Velez v Keystone Bldg. Corp.

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Velez v Keystone Bldg. Corp. 2012 NY Slip Op 32390(U) September 13, 2012 Supreme Court, New York County Docket Number: 113157/09 Judge: Louis B. York 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. SCANNED ON 911712012 [* 1] SUPREME COURT OF THE STATE O F NEW YORK NEW YORK COUNTY Answerlng Affldavlts - Exhlblts IW 3 ) . IN O W Replying Affldavits Upon the foregoing papersr It i ordered that this motlon Is s FILED NEW YORK COUNTY CLERK'S OFFICE @GRANTED IN PART 0OTHER DENIED 1 GRANTED 7 SUBMIT ORDER 0SElTLE ORDER 0DO NOT POST 0FIDUCIARY APPOINTMENT 17REFERENCE 2. CHECK AS APPROPRIATE: .......l..l.,.l.l....,.,,,, MOTION IS: 3. CHECK IF APPROPRIATE: ...l....l.lll..l.lll.l.l...llll......,..,,,.,... .. . . . . .. ... [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK : IAS PART 2 _ _ _ _ - _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ - - _ - _ -X- - - - _ _ _ _ _ - - Wilmer Velez, Index Number: Plaintiff, -against- 113157/2009 The Keystone Building Corporation, 108 Chambers, LLC, and Andrews Building C o r p . , Defendants. ____________________----______------- X The Keystone Condominium s/h/a Keystone Building Corporation and Andrews Building Corp., FILED Third-party plaintiffs, -against- West New York Restoration of Ct, Inc., _ _ _ _ _ _ _ _ _ _ NEW YORK COUNTY CLERK'S OFFICE Third-party defendant. X _ f l _ _ _ _ _ _ _ _ - - - - - _ _ _ _ _ _ - - - - - Louis B. York, J. : Plaintiff moves f o r partial summary judgment on liability on his claim under Labor Law 5 240 (1) (the Scaffold Law). The Keystone Building Corporation (Keystone) and Andrews Building Corp. (Andrews) cross-move for summary judgment dismissing plaintiff's L a b o r Law § 200 and common-law negligence claims against them and for summary judgment on contractual indemnity against West New Y o r k Restoration of Ct, I n c . (West NY). West NY cross-moves for summary judgment dismissing plaintiff's Scaffold Law claims and his Labor Law § 241 (6) claims and to dismiss the 1 [* 3] third-party complaint against it. Parties and Procedural Background Plaintiff was a general laborer doing demolition work on a building (the Building) located at 38-44 Warren Street, New Y o r k , New York, which was undergoing f a c a d e repair work (the Project). On July 9, 2009, he was employed by West NY and he f e l l from a ladder. Keystone was the owner of the Building and Andrews was the managing agent for the Building. On April 7, 2009, Keystone entered into a c o n t r a c t f o r facade work on the Building. Plaintiff commenced this action by filing a summons and complaint on September 17, 2009. The action was discontinued against 108 Chambers, LLC by stipulation. On November 16, 2011, the court issued a compliance conference order setting a deadline to file a note of issue by December 16, 2011 and directing that summary judgment motions were to be made within 60 days of filing the note of issue. Plaintiff filed the note of issue on December 16, 2011 and made his motion f o r partial summary judgment on February 8, 2012. February 17, 2012. West NY cross-moved for summary judgment on Keystone and Andrews cross-moved for summary judgment on February 27, 2012. While both cross motions were made a few d a y s after the 60 day time frame, since the initial motion was timely made, the delay was minimal and no prejudice has been shown, the court 2 [* 4] exercises its discretion to consider the cross motions. Parties Allegations Plaintiff alleges that, while he was working at the Building, he fell from a 20-foot extension ladder. The ladder was used to provide access from the ground to a sidewalk bridge that was u s e d on the P r o j e c t . He states that he had been doing demolition work at t h e Building for about two months and that he had previously used the Ladder to gain access to the sidewalk bridge so that he could perform his work. He asserts that he was performing demolition work with a co-worker, Daroisz Obidinski, as plaintiff was descending the ladder moved, causing him to lose his balance and fall. Plaintiff states that the t o p of the Ladder was t i e d down with rope, that his