Joseph v M.D. Carlisle Constr. Corp., Inc.

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Joseph v M.D. Carlisle Constr. Corp., Inc. 2012 NY Slip Op 31169(U) April 30, 2012 Supreme Court, New York County Docket Number: 119226/06 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. [* 1] 1 [* 2] S u p m e Court of the State of New York County of New York: Part I O Fslicita Joseph, a13Administratix of ths Estate of Arthur L. Joseph, and Felicita Jaseph, Indhrldually, - DeclslonlOrdsr Index No.:119226/06 Seq.No. : 002,003 PlaintlfF, Present: -against- M.D. Carllsle Construction C o p , Inc., The RC House, LLC, JD Cadislet Development Corp., Universal J.S.C. Builders Supply, Inc., and Quinn Construction Consulting cop. Defendants. Qulnn Construction Consulting k r p . , Third Party PlalnM, FILED -against- W&W Glass, LLC., M 022012 A Y Thlrd Party Defendant. - - M.D. Carlbls Construction Corp., h., RC Houm The LLC, JD Carllale Development Corp., X NEW YORK COUNTY CLERK'SOFFICE Second-Third Party Plaintiff, -againstW&W Glabs, LLC., Second-Third Party Defendant. __ Rsc-tation,as required by CPLR 2219 [a], of the papers WnSki8red In the review of this (these) motion(s): Papom Numbed _ _ _ _._ _ _ _ _ _ _ . . . . . Defs n/m [3212] wl ASF affirm, exhs. . . . . . , , ...... , . . . . . . . . . . . , . , , , , , . . . 1 , 2 Defs n/m 132121 wl RTK affirm,axhs. . . . . . . . . . .. . . . . . . . . . . . . . . . . , ......... 3 [* 3] Pltf s opp. w/ JPM affirm, TJC srffid, exhe. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Defs reply wl ASF afftm. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Defs reply wl RTK afflrm, JEL affld. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . TP Defs supp. wl M M H affirm, LY affld, exhs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Pttt a sur-reply wl JPM affirm. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 5 6 7 8 Hon. Judlth J. Gischa, J.S.C.: Upon the hmgoing pepers, the decision and order of the court i& as bilows: This is an action arislng from a work place accident brought by Felkita Joseph, as Administratix of the Estate of Arthur Joseph ( decedent ), and Felidta Joseph, individually ( Jmeph Estate or plainW). Defendants are M.D. Carlisle Construction Corp., Inc. ( MDCC ), The RC House, LLC. (YRC House ), JD Carllsle Development Gorp. ( JDCD ) (mlleethroly MDCadisle ), and Qulnn Construction Consulting Corp. ( Quinn )(wllecthrely defendant$). The claim against defendant Universal Builders Suppfy, Inc. were discontinued on February 3, 2000. The thlrd party defendant and second-third party defendant in this matter is W 8 W Glass, LLC. ( w&W). Plalntlff dslms that decedent s injuries were proxlmately caused by defendants negligence and violdona of Labor Law 95 200,240, and 241. Issue has been joined and defendants Quinn and MD Carllsls now separately seek summary Judgment. W&W supports the motions for summary judgment dismissing the compIaint against the defendants. Since these motions were timely brought after plaintm filed the note of issue, they will be consldered on the mertts. CPLR 5 3212, Brlll Y. Citv of New Yo* ,2 N.Y.3d 048 (2004). The motions are consolidated for consideration and determination In this single decislon/ordar that follbwa. Summary of the Facta and Arguments The following facts are established or unrefutedon these motlons, unless otherwise - page 2 of 13 - [* 4] indicated: This case Involves the fall and subsequent death of d a d e n t from the W k h floor of a construction project of a residential high-rise building y p r o j d ) , on September 20, 2006. At the tlme of tha eccldent decedent w a employed as an ornamental ironworker by W&W and involved with the installation of the exterior facade glass curtain well panels. The exterior of the project was to be a glass curtaln walI. On the day of the acddant, the decedent was working on the WFth floor of the project, In the interior, before an opening In the facade. Thia opening was covered with safety mbles and vertical netting ( perimeterprotection ), and was awaking the placement of a glass panelwindow. Inorder to prepare far the installation of a window, the perimeter protection had to be removed so the glass panel could be lowered Into place from tha exterior of the project. It was a part of decedent s job to take down the padmeter protection in preparatlon for the installation of the glass panel. The opening of the facade was between 12-15 feet. In the vicinity of the openhgs between columns there was little space, and to perform the preparation work wearing a fixed length lanyard, decedent would need to mnn& at each column, remove part of the perimeter protectlon, and