Purcell v Metlife Inc.

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Purcell v Metlife Inc. 2012 NY Slip Op 31149(U) March 30, 2012 Sup Ct, NY County Docket Number: 113495/09 Judge: Paul Wooten 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. [* 1] SCANNED ON412712012 SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PRESENT: PART HON. PAUL WOOTEN Justice 7 . DANIEL PURCELL and JENNIFER PURCELL, 113495109 INDEX NO. Plaintiffs, " 001 MOTION SEQ. NO, - agalnstMETLIFE INC., BRAUSE REALTY INC. and JRM CONSTRUCTION MANAGEMENT LLC, I Defendants. METLIFE INC., and JRM CONSTRUCTION MANAQEMFNT LLC, 590061110 INDEX NO. Third -Party Pla iI t iffs, ' I A,agalnst - NORTH EASTERN FABRICATORS, INC., Third-Pzirty Defendant. METLIFE INC., and JRM CONSTRUCTION MANAGEMENT LLC, I 1 $90282111 I I I APFl 24 2012 h & L ELECTRIC, INC., and SWEENEY & HARKIN CARPENTRY AND DRY WALL CORP., Ngtice of Motlohl Or 4nswerlng Affidavits - 6se --'Affldavjtq - Ex 1 , Exhibits (Memo) I Replying Affldavlts (Reply Memo) Page 1 of 22 . I [* 2] Cross-Motion: n Yes No Motion sequence numbers 005 and 007 are hereby consolicjated for disposition. 1 1 This lawsuit arises from a construction site accident that o'ccurred on March 9, 2009, on the eighth floor roof of the MetLife Building, located at 27-01 Queens Plaza North in Long Island City, New York. While carrying a steel beam on his left shoulder, plaintiff David Purcell (Purcell), an iron worker, allegedly slipped on wet plywood at t h e construction site, and sustained neck and shoulder injuries requiring surgery. The aacident occurred during the course of his employment with third-phrty defendant North Eastern Fabricators, Inc. ( M r t h Eastern), a Steel contractor. Purcell insists that MetLifq Inc. (MetLife) and JRM Construction uagement LLC (JRM), the general contractor, had a duty tg pr site. The Cot'nplaint alleges claims for liability under corn I Labor Law I I s§ ZOO, 240(1) and 241(6). After issue was joined and discovery completed on the r$.riaifi action and the third-party actian, defendantsAhird-pary plaitItiffs/second third-party plaintiffs MetLife and JRM (together, defendants) moved for summary judgment in Motion Sequence 00'5, pursuant, to CPLR 3212, disrhissing the complaint an indemnification against Not-t for partial sqmmary i judgment on the issue of defendants' liability under Labor Law 5 241'(6). North Eastern crgqwno CPLR 3212 and for summqry judgment, &ul;Sp4 I I ' The law firm of Ahmuty, Demers 8 McManus, previously counsel fbr both JFM and MetLife, made the mgtiorr for summary judgment dated May 2, 201 1 However, shortly tbereqfter, on July 29, 201 1, the firm of Morris, Duffy, Alonsa 8 Faley tpok pver the representatioh of MetLife and filed a crqssmotion which adopted and incwpordted all the 8rgurnqnts $gt forth in the initial Ma) 2, 201 judgment motioh. L Page 2 of 22 ~ Y 2 .*, i 2- I I I [* 3] Workers' Compensation Law 5 11, seeking an order dismissing the third-party complaint and 8 1 1 I cross-claims in their entirety, and submits within same opposition to defendantslthird-party I plaintiffs' motion for summary judgment. North Eastern contends that granting contractual indemnification to JRM and MetLife is violative of General Obligations Law 3 5-322.1 Both I JRM and MetLife oppose the cross-motion. In motion sequence 007, second third-party defendant, Sweeney & HarKin Carpentry and Dry Wall Corporation (Sweeney 8, Hgrkin),* a subcontractor on the same construction project, moves for severance. In the alterngtive, Sweeney & Harkin asks the court t9 vacate the Note of Issue, strike the case from t h e Trial Calendar, or set a date for a pkeliminary conference so that discovery may be scheduled fpr the seqond third-pa I Note of Issue ha 4landar. Second en vacated, and thd case has been I third-party defen I-J & L Electric, Inc. (H I cross-moves for severance, or, in the alternative, conduct and complete discovery, to move for summary judgment, and to also set the matter down for a discovgry conference. Plaintiffs do not oppose the motion and cross-motion to er However, Jkhl and M&Y Brause F;! North, also known a$ the bl by MetLife as its operational headquarters for over 1,500 employees in 2001, 1 Non-party I 5 shows that the nhme of the firm is $pel Howeber, the company name is listed as "SWWI reference sources (so8 e;,g http I w yellowpages comlnew york-nylsweeney-4 wall-corp [accessed Dec 21, 201 I]) Ackordingly, the name of the company is s Hark i n" t h rou g h o LIthe deci$ion t 3 The actiori was discontitwed gg 1 i. r b st defendant Brause Realty on May 4, 291 I . . I ~ 1 . , 1) I, [* 4] Barclays Services Corporation (Barclays Services) is a subtenant of MetLife. In a contract with Barclays Services, JRM was hired as the general contractar to complete an interior buildout of the space rented by Barclays Services at the building, which included infrastructure work on the eighth floor roof setback, including installing two generators., two chillers, pump packages and switch gears for air conditioning system work. The construction work on the eighth floor began in January of 2009. Laborers hired by JRM were respsnsible for cleaning up debris at the work site on a daily basis, and placing it intp a dumpster for removal. Subcontractors, however, were contractually obligated to put their debris in one spot, and then laborers would remove it. - . By purchase order dated January 23, 2009, JRM and North Eastern entered into a I subcwtract agreement, Warth Eastern became responsible for installing stqel fra'ming for the I building's air conditioning towers. The subcontract agreement required that North Eastern indemnify JRM for liability arising out of its Nork, and to procure general liability insurande with JRM named as an additional insured. North Eastern complied with its insufance obligations. In order to finish the project, JRM hired other subcgntractors, including Sweeney 4 Harkin and H ctdd L. While work was being petforTed b thraugh the installation of marine-grade plywood by $we membrane and on the are 5,OQO square feet, with 32 square feet Qer member. It was allegedly secured with $(e'Ws and m e t d straps, and the pieces were sandbagged around the perimeter to create a continuoug fixed path for workers I On the day of plaiqtiff's adcident, it was raining. t On th? eighth-flwr sFtback, )Vorth I I * I + Eastern steel workers, ironworkers, steam fitters and electriciAns wbt'e workjn'g itWdllling steel beams, electrical and HVAC piping. The plywood was allegedly not covered, mor Was there any sand or salt placed on the plywdod. At th6 time Pf his accident, Purcell alrdady had M e n . 3 ,l 7 r j Page 4 of 22 I I I [* 5] working for three hours at the conStruction site, In his deposition, Purcell claims that at approximately 10:15 A.M. Qn March 9, 2009,' he slipped on wet plywood after stepping over some refuse and debris. Purcell described the debris on the roof as consisting of loose gravel, fixed pipes that were connected to the building and an existing AC unit, and electrical pipe wire, Purcell admits to carrying a heavy steel beam which was four to five feet long and weighing 40 to 60 pounds. He claims that he lost his footing when he slipped on a wzt spot on the plywood. He further claims that as he slipped, the plywood shifted and he lost his balance, fprcing him to jerk his neck and shoulder. After his accident, James Gaffney (Gaffney), Purcell's supervisor, walked over to see if he was all right Subsequently, Purcell called in an accident report to the North Eastern office, and Gaffpey drove Purcell to his car in New Jersey. Purcqll then drove to the office of an orthopedic I surgeon Purcell and his wife commenced this action ggaipst the building owner, lessee, and general contractor on September 18, 2009. MetLife and JRM impleaded North Eastern into the lawsuit, alleging that the company Controlled and directed Purcell's actions. Subsequently, a ded against SWYeshey & Harkin and H & L, tho sgcond third-party action was subcontractors on the work site. 1 3 Summary judgment is DISCLISSI a drastic remedy that should be granted only if no triable issues of fact exist and the movant is entitled to judgment as 3 matter of law (see Alvarez v ProspeCt Hosp., 68 NY2d 320, 324 [1986],; Andre v Porneroy, 35 NY2d 361, 3p4 [1974]). The party Ir l 1 moving for summary judgment must make a prima facie showing of eptitlement to j!&Qmeqt as I t 5 a matter of law, tendering $ufficji&nt evidence in admissible form demonStratin'g the absenqe of v New York Univ. Med. Ctr,, 64 NY2d 851, 863 [1985]; material issues of fact (See Wine&d CPLR 3212 [b]). The failure to make such a showing requires denial of the motion, regardless J * 0 I i /I . Page 5 of, 22 . \ . I I 1 - [* 6] of the sufficiency of the opposing papers (see Smalls v AJI Indus., Inc., 10 NY3d 733, 735 Once a prima facie showing has been made, however, "the burden shifts to the [ZOOS]) . , nonmoving party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact that require a trial for resolution" (Giuffridav Citibank Corp., 100 NY2d 72, 81 [2003]; see also Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; CPLR 321 2[b]). When deciding a