Reddy v Ed-Sand Realty Corp.

[*1] Reddy v Ed-Sand Realty Corp. 2003 NY Slip Op 51732(U) Decided on December 17, 2003 Supreme Court, Queens County 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 17, 2003
Supreme Court, Queens County

MICHAEL REDDY

against

ED-SAND REALTY CORP., et al.



8290/2001

Charles J. Thomas, J.

I. The Relevant Facts

The plaintiff Michael Reddy ("Reddy") was employed as a plumber by Lakeside Technical Enterprises, Inc. ("Lakeside"). On May 30, 1998, he was working at a premises owned by the defendant Ed-Sand Realty Corp. ("Ed-Sand"), which had leased the premises to the defendant Paine Webber, Inc./UBS Paine Webber, Inc. (collectively, "Paine Webber"). In this action, Reddy seeks damages for personal injuries based upon theories of common-law negligence and violations of Labor §§ 200, 240[1] and 241[6].

A. The Written Contracts

Paragraph 85 and Exhibit A of the Ed-Sand/Paine Webber lease rider provides, inter alia, that Ed-Sand, at its sole cost and expense, would perform roof repairs to ensure that the premises was leak-free. Pursuant to paragraph 43 of the lease rider, Ed-Sand was to remain liable for all structural repairs, unless the repair resulted from Paine Webber's negligence or willful misconduct. Paine Webber was permitted to make initial interior alterations. Pursuant to paragraph 56 of the lease rider, Paine Webber was to indemnify Ed-Sand for all personal injury claims in connection with the use and possession of the premises, other than claims occasioned by Ed-Sand's negligence or that of Ed-Sand's agents, employees, representatives or contractors.

Paine Webber hired the defendant Interior Architects, P.C. ("Architects") to design the interior alterations, and to obtain bids from general contractors. Pursuant to the Paine Webber/Architects contract, during the "Contract Administration Phase," Architects was to make periodic visits to ensure that the work was performed in accordance with contract documents, but was not responsible for any of the general contractor's construction means, methods or safety procedures.

Paine Webber hired the defendant Paladium Building Inc. ("Paladium"), as general contractor. Pursuant to sections 10.2.1 and 10.2.6 of the Paine Webber/Paladium contract, Paladium was to take all reasonable precautions for the safety of employees, and appoint a superintendent whose duty at the site was the prevention of accidents. Pursuant to section 3.18.1, Paladium agreed to indemnify Paine Webber and Architects for all claims, damages, losses and expenses, including attorney's fees, arising out of the performance of Paladium's work or the work of Paladium's [*2]subcontractors.

Paladium hired the defendant John Aiosa Plumbing & Heating Corp. ("Aiosa") as a subcontractor and, through a purchase order, also subcontracted with Lakeside. One term and condition of the Paladium/Lakeside purchase order was that Lakeside agreed to indemnify Paladium and the owner of the building for all liability arising out of the performance of the purchase order, whether the injuries were due to Lakeside's negligence, Paladium's negligence or any other reason.

In his complaint, Reddy alleges that during the course of the installation of a roof drain, he picked up a cast iron pipe and carried it up a ladder, from which he fell. Following the service of the complaint, Reddy served a bill of particulars alleging violations of New York State Industrial Code §§ 23-1.5 and 23-1.21. In response, the defendants cross-claimed against one another seeking common-law and/or contractual indemnification, and Paladium and Paine Webber, respectively, commenced a third-party action and second/third-party action against Lakeside.[FN1]

B. Examinations Before Trial

During his examination before trial ("EBT"), Reddy stated that on the day of the accident, he was supposed to hang a roof drain pipe and was working with a helper. The cast iron pipe was about 10-feet long, four inches round, and weighed 100-120 pounds.

Reddy began hanging the pipe prior to his accident, annexing it to the original roof above the drop ceiling utilizing a ladder. To accomplish this, he held one end of the pipe while the helper held the other end, and they ascended two separate wooden 12-foot-high ladders. At the time of his accident, as he carried his end of the pipe up his ladder, he lost his balance at about the third rung. He guessed that he fell because he was tired from performing the same task previously.

