Urbano v Pavarani Constr. Co., Inc.

[*1] Urbano v Pavarani Constr. Co., Inc. 2004 NY Slip Op 50813(U) Decided on June 18, 2004 Supreme Court, New York 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 18, 2004
Supreme Court, New York County

JACINTO URBANO, Plaintiff,

against

PAVARANI CONSTRUCTION CO., INC., AND MADISON 45 LLC, Defendants.



PAVARANI CONSTRUCTION CO., INC,

against

GENERAL INDUSTRIAL SERVICES,



MADISON 45 LLC,,

against

GENERAL INDUSTRIAL SERVICES,



105977/02



Law Offices of Skip Alan LeBlanc, Esq.

Attorneys for Plaintiff

325 Broadway, Suite 402

New York, New York 10007

Eugene T. Boule, Esq.

Wilson, Elser, Moskowitz, Edelman & Dicker LLP

Attorneys for Madison 45 LLC

150 East 42nd Street

New York, New York 10017

William D. Joyce, III, Esq.

Barry, McTiernan & Moore

Attorneys for Pavarani Construction Co.

2 Rector Street 14th Floor

New York, New York 10006.

Steven DiSiervi, Esq.

Abrams, Gorelick, Friedman & Jacobson, P.C.

Attorneys for General Industrial Services Corp.

Rolando T. Acosta, J.

Plaintiff's motion for partial summary judgment on the issue of liability under Labor Law § 240(1) is granted, Madison's cross-motion for summary judgment on the issue of contractual indemnification from General Industrial Services is also granted, and Pavarani's cross-motion is granted to the extent that General Industrial Services consented to defend Pavarani and name it as [*2]an additional insured.[FN1]

Background

This case stems from an incident that occurred on December 18, 2000, while plaintiff was doing hand demolition work on the sixth floor exterior of a high rise building at 360 Madison Avenue. Plaintiff was standing on an outrigger scaffold on the outside of the building when the scaffold collapsed and his life line failed, causing him to fall almost three stories to a platform below. Plaintiff sustained a skull fracture, brain injury, and disabling orthopedic injuries requiring multiple surgeries, leaving him completely disabled from his occupation.

Madison 45 LLC (Madison), the owner of the building and construction site, retained Pavarani Construction Co. (Pavarani) as the construction manager for the entire project. Pavarani subcontracted with General Industrial Services (GIS) to perform demolition services at the site, and plaintiff was employed by GIS as a demolition laborer.

After the accident, plaintiff brought actions against Pavarani and Madison for negligence and violations of various sections of New York State Labor Law, and Pavarani and Madison brought third-party actions against GIS.

Plaintiff's Motion for Partial Summary Judgment

It is well settled that the proponent of a motion for summary judgment must establish that "there is no defense to the cause of action or that the cause of action or defense has no merit," (C.P.L.R. §3212[b]), sufficiently to warrant the court as a matter of law to direct judgment in his or her favor. Bush v. St. Claire's Hospital, 82 N.Y.2d 738, 739 (1993); Winegrad v. New York University Medical Center, 64 N.Y.2d 851, 853 (1985). This standard requires that the proponent of the motion "tender[] sufficient evidence to eliminate any material issues of fact from the case," id., "by evidentiary proof in admissible form." Zuckerman v. City of New York, 49 N.Y.2d 557, 562 (1980). Thus, the motion must be supported "by affidavit [from a person having knowledge of the facts], by a copy of the pleadings and by other available proof, such as depositions." C.P.L.R. §3212(b).

Where the proponent of the motion makes a prima facie showing of entitlement to summary judgment, the burden shifts to the party opposing the motion to demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action, or to tender an acceptable excuse for his or her failure to do so. Vermette v. Kenworth Truck Company, 68 N.Y.2d 714, 717 (1986); Zuckerman v. City of New York, supra, 49 N.Y.2d at 560, 562. Like the proponent of the motion, the party opposing the motion must set forth evidentiary proof in admissible form in support of his or her claim that material triable issues of fact exist. Id. at 562.