summary judgment motion, the Court's role is solely to determine if any triable issues exist, not to determine the merits of any such issues (see Sillman v 7'wentieth Century-Fox f i l m Corp., 3 NY2d 395, 404 [1957]). The Court views the evidence in the light most favorable to the nonmoving party, and gives the nonmoving party the benefit of all reasonable inferences that can be drawn from the gv/dence (see Negri v Stop & Shop, Inc., 65 I NY2d 625, 626 [1985]) If there is any doubt as to the existence of a triable issue, summary judgment should be denied (see Rofuba Extruders, /ne. v Ceppos, 46 NY2d 223, 231 [1978]). A. Defendants' MQtion for Summary Judgment and Plaintiffs' Crow-Motion for Partial Summary Judgmeet 1. Cqmmon-Law, Neq&nce,and Violation sf Labor Law 6 200 I I 1 1 Purcell failed to oppose those portions qf the motion for summary judgment seeking to1' dismiss the common-law negli their prima facie burden of de I those claims alleging a violation of Labor Law 9 200 and common-law negligence. I Labor Law 5 200 codifies the common-law duty imposed upon an owner or general contractor to provide ConStruotibn d t e Wivbrkers with 4 a safe place to work4 ($$e Comes v NeLv The statute states, in relevant part, as follows "1 All places to which this chapter applies shall so be constructed, equipped, arranged, operated, and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons oyed therein or lawfully frequenting such places. All Page 6 of 22 1 [* 7] York State Elec. & Gas Corp., 82 NY2d 876 [I 9931; see also Perrino v Entergy Nuclear lndian Point 3, LLC, 48 AD3d 229, 230 [Ist Dept 20981; Brown v Brause Flazg, LLC, 19 AD3d 626, Ibiq 1.1, I. - 628 [2d Dept 20051). Courts have held that the term owner is not limited to the titleholder of the property where the accident occurred, but can encompass a person who has an interest in the property and who fulfilled the role of owner by contracting to have work performed for his [or her] benefit (Coperlim v Ward, 100 AD2d 565, 566 [2d Dept 19841; see also Scaparo v Village of/lion, 13 NY3d 864, 866 [2009]; Reisch v Amadciri Constr. Co., 273 AD2d 855, 856 [4th Dept 20001). An owner, lessee or contractor will be held liable for a violation of Labor Law 5 200 and common-law negligence when the injury Complained of falls irlto one of two categories: (1) I those involving the manner in which the work is performed, or (2) thosle where workers are I injured as a result of a dangerous copdition at the work site (see Ortega v Puccia, $7 AD3d 84, 61 [2dDept 20081). If the work site accident is the result of the means and methods used by the contractor / to do its work, then Purcell must show that defendants directed, supervised or controlled the work during which the claimed injury occu I (see!Rizzuto v L.A. Wenger Cgn* \ 343, 352 [1998]; Ortega v Piiccia, 5 1 AD3d at 61). [Gjeneral supervisory control is insufficient to impute liability pursuaht to Labbr Law 3 200, which liitjili isory qontrbl or input into how the work is performed (Hpghes v Tishrnan Cqnsfr Corp., 40 AD3d 305, 31 1 [ I s t Dept 20071; Burkoski v Structure Tone, Inc., 40 AD3d 378, 381 [Ist Dept 20071). The fact that a party retains general Qupervisoryduties over the entire project, or retains inspection I t 1 privileges for observing the work progress, is1insufficient tolconstitute supervisi d 1 the work site to impose liability under Labor Law § 200 (see O Sulhvan v ID/ Constr. Co., 28 machinery, equipment, and devices in such places shall be so placed, operatbd, guarded, and lighted as to provide reasonable and ddkquate protection to all such perSans I . A I m Y 1 n *, I [* 8] AD3d 225, 226 [I st Dept 20061, affd 7 NY3d 405 [2006]; Moelle v New York Equities Co. , 258 I AD2d 253, 253-254 [ I st Dept 19991) i I!* By contrast] if the accident arises from a dangerous conditiQn on the work site, then Purcell must demonstrate that defendants either created the dangerous condition leading to the accident, or failed to remedy the dangerous Condition of which they had either actual or constructive notice (see Seda v Epstein, 72 AD3d 456, 455 [ I s t Dept 201 01; Azad v 270 5 h I Realty Corp., 46 ADSd 728 [2d Dept 20071; Murphy v Columbia Univ., 4 AD3d 200, 201-202 [ I s t Dept 20041). Purcell contends that the accident resulted from both the way the work was done, and t@c%useof a dangerous condition, Under the means and methods standard (see Rizzuto, 91 NY2d at 3 5 2 ), there is no indication that JRM or MetLife s u p of the work done by Purcell oh the roof. Certainly, MetLiTe h gd, directed or controlled qny I Q I ~ directing