Frank v Frank

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Frank v Frank 2017 NY Slip Op 30220(U) February 2, 2017 Supreme Court, New York County Docket Number: 156632/2013 Judge: Jennifer G. Schecter Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [*FILED: NEW YORK COUNTY CLERK 02/03/2017 02:41 PM 1] NYSCEF DOC. NO. 47 COURT OF THE STATE OF NEW YORK SUPREME COUNTY OF NEW YORK: PART 57 INDEX NO. 156632/2013 RECEIVED NYSCEF: 02/03/2017 ----------------------------------------x Index No.: 156632/2013 JAMES FRANK and RITA FRANK, Plaintiffs, -against1100 AVENUE OF THE AMERICAS ASSOCIATES, JT MAGEN & CO., INC., STATEWIDE DEMOLITION CORP., TIME WARNER ENTERTAINMENT COMPANY, L.P., TIME WARNER CABLE INC. and HOME BOX OFFICE INC., Defendants. --------------------------------~------x Schecter, J. : This is an action to recover injuries sustained by James Frank damages (Frank) for personal on July 8, 2011, when, while working at a construction site located on the 15th floor of 1100 Avenue of the Americas, New York, New York (the Premises) , and as he was stepping down from a ladder, he slipped on a crowbar allegedly placed under the ladder by a demolition worker. Defendants 1100 Avenue of the Americas Associates (1100 Associates), Inc. (HBO) for 3212, JT Magen & Co., Inc. (JT) and Horne Box Office (collectively, defendants) move, pursuant to CPLR summary judgment negligence and Labor Law §§ dismissing 200 and 240(1) the common-law claims against them, as well as for summary judgment in their favor on their cross claims for common-law and contractual indemnification against defendant Statewide Demolition Corp. (Statewide) . 1 Defendants do not move for dismissal of the Labor.Law§ 241(6) claim or the loss of consortium claim. Plaintiffs--Frank and his wife Rita Frank--as well as defendant Statewide, have discontinued all claims and cross claims as against defendants Time Warner Entertainment Company, L.P. and Time Warner Cable, Inc. 1 2 of 14 [*FILED: NEW YORK COUNTY CLERK 02/03/2017 02:41 PM 2] NYSCEF DOC. NO. 47 1100 Avenue of the Americas Assocs Frank v INDEX NO. 156632/2013 RECEIVED 156632/13 Index No. NYSCEF: 02/03/2017 Page 2 BACKGROUND 1100 Associates owned the Premises and leased it to HBO. A renovation project (the Project) was underway at the Premises, which entailed, among other things, demolition work performed by the demolition contractor, time of the carpeting on accident, the Statewide's 15th floor of the Statewide. workers were Premises. At the removing Frank, an electrician, was employed by Hugh O'Kane Electric (Hugh). Frank's Testimony Frank testified that, on the day of the accident, he was employed by Hugh as an electrician. He explained that his Hugh foreman gave him his daily assignments. In addition, his Hugh foreman was the only person who directed his work on the day of the accident. On the morning of the accident, Frank's foreman instructed him to install temporary lighting on the \ 15th floor. In order to perform his work, it was necessary for Frank to use a six-foot A-frame ladder, which was owned by Hugh. From his position on the ladder, Frank observed five or six demolition workers "peeling up carpet" (Frank's tr at 39). Specifically, "they were using a pry bar to peel it up" at 40). (id. Frank asserted that the closest demolition worker to him at this time was approximately 10 feet away from him. Frank maintained that, at this time, other than the demolition 3 of 14 [*FILED: NEW YORK COUNTY CLERK 02/03/2017 02:41 PM 3] NYSCEF DOC. NO. 47 1100 Avenue of the Americas Assocs Frank v INDEX NO. 156632/2013 RECEIVED NYSCEF: 02/03/2017 Index No. 156632/13 Page 3 contractor, he did not notice any other trades working on the floor. Frank described the demolition area as having tools and other materials "scattered all over the place" (id. at Frank did not make any complaints to anyone about the 42) . mess. After installing a light and a drop, Frank descended the ladder in order to move on to his next installation location. Frank testified that the accident occurred descending the ladder and while looking forward. as he was As he was stepping from the last rung of the ladder to the ground, his left foot stepped on a pry bar as he was taking his right foot off the ladder. The pry bar then "slid out from underneath" his foot, causing him to fall and land on the ground (id. at Frank could not recall whether or not he looked either 66) . down at the ground or directly under the ladder prior to the accident. He also testified that he did not use a pry bar to perform his own work, and that he did not see the pry bar prior to descending the ladder. 