gowans v Otis Marshall
Farms, Inc., 85 AD3d 1704, 1705 [41hDept 201 11 [plaintiff fell through hole while ascending to
upper level of barn to speak to coworker]; Roberts v C a l h e l l , 23 AD3d 2 10,210 [ 1St Dept 20051
[plaintiff was injured helping co-workers with their work]; Lucas v KD Dev. Constr. Corp., 300
AD2d 634,635 [2d Dept 20021 [plaintiff was struck by a car as he was walking on the street
adjacent to the work site towards his work]; Reinhart v Long Is. Light. Co., 91 AD2d 571,571
9
I
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[ 1ââ Dept 19821 [plaintiffs were not directly involved in their hired-for task of plumbing at the
time of the accident; âHowever, they were employed, and they were not interlopersâ]; Dougherly
v Queens BuIZpark Co., LLC, 927 NYS2d 815 [Sup Ct, NY County 201 I] [plaintiff injured while
walking back to the job site âthrough a passagewayâ after a coffee break]; HoweZl v Bethune West
Associates, LLC, 33 Misc 3d 1215[A], 201 1 NY Slip Op 51939[U], *4 [Sup Ct, NY County
201 11 [materials fell on plaintiff during his morning break while he sat eating a snack]; Fussett v
Wegmuns Food Mkts., Inc., 867 NYS2d 16 [Sup Ct, Broome County 20081, ufd us mod 66
AD3d 1274 [3d Dept 20091 [plaintiff injured when he stepped out of backhoe to go on coffee
break]).
Although, here, plaintiff was not actually doing a laborerâs work when injured, he was an
employee covered by the Labor Law, however, he is not covered by the particular regulation at
issue, 12 NYCRR Q 23-9.4 (h) ( ) as he was not an âunauthorized person ...not
4)
permitted...immediately adjacent to.. .equipment in operationâ, such as the backhoe.
Regarding 12 NYCRR 0 23-9.4 (h) ( 5 ) )defendants argue that it does not apply here,
because the injury occurred when the back of the backhoe hit plaintiff, not when a suspended
load fell on him. In Vicari v Triangle Plaza IZ,LLC (16 AD3d 672,673 [2d Dept 2005]),
plaintiff w s struck by the backhoe. The opinion states that sections (h) (1) and ( 5 ) do not apply
a
since the backhoe was not lifting or hoisting anything at the time of the accident. Here, however,
plaintiff testified that the backhoe was lifting dirt at the time of the accident. When the shovel
moved, the cabin and the back had to move also. The regulation does not state that the injured
party must be under the lifting part of the machine when the accident happens. The regulation
indicates that the backhoe is prohibited from carrying or swinging loads over areas where persons
10
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are passing. Upon the within submissions, defendants have not established as a matter of law
that such regulation does not apply; specifically, that the backhoe was not carrying a load over an
area where persons pass when the accident happened. Thus, summaryjudgment of dismissal is
denied as to plaintiffs Labor Law 241(6) claim, which is based upon 12 NYCRR §23-9.4@)(5).
12 NYCRR
8 23-9.5 is entitled Excavating Machines.
12 NYCRR
0 23-9.5 (c) states
that âNo person other than the pitman and excavating crew shall be permitted to stand within
range of the back of a power shovel or within range of the swing of the dipper bucket while the
shovel is in operation.â All agree that plaintiff was not the pitman. The parties disagree over
whether plaintiff was part of the excavating crew and hence permitted to stand near the backhoe.
Defendants cite to Mingle (283 AD2d at 1029), where the court determined that 12
NYCRR 23-9.5 (c) was not violated, because the plaintiff was hurt cleaning a pipe that was to be
placed in a trench, a task that was âan integral part of the excavation operation.â The court
determined that the plaintiff was a member of the âexcavating crewâ within the meaning of the
regulation. In Martinez v Hitachi Constr. Much. Con,Ltd. (15 Misc 3d 244,256-257 [Sup Ct,
Bronx County 2006]), the court found that the regulation was not violated since the plaintiff was
working where the excavator was excavating pits and was part of the crew performing the work
in which the excavator was engaged.
In Ferreira (2010 NY Slip Op 3 1037[U], * 13-14), the plaintiff was a form setter. When
the accident happened, he âwas loading materials for the next dayâs work so that he could pour
concrete when the excavation was completedâ (id.). The court ruled that whether he was part of
the excavating crew and whether his work was an integral part of the excavation operation were
issues of fact. Here, defendants do not establish that plaintiff was part of the excavation crew;
11
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plaintiff denies that he was. Thus, there is an issue of fact as to whether 12 NYCRR §23-9.5(c)
applies.