the in Copstruction work There is algo no triable issue of fact as to JRM s control of the work site, as JRM only coordinated the work of the subcontractors, indudihg the project work skhedule. Coordination af the work is insufficient for a finding of negligence (see e.g. McQarry v CVP 7 C, 55 AD3d 441, 442 [ I s t Dept 2 0 0 8 ] ; B u c c i ~ i 766 v $OW., 250 %bad I I I 46~8-469[lst Dept 19981). In his deposition twtitnop instrubtion from anyone r hi s work cam4 er than Gaffney, the lead fore I from his employer Each time that Purcell made a compl$int about th9 con ong at thd work site, he made the complaint directly to Ggffhey gnd t9 I wgs running the job, whi work Gaffney further teS I I insure the safety of its employees. Purcell also testified that he attended weekly safety meetings which were held by North Eastern for North Eastern em Although both JRM > I 3 3 I [* 9] and North Eastern had the authority to stop the work if it was raining too hard, that fact alone does not amount to supervision of North Eastern's work. David B. McWilliams (McWilliams), JRM's on-site coordinator, testified that his general supervisory duties involved interacting with North Eastern's project manager and coordinating the construction to make sure that the work progressed in accordance with the project's plqns and specifications. He also stated that JRM in no way supervised the methods by which North Eastern executed its steel framing work. Although the manner in which the work was being performed may have contributed to the accident, it cannot be said 8s a matter of law that it was the sole proximate cause. With respect to the dangerous condition standard, Purcell failed ts provide sufficient 11 eviderlce that the defendants created the problem, or had H e dAnd@-ous eonditiorl " that caused his injuries. In order to demonstrate constructive notioe, a clajmgnt must show that the dangerous wndition was visible and that it existed "fQra sufficient length of time prior to the accident to permit defendant's employees to discover and remedy ,it" (Gordon v American Museirm of Natural History, 67 NY2d 836, 837 [1986]; Ross v Qetty G. RegderP Revpcable , I 1; * L I Trust, 86 AD3d 419, 421 [Ist Dept 201 I]), ' I Contrary to plaintiffs' argumen I First, the testimonial evidence shows Sandbags Next, the evidence shows by defendants There was also no ev spot or debris was prgsent gh the p l y w o d (See Bel-ger v ISK Ma~h,@tdn, 10 AD96 5101 512 [Ist Dept 20041) More importantly, there is no indication that the fa accident, thereby allowing defendants an opportunity to remove the water from the platform. 1 1 Under these circumstances, Purcell fails to make a prima facie showing that'defendants , , I Page 9 Qf 22 I. I I 1 1 I [* 10] created the alleged dangerous conditions. Regarding the question of notiqe, McWilliams testified that JRM never received any complaints regarding unsafe working conditions on the . P . 3," , roof. John Fisher (Fisher), North Eastern's project manager, testified that when he visited the job site, he only observed existing conduit which had been installed on the roof. Fisher also testified that he was not aware of any problems concerning the plywood, or of any complaints related to the plywood or debris on the platform. While Purcell did tqstify that he made a complaint about the condition of the plywood and existing pipe3 to Gaffney "right before" his accident, he also stated that he had no reason to believe that his complaint was relayed to defend ants . - 3 The Court finds that defendants have demonstrated, as a matter Of law, that they (1) lacked the control a1 or cpnstru$ve er North Eastern's work or (2) created, JRM's motion for notlce of the dangerous conditions leading to Purcell's i I summary judgment is grgnted insofar BS it seeks dismissal of the cause of adtion for common- law negligeqce and violation of Labor Law § 200. 2 Violation of,Labo,rLaw 5 240(1) Ryan v Mobse Diesel, Inc., 98 AD2d 615 6N 7,490 I I "All contractors and 0wpty-s and their ag repairing, altering!, painting, oleaning or furnish or eract,, c)r cause to be furnishe "Labor Law 5 240(1) requires owners and contractors to provide wgrkerd with appropriate safety devices to prstect against 'such specific gravity-related accidents as falling 1 *P Page 10 of 22 I [* 11] from a height or being struck by a falling object that was improperly hoistgd or inadequately secured"' (Novak v Dol Savio, 64 AD3d 636, 637-638 [2d Dept 20091, quoting Ross v Curtis-Palmer Hydro-Ellec. Co., 81 NY2d 494, 501 [I 9931; see also Rocovich v Consolidated Edison Co., 78 NY2d 509, 