Murudumbay v Angie & Margarita Holding LLC

[*1] Murudumbay v Angie & Margarita Holding LLC 2012 NY Slip Op 51599(U) Decided on August 1, 2012 Supreme Court, Queens County McDonald, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 1, 2012
Supreme Court, Queens County

Jose Murudumbay, Plaintiff,

against

Angie & Margarita Holding LLC, EVEREST SCAFFOLDING INC. and CAMILLO CONSTRUCTION, INC., Defendants.



10325/10

Robert J. McDonald, J.

[*2]The following papers numbered 1 to53read on this motion by defendant/third-party plaintiff Everest Scaffolding Inc. (Everest) for summary judgment dismissing plaintiff's claims under Labor Law §§ 240(1), 241(6), and 200 and common-law negligence and all cross claims asserted against it, and for summary judgment on its third-party cause of action for contractual indemnification against third-party defendant/second third-party defendant Modern Technology Contracting Corp. (Modern Technology); and on this motion by Modern Technology for summary judgment dismissing Everest's third-party complaint against it, for summary judgment dismissing defendant/second third-party plaintiff Angie & Margarita Holding LLC's (Angie & Margarita Holding) second third-party complaint against it, for summary judgment dismissing plaintiff's claims under Labor Law §§ 240(1), 241(6), and 200 and common-law negligence, for summary judgment on its counterclaim for contractual indemnification against defendant Camillo Construction, Inc. (Camillo), and for summary judgment on its counterclaim for common-law indemnification against Everest; and on this motion by plaintiff for partial summary judgment on the issue of liability under Labor Law §§ 240(1) and 241(6) against Camillo and Angie & Margarita Holding, and for an extension of the time to file his summary judgment motion in the event that the court finds that it is untimely; and on this cross motion by Angie & Margarita Holding for summary judgment dismissing plaintiff's claims under Labor Law §§ 240(1), 241(6), and 200 and common-law negligence and all cross claims asserted against it.

Papers

Numbered

Notices of Motion - Affidavits - Exhibits1 - 12

Notice of Cross Motion - Affidavits - Exhibits 13 - 16

Answering Affidavits - Exhibits17 - 39

Reply Affidavits40 - 53

Upon the foregoing papers it is ordered that the motions and cross motion are determined as follows:

Plaintiff was employed by Modern Technology, which was hired by Angie & Margarita Holding, the owner of the property located at 15-17 126th Street in College Point, New York, to construct a building on the property. Modern Technology, in turn, contracted with Everest to install a sidewalk bridge over the sidewalk where construction was being performed and, upon completion of the project, to dismantle it. Camillo was the general contractor on the construction project. On April 7, 2010, plaintiff, while climbing up the sidewalk bridge, was allegedly injured when he held onto a metal beam, which moved, causing him to fall backwards into a gap between the building and the sidewalk bridge. Plaintiff subsequently commenced this action against Angie & Margarita Holding, Everest, and Camillo under Labor Law §§ 240(1), 241(6), and 200, and common-law negligence. On June 22, 2010, Everest instituted a third-party action against Modern Technology alleging contractual indemnification and breach of contract to [*3]procure insurance. On October 7, 2011, Angie & Margarita Holding brought a second third-party action against Modern Technology alleging contractual indemnification and contribution.

The court will not entertain the separate summary judgment motions by Modern Technology and plaintiff and the cross motion by Angie & Margarita Holding for summary judgment because they are untimely. In the absence of a court order or rule to the contrary, CPLR 3212(a) requires summary judgment motions to be made no later than 120 days after the filing of the note of issue, except with leave of court on good cause shown (see Brill v City of New York, 2 NY3d 648, 652 [2004]). Here, the summary judgment motions by Modern Technology and plaintiff were served 10 days and seven days, respectively, after the expiration of the 120-day deadline. The October 2011 stipulation wherein the parties agreed that motions for summary judgment must be made returnable no later than March 15, 2012 was not "so ordered" by Justice Ritholtz and, thus, the parties did not have the permission of the court to extend the statutory deadline (see e.g. Wallach v Coliseum Tenants Corp., 2011 NY Slip Op 32315U [Sup Ct, New York County 2011]). In addition, Angie & Margarita Holding's cross motion for summary judgment was served four days after the statutory deadline. The issues presented in Angie & Margarita Holding's cross motion, however, are not nearly identical to the issues raised in Everest's timely summary judgment motion and, therefore, the cross motion is time-barred (see generally Grande v Peteroy, 39 AD3d 590 [2007]). Specifically, Angie & Margarita Holding's cross motion seeks summary judgment on the issue of its liability to plaintiff, whereas Everest's motion seeks summary judgment on the issue of its own liability.