foot did not slip and that his fall was due to the Ladder's moving. He further states that, d u e to his f a l l , his left foot hit a metal dumpster. He went to t h e St. Vincent's Hospital emergency room, and a fracture was discovered in his left foot, requiring three separate surgeries. He claims that he never received any equipment from Keystone or Andrews or any instructions from them as to how.to perform his j o b . He seeks summary judgment on his L.L. §240(1)Scaffold Law claim for h i s fall from the Ladder. Keystone and Andrews contend that t h e y had no control o v e r the manner in which plaintiff performed his w o r k , but rather that 3 . [* 5] plaintiff received his instruction from Kamil, West NY s foreman at the site. They state that t h e Ladder was stored every evening I a f t e r work and that, when it was set up each morning by a West NY employee, it was tied on top to the sidewalk bridge by a rope to prevent it from moving. They further s t a t e that the Ladder had adjustable feet with rubber soles and was in good condition, that there was no debris on the Ladder s rungs and that, after the ladder was set up, adjusted and tied down, it w o u l d not move. Keystone and Andrews also note that Obidinski had descended the Ladder a minute or two before plaintiff and he stated that it neither moved nor s h o o k at that time and that it was tied up with rope. They also state that, in the St. Vincent s Hospital emergency room medical chart, plaintiff stated that he injured h i s left foot when he slipped from [lladder and that in the workers compensation medical history questionnaire, plaintiff stated that he slipped ... [while he] was going down the s t a i r s (Doris affirmation dated May 2, 2012, Exhibits 1, 2). Keystone and Andrews also seek summary judgment on contractual indemnity against West NY pursuant to the Contract s indemnity provision. West NY contends that the Ladder was properly secured and that the Ladder s feet had adjustable swivels to e n a b l e it to adjust to uneven ground. It asserts that the Contract s rider makes Keystone responsible f o r the sidewalk bridge. 4 It also [* 6] asserts that Andrews's t h i r d - p a r t y action should be dismissed since Andrews was not a signatory to the Contract. states that, since the Ladder was properly secured, Finally, it plaintiff's L.L. §240(1) claim should be dismissed and his Labor Law 5 241 ( 6 ) claim should also be dismissed as inapplicable to the facts of this case. L a b o r Law S 200 Labor Law 5 200 is a codification of common-law negligence and to be held liable, a party must have the authority to c o n t r o l the activity that caused the plaintiff's injury (Comes v New York S t a t e E l e c . & Gas C o r p . , 82 NY2d 876, 877-878 [1993]), There is no liability f o r an owner that exercises no supervisory control over the operation, where the purported defect or dangerous condition arose from the contractor's methods ( L o m b a r d i v Stout, 80 NY2d 290, 295 [1992]). Keystone and Andrews both state that they neither controlled nor supervised plaintiff's work, but rather that plaintiff was supervised by West NY's foreman, Kamil. Plaintiff has not presented any evidence controverting this aspect of Keystone and Andrews's cross motion, and since there is no evidentiary proof that they controlled the manner in which plaintiff performed the job, the portion of their cross motion that seeks to dismiss plaintiff's Labor Law 5 200 and common-law negligence claims against them is granted ( L o m b a r d i , 80 N Y 2 d at 295; Augustyn v 5 [* 7] C i t y of N e w Y o r k , 95 A D 3 d 683, 685 [lst Dept 20121). L a b o r Law § 2 4 0 (1) Labor Law 5 240 (1) provides, in pertinent part: All contractors and owners . . . in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or s t r u c t u r e shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, p l a c e d and operated as to give p r o p e r protection to a person so employed. This Law is to be liberally construed to accomplish its purpose, which is to protect w o r k e r s against the special h a z a r d s and risks involved in elevation differentials, by placing responsibility for safety practices at