New York Labor Law § 240(1) affords protection to construction site workers who are exposed to elevation hazards. See generally, Blake v. Neighborhood Housing Services of New York City, Inc., 1 N.Y.3d 280, 287-290 (2003)(liability under § 240(1) is contingent on a statutory violation and proximate cause). Specifically, § 240(1) provides that: All contractors, owners and their agents . . . in the erection, demolition, repairing, altering . . . of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoist, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes and other devices which shall be so constructed, placed and operated as [*3]to give proper protection to a person so employed.

The statute places the ultimate responsibility for work-site safety practices upon the the owner and general contractor, and imposes strict liability for their failure to furnish, erect and insure the operation of safety devices necessary to give protection to the worker against the hazards of his work. Bland v. Manocherian, 66 N.Y.2d 452 (1985); Zimmer v. Chemung County Performing Arts, 65 N.Y.2d 513 (1985). Liability is imposed regardless of the degree of control the contractor and the owner may have over the work performed, Haimes v. New York Telephone, 46 N.Y.2d 132, 136-37 (1978), and irrespective of the injured party's own contributory or comparative negligence or assumption of risk. Brown v. Two Exchange Plaza Partners, 76 N.Y.2d 172 (1990). Where the devices as placed and constructed are inadequate to the task, liability is mandated as a matter of law, provided that the injured party establishes that the statutory violation "was a contributing cause of his fall." Blake v. Neighborhood Housing Services of New York City, Inc., supra, 1 N.Y.3d at 287, citing Duda v. Rouse Contr. Corp, 32 N.Y.2d 405, 410 (1973).

Here, plaintiff submitted evidence, in admissible form, establishing Madison's and Pavarani's liability under § 240(1). Specifically, it was established that plaintiff was covered under the statute, that Madison was the owner of the site and Pavarani the general contractor; that Madison and Pavarani failed to provide proper protection to plaintiff inasmuch as the outrigger scaffold was improperly constructed and the lifeline was deficient, and that the defects in the scaffold and lifeline were proximate causes of plaintiff's fall.

Plaintiff having established a prima facie showing of entitlement to summary judgment, the burden shifted to Madison and Pavarani to establish, by admissible evidence, the existence of a triable issue of fact, which they both failed to do. Madison merely stated in conclusory fashion that plaintiff's evidence was wholly insufficient to warrant summary judgment. "[A]verments merely stating conclusions of fact or law, [however,] are insufficient" to "defeat summary judgment." Banco Poular North America v. Victory Taxi Management, 1 N.Y.3d 381, 383-84 (2004), citing Mallad Constr. Corp. v. County Fed. Sav. & Loan Assn., 32 N.Y.2d 285, 290 (1973).

Pavarani did not submit any admissible evidence either and instead, argued that the motion was premature since depositions of Madison, Pavarani and GIS still had not been conducted. The "determination of a motion for summary judgment [however,] cannot be avoided by a claimed need for discovery unless some evidentiary basis is offered to suggest that discovery may lead to relevant evidence. Parisi v. Leppard, 237 A.D.2d 419 (2nd Dept. 1997); see also Johnson v. Phillips, 261 A.D.2d 269 (1st Dept. 1999) Perez v. Brux v. Cab, 251 A.D.2d 157 (1st. Dept. 1998). Here, Pavarani is liable under § 240(1) by the mere fact that it was the general contractor. No amount of discovery is going to prove otherwise, and indeed, Pavarani failed to proffer an evidentiary basis to suggest otherwise. Pavarani's claimed need for discovery, therefore, does not defeat summary judgment.

Last, BIS merely submitted an unsworn statement purporting to create an issue of fact as to the lifeline. That statement, however, is inadmissible evidence. Banco Poular North America v. Victory Taxi Management, supra, 1 N.Y.3d at 383 (unsworn hand writing expert's report); Grasso v. Angerami, 79 N.Y.2d 813 (19991)(unsworn doctor's report).

Madison, Pavarani and BSI thus failed to defeat plaintiff's motion for summary judgment. Accordingly, plaintiff's motion seeking partial summary judgment as to liability under Labor Law § 240(1) is granted.