then diaconnect himself from the safety strap to ma& the other side. Decedent was w r i n g a safety harness and flxed length lanyard ( personal protection or PP? at the tlme of hls fall. The, fall protection system in place when decedent was removing the perimeter protection coneistad of hla PP and two ftxed length anchor polnts that were spaced further apart than the length of the lanyard. It is undlsputedthat it was not possible for decedent to remove the perimeter protection while [* 5] still remaining constantly connected, based upon the length of the lanyard decedent was wearing at the time of his fall. No one alsa was working on the twelfth floor at the time of the addent, nor did anyone actually w k e s a the fall as It occurred. It is undisputed, however, that decedent fell from the twelfth to the second floor, dying shortly thereafter. He was found wearing a safety harness wlth lanyard, but it is not clear whether he was tM off to any o the safety f anchor points before the fall occurred. MD CarlMe and Qulnn each seek summary judgment dismissing the Labor Law clalms on the basis that decedent was the sole proximate cause of the accident. Quinn also moves on the ground that it was not an agent of the owner (RC Hou8e) or Construdon Manager (MDCadisle) and, therefore, not liable under the Labor Laws nor any theory of negligence. Plaintiff claims that the fall a m t aystem provided to decedent required that d d e n t disconnect his fixed length lanyard, thereby exposing decedent to a fall hazard in order to perform ha work. Furthermore, plaintiff clalms that the f b d length lanyards did is not provide the workera with the necessary safety equipment to perform t e required work h and maintain proper personal p r w - o n . Defendants ergus that plaintiffs' Labor Law clalm must be d h l s a e d on the ground that decedents own actions were the sole proximate cause of his accident. It is not disputed that,decedentwas wearing a saf~ty harness and lanyard at the time of loss, nor that safety anchors were available to attach his safety hemeae to perform the work, It is also not disputed that W&Ws procedure for the installation of the glase curtain wall required the worker to tie their safety harnessesto a safety anchor point Defendantsclaim - page 4 of 13 - [* 6] that the deposition tesffmony establishes that decedent was an axparisnced worker, familiar with the safety regulations at the mn8truction site. Defendants argue that the daposltion testimony also establishes that retractable lanyards were readily available for his use, ordinarily stored in the gang box within two or t h t w floors of his work. Defendarrts further dalm that the depositton testimony demonstrates that decedent chose to remove the perimeter protectlon, alone, and did SO without using the retractable lanyard8to secure his personal protectlon to the available anchorage points. This alleged failure to use o availabk safety equipment, defendants claim, was the s k proximate cause of the decedent s fall and subsequent death. Defendant Quinn also separately d a h s that there Is no proof that shows it web negligent or owed a duty to decedent because: (I) Qulnn s role at the site did not require oversight, control or supenrlaian forthe decedent, (2) norwasthem an agency relationship between Quinn and the owners/developeraat the project. RC House, the owner o the f premises entered into a construction managar agreement with MD Carllsle. RC House also retained W&W to Install a curtain wall system. Quinn, on the other hand, -8 hired by MD Carlisle to act In an advisory capacity on all matter pertaining to safety and loae control at the proled, and to advise the project Superlntmdent and the owner of any tradodsubcontractm who habitually failed to comply wtth the praject safety p r q p m requirements. (See, Quinn Exh. S and see, Quinn Exh. L, pg 81). Therefore, Quinn claims that Its role at the location was iimtted and did not raquine oversight of the means and methods of the work oftho subcontractors and tredes. Rather, Quinn clalms that it contract& with MD Carllsle as consulting safety managers, providing three aervlcas: (1) training; (2) written safety manuals; and (3) the presence of site safety [* 7] managers to various mnstructlon companles. PlalntlffopposesQuinn's motion, and argues thaAnce all contractors on the pmj8e were required to obey and implement the site safety manager'a orders and directives relating to the project site safety manual, the contractors actually followed orders and directives from Quinn. Dlscwslon In decldfng whether the defendants are entitled to the grant o summary Judgment f In thelr favor, the court considers