514 [1991]). The statute, however, dbes not encqmpass "any and all perils that may be connected in some tangential way with the effects of gravity" (Ross v Curtis-Palmer Hydro-Elec. Co , 81 NY2d at 501). Rather, "Labor Law 5 240(1) is implicated where protective devices prove 'inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person"' (Brown v VJB Constr Corp , 50 AD3d 373, 376 [ I s t Dept 20081, quoting Ross, 81 NY2d at 591; see also Scharff v Sachem Cent School D i d at Hoh~rook; 53lADgd 538 [2d Dept 211083). . , - - . Defendants argue thgt h r c d l ' s cohtention that defendants are I ' * injury pursuant to Labor Law 5 ?4c1(1) is wiihout merit Specifically, de Purcell's accident was not gravity-related and thus, it is nqt within the ambit of Labor Law 5 240 I (1). All the witne$ses unifdrmly testified that a work platform made of pl atop the roof membrane Purc allegedly slipped grid lost his footing on a stepping over some debris. After he. slipped, Purcell alleges that the plywopd shifted, and he could not recover his balanw. ork platform, nor did he fall off the roof. Instead, he dropped the steel beanl thqt he was carrying to the plywood work platform, grabbed his shoulder, and knelt down on the plywood. This is not a cirwmstance where a hoisting Qr security device of the type enu have been expected or ngcessafy. Nor was gravity related to the gaqse Of 1b.g ecci'dgnt,. Therefore, the Court finds that Labor Law 5 240(1) is not implicated here (co Hovnaniau Co., Inc., 218 AD2d 68, 70-71 [3d Dept 19951, with Jock v Lan Page 11 pf 22 t I , I I [* 12] Facilities, 62 AD3d 1070, 1071-1072 [3d Dept 20091; Brown, 50 AD3d at 377). Accordingly, the Court grants that branch of defendants' motion to dismiss the claim premised on Labdr Law 5 1 ' ilny, 240(1) 3. Violation of Labor Law 5 241 ( 6 ) In contrast to Labor Law 5 200, 5 241 (6)5"imposes a nondelegable dyty upon owners, contractors and their agents to protect workers by holding those parties liable for breaches of particular safety regulatiow containing specific standards" (Musillo v Marist College, 306 AD2d 782, 783 [3d Dept 20031, see also Misicki v Caradonna, 12 NY3d 51 1 , 515 [2009]; Ross, 81 NY2d at 504-505). "In ordev to state a claim under Lgbor Law 5 241 (6), a plaintiff must identify . . a specific Industrial Code pr on mandating compliance with concrete spe Newireen Associates, 303 214, 218 [ I s t De 20031, citing Ross v cutti I I Elec. Co , 81 NY2d 494, 505 [I 9931; see Walker v MetrQ-Nqrth Comrnii [Ist Dept 20041) Recovery Under this section is dependent pn Purcell's ability to set forth the relevant and specific safety provisiqns of Part 23 of the New York State Industrial Code (12 NYCRR 23-1 1 et seq.), Ross, 81 NY2d at 505). (see Singleton v Citnalta C owner or general contra under section 241 (6), induding,cgmtributgry and compqrative nQgligenc@ (See Long I 5 The statute provide "All contraCtors an buildings or dwng req uirernents ructing or dernoli Gp,qnectiQnthkrewith, shall c ~ n l b l y with the fdl 6 All areas in which construkfion, excavation or demolition work is being performed sb$I be so constructed, Shaked, equipped . . as to provide reasopable and adequate prstection and safety to the perSopq emplqyed therein or lawfully frequenting such places . . .'I Page 12 of 22 I I I I [* 13] Forest-Fehlhaber, 55 NY2d 154, 161 [1982]; pisicki, 12 NY3d at 515; Ross, 81 NY2d at 502, n Purcell also claims violations of Article 1926 of the Occupational Safety and Health Administration rules and regulations (OSHA), which may not support liability under Labor Law 5 241 ( 6 ) ,because that federal statute is limited to the safety practices of employers (see Kocrirek v Home Depot, 286 AD2d 577 [Ist Dept 20011). Moteover, althQugh plaintiffs qllege a violation of OSHA regulations, OSHA standards have beer) deemed insufficient, as a matter of law, to sustain a claim under section 241(6) (see Schiulaz v Arne// Constr, Gorp,,261 AD2d 247 [ l s t Dept 19991; Greenwood v Shearson, Lehrhan & Hutton, 238 AD2d 31 1 [2d Dept 19971; 7 , . . _-_ ., Pellescki v City of Rochester, 198 AD2d ?62, 763 [4th Dept 19931 ["A violation of OS& regulations by an employer dog contractor under Labor Law 5 12 While plaintiffs originally listed numero lations of t h e Industrial Code, they abandoned their reliance on all of them except,for I 2 NYCRR 23-1.7(d) and (e), 12 NYCRR 23P 1.11, and 12 NYCRR 23-1,22. "Emplpyers shall not surffgrrpr perp pwsagbiayi h is in a slipljety walkway, scaffold, platform or r foreign substance which may condition. Ice, snow, water, gfease dnd cause slippery footihg shall be removed, Sanded ot coveted to provide safe footing , " Sectian 23-1 7(e),entitlEid IlTri 7 1 g and other hazards," reads as follows: "(I) Passqgeways. Alrpdkkagewv;ly$ sh and debris and from qfly h Industrial CQde 5 23-1 7, entitled "Protect from General Hazards" contains subsqctions thqt are clearly inapplicable to this cgse, fgr qxarnple (a) "Qverbead hazards", (b) "Falling Haqarda"; and (c) "Drowning Hazards " > 1 *L. [* 14] tripping. Sharp projections which could cut or puncture any person shall be removed or covered. 