Roberts v Simon Prop. Group Inc.

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Roberts v Simon Prop. Group Inc. 2012 NY Slip Op 32937(U) December 7, 2012 Supreme Court, New York County Docket Number: 111805/09 Judge: Debra A. James 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. - . . .. . .. SCANNEDON I211212012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PART 59 DEBRA A. JAMES PRESENT: Justice SEAN ROBER'l'S I Index No.: Plaintiffs, 1 11805109 Motion Date: -v- 04/27/12 Motion Seq. No.: SIMON PROPERTY GROUP INC. , J . CREW G R O U P TNC and SHAMROCK DEVELOPMENT, I N C . , d? Motion Cal. No.: e D e f e n d a n t - s. THE R E T A I L PROPERTY TRUST, F l a i n t . i f f, Third-Part.y -wMADEWELL, INC. a n d BLACK HAWK, TNC., Defendants. Third-party SIIAMROCK DEVELOPMENT , I N C . , Second T h i r d - P a r t.y P l a i n t i f f , Third-party Index No.: -vMADEWELL, I N C . , R1,ACK HAWK, I N D I A N HARBOR INSURANCE, INC., 5901 14/09 and Second T h i r d - p a r t y D e f e n d a n t s . The following papers, numbered 1 to 5 were read on this motion for summary judgment. PAPERS NUMBERED Notice of Motion/Order to Show Cause -Affidavits -Exhibits Answering Affidavits - Exhibits -_ - -. ~ - - Replying Affidavits - Exhibits Cross-Motion: Yes No DEC 12 2012 Upon the foregoing papers, NEW YCIRK COUNTY CLERK'S OFFICE Check One: Check if appropriate: FINAL DISPOSITION 0 DO NOT POST NON-FINAL DISPOSITION REFERENCE SETTLEISUBMIT ORDERIJUDG. [* 2] In this action which arises out of an accident involving personal injuries, a motion and two cross motions a r e now before the court. In motion sequence number 002, defendant J. C r e w Group, Inc. (J. Crew) a n d third-party and second third-party defendant Madewell, Inc. (Madewell) move f o r summary judgment: (1) in favor of J. Crew's, Madewell's, d e f e n d a n t Simon Property Group, Inc. (Simonj's and third-party plaintiff The Retail Property Trust (RPT)'s f a v o r on their common-law and contractual indemnification claims against defendant/second third-party plaintiff Shamrock Development, Inc. (Shamrock) and third-party and second third-party defendant Black Hawk, Inc. (Black Hawk); (2) dismissing plaintiff's Labor Law 5 200 claim as against J. Crew, R P T , and Madewell; a n d (3) dismissing plaintiff's Labor Law §§ 240 (3.) and 241 (6) claims. discontinued his 5 200 claim. During oral argument, plaintiff Since L a b o r Law § 200 "codifies the common-law duty to maintain a safe work s i t e " (Ventimiglia v Thatch, R i p l e v & Co.. LLC, 96 A D 3 d 1043 [2d Dept 201.2]), plaintiff's negligence claim is a l s o dismissed. Shamrock and B l a c k Hawk cross-move, pursuant to CPLR 3212, for summary judgment dismissi-ng plaintiff's Labor Law and 241 (6) claims. §§ 240 (1) Plaintiff cross-moves for summary judgment on the issue of defendants' liability under Labor Law 5 240 (1). On March 23, 2009, 5. Crew a n d its subsidiary, Madewell, were engaged in preparing a space at the Walt Whitman Mall at 160 -2- [* 3] Walt Whitman Road in Huntington Station, New Y o r k for a Madewell store. Simon, which has changed its name to R P T , was the owner of the mall. RPT leased the retail space to Madewell. J. Crew hired Shamrock as the general contractor for the p r o j e c t , and Shamrock hired B l a c k Hawk as the demolition subcontractor. Plaintiff was a demolition and c l e a n u p laborer employed b y Black Hawk. It is alleged that on March 23, 2009, the same d a y on which the renovations began, while plaintiff was cleaning demolition debris from the ground, a wall behind him, which was being demolished, f e l l upon him and he sustained injuries. Plaintiff attests that a co-worker pulled the entire wall down, without cutting it into sections, by tying cables from a scissor lift to s t e e l studs in the wall, and pulling the lift away. There are no eyewitness account in the record, and plaintiff himself did not see what caused the accident, but the direct and circumstantial evidence support plaintiff's version. "'The proponent of a summary judgment motion must m a k e a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case"' ( Shapiro v 350 E. 78th St. Tenants Corp., 85 AD3d 601, 608 [lst Dept 20111, quoting Winesrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). "If this burden is not met, summary judgment must be