building construction sites on owners and contractors (Rocovich v C o n s o l i d a t e d E d i s o n CO., 78 NY2d 509, 512-513 [1991]). A plaintiff establishes entitlement to summary judgmerit on liability on a Labor Law 5 240 (1) claim when he demonstrates that an unsecured ladder, on which he is standing, shifts and causes him to fall ( H a r t v T u r n e r C o n s t r . Co., 30 AD3d 213 [lst Dept 20061; Montalvo v J. Petrocelli C o n s t r . , I n c . , 0 A D 3 d 173 [lst Dept 20043). Even if a plaintiff himself s e t s up the ladder, he is entitled to summary judgment if the ladder is unsecured and no other safety devices are provided (Vega v Rotner Mgt. C o r p . , 40 A D 3 d 473 [lst Dept 20071; V e l a s c o v Green-Wood 6 [* 8] Cemetery, 8 AD3d 88 [lst Dept 2 0 0 4 1 ) . To prevail on a motion for partial summary judgment on his cause of action under Section 240(1), the plaintiff must show both that the statute was violated and that the violation was a proximate cause of his injuries ( A u r i e m m a v Biltrnore T h e a t r e , LLC, 82 AD3d 1, 9-10 [ I s t Dept 20111 ) . Plaintiff asserts that, since the Ladder moved as he was descending, it failed to provide him with adequate protection and he is entitled to partial summary judgment on liability. Keystone, Andrews and West NY state that the Ladder was properly secured by being tied off at the top by rope to the sidewalk b r i d g e and that immediately prior to the accident, plaintiff s co-worker Obidinski descended from the Ladder and it didn t move or shake. Additionally, they claim that plaintiff gave a different version of how the accident occurred, both at the St. Vincent s Hospital emergency room and in the workers compensation medical history questionnaire when he stated that he slipped. This ambiguity created by plaintiff himself, as to whether the Ladder was properly secured, or whether it moved and whether plaintiff merely slipped precludes summary judgment since [wlhere the evidence discloses different accounts of the accident, one pursuant to which defendants would be liable and another under which they would not, questions of fact exist making summary judgment is inappropriate (Ellerbe v P o r t A u t h . of N . Y . 7 & N.J., [* 9] 91 A D 3 d 441, 4 4 2 [lst Dept 20121; Antenucci v Three Dogs, L L C , 41 AD3d 205 [lst Dept 20071). Plaintiff s motion f o r partial summary judgment on liability on his §240(l)claim and the portion claim are both denied. L a b o r Law 5 241 (6) Labor Law § 241 provides: All contractors and owners and their agents . . . when constructing or demolishing buildings or doing any excavating in connection therewith, shall comply with the following requirements: *** [6] All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to [ w o r k e r s ] . . . [in accordance with rules promulgated by the Commissioner of Labor] . A cause of action under Labor Law § 241 (6) must allege violation of a specific, rather than a general, s a f e t y standard set forth in the New York State Industrial Code, 12 NYCRR Title 12, (the Code) and that this violation was a proximate cause of the accident ( R o s s v Curtis-Palmer Hydro-Elec. Co., 81 N Y 2 d 4 9 4 , 501-505 [1993]) . Plaintiff has alleged violations in his supplemental b i l l of particulars for two sections of the Code: 23-1.21 (b) (4) (i) and (ii). Code section 23-1.21 (b) (4) (i) provides in pertinent part . [* 10] that: Any portable ladder used as a regular means of access between f l o o r s or other levels in any building or other structure shall be nailed or otherwise securely fastened in place. Code section 23-1.21 (b) (4) (ii) provides that: All ladder footings shall be firm. Slippery surfaces and insecure objects such as bricks and boxes shall not be used as l a d d e r footings. ( b ) (4) (ii) is dismissed. Regarding Code section 23-1.21 ( b ) (4) (i), plaintiff has presented evidence that the Ladder was used regularly by West NY s workers to g a i n access to the sidewalk bridge so as to perform w o r k on the Project (plaintiff EBT, at 21-22; Obidinski EBT, at 25). As noted above, whether the Ladder was adequately secured is a factual issue and, accordingly, the portion of West NY s cross