whether they have tendered suffldant evldence to elimlnate any material issues o fact from this case. " E-0. W i n m a New York Univ, f Med. Ctr., 64 N.Y.2d 851, 853 [1085]; &&man v. City of N w Ywrk ,48 N.Y. 2d 557, 582 [lQSO]. If met, the burden then shw to plalntm who must than demonstrate the existence of a triable lssue of fact In order to defoat these motlons. Alvare7 v. P u, 320,324 [Ig8q; m 08 N.Y.2d a m n v. Citv of New York, supra. When an insue of law Is ralsod In connection with a motion for summary judgment, the court may and should resolve it without the need for a testlrnonlal hearing. See, Hlndas v. W e h , 303 AD.2d 459 [2d Dept. 20031. Defendants move for summary judgment In their favor only on plalnWs Labor Law 8 240(1) claim.' Generally, Labor Law § 240(1) Imposes a non-delegabkduty upon the Although there i some ambiguity as to which of plalnmPa Labor Law s claims the defendant's motion for summary judgment is being applled to, 'sole proximate causation" is a complete defense only a8 applied to Labor Law § 240 (I). S-, Cshill v. T n ~Autk , 4 N.Y.3d 35, 39 [2004]. In distinction, r ~ ~ the issue of plalnWs contributory or comparatlve negligence, while a defense, is not a complete defense under Labor Law Q 241(0)and 9200. See e.& v, Gurtia-Palmw HvdmEbc. Go,, 81 N.Y.2d 494, 502 [n.4] [19Q3]; i s o n Y. GSL m Eriterprlses. I=, 274 A.D.2d 356 [lat Dapt. 20001. ~ [* 8] owner and contractor to supply necessary securtty devices for workers who perform taaks at an ebvatlon, to protect them from falling. Bland v. M n, a- 88 N.Y.2d 452,458 458 [lg85]. Howaver, I& well established law that not every worker who falls at a is mnstruction slte I entitled to the extraordinary protections of Labor Law 5 240 (I), s which imposes absolute liability upon an m e r and contractor, rather, Iiablllty itt contingent upon the existence of a hazard contemplated In section 240 (1) and ths failure to use, or the inadequacy of, a safety device of the klnd enumerated therein. R o w v. C m - P a l m , 8 1 N.Y.2d 494,501 [1993]; Cohen v. ManZpyialS1Pan-KeWna C a m Jivdr- Centa, 50 AD.3d 227 [lst Dapt. 2008J. SQkW Pl In thls particular case,there is no argument the plaintiff was not Involved in an elevation related risk covered by LL 8 240(1) or that satbty davlcw were not necessary. B r o w v, RMeller G r o u Ine,, 8 N.Y.3d 675 at 681 [2007j; &&h w o n Go,, 78 N.Y.2d SOg, 514 [IQQI]; m v ConmI r Y New York Stock Excb..,13 N.Y.3d 50Q[2009]. Instemd, defendant8are clalmlngthey providedadequateaafety deviceswhich decedent failed to utilize. An accident alone does not establish a Labor Law Q 240 (I) violation or causation. To prevail on a motion for summary judgment, defendants must establish that there was no statutory violation end that the plalnWs own acts or omlsslons were the sola cause of the accident. m v. Trlborou e v. ~ b o ~ o H-lous.Smvu. of N.Y. C& 1 N.Y.3d280 [2003]; o d CaMU Bridqe & Tunnel Auth, , 4 N.Y.3d 35,40 1 0 4 .Therefore, defendants have 201 the burden to establlahthat the decedent "had adequate safety devi- availabb; that the [worker] knew both that they were available and that he was expected to use them; that he - page 7 d 13 - [* 9] chose for no good mason not to do so; and that had he not made that choke he would not have bewn injured." cahill.4 N.Y.3d at 40; see w a h a r v. New Ypdrplnat, 14 N.Y.3d 83, 88 [2010]. The Instant records establishes that the decedent was instructed to use a hamesa wtth lanyard; that W&W provided w&dy safety meetings relteretlng this rule; harnesses wtth both Wed length and retractable lanyards we available; that it was the r , established practlce to put on the harness and lanyard Rrst thing in the morning; and that the decedent was famillar wlth the harnessand lanyard protocol and even reminded other co-workera to put them on and use them. Here, the parties do not dispute that d d a n t was Hfearlng a safety harness and lanyard at the tlma of loss, nor do they dbpute that them warn available safety anchors In the work area. Defendantsclaim that retractable harnesseswere available for decedent's * use, ordinarily stared In the gang box whin two or three floors of hk work. Defendants further argue, that based on deposklon testlmony, decadent, an experlend and safe worker, chose to remove the cable and vertical safety netthg In front of an open &ma, alone, and did so without securing hls safety harness to the available anchorage points whlch he could have done I he used the avallabb mtradable lanyards. Thus, defendants s datm that decedent's fall was the sola muit of decedent's failure to use available aafety equipment. In support of thelr contentions, and In additiin