When Reddy lost his balance, he fell from the third rung to his feet while holding the pipe. Although he finished the installation with the helper that day, the next day his right knee was very swollen and stiff. He went to a doctor where he filed a workers' compensation claim against Lakeside. He never returned to work for Lakeside, but did subsequently work elsewhere, prior to and after he underwent a menisectomy.

Reddy's Lakeside supervisor had come to the site on the morning of the accident to tell him to put up the pipe, and provided a ladder. He believed that there was a different person supervising the construction at the site as that person was reading blueprints and other people were asking him questions; however, he did not know the person's name. No one other than the Lakeside supervisor ever instructed him that day on what work to perform. Previously, he had seen people installing piping by using a scaffold or a hoist. [*3]

During his EBT, an Architects representative stated that Architects did not render any design or perform any work for Paine Webber which involved roof drainage or plumbing, it never dealt with Lakeside, and it did not supervise any contractors or subcontractors at the site. During his EBT, a Paine Webber representative stated that Paine Webber did not have any employees at the site, it did not provide equipment or directions, and Architects did not provide on-site supervisors.

During his EBT, the Ed-Sand representative agreed that the Ed-Sand/Paine Webber lease rendered Ed-Sand responsible for structural roof repairs including the repair of leaks. Ed-Sand verbally hired and authorized Paladium to relocate and replace a small, leaking roof drain line, and connect it to a rear storm line. Ed-Sand did not have any written contracts with Paladium or other subcontractors.

During its EBT, Paladium's representative stated that during the course of its work for Paine Webber, a Paladium superintendent noticed roof leaks and informed the Paladium representative. The Paladium representative informed a Paine Webber representative who, in turn, stated that he would call Ed-Sand. The Paine Webber representative then informed the Paladium representative that Ed-Sand had stated "create a price." Paladium and Paine Webber then settled on a price, and Paladium was authorized to install a new roof drain and drain pipe.

Paladium's supervisor then directed Lakeside to perform the work. Paladium did not provide ladders for the work. After Lakeside billed Paladium for Ed-Sand's work, Paladium paid Lakeside and, on May 27, 1998, it sent an invoice to Ed-Sand for $7,152.00, representing the cost for relocating the small roof drain line, connecting it to a rear storm line, and the cost of the drain cap. Ed Sand paid that bill.

During his EBT, the Lakeside representative stated that he could not recall any add-ons to the Paladium/Lakeside purchase order, and that purchase order did not include roof drain repairs or installations. Lakeside did not perform work that was not included in the written Paladium/Lakeside contract. On May 30th, he assigned Reddy and an assistant to the work site, but he could not recall what he instructed them to do, and he was not present at the site that day. While on the job, Reddy and the Lakeside representative were directed by Paladium. Although he did not direct Reddy to install or relocate the roof drain, Reddy was allowed to assist connecting pipes between the roof drain and the waste line.

Lakeside had a two-tier scaffolding on site available to its employees, and Paladium and other trades also had scaffolding at the site. To repair an already existing roof drain, one would set up scaffolding near the area, measure the pipe that was to be installed, cut the pipe, use two men to haul up the pipe and secure it, and roll the scaffold to the next area. Ladders were never used to install roof drains or waste lines.

During his EBT, a representative of Aiosa stated that Aiosa had no written agreement with Lakeside, it did not perform any work on the interior of the premises, and it had no employees at the job site on May 30, 1998. [*4]

II. Motion and Cross Motions

Reddy cross-moves for summary judgment on the issue of the liability of Ed-Sand, Paladium and Paine Webber based upon Labor Law §§ 240[1] and 241[6], asserting that as owner, general contractor and lessee, those defendants are absolutely liable for his fall from the ladder.

