Cicala v Stearns, Conrad & Schmidt Consulting Engrs., Inc.

[*1] Cicala v Stearns, Conrad & Schmidt Consulting Engrs., Inc. 2005 NY Slip Op 52174(U) [10 Misc 3d 1066(A)] Decided on December 2, 2005 Supreme Court, Richmond County Mega, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 2, 2005
Supreme Court, Richmond County

Mario Cicala, Plaintiff,

against

Stearns, Conrad and Schmidt Consulting Engineers, Inc., d/b/a SCS Engineers, Inc., INTERSTATE INDUSTRIAL CORPORATION and FREDERIC R. HARRIS, INC., Defendants.



13076/97

Christopher J. Mega, J.

Plaintiff commenced this action to recover damages for personal injuries allegedly sustained when, in the course of his employment as a laborer for Gundle Lining Construction Corp. ("Gundle") at the Fresh Kills Landfill on Staten Island, New York, he slipped and fell onto the side of a drainage gully that had been constructed along the slope of a mound of garbage. At the time, plaintiff and his co-workers were working mid-mound, installing a geocomposite material (a geotextile fabric with an inner drainage netting) over a high density polyurethane liner that had been placed as a covering over both the mound and the drainage gully. It is alleged that, while pulling the geotextile material toward the edge of the gully, plaintiff slipped due to mud on his boots and fell backwards onto the slanted side of the eight-to-ten foot deep gully. Plaintiff maintains that "it was just about dark" at the time of his accident, and that the work should have been discontinued because of darkness.

Insofar as it appears, the City of New York, acting by and through its Department of Sanitation, retained Interstate Industrial Corporation ("Interstate") to undertake the installation of the lining system as part of its rehabilitation of the Fresh Kills Landfill. Interstate subsequently entered into a written subcontract agreement with Gundle, the manufacturer of the covering materials, to supply and install the landfill liners. The City also retained Frederic R. Harris, Inc. ("Harris") to provide management at the construction site, including resident engineering services in connection with the final cover and closure of the landfill. Harris thereafter subcontracted with SCS Engineers, Inc. ("SCS") to perform the resident engineering, quality assurance and inspection services necessary to coordinate the work of the various contractors on the project.

In these proceedings, defendants Harris and SCS move separately for summary judgment dismissing the complaint as against them in the prime action (Motion Nos. 373 and 575). Plaintiff in that action (Cicala) cross-moves (Motion No. 606) for partial summary judgment on the issue of liability. Defendant/third-party plaintiff Interstate also moves (Motion No. 607) for summary judgment dismissing the complaint in the prime action and for summary judgment in its third-party action against Gundle for contractual and common-law indemnification. Third-party defendant Gundle concurs in defendants' separate motions for dismissal of the complaint, and cross-moves (Motion No. 725) for summary judgment dismissing the third-party action against it.

HARRIS' MOTION FOR SUMMARY JUDGMENT (No. 373)

In moving for summary judgment dismissing the complaint and all cross claims against it, defendant Harris maintains that the deposition testimony of its Director of Professional Services, Mr. George Lehan, as corroborated by plaintiff's deposition testimony, proves that Harris was not involved in the construction activities on-going at the time of plaintiff's accident, nor was it responsible for providing safety for the mound workers. Rather, it claims that resident engineering services for the "cover work" had been subcontracted to SCS.

Harris further maintains that it lacked the contractual authority to inspect, supervise and control either the means and methods or safety procedures utilized at the job site. In this regard, Harris relies upon the "Site Health and Safety Plan" for the project, which states that "[t]he contractor shall be solely responsible for construction means, methods , techniques, sequences and procedures, and safety precautions and programs in connection with this project, including implementation of the Health and Safety Plan".

SCS ENGINEERS' MOTION FOR SUMMARY JUDGMENT (No. 575)

In moving for summary judgment dismissing the complaint as against it, SCS maintains that it was neither the owner nor general contractor; did not direct or control plaintiff's work; bore no [*2]responsibility for the safety of Gundle's workers; had no authority to stop the work; and was present at the work site only for quality assurance purposes. In support, SCS relies on plaintiff's deposition testimony to the effect that he received his instructions solely from Gundle's foremen, and that his safety equipment, i.e., helmet, safety vest and gloves, was supplied to him by Gundle.