1 (2) Working areas. The parts of flows, 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." , 1 rllmrlllr Defendants' lack of control aver North Eastern's work assignment does not negate their liability under section 241 (6) (see Katie v Coundorou$, 293 AD2d 309, 31 1 [ I s t Dept 20021; I Rizzo v Hellman ¬/ec Corp., 281 AD2d 258, 259 [I st Dept 20011). Consequently, this I regulation required defendants to guard against Purcell's working on a slippery syrface. The Court finds that the sworn statements and dz'posltional evidence are sufficient to establish that Purqell's injuries were related to a slipping hazard. Therefare, Purcell's Labor Law 5 241(8) t 1 , 1 claim, g u r w m t to I 2 NJYCRR23-1.7(d), SyPiV6$# 1 ' I I I Nonetheless, there are factual issues with respect to the asgerted defense of oomparative negligence. Defendants' liability should be cbnsidqred and determined at the same time as the issue of whether Purcell was oomoaratively negligent for failing to ask his Coworkers for assistance in car I I 230-231 [ l s t Dept 19961). As well, hOQ continue working despite the rain. Since ndants are ent/ The Court finds that Industrial Cbde 5 23-1 7(&),*Hid with tiippihg ha'29rdS, does not apply to the facts of this case. Purcell testified that h e slipped rather tharl tripped on the wet plywood, aqd 88 GI result, thq description ~f ttw accide to fit the regulation'$ requireme t of tripping, Liability I prgyided by Purcgll unequiywally fails der 12 NYCRR 23,1.,7(e) alko depends upon a showing by Pyrcell that he was injured in a passageway, as required by section (e)(l), l or in a working area, as required by section (e)(2) The "passageway" sedion of the regulation Page 14 of 22 I ) ' [* 15] does not apply to a plaintiff who "slipped in an open area of the constructign site, and not within 1 I a defined walkway or passageway" ( M o r a v White, 276 AD2d 536, 537 [2d Dept 20001; see I 111 I 1 Il?b t ?"!> also Lenard v 1251 Americas Assoc., 241 AD2d 391, 392 [ I s t Dept 19971 [plaintiff was injured in an open area rather than in a passageway]). Industrial Code 5 23-1.7 (e)(2), which also deals with tripping hazards, mandates that 1 flows or other work ilreas be free of dirt and debris, as well as sharp projections and materials I Although the evidence shows that the place of injury was a working area rather than a passageway, the Court finds that this regulation does npt apply because Purcell did not trip, and the water that he slipped on is not debris or any of the obstructions listed in the regulation. - .. . Thus,l2 NYCRR 23-1.7 (e)(2) may not sehe as a predicate to a Labor Law 9 241(6) violation in ent dismissing,' in part, the this case. Accordingly, defendants ark erltitled tg Summaj! jud , section 241 (6) claim based on ledustrial Code 3 23.1 1 , .?( I Section 23-1 .I entitled "Lumber and Nail Fastenings,'' 1, "(a) The lumber used in the construction of equipment or temporary structures required by this Part (rule) shall be sound and shall not contair) any defects such as ring shakes, large or loose k strength of such lumber for the I (b) The lumber dimensions specified irl thiS except as othervyise ,specificallv cdse pf ladders. (c) All nails shall be driven Pull length and shall be of the proper size, type, length and number to provide the required strength at-dl joints. Only double-headed or screw-type nAil s,caffolds." ball be u p d l in the construction of I I The Court determinks that Indbstrial Code 12 NYCRR 23-1.1 1 'is in cage since there is no evidence in the record that the nails and lumber whi wnstructim of the plywood w w k pldtform were dkfsctlve qr imprbperly installed at the time of Page 15 of 22 , " 3 1 % [* 16] Purcell's accident. In addition, there is no indication that the dimensions of the wood boards were anything but nominal or trade sized. I I Plaintiffs also cite to Industrial Code I irfi'ln ~- I 5 23-1.22(b)(2) as a basis for imposing liqbility on defendants. The regulation entitled "Structural Runways, Ramps and Platforms," provides] in relevant part: "(b) Runways and Ramps. *** (2) Runways and ramps constructed for the use pf persons only shall be at least 18 inches in width and shall be construCted'of planking at least two inches thick full size or metal of equivalent strength, .. . .