2 Testimony of Marco Olivo (JT's Superintendent) Marco Olivo testified that he was JT's superintendent on the day of the accident. Pursuant to a construction contract, 2 Three accident reports, annexed to defendants' motion as exhibit x, indicate that Frank's accident occurred when Frank stepped off the ladder and onto a pry bar left underneath the ladder by a Statewide employee. 4 of 14 [*FILED: NEW YORK COUNTY CLERK 02/03/2017 02:41 PM 4] ~~~~-F~r=a=n=k~=v~1~1~v~v~A=v~e=n~u~e~o~f~t~h~e~~~e~r=i-c~a~s~A~s=s=o=c=s~~~~~~lnaex No. 156632/13 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 02/03/2017 INDEX NO. 156632/2013 Page 4 HBO hired JT to explained that, serve as the general as superintendent, Olivo contractor. he was "the person who coordinates the construction by the subs between each other . and he speak[s] to the architects and engineers about how the job is going to be built" (Olivo tr at 16). also involved with job safety at the site, instructing the subcontractor foremen Olivo was which entailed and supervisors "to adhere to job safety and specifically ladder safety," and to notify him "immediately if they see an unsafe condition" (id. at 40). Olivo testified that Statewide was performing demolition work at the Premises on the day of the accident, and that Statewide was the only trade working that day that required pry bars for its work. He explained that it was customary at construction sites for the trades to be in charge of clearing their own tools from the work areas and that JT laborers were never instructed to clear. away the subcontractor's tools. While working on the Project, he never encountered any tools scattered about at the Premises, complaints regarding the same. and no one ever made any Olivo also maintained that he never had to "personally tell a subcontractor to not leave tools scattered about the floor" (id. at 44) He also maintained that HBO's only involvement with the Project was via its in-house architect who served as a liaison to make sure the work that was contracted for was, performed. 5 of 14 in fact, being [*FILED: NEW YORK COUNTY CLERK 02/03/2017 02:41 PM 5] NYSCEF DOC. NO. v 1100 Avenue of the Americas Assocs Frank 47 INDEX NO. 156632/2013 RECEIVED NYSCEF: 02/03/2017 Index No. 156632/13 Page 5 Testimony of Steve Mount (JT's CFO and Treasurer) Steve Mount testified that he was JT's CFO and treasurer on the day of the accident. safety, as addition, well as job Mount sequencing JT hired Statewide, (the Purchase Order), acknowledged "Statewide maintaining, and and coordination. pursuant to a purchase order pursuant was supervising to the responsible all safety Purchase for 46; see also defendants' precautions notice of motion, Purchase Order, Terms and Conditions, ~ Order, initiating, programs in connection with the work it was doing" at In to perform certain demolition work. that, Demolition JT was responsible for site and (Mount tr exhibit W, 5). Testimony of Andrzej Chojnowski (Statewide's Foreman) Andrzej Chojnowski testified foreman on the day of the accident. that he was Statewide' s At the time, Statewide's workers were removing carpet as part of Statewide' s demolition duties. Chojnowski explained that he told his workers "what and how to do [their work]" (Chojnowski tr at 108) When asked if anyone from JT ever told Statewide where to perform its work, he responded, "Yes. They were pointing to me, what should be done without any instructions" 106) . (Chojnowski tr at When asked if anyone from JT ever instructed anyone from Statewide in regard to "how to do the demolition," he 6 of 14 [*FILED: NEW YORK COUNTY CLERK 02/03/2017 02:41 PM 