According to SCS, plaintiff's "false impression" that SCS was responsible for safety at the work site, or that it had the authority to stop the work due to the darkness and/or inadequate lighting, has no basis in fact. In this regard, SCS claims that its subcontract with Harris and the underlying prime contract with the City both indicate that neither Harris nor SCS had any responsibility for the safety of workers employed, e.g., by Gundle, and no authority to stop their work. SCS cites in support the deposition testimony of its witness, Mr. Ralph Bartoldus, who stated that the presence of its inspectors at the worksite on a daily basis was solely for "quality assurance" purposes, and not to control the means and methods used by the contractor to install the lining system. Further support is alleged to exist in the testimony of Harris' witness, Mr. Lehan, who stated at his deposition that the individual contractors were in charge of the safety of their own employees.

PLAINTIFF'S CROSS MOTION (No. 606)

In cross-moving for partial summary judgment on the issue of liability under Labor Law §§ 240(1) and 241(6) and 200, plaintiff maintains (1) that the landfill "mountain" or "mound" and its "slanted" and "steep" ten-foot gully constituted an elevated work site within the meaning of Labor Law §240, (2) that he was not provided with any protective devices (such as safety lines, belts, nets, tethers or anchor lines), and (3) that no guards, grab rails or barriers were installed to prevent his fall. In support, plaintiff submits the affidavit of a "Site Safety Manager", who opines that the failure to provide protective devices relevant to the risks associated with performing work near a ten-foot gully is violative of both OSHA and New York State's Industrial Code.

Plaintiff further maintains that pursuant to the terms of the construction contracts at issue here, defendants were "contractors" and "agents of the owner" within the meaning of Labor Law §§ 240 and 241, and therefore, absolutely liable regardless of whether they exercised supervision or control over plaintiff's work.

INTERSTATE's MOTION FOR SUMMARY JUDGMENT (No. 607)

Defendant/third-party plaintiff Interstate also moves for summary judgment dismissing the complaint and all cross claims against it, as well as on its third-party claims Gundle for contractual and common-law indemnification. In support, Interstate maintains that (1) the work in which plaintiff was engaged at the time of his accident, i.e., laying a cover over a landfill mound, is not a protected activity within the scope of Labor Law §240, (2) his fall was not due to any elevation-related hazard, (3) the Industrial Code violations cited by plaintiff with regard to its alleged liability under Labor Law §241(6) are insufficiently specific and/or factually inapplicable to the facts at bar, (4) the deposition testimony of both plaintiff and his supervisor, Suvit Padasri, proves that Interstate neither supervised the work performed by Gundle employees nor had actual or constructive notice of any hazardous conditions pertinent thereto, and (5) Interstate's subcontract with Gundle requires the latter indemnify the former against all claims arising out Gundle's work.

GUNDLE'S CROSS MOTION FOR SUMMARY JUDGMENT (No. 725)

In cross-moving for summary judgment dismissing both plaintiff's complaint and Interstate's third-party complaint for common-law and/or contractual indemnification, third-party defendant/second third-party plaintiff Gundle submits the affidavit of its own expert, Marvin House, [*3]an engineer with experience in landfill remediation and capping projects. According to this expert, it is not feasible to construct, employ or require such purported safety devices as hand rails, guard rails and scaffolding during a landfill rehabilitation project, since a tear, puncture, hole or any other protrusion through the liner dramatically impairs its structure and integrity, i.e., its ability to perform the required function of preventing leaks, seepage, movement and/or additional pollution and contamination. Gundle's expert further opines that (1) the Industrial Code provisions and OSHA regulations cited by plaintiff do not apply to the liner installation work being performed at the time of his injury, (2) Gundle fully complied with the applicable plans, specifications and contract provisions relating to its performance, (3) Gundle did not deviate from accepted industry standards for landfill liner installations, (4) the means and methods of installation employed by Gundle were neither dangerous nor hazardous to its employees, and (5) the liner being installed at the landfill was textured in order to provide workers with additional traction and tread. Gundle further maintains that its expert's findings are supported not only by the deposition testimony of its own witness, Suvit Padasri, but the witnesses for defendants Interstate and SCS, each of whom testified that no railings or guards were constructed on the garbage mound because no such fall protection or special equipment was needed or required by OSHA.

In view of the foregoing, Gundle maintains that it cannot be found negligent since it has demonstrated prima facie that (1) its work was neither defective nor deficient, and (2) it did not create or have notice of any dangerous or hazardous condition at the work site which was a proximate cause of plaintiff's accident. As such, Gundle seeks summary judgment dismissing Interstate's third-party claims for contribution and/or indemnification. Furthermore, by taking the position that defendants Harris, SCS and Interstate exercised neither supervision or control over the means and methods employed by Gundle, nor directed plaintiff in the performance of his work, the third-party defendant has effectively joined with the prime defendants in seeking dismissal of the complaint against them.