to deposition tmnacrlpts, defendants profferthe affidavit of their expert, Jlm Lapping ('Lapping"), who assertedthat The caurps notas plalntifk argument that defendants' expart affldavk from Lapping should be precluded and is denied, as there I no evidence that any delay in s maklng expert disclosure wa8 intentlonal or wilful. UJsrnander-Vm v Zwawer-PesM RacljPlPcrv G r u 39 kD.3d 710,711 [2d Dept 20071 [holding that CPLR 3lOl(d)(l)(l) doe8 not "mandatethat a party be preduded from proffering expert testlmony merely because of noncompliance with the statute, unless there is evldence of fntentlonal or willful failure to dlsdose and a showing of prejudice by the opposing party" [Internal [* 10] decedent caused the addent because (1) decadent m a w r i g alone and (2) he did not okn use a retractable length lanyard, but a fixed length lanyard Instead. Plaintiff argues in oppositian that Lapplng does not discus8 or dlspute what plaintiff had I d e n W as the gap in fall protection for workers who did not have retractable lanyards, as identifled by plaintiffs expert, Thomas Cocchble, P.E. Thb gap In fall protection would requlre a lone worker taking down the netting to detach hls fbred length lanyard from one safety strap and then walk over to another to reattach. Plaintiffs claim that thle gap between safety straps created the gap in fall protection, particularlywhen the fixed kmgh lanyards were not long enough to reach the entire length of the netting protecting the open facade of the building. The testimony of John Edge ("Edge"), the shop safety steward for W&W, and of Leslie Young ("Young"), project manager of W&W, raise issues of material fact sufflclent to defeat the defendants motions for summary judgment. Edge testified that the workern of W&W were n e w Instructed that there was a preferencefor retractable lanyards over f h d lanyards,just that the men "hook up." Edge furthertestHied that ha approximatedthat them were four retractable lanyards available at the work sko, and that he had rsquisltloned mom, h did not instruct decedent to use a e retractable lanyard, nor was there a prefemnce that the workers use one type of lanyards verBu8 another. Young testlflsd that W&W provldsd ita workers with all safety harneaees and lanyards associated with fall protachion for Its employass. The onslte foreman, a Mr. Lopez, was responsible for dlrectlng and supenrising the decadent on the projecta. quotation marks and citations omitted]. - page 9 of 13 - The [* 11] foreman would provide the hamesa and lanyards to the workers when materials were provided on the ske. Young ako testifid that W&W did not have a policy agalnst men working alone. Young further testified that worker8 could patform tasks In preparation for the placementof curtain wall panels by themselves. Finally, Young teatifid that there was no problem with decadent followlng company policy. The testimony of Edge and Young establkhed that although them may have been four retractable lanyards avallabla at the work site, there were 20 W&W employees indudad In the erection gang. Therefore, it is not clear that a retractable lanyard WBB made available to d d e n t , nor Is It dear that decedent was ever Instructedto use a rehctable lanyard. The hamess and lanyard that decedent had at the time of the acddent was provided to hlm by his employer and waa acceptable to that employer despite the gap in protsctlon that it created. Thls information la speclflc and sufflclent to raise issues of fact on the issue of sole proximate aause. See C;ollado v. Ckv of New Yo&, 72 AD.3d 458 [lat Dept. 20101. Furthermore, both Wttnessss from W&W tastifiad that there was no policy agalnst men working alone to perform the type of preparation work that decedent was performing at the tlme of the awldent. Thus, decedent's condud, at this atage, ie not, a8 a matter of law, the sole proximate mum under section 240(1) ofbhe Labor Law. No summary Judgmentin favor o defendants Is avallable on this basis. f Anma Qulnn separately daims that It has established its entltlernent to judgment, as a matter of law, because It w s not an 'owner, "contractor," or "agent" o the o m r or f general contractor at the time of decedenra addant. In opposition, plalntlfFfailed to raise a triable issue of fact - m a 1OOf 13- [* 12] A construction manager ia not gemrally considered a contractor responsiblefor the safety of the workers at a construction site under the Labor Law, unless it has been delegated the authority and dutie8 o a general contractor or if it functions as an agent of f - the owner of the premises. Y. Turner Go-, 4 N.Y.3d 861 [2005]. Only upon obtaining the authorityto supstvise and control