~ Such surface shall be substantially supported and byacTd to pr,?vent excessive spring qr deflection. Where planking is used'it s,ball bel Iqid'clqe, bytt jointed ilnd secure Iy n3 i Ie d . " I I y's affidavit which Purcell's only basis for relying on this specific se I describes the plywood as a ramp. Hqwever, the term ''rilmp" is nnt defined in Industrial Code 5 23-1.4., and there is also no evidence in the recard before the Gourt that the construction of the allq.ged ramp caused Purcell's injuries. Accordingly, Purcell's daim p e y i s e d Fn s W ? h 23I I 1.22 is dismissed I 1 The' Court firlds thil is no evidence showiqg that' 1 an alleged violation of section 23-1.7(e), section 23-1 . I 1, or s dismissal of those parts of plaintiff's claim which fely on these Nonetheless, as discussed of Industrial Code 5 23-1.7( here pre triable issues of fact related to the alleged violatiop qrdingly, dismissal of plaint I of Lilbor Law 5 241 (6) based ~n Industrial Code 5 23-1.7(d) IS denied. [* 17] B. Defendants Motion and Crosg-Motiqn against North Eastern for Contractual Indemnification and North Eastern s Cross-Motion to Dismiss the Third-party Complaint I .~ 1 Defendants concede that North Eastern has not breached its contractual obligation to afford additional insurance coverage to JRM. As such, JRM agrees to discdntinue its breach of contract claim against North Eastern. Additionally, there is no dispute that defendants are prohibited from filing a common-law indemnification claim against North Eastern since North Eastern is Purcell s employer, and defendants concede that Purcell did not sustain a grave injury vyithin the meaning Qf Workers Compensation Law 5 11 (see Majewski v Broadalbm-Perfb Cent. School [ 19981, Dirdek v Mefropolitan Transp. Auth. of State of New York, Accordingly, the motion seeking comtmon-Iqw indemeificagi 1 Eastern s cross-motion seeking dismissal bf defendants Common-law indemnification claim is I I I granted. I Regarding defendants clitim for conttactual indemnification, North Eastern denies any responsibility for Purcell S I ell Lies and chql,len t he l a g ree me nt s indem nifi cat io n cIa ys e indemnification lies since Specifically, defendants mqintain that Norto I to stop Purcell from carrying the h e h y st j ! I mself, which contribute juries, l or to stop work on a rainy day. In response, North Eastern claims that the indemnific$tion provision found in the purc tween the parties is void to General Obligations LA ce it purports to inde negligence General Obligations Law 9 5-322.1 ( I ) prohibits cert which the promisQr agrees to indemnify the prgrnisee against liability for the prbmis I . Pt [* 18] negligence. However, the Court finds that the indemnification agreement gt issue here is ngt void and unenforceable, It reads as follow&: "As pertains to any Work provided by Subcontractor [North Eastern] under this Purchase Order, Subcontractor agrees to defend and save harmless the Contractor [JRM] and transferee of the Work . . ftom all liability for injuries to any person, employees or property, and from damages by any fire, in any way caused by Subcontractor, its agents, employees, subcontractors or their employees or agents or persons, firms or corporatidm td whom SybcontrACtor caused by, or inclidantal to, the execution bf the Work, and from judgments, charge$ qnd other related expenves arising or to arisq, thrwgh any act or omission of any of the said persons" (prunson Jr.'s affirmatioh in Support of Cross-Motion, exhibit L, Purchase Order at 2, 8) "'[Tlhe right to contractual indemnification depends upon the specific language of the contract"' (Kader v City of N. Y,, Hous. Presew. & Dev., 16 AP3d 461, quoting Gilmgt-e v RV,ke/F;lwbr h i e / , 221 1 at- and una agreement that is the plain meaning of; its term$,(seQ Bailey v Fish & Neqvg, 8 NY3d 528, 1; ,Van Kipnis v Van Kipiiis, 43 AD3d 71 , 77 [lst Dept 20071, affd as mod 11 NY3d 573 [2008]). The "interpretation of an unambiguous writt court, as is the inqul unqmbiguous, and was in effe the subcontract agreement be condit iona I i ndem n the "transferee caused byINorth Eastern or its provides that the Clause is Only triggered when an accident is (I) I I [* 19] agents; (2) caused by or is incidental to North Eastern s work, or (3) arosg through an act or inde mnificat ion cl omission of North Eastern. By its