DISCUSSION

It is well established that not every hazard or danger encountered at a construction site involving a height differential falls within the scope of Labor Law §240(1), which renders an owner or contractor absolutely liable for injuries sustained as a result of its breach (see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501). Rather, the statute is aimed only at "elevation-related" special hazards, i.e., "those related to the effects of gravity where protective devices are called for because of a difference between the elevation level of the required work and a lower level" (Rocovich v Consolidated Edison Co., 78 NY2d 509, 514). Thus, all other types of hazards are not compensable under this statute, even if injury is caused by the absence of any safety device (see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d at 500).

In the instant matter, it is undisputed that plaintiff was installing a lining and geotextile cover on the inclined surface of a landfill mound at the time of his fall. On these facts, it is the opinion of the Court that notwithstanding his proximity to an adjacent drainage gully, plaintiff was not thereby exposed to one of the special elevation-related hazards to which Labor Law §240(1) is addressed (see Narducci v Manhasset Assocs., 96 NY2d 259, 267), and that his slip and fall onto the slanted side of said drainage trench resulted from "the usual and ordinary dangers" of the construction site (Thompson v Ludovico, 246 AD2d 642, 642 [2nd Dept 1998];see Cummings v I.& O.A. Slutsky, 304 AD2d 860 [3rd Dept 2003]; Santoro v New York City Tr. Auth., 302 AD2d 581, 582 [2nd Dept 2003];Ozzimo v H.E.S.,Inc., 249 AD2d 912 [4th Dept 1998]), rather than the failure to employ one [*4]of the safety devices enumerated in section 240(1) (see Narducci v Manhasset Assocs. 96 NY2d at 267; see also Pursel v Wellco,Inc., 6 AD3d 1096 [4th Dept 2004]; Mancini v Pedra Constr., 293 AD2d 453 [2nd Dept 2002]; Magnuson v Syosset Community Hosp., 283 AD2d 404 [2nd Dept 2001]; Gottstine v Dunlop Tire Corp., 272 AD2d 863 [4th Dept 2000]; Bradshaw v National Structures, 249 AD2d 921 [4th Dept 1998]). Accordingly, any claims in the complaint predicated upon an alleged violation of Labor Law §240(1) must be severed and dismissed.

Turning to Labor Law §241(6), it is familiar law that a recovery thereunder is dependent upon plaintiff's ability to demonstrate that the injury in question resulted from defendants' violation of a concrete provision of Rule 23 of the New York State Industrial Code (12 NYCRR §§23-1.1 et seq.), i.e., a provision setting forth "a specific standard of conduct as opposed to a general reiteration of common-law principles" (see Hill v Corning Inc., 237 AD2d 881, 882 [4th Dept 1997], lv dismissed and denied 90 NY2d 884, citing Adams v Glass Fab, 212 AD2d 972, 973 [4th Dept 1995]). As such, so much of the complaint in this case as is predicated on an alleged violation of 12 NYCRR §23-1.5 must be severed and dismissed, since the cited regulation has been held to constitute a general safety standard that is insufficiently precise to impose liability under Labor Law §241(6) (see Mancini v Pedra Constr., 293 AD2d at 454). Similarly, 12 NYCRR §23-1.33 has also been held to establish a general safety standard that does not "mandat[e] compliance with concrete specifications" (see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d at 505), and is therefore equally inadequate as a basis for liability under Labor Law §241(6)(see Hill v Corning Inc., 237 AD2d at 882).

With regard to plaintiff's purported reliance upon 12 NYCRR §§23-1.18 and 23-1.33, it is the opinion of the Court that these regulations are per se inapplicable to the facts of this case, inasmuch as the former pertains to the installation of sidewalk sheds and barricades along sidewalks and pedestrian thoroughfares (see Walker v EkleCo, 304 AD2d 752 [2nd Dept 2003]), while the latter pertains generally to the safety of passers-by (see Mancini v Pedra Constr., 293 AD2d at 454; Lawyer v Hoffman, 275 AD2d 541, 542 [3rd Dept 2000]). In addition, 12 NYCRR §23-1.32 cannot furnish a valid basis for liability, since it applies only when written notice of an imminent danger is given by the Commissioner of Labor to an employer, owner, contractor or his agent, and no such notice has been demonstrated herein.

Finally, even assuming that any of the defendants were in violation of 12 NYCRR §23-1.30, which requires a specific level of illumination at a work site, in view of plaintiff's oft-repeated averment that he slipped and fell because his "feet were full of mud", he has failed to raise a triable issue of fact regarding the lack of adequate lighting as a proximate cause of his accident. Accordingly, any claim predicated upon an alleged violation of this regulation is legally insufficient to support a cause of action under Labor Law §241(6) (see Misirlakis v East Coast Entertainment Props., 297 AD2d 312 [2nd Dept 2002], lv denied 100 NY2d 637).