denied, regardless of the -3- [* 4] sufficiency of the opposition papers" (O'HaLloran v Citv of New showing is made, the burden shifts to the opposing party to produce evidentiary p r o o f in admissible form sufficient to to determine if any triable issues exist, not to determine the merits of any such issues" (Meridian Mst. Corp. v Cristi Cleaninq Serv. Corp., 70 AD3d 508, 510-511 [lst Dept 20101). Labor Law 5 240 (1) provides, in pertinent part: All contractors and owners and their agents . . . in the . . . demolition . . . of a building or structure shall furnish or erect, or cause to be furnished OK erected for the performance of such l a b o r , scaffolding, hoists, stays, ladders, slings, hangers, b l o c k s , pulleys, braces, irons, ropes, and other devices which shall be so constructe'd, placed and operated as to give p r o p e r protection to a person so employed. "Labor Law § 240 (1) provides exceptional protection for workers against the 'special hazards' that arise when either the quotation m a r k s and citation omitted]" (Jarnindar v Uniondale statute imposes absolute liability on building owners and contractors whose failure to 'provide proper protection to -4- [* 5] workecs employed on a construction site proximately causes injury to a worker (Wilinski v 334 E. 92nd Hous. Dev. Fund CorP., 18 NY3d 1, 7 [2011], quoting Misseritti v Mark IV Constr. k, N Y 2 d 487, 490 [19951). 86 However, not every hazard or danger encountered in a construction zone falls within the scope of Labor Law 5 2 4 0 (1) as to render the owner or contractor liable for an injured worker s damages. We have expressly held that L a b o r Law § 2 4 0 (1) was aimed only at elevation-related hazards and that, accordingly, injuries resulting from other types of hazards are not compensable under t h a t statute even if proximately caused by the a b s e n c e of . . . [a] required s a f e t y device [internal quotation marks and citations omitted] (Misseritti, 86 N Y 2 d at 490). w h e t h e r plaintiff s injuries [ T l h e single decisive question is were the direct consequence of a failure t o provide adequate protection against a risk arising from a physically significant elevation differential ( R u n n e r v New Y o r k Stock Exch., Inc., 13 NY3d 599, 603 [2009]). The parties dispute whether plaintiff s accident falls within section 240 (I), in part because plaintiff and the wall were at t h e same level, i.e., that there was no elevation differential between plaintiff and the wall that f e l l on him. The Court of Appeals h a s specifically rejected a same level rule which would preclude coverage under Labor Law § 240 (1) if there were little difference in height between a worker and whatever caused his injuries (see e.q. Wilinski, 1.8 NY3d at 9). -5- [* 6] However, the Court of Appeals has n o t established a bright line rule concerning what elevation is sufficient to constitute "a physically significant elevation differential" (Runner, 13 NY3d at 603). Rather, one must consider "the weight of t h e object and the amount of force it was capable of generating, even over the course of a relatively short descent'' (Runner, 13 NY3d at 605; see also Wilinski, 18 NY3d at 10, quoting Runner; Kempistv v 246 Spring St., LLC, 92 AD3d 474, 474 [lst Dept 20121; McCallister v 200 Park, L . P . , 92 AD3d 927, 928-929 12d Dept 20121; Kropp v Town of Shandaken, 91 AD3d 1087, 1090 [3d Dept 20121, and cases cited therein). Under these principles, had the wall which struck plaintiff been just p o o r l y b r a c e d or suffered from some o t h e r inadequacy of s a f e t y device which allowed it to fall, there is no question but that plaintiff's injuries would have fallen within the statute, as the accident would have been "the direct consequence of a failure to provide adequate protection against a r i s k arising from a physically significant elevation differential" (Runner, 13 NY3d at 603). However, the statute does not apply in this case because the wall itself was being demolished, and "imposing liability for failure to provide protective devices to prevent the walls or objects from falling, when their fall was the goal of the work, would be illogical" (Wilinski, 18 NY3d at 11; s e e also Salazar v - 6- [* 7] Novalex Contr. Corp., 18 NY3d 134, 139-1.40 [201.1], quoting Wilinski). Accordingly, t h e parts of J . Crew and Madewell's motion, and Shamrock and B l a c k Hawk's cross motion which seek summary judgment dismissing plaintiff's Labor Law Si 240 (1) claims are granted. Plaintiff's cross motion which seeks summary judgment on the issue of defendants' liability under section 240 (1) is denied. Labor L a w 5 241 (6) provides: All contractors and owners and their agents . . . when constructing or demolishing buildings or doing a n y 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 the persons employed therein or lawfully frequenting such places. The commissioner may m a k e rules to carry into effect the provisions of this subdivision, and the owners and contractors and their agents for such w o r k , . . shall comply therewith. The Commissioner's rules are s e t forth in the Industrial Code, 12 NYCRR Part 23. ... "Labor Law § 241 (6) imposes a n o n d e l e g a b l e duty upon owners and contractors to provide reasonable a n d adequate protection and safety to [construction workers] [internal quotation marks and citations omitted]" (Forschner v Jucca Co., 63 AD3d 996, 998 [2d Dept 20093). -7- "To recover under [* 8] Labor Law Or § 241 (6), a plaintiff must establish that, in general contractor violated an Industrial Code provision which sets forth specific applicable safety standards" (Ventimiqlia v Thatch, R i p l e v & Co., LLC, 96 AD3d 1043 [2d Dept 20121)- T h e o n l y Industrial Code sections which plainti-ff alleges were violated are f o u n d in 12 NYCRR 2 3 - 3 . 3 ("Demolition By (a) Application. The provisions of this section shall not apply to mechanical means of demolition. (b) Demolition of walls and partitions. (1) The demolition of walls and partitions shall proceed in a systematic manner and a l l demolition w o r k above e a c h tier of floor beams s h a l l be completed before any demolition work is performed on the supports of such floor beams. *** (3) Walls, chimneys and other parts of any building or other structure shall not be left u n g u a r d e d in such condition that such parts may fall, collapse or be weakened by wind pressure or vibration. *** (6) Walls o r partitions which are being demolished by hand shall n o t be left standing more than one story or 15 feet, whichever is less, above the uppermost floor on which persons are working. Such -8- [* 9] walls or par,titions shall be removed before the aggregate area of the openings in such f l o o r exceeds 25 percent of the total f l o o r area. c) Inspection. During hand demolition operations, continuing inspections shall be made by designated persons as the work progresses to detect any hazards to any person resulting from weakened or deteriorated floors or walls or from loosened material. Persons shall not be suffered or permitted to work where s u c h hazards exist until protection has been provided by shoring, bracing or other effective means. ( Inexplicably, neither in his bill of particulars nor anywhere in his opposition p a p e r s does plaintiff c i t e Industrial Code section 23-3.4 ("Mechanical. Methods of Demolition"), which states, in pertinent part: The use of a swinging weight attached to the line of a crane boom, clamshell bucket, power shovel, bulldozer or a n y other mechanical device or equipment f o r the purpose of demolishing a building or o t h e r structure or any remaining' portion thereof s h a l l be in accordance w i t h the following requirements" (a) Height limitation. The building or other structure or any remaining portion thereof shall be n o t more than 80 feet in height above the ground, grade or equivalent surface. ( b ) Structural stability. Walls, chimneys and other parts of any building or other structure shall not be left unsupported or unguarded in such condition that such parts may fall, collapse or be weakened by wind pressure or vibration. -9- [* 10] ( c) Zone of demolition. (1) Where a swinging weight is used in demolition operations, a zone of demolition with a radius of at least equal to one and one-half times the height of the building or other structure or any portion thereof being so demolished shall be maintained around the points of impact. Where a swinging weight is used, the supporting cables shall be of such length or shall be so restrained that it is not possible f o r the weight to swing against any other building or structure than the one being