[*4]Contractual Indemnification

Madison cross-moves for summary judgment as to whether it is entitled to contractual indemnification from Pavarani. To prevail on this point, Madison "need only establish that it was free from any negligence and [is subject to liability] solely by virtue of the statutory liability."Uluturk v. City of New York, 298 A.D.2d 233, 234 (1st Dept. 2002), citing Correia v. Professional Data Mmgt., 259 A.D.2d 60, 65 (1st Dept. 1999), and that its contract with Pavarani provided for contractual indemnification. In support of its position, Madison submitted the contract, which established its right to contractual indemnification. Pavarani does not dispute the terms of the contract, but argues that the motion is premature inasmuch as there is outstanding discovery. Pavarani, however, fails to submit any evidence that would indicate that discovery would somehow show that Madison's negligence was a contributing factor or that the terms of the contract were other than what Madison established. Indeed, with respect to contributory negligence, it hard to imagine how the owner would in fact be liable other than by strict liability. Furthermore, the contract, submitted by Madison, dictates the terms of the indemnification. Accordingly, Madison's cross-motion is granted.

By cross-motion, Pavarani moves for summary judgment against GIS on the issue of whether GIS must defend Pavarani in this action, and for contractual indemnification. As to whether GIS must defend Pavarani, GIS affirms that it named Pavarani as an additional insured, and in fact, submitted an opposition to plaintiff's motion on behalf of Pavarani. Thus, GIS has conceded this point.

With respect to contractual indemnification, Pavarani is not entitle to summary judgment inasmuch as discovery and depositions have not yet been completed. C.P.L.R. § 3212(f). Although an unsworn statement by plaintiff's foreman, where he states that Pavarani representatives "showed the [GIS] employees how to erect the scaffolding" is insufficient to defeat a summary judgment motion, Banco Poular North America v. Victory Taxi Management, supra, 1 N.Y.3d at 383; Grasso v. Angerami, 79 N.Y.2d 813 (19991), the fact remains that the foreman or an employee with relevant information may be deposed, and if their testimony is consistent with this unsworn statement, a triable issue of fact would exist.

Furthermore, although Pavarani established that two GIS employees, who were present at the time of the incident, were instructed on how to build the outriggers by a GIS foreman, and that plaintiff never received instruction from Pavarani, that alone does not establish as a matter of law its own freedom from any negligence beyond the statutory liability. Given Pavarani's control over the work site, see Construction Management Agreement By and Between Madison and Pavarani, at Art II:2.1 and 2.2 [FN2], there are questions of fact as to whether Pavarani was aware of GIS's workers' [*5]use of the defective scaffold and failed to take reasonable steps to prevent it. See, e.g. Correia v. Professional Data Mmgt., supra, 259 A.D.2d at 64. Thus, absent full discovery, the Court will not grant summary judgment on contractual indemnification. Accordingly, Pavarani's cross-motion is granted to the extent conceded by BSI. That portion of Pavarani's cross-motion seeking contractual indemnification is denied without prejudice.

This constitute the Decision and Judgment of the Court.

Dated: June 18, 2004 _________________________

Hon. Rolando T. Acosta, J.S.C.

Law Offices of Skip Alan LeBlanc, Esq.

Attorneys for Plaintiff

325 Broadway, Suite 402

New York, New York 10007

Eugene T. Boule, Esq.

Wilson, Elser, Moskowitz, Edelman & Dicker LLP

Attorneys for Madison 45 LLC

150 East 42nd Street

New York, New York 10017

William D. Joyce, III, Esq.

Barry, McTiernan & Moore

Attorneys for Pavarani Construction Co.

2 Rector Street 14th Floor

New York, New York 10006.

Steven DiSiervi, Esq.

Abrams, Gorelick, Friedman & Jacobson, P.C.

Attorneys for General Industrial Services Corp.

115 Broadway, 11th Floor

New York, New York 10006 Footnotes

Footnote 1:1. This decision was edited for publication.

Footnote 2:2. Article II: 2.1 provides: Construction Manager shall administer, manage, supervise, coordinate and ensure the proper and efficient performance and furnishings by independent contractors, laborers . . . and its own forces of all labor, materials equipment, supplies, tools, services and General Conditions (as defined) required for the complete construction of the project in accordance with the Contract documents (CM Services). Article II: 2.2 provides: . . . it is expressly understood and agreed that the Construction Manager shall be responsible for all construction means, methods, techniques, sequences and procedures relating to the proper execution of the project.