Turning now to plaintiffs cross motion to add a claim for violation of 12 NYCRR 0 234.2 (k), defendants raise two objections. They argue that it is too late in the day to amend his bill
of particulars. However, a plaintiff may allege new regulations, even in response to summary
judgment motions, provided no prejudice or unfair surprise accrues to the defendant (Noetzell v
Park Ave. Hall HQUS. Fund Corp., 27 1 AD2d 23 1,232 [ 1â Dept 20001; 0 âConnor v Lincoln
Dev.
Metrocenter Partners, 266 AD2d 60,6 1-62 [ 1â Dept 19991). Here, plaintiff has not alleged new
facts; his âallegations of Code violations merely amplify and elaborate upon facts and theories
already set forth in the original bill of particulars and raise no new theory of liabilityâ (Noetzell,
271 AD2d at 232).
The next objection is that 12 NYCRR
8 23-4.2 (k) is too vague a predicate for Labor Law
Q 241 (6) liability. Subpart 23-4 is entitled Excavation Operations.
12 NYCRR 8 23-4.2 Trench and Area Type Excavations
(k) Persons shall not be suffered or permitted to work in any area where they may
be struck or endangered by any excavation equipment or by any material being
dislodged by or falling from such equipment.
To prevail under Labor Law Q 241 (6), the plaintiff is required to establish a violation of
an implementing regulation that sets forth a specific standard of conduct as opposed to a general
reiteration of common-law principles (Ross, 8 1 NY2d at 504-505). Where the Industrial Code
regulation relied upon invokes ââ [gleneral descriptive termsââ defined with general safety
standards rather than âconcrete specifications,â the plaintiff cannot benefit from the reduced
burden of proof applicable to causes of action under Labor Law 6 241 (6) (id. at 505, quoting 12
NYCRR23-1.4 [a]).
12
-
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-
The most recent First Department authority supports defendants' claim that the section is
insufficiently specific and concrete (see Sparendurn v Lehr Constr. Corp., 24 AD3d 388,389 [l"
Dept 20051). The Third and Fourth Departments concur (Friot v Wal-Mart Stores, 240 AD2d
890, 891 [3d Dept 19971 [also deciding that the regulation does not apply to ground-level
accidents]; Webber v City o Dunkirk, 226 AD2d 1050, 1051 [4'h Dept 19961). While an earlier
f
First Department case and, as noted by plaintiff, the Second Department came to the contrary
conclusion, such decisions are not controlling. (Elezuj v Carlin Constr. Cu., 225 AD2d 441,442
[ lStDept 19961, afld 89 NY2d 992 [ 19971 [the Court of Appeals did not decide whether the
regulation was too general to support a cause of action under Labor Law 5 241 (6),as the issue
w s not preserved for review]; Ferreira, 85 AD3d at 1105; Garcia v Silver Oak USA, Ltd., 298
a
AD2d 555 [2d Dept 20021).
Thus, 12 NYCRR $23-4.2 (k) lacks the specificity required to qualify for predicate
liability under Labor Law § 241 (6). Sparendam v Lehr Constr. Corp., 24 AD3d 389. The
regulation is overly broad as it applies to every worker at an excavation site and does not set forth
concrete rules to promote safety, as required. It is a general statement that care should be taken
for the safety of workers at such sites. For this reason, plaintiffs cross motion to amend his bill
of particulars is denied.
As to defendants' cross claims, the Crosby defendants cross-claimed against Magnetic for
common-law and contractual indemnification, contribution, and breach of promise to procure
insurance; Magnetic cross-claimed against the Crosby defendants for common-law and
contractual indemnification.
In regard to the Crosby defendants' cross claims for indemnification against Magnetic, a
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party whose liability is purely vicarious or statutory is entitled to common-law indemnification
from a party whose liability is due to its fault (McCarthy, 17 NY3d at 377). The evidence
indicates that neither Magnetic, nor the Crosby defendants, contributed to plaintiffs accident, as
they did not supervise and direct his work (id.at 377-78). As any liability would be
statute-based, not fault-based, neither side is entitled to common-law indemnification from the
other. In addition, as discussed above, the fact that Magnetic had the contractual authority to
direct and supervise the work does not render it at fault. The evidence shows that Magnetic did
not actually exercise that authority. Hence, a common-law indemnification claim will not lie
against Magnetic on the basis of its contractual authority (id.).
The Crosby defendants base their claim of contractual indemnification on the provision in
the Construction Agreement.
To the fullest extent permitted by law and to the extent claims [are not covered by
insurance purchased by the Contractor], the Contractor...shall indemnify and hold
harmless the Owner [and its] agents and employees ... from and against claims ...
including but not limited to attorneysâ fees, arising out of or resulting from
performance of the Work ... but only to the extent caused by the negligent acts or
omissions of the Contractor, a Subcontractor, anyone directly or indirectly
employed by them or anyone for whose acts they may be liable, regardless of
whether or not such claim ... is caused in part by a party indemnified hereunder.