demolished. (2) Where a clamshell bucket is being used in demolition operations, a zone of demolition shall be maintained w,ithin 25 feet on both sides of the line of travel of the bucket. (3) Where other mechanical devices or equipment are being used in demolition operations, a zone of demolition shall be maintained in the area into which the building or other structure or any portion thereof may fall. S u c h zone of demolition shall equal at least one and one-half times the height of the building or o t h e r structure O K any portion thereof above the ground, grade or equivalent level. (4) Only persons essential to the operation of t h e demolition devices or equipment shall be s u f f e r e d or permitted to enter any zone of demolition. (5) Substantial barricades constructed and installed in compliance with this Part (rule) shall be erected wherever there is likelihood of any person entering a zone of demolition other than the persons essential for operation of the demolition devices or equipment. (6) The controls of any mechanical device or equipment used in demolition operations shall be located and operated a safe a n d reasonable -10- [* 11] distance from the point of demolition. Plai.ntiff insists that section 23-3.3 applies to his accident and defendants disagree. defendants. The court c o n c u r s with Contrary to plaintiff's insistence, there is no scenario under which a scissor lift can be considered a hand tool. A review of Industrial Code section 23-3.3 and its corollary section 23-3.4 establishes that since 23-3.4 applies by its terms to "any other mechanical device or equipment", such section applies to the scissor lift in this case, and section 23- 3 3, which explicitly excludes "mechanical means of demolition", is inapplicable. See Kempistv v 246 Sprinu St, LLC, 92 AD3d 474, 475 (1" Dept 2012) ("section 241[6] claims premised on section 23-3.3, which pertains to demolition by hand, . . . , section 23-6.1, which, by its terms, does not apply to cranes, are inapplicable under the ciccumstances presented"). Accordingly, as plaintiff raises no issue of fact with respect to a violation of the Industrial Code, the parts of 5. Crew a n d Madewell's motion and Shamrock and B l a c k Hawk's cross motion which seek summary judgment dismissing plaintiff's Labor Law 5 241 (6) claim are granted. As a result of these holdings, summary judgment dismissing the entire complaint is granted. -11- [* 12] When a complaint against a p a r t y is dismissed, [tlhe third- party actions and a l l cross claims are dismissed as a necessary consequence of dismissing the complaint in its entirety ( T u r c h i o e v AT & T Communications, 2 5 6 A D 2 d 245, 246 [lst Dept 19983). A c c o r d i . n g l y , the part of J. C r e w and Madewell s motion which s e e k s common-law and contractual indemnification from Shamrock and Black Hawk is denied as moot. Accordingly, it is ORDERED that the part of J. C r e w Group Inc. and Madewell, Inc. s motion which s e e k s summary judgment dismissing plaintiff s Labor Law 5 200 claim is granted, as this claim h a s been discontinued, a n d plaintiff s negligence claim is also dismissed; and it is further ORDERED that the part of J. Crew Group Inc. and Madewel.1, Inc. s motion which seeks summary judgment dismissing plaintiff s Labor Law §§ 240 (1) and 241 (6) claims is granted; and it is further ORDERED that Shamrock Development , I n c , arid Black Hawk, r Inc. s cross motion is granted; and it is further ORDERED that t h e complaint is dismissed with c o s t s and disbursements to J. Crew Group Inc., Madewell, Inc., The Retail Property Trust, Shamrock Development, Inc. and B l a c k Hawk, Inc. -12- [* 13] a s t a x e d b y t h e C l e r k upon t h e submission o f a n appropriate b i l l of costs; a n d i t i s f u r t h e r ORDERED that t h e C l e r k is directed t o e n t e r j u d g m e n t accordingly; and it i s f u r t h e r ORDERED t h a t t h e part of J. Crew Group I n c . a n d Madewell, Inc.'s motion which seeks surrmary judgment o n their indemnification claims is d e n i e d a5 moot; and i t is f u r t h e r ORDERED t h a t plaintiff's cross motion is d e n i e d . Dated: December 7, 2012 ENTER : Y; XI,? ,fi J ;CNl 7 , J.S. C . DEBRA A. JAMES FILE NEW YORK COUNTY CLERK'S OFFICE -13-

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