does an entity fall within the class of those havlng nondelegable llabillty as an "agenr under Labor Law 5 240(1). m 54 N,Y.2d 311 [1981]; , n v. P I 4 N.Y.3d 881 [2005]. In order for a defendant to be liable under this section, *the defendant must have the authority to control the activity bringing about the Injury 80 as to enable Itto avoid or correct the unsafe condMon.' Damlani v. F e d a m D a p a M n t Stom, I ~ G , 23 A D A 329 [Zd Dept. 20051 [Internal &ations omitted]. Thus, liability Is dependent upon the amount o control or f supervision exardaed over the plaintiffs work. The First Department has consistently held that "a constructlon manager whose duties [are] limited to obsenring the work and reporting to the contractor safety violations by tha employees does not thereby bemme liable to the contractor's employee when the latter Is injured by a dangerous condition arising from the contractots neglbent methods. The consbudion manager's authortty to stop the contractots work, tf the manager notices a safety violation, dcea not give the manager a duty to protect the contractor's employem. The general duty to supervise the work and ensure compllance with safety regulatlons does not amount to supenrislon and control of the work site such that the supenrlsory entity would be liable for the negligerice o the f contractor who performs the day-today operations. By the 8ame token, Yhe fact that [the owner] may have dfwatched peraons to observd the progmsa and method of the work does not render it actively negllgent" Buccinf v, 1 ASSOL, 250 AD2d 488, 468-89 [lst Dept. IQQ8][internal quotations and dtatlons omitted]. [* 13] While Quinn provided the sfto Safety manager for the workeite, the aite safety manager did not have the auhority to atop the work H he observed an unsafe condition, nor did he have the authority to shut down the sits or fireemployees who did not follow the safety produras. According to Quinn, If there was an unsafe condhlon observed at the project, the site safety managerwould notifythe ~98ponSibl8 park8 who may have creat6d such unsafe condltlons. SpeciRcally, John Murphy ("Murphy"), Qulnn's vice Presldant, tWfled at his deppsmon that Quinn only coordinated the schedule of the renovation project and perFomrad contract document revlew, estimating, value engineering, lagbtics, bid solicitation, and work scope analysts. Murphy further stated that Quinn had no involvement Inthe actual work on the conatructian project and, in particular, the decedent's work wa8 overseen and directed only by his employer, W&W. No evidanca tothe contrary was presented. Since Quinn did not haw authority to direct and supervtss the decedent in his work, Quinn did not have the type of responslblllty at the worksite that would be sufficient to Impose Iiabllity. See Dohertv v. Cky of New Yo&, 16 AD.3d 124 [lst Dapt. 2005J. Therefore, Quinn has afltabllshed Its antltlement to Judgment $8 a matter of law, that it is nat liable to pialntlff, under the Labor L w nor any theory o negligence, bmauss a f it was not an "OWnBr, "contractor," or "agenr of the Owner or general conkactor at the tlme of decedent's accident. Accordingly, QUlnn'8 motion to dismiss the complaint against it is granted. Quinn also asks that all clalms and crossclaims agalnst it be dismissed on the same basis. MD Carllsle, whlch has asserted a crass-cleim against Qutnn, kdses no argument I opposition on this h u e . W&W, which has asserted a counterclaim against n 12 d 13 - [* 14] Quinn, likewise raises no argument tegardlng why the cauntardelm should survive dbrnZssal on this basis. The crose-claim and counterclaim are therefore, d i s r n W . CONCLUSION Ba8ed on the foregoing, It Is ORDERED that defendant Quhn Construction Consulting Corp. s rnotlon for summary judgment is granted to the extent that the complaint against it is dismissad and . all claims and c r m a l m a , lndudlng counterclaims are also d i a m i d ; and it is further ORDERED that defendants M.D. Carlisle ConstructionGorp., Inc., The RC House, LLC., and JD Carlisle DevelopmentCorp. s motion for summaryJudgmentdimlssing t h complaint against them is denied; and It Is further ORDERED that thfs c m I ready for trial. Plaintiff shall sewe a copy o thls a s f declalon/ordsr on the office of Trial Support so that the caw can be scheduled; and it is further ORDERED that any relief not expressly addrsssed is hereby denied; and It Is further ORDERED that thls constMes the dedaion and order of the court. Dated: New York, New York April 30,2012 So Ordered: - .k 3 HON. JUDl MAY 022012 NEW YORK couF\ITyCLERKS OFFICE 13 Of 13 - QISCHE, J.S.C.

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