Paine Webber opposes Reddy's motion, and cross-moves for summary judgment dismissing the complaint asserting, inter alia, that: (1) pursuant to the Ed-Sand/Paine Webber lease, Ed-Sand was responsible for roof repairs; (2) Ed-Sand entered into a separate, verbal contract with Paladium to repair the roof, and Paladium contracted with Lakeside for that repair; (3) all work performed by Reddy, Paladium and Lakeside in connection with the roof was without the knowledge, consent or approval of Paladium; (4) once the roof work was performed, Paladium paid Lakeside and billed Ed-Sand which paid the invoice; (5) there is no evidence of any defect in the ladder sufficient to support a Labor Law § 240[1] cause of action; (6) it lacked supervisory control over Reddy's roof work or the roof work site, and Ed-Sand was in control of that area; (7) Reddy failed to cite any sufficiently concrete Industrial Code provision to support his Labor Law § 241[6] cause of action; (8) in view of its contract with Paladium, it is entitled to a declaratory judgment that Paladium is liable for contractual indemnification; and, (9) it is entitled to a declaratory judgment on the liability of all other defendants, including Ed-Sand, Paladium and Lakeside, for common-law indemnification.

Paladium and Ed-Sand also oppose Reddy's cross motion, and Ed-Sand cross-moves for summary judgment dismissing the complaint, asserting that: (1) Reddy simply fell off the ladder because he was tired and failed to indicate that the ladder was in any way defective; (2) they lacked supervisory control over Reddy or notice of an unsafe work condition; (3) Reddy refused to use scaffolding which was available to him; and, (4) there are issues of fact as to whether Paine Webber or Ed-Sand is liable for the roof repair.

Lakeside cross-moves for summary judgment dismissing all third-party complaints interposed against it, asserting that at the time of the injury, Reddy was a special employee of Ed-Sand and Paladium. In any event, it urges that it is immune from liability for contribution or indemnification as Reddy did not suffer a "grave injury" within the meaning of Workers' Compensation Law § 11.

Architects cross-moves for summary judgment dismissing the complaint interposed against it, asserting that it had no connection to the roof drainage work, and lacked the authority or ability to conduct on-site supervision.

Aiosa moves for summary judgment dismissing the complaint asserting that it was not an owner or general contractor, it was merely another subcontractor without supervisory control over Reddy and, in any event, it was not present at the site on the date of Reddy's accident.

III. Decision [*5]

A. Special Employee Status

Although the categorization of a person as a special employee is usually one of fact, the determination of special employment status may be made as a matter of law where the particular, undisputed critical facts compel that conclusion (see, Thompson v Grumman Aerospace Corp., 78 NY2d 553, 558). One significant and weighty factor which is considered in deciding whether a special employment relationship exists is who controls and directs the manner, details and ultimate result of the employee's work (see, Thompson v Grumman Aerospace Corp., supra; Fields-Davis v G&F Assocs., ___ AD2d ___, 2003 NY App Div LEXIS 12060 [2d Dept 11/17/03]; see also, Bynog v Cipriani Group, Inc., ___ NY2d ___, 2003 NY LEXIS 4006 [12/2/03]).[FN2]

The contractual duty to oversee the performance of work, inspect the work site, and ensure compliance with safety regulations, does not constitute supervision and control over the subcontractor's methods of work (see, Shelley v Flow Int'l Corp., 283 AD2d 958). The general employment relationship will be presumed to continue unless there is a "clear demonstration of surrender of control by the general employer and assumption of control by the special employer" (Thompson v Grumman Aerospace Corp., supra at 557; Rosato v Thunderbird Constr. Co., 299 AD2d 670).

Here, Reddy stated that he was directed to perform the job by Lakeside's representative who, in turn, could not recall what task he sent Reddy to the site to perform. Although the Lakeside representative stated that Lakeside was not hired to install or relocate a drain pipe, he conceded that Reddy was permitted to assist with the installation of pipes connecting the roof drain to the waste line; i.e., the exact job being performed by Reddy at the time of the injury.

It further appears that Reddy collected workers' compensation from Lakeside, evidencing his belief that he was working for Lakeside at the time of the injury. There is no evidence that Reddy consented to any special employment relationship (see, Shelley v Flow Int'l Corp., supra; D'Amato v Access Mfg., Inc., 305 AD2d 447). In addition, there is no evidence that Ed-Sand or Paladium had any contact with or instructed Reddy.

In view of this evidence, that branch of Lakeside's cross motion seeking summary judgment dismissing the third-party complaint and second/third-party complaint on the ground that Reddy was the special employee of Ed-Sand or Paladium, is denied.