motion that seeks summary judgment dismissing this claim is denied (Ellerbe, 91 AD3d at 442). Contractual Provisions The Contract has the following provisions: 5 3.18 (the Indemnity Provision) 9 [* 11] \\TOthe fullest extent permitted by l a w , ... the Contractor shall indemnify and hold harmless the Owner . . . and agents . . . f r o m and against claims, damages, losses and expenses . . . arising out of or resulting from performance of the Work, . . . but only to t h e extent caused by the negligent acts or omissions of the Contractor [or its employees] . " Rider 5. E \\...Ownerwill be responsible f o r the continued safe use of the sidewalk bridge/scaffolding/shoring." Contractual Indemnity "'The right to contractual indemnification depends upon the specific language of the c o n t r a c t " ' ( L e s i s z v Salvation Army, 40 AD3d 1050, 1051 [2d Dept 20071 [internal citation omitted]). Moreover, "a contract assuming [the duty to indemnify] must be strictly construed to avoid reading into it a duty which the parties did not intend t o be assumed" (Hooper Assoc. v AGS Computers, 74 N Y 2 d 4 8 7 , 491 [1989]). A party's right to contractual indemnity "depends on the intent o f the parties and the manner in which that intent is expressed in the contract" (Suazo v Maple R i d g e ASSOC., L.L.C.' 85 AD3d 459, 460 [lst Dept 20111). Reading the Indemnity Provision "according to the plain meaning of its terms" ( G r e e n f i e l d v P h i l l e s Records, 98 NY2d 5 6 2 , 569 [ 2 0 0 2 1 ) , it limits indemnification to "negligent acts or 10 . [* 12] omissions" by the Contractor, a subcontractor or anyone employed by them. In contractual indemnity, a party seeking to impose indemnity must show that it is free from negligence, but need not show that the proposed indemnitor is negligent, and must show that the indemnification provision applies ( U l u t u r k v C i t y of New York, 298 AD2d 233, 234 [lst Dept 20021). However, the court has dismissed p l a i n t i f f ' s claims under Labor Law 5 200 and common-law negligence a g a i n s t Keystone and Andrews and, therefore, plaintiff's claims against them are based on their statutory status r a t h e r than any "active negligence." Andrews was the managing agent f o r the Build.ing and it is covered by t h e Indemnity Provision as Keystone's agent. immunize West NY against its own negligence. The Rider cannot Its cross motion to dismiss the third-party complaint is, therefore, denied. Consequently, Keystone and Andrews's motion for summary judgment on contractual indemnity against West NY, which placed and secured the Ladder, is granted, conditioned upon a finding of negligence against it at trial. Order It is, therefore, ORDERED that plaintiff's motion for partial summary judgment on his Labor Law 5 240 (1) claim against the Keystone Building Corporation and Andrews Building Corp. is denied; and it is further 11 . . [* 13] ORDERED that the portion of the cross motion of the Keystone Building Corporation and Andrews Building Corp. that seeks dismissal o f plaintiff's Labor Law 5 200 and common-law negligence claim against them is granted; and it is further ORDERED that the portion of the cross motion of the Keystone Building Corporation and Andrews Building Corp. that seeks summary judgment on contractual indemnity against West New York Restoration of Ct, Inc. is granted, conditioned upon a finding of negligence against said party at trial; and it is further ORDERED that the portion of the cross motion of West New York Restoration of Ct, Inc. that seeks to dismiss plaintiff's claim under Labor Law § 240 (1) is denied; and it is f u r t h e r ORDERED that the portion of the cross motion of West New York Restoration of Ct, Inc. that seeks to dismiss plaintiff's claim under Labor L a w 5 2 4 1 ( 6 ) is granted to the extent of dismissing plaintiff's claim under 12 NYCRR 23-1.21 ( b ) (4) (ii) and denied as to 1 2 NYCRR 23-1.21 (b) (4) (i); and it is further ORDERED that the p o r t i o n of the cross motion of West N e w York Restoration of Ct, Inc. that+ seeks to dismiss the thirdparty complaint is denied. Dated: 3 ,/ 2012 ENTER: J.S.C. 17

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