terms, t L r# accident comes within the parameters of t h e indemnification clause. Furthermore, given these facts, the Court finds that the indemnification provision does not implicate General Obligations Law § 5-322 1(I), accordingly and IS enforceable (see Brown v Two Exch. Plaza Partners, 76 NY2d 172 [I 9901, Velez v Tishman Foley Partners, 245 AD2d 155 [I Dppt 19971). st While North Eastern claims that it is free of any negligence in this matter, there has been no determination yet as to which party, if any, was actively negligent and proximately caused Purcell s injuries. The only cause of action remaining against defendants is the one predicated on an alleged violatiqn of Labor Law 5 241(6), which IS nqt negligence on the part of defendants Therefore, defendan granting contractual ind& nnificgtion; ultimate relie whether, or to what extent, North Eastern was negligent, I C. Second Third-party Defendants Severance Motiah and Cross-Motion I In furtherance of severance o CQ In turn, CPLR section I010 provide$ that. unduly delay the det rights of any party arty complaint without prejudice, o e thereof, Qr ma e court shall do atty pldillttff qnd the third-pgrty n of the mgih action or prejudice the su I f I The Court has considerable di * te tion in deciding whether severance is appragriate d 1 Page 19 pf 22 . > . I n I % ~ *, [* 20] I (see Shallley v Callarian Indus., 54 NY2d $2, 57 [ I 9811; Baseball OK of Cornrnr. v Mar?& & McLer7r?an,295 AD2d 73 [ 1st Dept 20021; Quiroz v 8 AD3d 957 [2d De r. v Knoll farms of Suffolk County, Inc., 31 AD3d 726 [2d Dept 20061; see also CPLR 603; CPLR 10.10). However, a severance motion should not be gtanted where there are common factual I < and legal issues involved in the claims, "and the intelests of judicial economy avd consistency will be served by having a single trial" (Ingoglia v Leshaj, 1 AD3d 482, 485 [2d Dept 20081; Vieyra v Briggs & Stratton Corp., 184 AD2d 766, 767 [24 Dept 19921). Sweeney & Harkin and H & L argue that severance is warranted since discovery IS complete in both the main and the third-party action but is not complete in p a w action. Additionally, Sweeney and Harkin and H & L maintain that th d b t h e main actiorl. action does not invblve a legal idsue that is conne I pi-emised on violation of the Labor LavJ,'while the1 second third-pwty actiQn indemnification for the cQsts inyolved ie litigating the rpAin that severance is appropriate here. Severance of the second third-party action IS hprranted, based on: (1) the completion of d i h v e r y in the'rnain and thi of severqnce; and (3) t h e pr owell Co., lnc., 63 AQ3d 803!-$ 20061, Wassel v Niagara Moha actions arise from the same action is severed. I t CPNCLUSIQN Accordingly, it is hereby I [* 21] I I ORDERED that the portion of defsndantslthird-party plaintiffs/second third-party plaintiffs MetLife Inc. and JRM CQn tion and cross-motion F , summary judgment dismissing the common-law negligence and the Labor Law $5 200 and 240(1) claims is granted; and it is further, ORDERED that the portion of MetLife Inc. qnd JRM Construction Management LLC's motion and cross-motign for summary judgwent dismiqing the LaQorLaw 5 241 (6) claim is granted as to all Industrial Code clalms 1 7(d), which is ept as to the clai based on Industrial Code $ 2 3 - denied; and it is further, ion Management LLC's ORDERED that the portion motion and cross-motion ~ t + c Kg~ indemnification claim is gr r 1 Fabricator$, Inc is foqnd'n ORDERED that North Eastern's grqent dismissipg the I the extent of di$missihQ third-party complaint and all cros claiming common-law MetLife Inc. and JRM Cpestructipe Man indemnification and/or contri ic fi irthnr I ORDERED tha I 5 241(6) claim is denied; and it I . I ORDERED thqt the severance motioq and cross-mpf I of secorld third-party I H & L El defendants granted, and the act and it is further, ORDERED that H & L Electr Corporation are directed to serve a I ' , 1 I Y , j . 'f", 1 [* 22] Office, which shall effect severanqe of the second third-party actiqn; and it is further, na D that the parties in directed to appear for a status conference on June 27, 2012 at 11:OO A.M. in Part 7, 60 Centre Street, Room 341; and it is further, 1 ORDERED that the parties in the second thiydrparty action are directgd to appoar fpr a I I I preliminary conference on June 27, 2012 at,?1:OO A.M. in Part 7, 69 Gentre Street, Room 341; I I l and it is further, ORDERED that Metlife I upon all parties and upon the CI Ihted: -3-,JS -bz $JLWOOTEN J.$,C. Check one: 1-1 FINAL Dl

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