B. Liability of Paine Webber [*6]

The evidence on the motions demonstrates that Ed-Sand retained control of the roof and exterior under the lease, and was contractually liable for all roof repairs. In addition, the evidence clearly demonstrates that Lakeside performed the roof repair pursuant to the Ed-Sand/Paladium oral contract, not the Paine Webber/Paladium written contract.

As a result, Ed-Sand was the owner of the site and the only entity with contractual control and the right to supervise the work area and work site at issue (see, e.g., Guzman v L.M.P. Realty Corp., 262 AD2d 99). Moreover, the evidence indicates that Paladium acted as Ed-Sand's general contractor at the time of the injury, and/or constituted Ed-Sand's statutory agent for purposes of Labor Law §§ 240[1] and 241[6] (see, Maniscalco v Liro Eng'g Constr. Mgmt., P.C., 305 AD2d 378; Bateman v Walbridge Aldinger Co., 299 AD2d 834, lv denied, 100 NY2d 502; Corona v Metropolitan 298-308 Assocs., Inc., 281 AD2d 447).

Accordingly, that branch of Paine Webber's cross motion seeking summary judgment dismissing the complaint and all cross claims interposed against it is granted, and the complaint and all cross claims interposed against Paine Webber are dismissed.

In view of this determination, the remaining branches of Paine Webber's motion seeking a declaratory judgment on the liability of Paladium for contractual indemnification, and on the liability of Paladium and the remaining defendants for common-law indemnification, are denied as moot and/or academic.

C. Liability of Aiosa and Architects

Neither Aiosa, a subcontractor, nor Architects, were owners or general contractors. Both were hired pursuant to the Paine Webber/Paladium contract, not the Ed-Sand/Paladium contract. Neither had supervisory control over the work area or Reddy's work, or were present at the site at the time of Reddy's injury. In addition, as it appears that Architects' activities on the project did not extend beyond planning and design, both Labor Law §§ 240 and 241 expressly exempt Architects from liability (see, Boyd v Lepera & Ward, P.C., 275 AD2d 562).

As a result, Architects and Aiosa are entitled to summary judgment dismissing the complaint interposed against them (see, Acevedo v Mehlman, 295 AD2d 379; Mancini v Pedra Constr., 293 AD2d 453; Boyd v Lepera & Ward P.C., supra; Labor Law §§ 240[1], 241[9]). Reddy's cross motion seeking summary judgment against those defendants is denied.

D. Labor Law § 240[1]

Labor Law § 240[1] imposes absolute liability upon a contractor, owner or their agent who fails to provide safety devices to a worker at an elevated work site where the lack of such devices is a substantial factor in causing that worker's injuries (see, Zimmer v Chemung Co. Performing Arts, 65 NY2d 513, recons. denied, 65 NY2d 1054). The statute is to be construed as liberally as possible to effectuate its purpose of providing for the health and safety of employees (see, Rocovich [*7]v Consolidated Edison Co., 78 NY2d 509, 513).

A fall from a ladder, by itself, is not sufficient to impose liability under Labor Law § 240[1] (see, Costello v Hapco Realty Inc., 305 AD2d 445; Olberding v Dixie Contr., Inc., 302 AD2d 574; Khan v Convention Overlook, Inc., 232 AD2d 529). Thus, where there is no evidence that the ladder was actually defective or inadequately secured, there is a question of fact as to whether it provided proper protection, and whether the injured worker should have been provided with additional safety devices (see, Costello v Hapco Realty, Inc., supra; Olberding v Dixie Contr., Inc., supra).

To establish the recalcitrant worker defense to Labor Law §§ 240[1], a defendant must demonstrate that the worker refused to use additional safety devices provided to him and available at the work site on the day of the accident (see, De Jara v 44-14 Newtown Rd. Apt. Corp., 307 AD2d 948). The mere presence of alleged safety devices at the work site does not diminish a defendant's liability (see, Davis v Board of Trustees of the Hicksville Pub. Library, 240 AD2d 461; Tennant v Curcio, 237 AD2d 733).