(Ex. H, 7 3.18.1, at 18).
Magnetic thus promised to indemnify the Owner against claims brought about by the
negligence of Magnetic or Urban, the subcontractor. Where the party seeking indemnity is free
from fault, a conditional judgment that it is entitled to contractual indemnification is fitting
(Jamindar v Uniondale Union Free School Dist., 90 AD3d 612,616 [2d Dept 201 11; Nuwaez v
2914 ThirdAve. Bronx, LLC, 88 AD3d 500,501 [lstDept 201 13). Here, the Crosby defendants
are free from fault. In the context of contractual indemnification, whether the indemnitor is free
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â
from fault is irrelevant (Correiu v Profissional Data Mgt., 259 AD2d 60,64 [1â Dept 19991).
However, summary judgment is not appropriate because there is a question regarding
who is indemnified by the Construction Contract. Magnetic contends that it did not agree to
indemnify the Crosby defendants. Magnetic entered into the Construction Contract with
Firmdale, identified in the contract as the Owner (Ex. H, 1
2.1.1, at 12). The contract provides
that the Owner âshall designate in writing a representative who shall have express authority to
bind the Owner ...â (id).âThe term âOwnerâ means the Owner or the Ownerâs authorized
representativeââ (id.).On the first page of the contract, Crosby Street Hotel is identified as the
project name and 79 Crosby Street as the project address.
Magneticâs motion to dismiss the Crosby defendantsâ cross claim for contribution is
granted. Persons whose liability is solely vicarious, such as the Crosby defendants, are not
entitled to contribution (Gluser v M Fortunofof Westbury Corp., 71 NY2d 643,646-647
[ 19881). Persons whose liability is solely vicarious, such as Magnetic, are not liable to pay
contribution ( I d see also Conigliaro v Premier Poultry, Inc. 67 AD3d 954,955 [2d Dept
20091).
Magneticâs motion to dismiss the Crosby defendantsâ cross claim for breach of promise to
procure insurance is denied. The Construction Contract contains a provision that Magnetic will
procure insurance applicable to its obligations under the provision that it will provide contractual
indemnification (Crosby motion, Ex. H, 111,1, at 33). Magnetic alleges that the contract w s not
a
made to benefit the Crosby defendants, As stated above, that is an issue of fact.
Based upon the above, the Crosby defendantsâ motion for summaryjudgment on their
common-law and contractual indemnification claims is denied. The Crosby defendantsâ motion
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I
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I
to dismiss the cross claims against them is not opposed by Magnetic and is granted. Magneticâs
motion to dismiss the Crosby defendantsâ cross claims is granted in regard to the cross claims for
common-law indemnification and contribution and is otherwise denied.
Accordingly, it is hereby
ORDERED that the motion of defendants 79 Crosby Street, LLC, 246 Lafayette LLC, and
Crosby Street Hotel, LLC for summary judgment dismissing plaintiffâs complaint and the cross
claims by defendant Magnetic Construction Group C o p , and on their cross claims for
indemnification against defendant Magnetic Construction Group Corp. (motion sequence number
001) is:
1) granted to the extent that the complaint and all cross claims are severed and
dismissed as against defendant 246 Lafayette, LLC, with costs and disbursements as taxed by the
Clerk of the Court;
2) granted to the extent that claims in the complaint for common-law negligence
and Labor Law $5 200 and 240 (1) are dismissed;
3) granted to the extent that the cross claims against them are dismissed; and
4) granted as to claim in the complaint under Labor Law Q 241 (6) only to the
extent that plaintiff relies upon 12 NYCRR $23-9.4(h)(4);
5 ) denied as to their cross claims; and it is further
ORDERED that the motion of Magnetic Construction Group Corp. for summary
judgment dismissing plaintiffs complaint and the cross claims of defendants 79 Crosby Street,
LLC, 246 Lafayette LLC, and Crosby Street Hotel, LLC (motion sequence number 002) is:
1) granted to the extent that claims in the complaint for common-law negligence
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and Labor Law 55 200 and 240 (1) are dismissed;
2) granted as to claim in the complaint under Labor Law 8 241 (6), onlv to the
extent that plaintiff relies upon 12 NYCRR §23-9.4(h)(4); and
3) granted to the extent that the cross claims for common-law indemnification and
contribution are dismissed, and is denied as to the cross claims for contractual indemnification
and breach of promise to procure insurance; and it is further
ORDERED that plaintiffs cross motion to amend his bill of particulars is denied; and it
is further
ORDERED that within 30 days of entry of this order, plaintiff shall serve a copy upon
defendants, with notice of entry.
\I 31,z
Dated:
Doris Ling-Cohan, J.S.C.
J:\Summary Judgment\Lombardi.79 Crosby - sj, indemnity, amend BP.wpd
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A
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