As for the balance of plaintiff's claims under Labor Law §241(6), i.e., those based upon the alleged violation of the Industrial Code provisions pertaining to falling hazards, personal protective equipment, safety railings, safety belts, harnesses and lifelines, it is well established that the nondelegable duty imposed by this statute applies only to owners, general contractors or their agents for proximately caused injuries arising from such regulatory violations (see Zimmer v Chemung County Performing Arts, 65 NY2d 513, 520). The circumstances giving rise to such liability have been summarized thusly: "A general contractor will be liable under [Labor Law §241(6)] if it was responsible for coordinating and supervising the entire construction project and was invested with [*5]a concomitant power to enforce safety standards and to hire responsible contractors" (Kulaszewski v Clinton Disposal Servs., 272 AD2d 855, 856 [4th Dept 2000];see also Reilly v Loreco Constr., 284 AD2d 384, 386 [2nd Dept 2001]; Williams v Dover Home Improvement, 276 AD2d 626 [2nd Dept 2000]). Other parties, such as prime contractors or subcontractors, are subject to such liability only if found to be "agents" of the owner or general contractor (see Labor Law §241) "by virtue of...[their having] been given the authority to supervise and control the work being performed at the time of injury" (Walsh v Sweet Assocs., 172 AD2d 111, 113 [3rd Dept 1991] lv denied 79 NY2d 755 [emphasis in original];see Russin v Picciano & Son, 54 NY2d 311, 318). "A key criterion to this delegation is the authority to insist that proper safety practices are followed and the right to control work in light of such authority" (Walsh v Sweet Assocs., 172 AD2d at 114 [citations omitted]). Reflecting this, our courts have drawn a critical distinction between a general contractor and, e.g., a prime contractor for general construction, by noting that "[g]enerally speaking, the prime contractor for general construction***has no authority over the other prime contractors unless the prime contractor is delegated work in such a manner that it stands in the shoes of the owner or general contractor with the authority to supervise and control the work" (Kulaszewski v Clinton Disposal Servs., 272 AD2d at 856 quoting Walsh v Sweet Assocs., 172 AD2d at 113; see Russin v Picciano & Son, 54 NY2d at 317-318).

Applying the foregoing principles to a consideration of the complaint as against Harris, it is undisputed that this defendant was one of two prime contractors retained by the City in connection with the closure of the landfill. The other prime contractor was codefendant Interstate. As is relevant, defendant Harris was designated as the prime contractor for construction management services, i.e., resident engineering and inspection services, and thus had no contractual relationship with plaintiff's employer, Gundle, which was a subcontractor of Interstate, the prime contractor for general construction. Pursuant to its written contract with the City, the responsibility of Harris was limited to "coordinating" all aspects of the construction project and its contractors, but for the following purposes only: (1) ensuring the quality of workmanship, (2) assuring that the materials furnished and work performed conformed with the plans and specifications and (3) keeping the work on schedule. Clearly, these contractual provisions did not create "an obligation [on the part of Harris] explicitly running to and for the benefit of workers such as plaintiff" (Walker v Metro-North Commuter R.R., 11 AD3d 339, 341 [1st Dept 2004]; see Hernandez v Yonkers Constr. Co., 306 AD2d 379, 380 [2nd Dept 2003]), as Harris plainly lacked the contractual authority to supervise and/or enforce safety procedures at the work site. Furthermore, there is no evidence that Harris exercised any actual control or supervision over the construction procedures and safety measures employed at the site (see Walker v Metro-North Commuter Railroad, 11 AD3d at 341; Carter v Vollmer Assocs., 196 AD2d 754 [1st Dept 1993]).

Pertinent to the above, the uncontroverted deposition testimony of both plaintiff and Gundle's construction foreman indicated that plaintiff was operating under the exclusive direction of his immediate supervisors at the time of the accident, and had received neither instructions nor equipment from Harris (see Hornicek v William H. Lane Inc., 265 AD2d 631 [3rd Dept 1999]; Grimes v Pyramid Co. of Onondaga, 237 AD2d 940 [4th Dept 1997]). Further support for this proposition can be found in the deposition testimony of Harris' witness, George Lehan, and the written subcontract between Harris and SCS, in which the latter agreed to furnish actual inspection and resident engineering services at the construction site.