Contrary to the defendants' claims, the recalcitrant worker defense is inapplicable to the facts of this action where there is no testimony that a scaffold was in the immediate vicinity of Reddy at the time of the accident, or that Reddy refused to use it after being told to do so. Nonetheless, as Reddy failed to indicate that the ladder was defective in any manner, there are issues of fact as to whether the ladder was defective or whether he should have been provided with additional safety devices (see, e.g., Olberding v Dixie Contr., Inc., supra).

As a result, Reddy's cross motion for summary judgment on the Labor Law § 240[1] cause of action is denied. The cross motions by all remaining defendants for summary judgment dismissing that cause of action is also denied.

E. Labor Law § 241[6]

Labor Law § 241[6] imposes a nondelegable duty upon owners and contractors to provide reasonable and adequate protection and safety to construction workers (see, Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 878). Liability is imposed upon a general contractor for the negligence of a subcontractor, even in the absence of control or supervision over the work site (see, Rizzuto v L.A. Wenger Contr. Co., Inc., 91 NY2d 343, 348-349).

In order to impose liability, a plaintiff must demonstrate the violation of a concrete specification set forth in the Industrial Code (see, Comes v New York State Elec. & Gas Corp., supra; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 502). An owner or general contractor may raise any valid defense to the imposition of vicarious liability under Labor Law § 241[6], including contributory or comparative negligence (see, Rizzuto v L.A. Wenger Contr. Co., supra at 350).

Industrial Code provision 12 NYCRR § 23-1.5 is not a sufficiently concrete specification to impose liability under Labor Law § 241[6] (see, Mancini v Pedra Constr., supra; Ferreira v Unico [*8]Serv. Corp., 262 AD2d 425).

Here, Reddy also relies on 12 NYCRR § 23-1.21[e][3], which requires another worker to steady a ladder when a person is working 10 feet or more above the footing. Although this provision is sufficiently concrete to impose liability under Labor Law § 241[6], Reddy has failed to demonstrate that a violation of that regulation was the proximate cause of his fall, as there is no evidence that the ladder moved in any manner, causing his fall (see, Enderlin v Herbert Indus. Insulation, 224 AD2d 1020).

Accordingly, Reddy's cross motion for summary judgment on the Labor Law § 241[6] cause of action is denied, and the cross motions by the remaining defendants for summary judgment dismissing that cause of action is granted.

F. Labor Law § 200 and Common-Law Negligence

Labor Law § 200 codifies the common law duty of an owner or employer to provide employees with a safe place to work (see, Paladino v Soc'y of the NY Hosp., 307 AD2d 343; Brasch v Yonkers Constr. Co., 306 AD2d 508). In order for liability to attach under Labor Law § 200 or under a theory of common-law negligence, an owner or contractor must have created or had actual or constructive notice of the defective condition which caused the accident (see, Paladino v Soc'y of the NY Hosp., supra).

Here, considering the length of time that Reddy was installing the piping, and the fact that Paladium, otherwise, was in control of all work at the site, there are issues of fact concerning Paladium's degree of control and actual or constructive notice of the condition, which precludes any grant to Reddy of summary judgment against Paladium. Nonetheless, the evidence demonstrates that Ed-Sand was not at the site while Reddy performed his work, and it neither controlled nor supervised Reddy, nor had actual or constructive notice of any dangerous condition.

Accordingly, Ed-Sand is entitled to summary judgment dismissing the Labor Law § 200 and common-law negligence causes of action interposed against it, and that branch of Reddy's cross motion seeking summary judgment against Ed-Sand on those causes of action is denied.

G. Workers' Compensation

Pursuant to Workers' Compensation Law § 11, an employer may be held liable for common-law contribution or indemnity only where the codefendant or third-party plaintiff proves through competent evidence that the injured party sustained a "grave injury" (see, Schuler v Kings Plaza Shopping Ctr., 294 AD2d 556). The term "grave injury" has been statutorily defined to include only those injuries which are determined to be permanent (see, Schuler v Kings Plaza Shopping Ctr., supra; see also, Workers' Compensation Law § 11).