Everest established its entitlement to judgment as a matter of law that it is not liable to plaintiff under Labor Law §§ 240(1) and 241(6) because it was not an "owner," "contractor," or "agent" of the owner or general contractor at the time of plaintiff's accident. In opposition, plaintiff and Modern Technology failed to raise a triable issue of fact. An entity is deemed a contractor within the meaning of Labor Law §§ 240(1) and 241(6) if it had the power to enforce safety standards and choose responsible subcontractors (see Williams v Dover Home Improvement, Inc., 276 AD2d 626 [2000]). Therefore, to impose liability, the defendant must have the authority to control the activity bringing about the injury so as to enable it or to avoid or correct the unsafe condition (see Damiani v Federated Dept. Stores, Inc., 23 AD3d 329, 332 [2005]). The relevant inquiry on the issue of control is not who furnished equipment and safety devices but who had control over the work being done and the authority to insist that proper safety practices be followed (see Everitt v Nozkowski, 285 AD2d 442, 443 [2001]). Furthermore, a party's status as a contractor is dependent upon whether it had the right to exercise control over the work, not whether it actually exercised that right (see Williams, 276 AD2d at 626). In this case, the evidence demonstrates that Everest did not exercise supervision or control over plaintiff's work (see Calogrides v Spring Scaffolding, Inc., 89 AD3d 434[2011]; Morales v Spring Scaffolding, Inc., 24 AD3d 42 [2005]). Rather, Everest's involvement was limited to installing a sidewalk bridge at the subject property. Everest completed installation of the bridge on October 23, 2009, approximately six months before plaintiff's accident, and did not return to the work site until April 20, 2009 in order to dismantle the bridge. Pursuant to the contract [*4]between Everest and Modern Technology, Everest had no obligation to inspect the sidewalk bridge and, only upon written notice from Modern Technology, would it make any repairs to the bridge. Moreover, the contract did not give Everest the authority to supervise and control workers in their use of the sidewalk bridge during the construction project. As such, the Labor Law §§ 240(1) and 241(6) causes of action asserted against Everest are dismissed.

While Everest may not be held liable under Labor Law §§ 240(1) or 241(6), it failed to establish its prima facie entitlement to judgment as a matter of law dismissing those claims against it alleging a violation of Labor Law § 200 and common-law negligence (see e.g. Velez v 955 Tenants Stockholders, Inc., 66 AD3d 1005 [2009]; Ragone v Spring Scaffolding, Inc., 46 AD3d 652 [2007]). As the record shows, there are issues of fact, at least, as to whether the construction of the sidewalk bridge violated applicable statutory and building codes due to the existence of a gap between the building and the bridge and whether the beams on the sidewalk bridge were properly secured. In his affidavit, Juan Carlos Villanueva, an estimator for Everest, averred that, when he visited the job site to take measurements for the sidewalk bridge, Modern Technology instructed him to install the bridge several feet away from the building so that stucco work could be completed on the facade of the building. Mr. Villanueva further stated that Everest did not receive any complaints from Modern Technology regarding the sidewalk bridge after it was installed. However, Everest failed to submit any evidence refuting plaintiff's allegation that the existence of a gap between the bridge and the building violated certain statutory and building code provisions or that the gap was not a proximate cause of plaintiff's accident (see Camarda v Sputnik Rest. Corp., 65 AD3d 561 [2009]). Additionally, with respect to the alleged loose beam, Everest did not provide any proof from a person with knowledge that the sidewalk bridge was properly assembled (see e.g. Alvarez v Colgate Scaffolding & Equip. Corp., 68 AD3d 583 [2009]). Rather, Mr. Villanueva stated in his affidavit that he only took measurements for the sidewalk bridge, and Jim Downes, the president of Everest, testified at his deposition that he did not know if Mr. Villanueva was present on the day that the sidewalk bridge was installed. Furthermore, the conduct of plaintiff climbing onto the sidewalk bridge to obtain a tool was not, as Everest contends, the sole proximate cause of the accident but merely presents an issue of fact concerning the possible comparative fault of plaintiff (see e.g. Alvarez, 68 AD3d at 584-585; Hill v Stahl, 49 AD3d 438 [2008]; Lopez v MidState Mgt. Corp., 34 Misc 3d 1222[A], 2012 NY Slip Op 50201[U] [Sup Ct, Queens County 2012]). Given that the sidewalk bridge, which was situated close to the building, was meant to protect pedestrians and workers on the ground level from falling debris and tools, it is foreseeable that workers would walk on the bridge to retrieve tools and that the bridge would be used by workers to access scaffolds while working on the facade of the building.

That branch of Everest's motion for summary judgment on its third-party cause of action for contractual indemnification asserted against Modern Technology is denied. Paragraph 11 of the contract between Everest and Modern Technology states, "The Customer shall require any contractor using Everest Scaffolding equipment (Sidewalk Bridge, pipe scaffolding, etc.) to provide Indemnification to Everest Scaffolding Inc. together with additional insured status for work performed on or about Everest Scaffolding Inc. equipment." This broad indemnification provision obligates Modern Technology to indemnify Everest without limitation in terms of the [*5]negligence of Everest in whole or in part, which is precisely the situation barred by General Obligations Law § 5-322.1. However, as previously discussed, there are issues of fact as to whether Everest was negligent and, if so, contributed to plaintiff's accident (see McAllister v Construction Consultants L.I., Inc., 83 AD3d 1013 [2011]; Mannino v J.A. Jones Constr. Group, LLC, 16 AD3d 235 [2005]; Reynolds v County of Westchester, 270 AD2d 473 [2000]). Given that Everest's negligence, if any, cannot be determined as a matter of law, Everest is not entitled to summary judgment on its third-party claim for contractual indemnification against Modern Technology (see Keating v Nanuet Bd. of Educ., 40 AD3d 706, 708-709 [2007]).

Insofar as Everest also seeks summary dismissal of all cross claims asserted against it, Everest did not address those issues in its moving papers and failed to submit any evidence to demonstrate its entitlement to judgment as a matter of law. As such, the branch of Everest's motion for summary judgment dismissing all cross claims asserted against it is denied.

Accordingly, the separate summary judgment motions by Modern Technology and plaintiff are denied in their entirety. The cross motion by Angie & Margarita Holding for summary judgment dismissing the complaint and all cross claims asserted against it is also denied. The motion by Everest for summary judgment dismissing plaintiff's claims under Labor Law §§ 240(1) and 241(6) insofar as asserted against it is granted. In all other respects, Everest's summary judgment motion is denied.

Dated: Long Island City, NY

August 1, 2012

______________________________

ROBERT J. McDONALD

J.S.C.