6] NYSCEF DOC. NO. 47 1100 Avenue of the Americas Assocs Frank v responded, "No" (id.). In addition, INDEX NO. 156632/2013 RECEIVED NYSCEF: 02/03/2017 Index No. 156632/13 Page 6 no one else ever told Statewide workers how to perform their work on the Project. Chojnowski maintained that he warned his employees to never leave their tools scattered around the job site and to "not work if someone else [was] in the same area," because he was concerned that the workers might trip on them (id. at 44Accordingly, he instructed his workers to store their 45) . tools in either a container or on a cart when they were not in Chojnowski use. acknowledged that, in addition to using brushes, hammers and brooms, Statewide workers used L-shaped "crowbars" to perform their carpet removal work (id. at 64). Testimony of Fernando Rei (a JT Laborer) Fernando Rei testified that he was one of JT's laborers on the day of the accident. for keeping the hazards and As a laborer, Rei was responsible job site clean, having them watching out for tripping removed. He was not, however, responsible for cleaning up after demolition crews during the demolition phase of the Project. Rei asserted that he observed Statewide workers using pry bars to rip up the carpet on the 15th floor. ANALYSIS "'The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of 7 of 14 [*FILED: NEW YORK COUNTY CLERK 02/03/2017 02:41 PM 7] NYSCEF DOC. NO. v 1100 Avenue of the Americas Assocs Frank 47 INDEX NO. 156632/2013 RECEIVED NYSCEF: 02/03/2017 Index No. 156632/13 Page 7 law, tendering sufficient evidence to ~liminate any material issues of fact from the case'" (Santiago v Filstein, 35 AD3d 184, 185-186 [l5t Dept 2006], quoting Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). to the motion's opponent to The burden then shifts "present evidentiary facts in admissible form sufficient to raise a genuine, triable issue of fact" (Mazurek v Metropolitan Museum of Art, 27 AD3d 227, 228 [1st Dept 2006], citing Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; see also DeRosa v City of New York, 30 AD3d 323, 325 [1st Dept 2006]). the existence of a triable If there is any doubt as to fact, the motion for summary judgment must be denied (Rotuba Extruders v Ceppos, 46 NY2d 223, 231 [1978]; Grossman v Amalgamated Rous. Corp., 298 AD2d 2 2 4 , 2 2 6 [ 1st Dept 2 OO2 J ) • Labor Law § 240(1) The Labor Law§ 240(1) claims asserted against defendants are dismissed without opposition. Conunon-Law Negligence and Labor Law § 200 Defendants move for dismissal of the negligence and Labor Law § 200 claims against them. § common-law Labor Law 200 is a "'codification of the common-law duty imposed upon an owner or general contractor to provide construction site workers with a safe place to work'" (Cruz v Toscano, 269 AD2d 8 of 14 [*FILED: NEW YORK COUNTY CLERK 02/03/2017 02:41 PM 8] NYSCEF DOC. NO. v47 Frank 1100 Avenue of the Americas Assocs 122, 122 [l5t Dept 2000] INDEX NO. 156632/2013 RECEIVED NYSCEF: 02/03/2017 Index No. 156632/13 Page 8 [citation omitted]; see also Russin v Louis N. Picciano & Son, 54 NY2d 311, 316-317 [1981]) Labor Law§ 200(1) provides: "All places to which this chapter applies shall be so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein or lawfully frequenting such places. All machinery, equipment, and devices in such places shall be so placed, operated, guarded, and lighted as to provide reasonable and adequate protection to all such persons." There are two distinct standards applicable to Labor Law § 200 cases depending on whether the accident resulted from a dangerous condition or whether it was a consequence of the means and methods used by a contractor to do its work (see McLeod v Corporation of Presiding Bishop of Church of Jesus Christ 41 AD3d 796, of Latter Day Sts., 797-798 [2d Dept 2007]). "Where an existing defect or dangerous condition caused the injury, liability [under Labor Law § 200] attaches if the owner or general contractor created the actual or constructive notice of it" USA Bldg. Inc., Columbia Univ., necessary to 99 AD3d 139, 4 AD3d 200, prove 144 202 general condition or had (Cappabianca v Skanska (1st Dept 2012); [l5t Dept 2004] contractor's Murphy v [it was not supervision and control over plaintiff's work because the injury arose from the condition of the workplace created by contractor rather than the method of the work]) 9 of 14 or known to [*FILED: NEW YORK COUNTY CLERK 02/03/2017 02:41 PM 9] NYSCEF DOC. NO. v 1100 Avenue of the Americas Assocs Frank 47 INDEX NO. 156632/2013 RECEIVED NYSCEF: 02/03/2017 Index No. 156632/13 Page 9 In cases where the defect or dangerous condition arose from a contractor's methods, to find liability under Labor Law § 200 it must be shown that the owner or agent exercised some supervisory control over the injury-producing work (Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 877 [1993] [no § 200 liability where plaintiff's injury was caused by lifting a beam and there was no evidence that defendant exercised supervisory control or had any input into how the beam was to be moved]). Moreover, "general supervisory control is insufficient to impute liability pursuant to Labor Law § 200, which liability requires actual supervisory control or input into how the work is performed" (Hughes v Tishman Constr. Corp., 311 2007]; [1st Dept see also Bednarczyk v 40 AD3d 305, Vornado Realty Trust, 63 AD3d 427, 428 [1st Dept 2009] [common-law negligence and § 200 claims dismissed where the deposition testimony established that, while defendant's "employees inspected the work and had the authority to stop it in the event they observed dangerous conditions or procedures," they "did not otherwise exercise supervisory Burkoski v Structure Tone, Inc., control over 40 AD3d 378, the 381 work"]; [1st Dept 2007] [no§ 200 liability where defendant construction manager did not tell subcontractor or its employees how to perform subcontractor's work]; Smith v 499 Fashion Tower, LLC, 38 AD3d 523, 524-525 [2d Dept 2007]) 10 of 14 [*FILED: NEW YORK COUNTY CLERK 02/03/2017 02:41 PM 10] NYSCEF DOC. NO. 47 1100 Avenue of the Americas Assocs Frank v Here, the accident was INDEX NO. 156632/2013 RECEIVED NYSCEF: 02/03/2017 Index No. 156632/13 Page 10 caused due to the improper placement/storage of the pry bar in an area where Frank might Frank was step and slip on it while descending the ladder. injured not because of any inherently dangerous condition of the property itself, but rather, because of "'a defect in the subcontractor's own plant, tools and methods, or through negligent acts of the subcontractor occurring as a detail of the work"' (Lombardi v Stout, 178 AD2d 208, 210 [1st Dept 1991], affd as mod 80 NY2d 290 [1992], quoting Persichilli v Triborough Bridge & Tunnel Auth., 16 NY2d 136, 145 [1965]; McCormick v 257 W. Genesee, LLC, 78 AD3d 1581, 1582 [4th Dept 2010] [tripping hazard created by pin, which was stored on a wooden form and was to be inserted into a form to hold it together during a concrete pour, was created by the manner in which plaintiff's employer performed its work, rather than by an unsafe premises condition]; Ortega v Puccia, 57 AD3d 54, 62 [2d Dept 2008]; Dalanna v City of New York, 308 AD2d 400, 400 [1st Dept 2003] plaintiff [protruding bolt in the concrete slab that tripped on was not a defect inherent in the property, but instead, was the result of the manner in which plaintiff's employer performed its work]). Therefore, to find defendants liable under common-law negligence and Labor Law§ 200 theories, it must be shown that they exercised some supervisory control over the manner in 11 of 14 [*FILED: NEW YORK COUNTY CLERK 02/03/2017 02:41 PM 11] NYSCEF DOC. NO. v 1100 Avenue of the Americas Assocs Frank 47 INDEX NO. 156632/2013 RECEIVED NYSCEF: 02/03/2017 Index No. 156632/13 Page 11 demonstrating that either 1100 Associates or HBO controlled or supervised the action that caused the injury--the improper placement of the pry bar underneath the ladder. Therefore, they are entitled to dismissal of the common-law negligence and Labor Law As to JT, 200 claims against them. § though it may have been in charge of overall safety at the job site, Chojnowski testified that no one, including JT, ever told Statewide workers how to perform their