Here, upon Lakeside's prima facie demonstration that the injury sustained by Reddy did not [*9]constitute a grave injury within the meaning of the Workers' Compensation Law, Paladium failed to raise any triable issue of fact. As a result, Lakeside is entitled to summary judgment dismissing all third party actions interposed against it for common-law contribution and indemnification (see, Meis v ELO Org., LLC, 97 NY2d 714; Aquire v Castle Am. Constr. LLC, 307 AD2d 901, lv denied, ___ NY2d ___, 2003 NY LEXIS 3917 [11/20/03]; Rubeis v Aqua Club, Inc., 305 AD2d 656).[FN3]

Conclusion

Accordingly, based upon the papers submitted to this court for consideration and the determinations set forth above, it is

ORDERED that the cross motion by the plaintiff for summary judgment on the issue of the liability of the defendants Ed-Sand Realty Corp., Paladium Builders, Inc. and Paine Webber, Inc., based upon violations of Labor Law §§ 240[1] and 241[6] is denied; and it is further

ORDERED that the cross motion by the defendant Ed-Sand Realty Corp. for summary judgment dismissing the complaint is granted to the extent that Ed-Sand Realty Corp. is granted summary judgment dismissing the common-law negligence and Labor Law § 200 causes of action, those causes of action are dismissed against that defendant and, otherwise, the cross motion is denied; and it is further

ORDERED that the motion by the defendant John Aiosa Plumbing & Heating Corp. for summary judgment dismissing the complaint and all cross claims interposed against it is granted, and the complaint and all cross claims interposed against that defendant are dismissed; and it is further

ORDERED that the cross motion by the defendant Interior Architects, P.C. for summary judgment dismissing the complaint and all cross claims interposed against it is granted, and the complaint and all cross claims interposed against that defendant are dismissed; and it is further [*10]

ORDERED that the cross motion by the defendant/third-party plaintiff UBS PaineWebber Properties, Inc. (a) for summary judgment dismissing the complaint and all cross claims interposed against it, and, (b) for a declaratory judgment that the defendant/third-party plaintiff Paladium Buildings, Inc. is liable for contractual indemnification, and, (c) for a declaratory judgment that all defendants, including Paladium Builders, Inc., Ed-Sand Realty Corp. and Lakeside Technical Enterprises, Inc., are liable for common-law indemnification is granted to the extent that UBS PaineWebber Properties, Inc. is granted summary judgment dismissing the complaint and all cross claims interposed against it, the complaint and all cross claims interposed against that defendant are dismissed and, otherwise, the cross motion is denied as moot and/or academic; and it is further

ORDERED that the cross motion by the third-party defendant, second/third-party defendant Lakeside Technical Enterprises, Inc. for summary judgment dismissing the third-party complaint and second/third-party complaint based upon, inter alia, Workers' Compensation Law § 11 is granted, and the third-party complaint and second/third-party complaint interposed against that defendant are dismissed.

Dated: December 17, 2003______________________________

J.S.C. Footnotes

Footnote 1:On or about June 21, 2001, the parties filed a stipulation discontinuing the action against the defendant Anthony Saviano, a principal of Architects.

Footnote 2:When an employee elects to receive Workers' Compensation benefits from his general employer, a special employer is shielded from any action at law commenced by the employee (see, Niranjan v Airweld, Inc., 302 AD2d 572; Pirrotta v EklecCo., 292 AD2d 362; see also, Workers' Compensation Law §§ 11 and 29[6]).

Footnote 3:Workers' Compensation Law § 11 does not affect the power of a third party to recover under express contractual obligations between the employer and the third party (see, Majewski v Broadalbin-Perth Cent. Sch. Dist., 91 NY2d 577, 582; Stabile v Viener, 291 AD2d 395, lv denied 98 NY2d 727). In this case, however, there is no separate written contractual indemnification provision between Paladium and Lakeside for the work performed for Ed-Sand, and the Paine Webber/Paladium contract is inapplicable to the facts of this case. As a result, to the extent that Lakeside agreed to indemnify Paladium or Paine Webber in the Paladium/Lakeside purchase order, that indemnification provision is inapplicable. Therefore, Paine Webber's motion for a declaratory judgment against Lakeside for common-law and/or contractual indemnification is denied on this additional ground.