Urbano v Pavarini Constr. Co., Inc.
Annotate this CaseDecided on November 5, 2004
Supreme Court, New York County
Jacinto Urbano, Plaintiff,
against
Pavarini Construction Co., Inc., AND MADISON 45 LLC, Defendants. PAVARINI CONSTRUCTION CO., INC, Third Party Plaintiff, GENERAL INDUSTRIAL SERVICES, Third Party Defendant. MADISON 45 LLC,, Third Party Plaintiff, GENERAL INDUSTRIAL SERVICES, Third Party Defendant.
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 Pavarini 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
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 Pavarini and General Industrial Services is also granted, and Pavarini's cross-motion is denied. (4 Misc 3d 1010[A], 2004 NY Slip Op 50813[U], vacated.)
[*2]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 Pavarini Construction Co. (Pavarini) as the construction manager for the entire project. Madison also contracted 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 Pavarini and Madison for negligence and violations of various sections of New York State Labor Law, and Pavarini 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 NY2d 738, 739 (1993); Winegrad v. New York University Medical Center, 64 NY2d 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 NY2d 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 NY2d 714, 717 (1986); Zuckerman v. City of New York, supra, 49 NY2d 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 NY3d 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 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 [*3]their agents, 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 NY2d 452 (1985); Zimmer v. Chemung County Performing Arts, 65 NY2d 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 NY2d 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 NY2d 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 NY3d at 287, citing Duda v. Rouse Contr. Corp, 32 NY2d 405, 410 (1973).
Here, plaintiff submitted evidence, in admissible form, establishing Madison's and Pavarini'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 Pavarini the construction manager; that Madison and Pavarini 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.
Contrary to Pavarini's position, given its supervisory duties as a construction manager, it was Madison's statutory agent under Labor Law § 240(1). Indeed, Pavarini's contract with Madison provides:
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.
Walls v. Turner Construction Company, 10 AD3d 261 (1st Dept. 2004)(construction manager was the owner's statutory agent for purposes of liability under Labor Law § 240(1) since it had the contractual obligation to monitor window replacement work).
Plaintiff having established a prima facie showing of entitlement to summary judgment, the burden shifted to Madison and Pavarini 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 Popular North America v. Victory Taxi Management, 1 NY3d 381, 383-84 (2004), citing [*4]Mallad Constr. Corp. v. County Fed. Sav. & Loan Assn., 32 NY2d 285, 290 (1973).
Pavarini did not submit any admissible evidence either and instead, argued that the motion was premature since depositions of Madison, Pavarini 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 AD2d 419 (2nd Dept. 1997); see also Johnson v. Phillips, 261 AD2d 269 (1st Dept. 1999) Perez v. Brux v. Cab, 251 AD2d 157 (1st. Dept. 1998). Here, Pavarini is liable under § 240(1) by the mere fact that it was the owner's agent. No amount of discovery is going to prove otherwise, and indeed, Pavarini failed to proffer an evidentiary basis to suggest otherwise. Pavarini's claimed need for discovery, therefore, does not defeat summary judgment.
Nor does BIS's submission of an unsworn statement create an issue of fact as to the lifeline. That statement is inadmissible evidence and does not create an issue of fact. Banco Popular North America v. Victory Taxi Management, supra, 1 NY3d at 383 (unsworn hand writing expert's report); Grasso v. Angerami, 79 NY2d 813 (19991)(unsworn doctor's report).
Madison, Pavarini and BSI thus failed to defeat plaintiff's motion for summary judgment. Accordingly, plaintiff's motion seeking partial summary judgment against Madison and Pavarini as to liability under Labor Law § 240(1) is granted.
Contractual Indemnification
Madison cross-moves for summary judgment as to whether it is entitled to contractual indemnification from Pavarini and GIS. 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 AD2d 233, 234 (1st Dept. 2002), citing Correia v. Professional Data Mmgt., 259 AD2d 60, 65 (1st Dept. 1999), and that its contracts with Pavarini and GIS provided for contractual indemnification. In support of its position, Madison submitted the contracts, which established its right to contractual indemnification.
Pavarini and GIS do not dispute the terms of the contracts, but argue that the motion is premature inasmuch as there is outstanding discovery. Pavarini and GIS, however, fail 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 contracts, submitted by Madison, dictate the terms of the indemnification. Accordingly, Madison's cross-motion is granted.
By cross-motion, Pavarini moves for summary judgment against GIS on the grounds that GIS failed to procure insurance for Pavarini as required by the construction contract and for contractual indemnification. The first portion of Pavarini's motion is denied inasmuch as GIS has established that its insurer, United National Insurance Company a/k/a Diamond State Insurance Company, agreed to defend Pavarini as an additional insured.
With respect to contractual indemnification, Pavarini 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 Pavarini representatives "showed the [GIS] employees how to erect the scaffolding" is insufficient to defeat a summary judgment motion, Banco Popular North America v. Victory Taxi Management, supra, 1 NY3d at 383; Grasso v. Angerami, 79 NY2d 813 (19991), the fact remains that the foreman or an employee with relevant [*5]information may be deposed, and if their testimony is consistent with this unsworn statement, a triable issue of fact would exist.
Furthermore, although Pavarini 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 Pavarini, that alone does not establish as a matter of law its own freedom from any negligence beyond the statutory liability. Given Pavarini's control over the work site, see Construction Management Agreement By and Between Madison and Pavarini, at Art II:2.1 and 2.2, there are questions of fact as to whether Pavarini was aware of GIS's workers' use of the defective scaffold and failed to take reasonable steps to prevent it. See, e.g. Correia v. Professional Data Mmgt., supra, 259 AD2d at 64. Thus, absent full discovery, the Court will not grant summary judgment on contractual indemnification. Accordingly, Pavarini's cross-motion is denied without prejudice.
This constitute the Decision and Judgment of the Court.
Dated: November 5, 2004_________________________
Hon. Rolando T. Acosta, J.S.C.
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