work. In addition, Rei, a laborer for JT, testified that, although his duties included clean-up at the site, he was not responsible for cleaning up after demolition crews during the demolition phase of the Project. Finally, the Purchase Order provided that Statewide maintain and supervise safety issues associated with its own work on the Project. Because JT did not supervise or direct the work that caused the accident, JT is also entitled to dismissal of the common-law negligence and Labor Law § 200 claims against it. Indemnification Against Statewide Defendants move for summary judgment on their cross claim for contractual indemnification against Statewide. An indemnification provision contained in the "Terms and Conditions" section of the Purchase Order states, in pertinent part, as follows: "To the fullest extent permitted by law, [Statewide] agrees to fully indemnify and hold harmless [JT, 12 of 14 [*FILED: NEW YORK COUNTY CLERK 02/03/2017 02:41 PM 12] NYSCEF DOC. NO. v 1100 Avenue of the Americas Assocs Frank 47 INDEX NO. 156632/2013 RECEIVED NYSCEF: 02/03/2017 Index No. 156632/13 Page 12 1100 Associates, HBO], their officers, directors, agents and employees . . from and against any and all claims, loss, suits, damages, liabilities, professional fees, including attorney fees, costs, court costs, expenses and disbursements, whether arising before or after completion of [Statewide's] work, related to death, personal injuries arising out of or in connection with or as a result of or as a consequence of [the work]" (notice of motion, Conditions, at ~ exhibit W, Purchase Order, Terms and 18) "A party is entitled to full contractual indemnification provided that the 'intention to indemnify can be clearly implied from the language and purposes of the entire agreement and the surrounding facts and circumstances'" Atlantic Scaffold & Ladder Co., 70 NY2d 774, (Drzewinski v 777 [1987], quoting Margolin v New York Life Ins. Co., 32 NY2d 149, 153 [1973]; see Tanking v Port Auth. of N.Y. & N.J., 3 NY3d 486, 490 [2004]; Torres v Morse Diesel Intl., Inc., 14 AD3d 401, 403 [1st Dept 2005]). The party seeking contractual indemnification need only establish that it was free from any negligence and was held liable solely by virtue of its vicarious liability. The proposed indemnitor's negligence is irrelevant (De La Rosa v Philip Morris Mgt. Corp., 303 AD2d 190, 193 [1st Dept 2003]; Keena v Gucci Shops, 300 AD2d 82, 82 [1st Dept 2002]). Here, while performing work on the Project, Frank was injured when, as he was stepping off the ladder, he slipped on a pry bar used by Statewide workers. 13 of 14 Important to this issue, [*FILED: NEW YORK COUNTY CLERK 02/03/2017 02:41 PM 13] ...._~~~---.-F=r=a=n~k......... v'='""""""l~l~u~v...--A~v~e=n=u~e~o~t.,,...-rth~e=-Airi~~e~r~i~c~a~s--,rA~s~s~o~c~s~~~~~~~ndex No. 156632/13 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 02/03/2017 INDEX NO. 156632/2013 Page 13 the language "arising out of or in connection with" the work, which is present in the subject indemnification provision, "provides for indemnification when the claim arises out of the subcontractor's work even though he has not been negligent" (Brown v Two Exch. Plaza Partners, 76 NY2d 172, 178 [1990]). Thus, as the accident arose in connection with Statewide's work on the Project, defendants are entitled to summary judgment in their favor on their cross claim for contractual indemnification as against Statewide and the issue of common-law indemnification need not be addressed. Accordingly, it is ORDERED that the summary-judgment motion of defendants 1100 Avenue of the Americas Associates, JT Magen & Co., Inc. and Home Box Office Inc. is granted and the common-law negligence and Labor Law§§ 200 and 240(1) claims against them are severed and dismissed; and it is further ORDERED that defendants' motion for summary judgment on their cross claim for contractual indemnification as against defendant Statewide Demolition Corp. is granted; and ~t is further ORDERED that the remainder Dated: February 2, 2017 HON. JENNI 14 of 14 1 continue.

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