Based on the foregoing, it is the opinion of this Court that defendant Harris has made a prima [*6]facie showing that it did not perform the function of either a general contractor or an owner's statutory agent. In this regard, the evidence demonstrates that Harris never acquired or assumed contractual or other actual authority over the methods and means employed by the other prime contractor, Interstate, much less the work of Interstate's subcontractor, Gundle (see Caradori v Med Inn Ctrs. of Am, LLC, 5 AD3d 1063, 1064 [4th Dept 2004], mod. on other grounds __AD3d__, 775 NYS2d 713). Thus, while Harris may have been responsible for coordinating the work of the various trades, there is nothing in the record to suggest that it was invested "with the concomitant power to enforce safety standards and to hire responsible contractors" to perform the actual installation (Kulaszewski v Clinton Disposal Servs., 272 AD2d at 856). Furthermore, there is no evidence that Harris ever assumed any direct authority over plaintiff's activities during the installation of the lining materials (see Chavez v Jordan-Elbridge Cent. Sch. Dist., 309 AD2d 1289 [4th Dept 2003]; Nowak v Smith & Mahoney, 110 AD2d 288, 289 [3rd Dept 1985]; cf. Ewing v ADF Constr. Corp., 16 AD3d 1085, 1087 [4th Dept 2005]).

Under these circumstances, Harris cannot be held liable to plaintiff under Labor Law §241(6) (see Uht v Hazen & Sawyer Envtl. Engrs. & Scientists, 243 AD2d 290 [1st Dept 1997]). Nor may liability be imposed under Labor Law §200 or common-law negligence, since there has been no showing that Harris "exercised supervisory control over plaintiff's work and had actual or constructive knowledge of the [alleged] unsafe manner in which the work was being performed" (Turner v Sano-Rubin Constr. Co., 6 AD3d 910, 911 [3rd Dept 2004];see Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 877; Lombardi v Stout, 80 NY2d 290, 295; Biance v Columbia Washington Ventures, LLC, 12 AD3d 926, 927 [3rd Dept 2004]).

As for its co-equal role as resident engineer, it is well settled that liability for a worker's injury may not be imposed upon an entity which, like Harris, was retained to assure compliance with construction plans and specifications absent either (1) a clear contractual provision imposing such liability or (2) an affirmative act of negligence on its part (see Domenech v Associated Engrs., 257 AD2d 403, 403-404 [1st Dept 1999]). No such circumstances have been demonstrated herein (see Torres v CTE Engrs., 13 AD3d 359 [2nd Dept 2004]; Hernandez v Yonkers Constr. Co., 306 AD2d 379, 380 [2nd Dept 2003]). Nor is a contractual duty to inspect, as in this case, alone sufficient to impose statutory liability under the Labor Law (see Domenech v Associated Engrs., 257 AD2d at 403-404; see also Hernandez v Yonkers Constr. Co., 306 AD2d at 380; Biance v Columbia Washington Ventures, LLC, 12 AD3d at 927). Finally, there is no evidence that Harris actually performed inspections at the work site, since those services had been subcontracted to SCS.

In opposition, plaintiff has failed to submit any evidence that raises a triable issue of fact on any of these issues (see Zuckerman v City of New York, 49 NY2d 557, 563). Accordingly, the complaint as against Harris must be dismissed.

Turning to the motion of codefendant SCS, notwithstanding its status as the engineering company that was retained by Harris to perform on-site resident engineering and field inspection services, it cannot be inferred solely from this contractual duty to inspect for quality assurance purposes that it possessed the requisite supervision and control over plaintiff's activities to impose liability under Labor Law §§200 and 241(6) (see Loiacono v Lehrer McGovern Bovis, Inc., 270 AD2d 464, 465 [2nd Dept 2000]). Therefore, the seminal issue presented on its motion is whether, as a factual matter, the activities of SCS at the work site rise to the level of "supervision and control" necessary to subject it to liability for plaintiff's injuries (id. at 465).

In this regard, plaintiff's deposition testimony identifies SCS as furnishing engineers "to [*7]make sure the job was done right and to protect the safety of the men", including Gundle employees, "because that's how every job is...All the inspectors have that duty". However, plaintiff's testimony that SCS could stop the job if, e.g., it was raining, "so [that the men] wouldn't slip down the mountain" is directly contradicted by the deposition testimony of his supervisor, Suvit Padasri, who testified that the final decision to stop work because of the weather was his and his alone; that SCS had no role in instructing Gundle employees on how to perform their jobs; and that SCS inspected only the "quality of the work". For his part, Rudolph Bartoldus, the witness for SCS, testified that work could be curtailed by SCS due to rain if it determined that the sub-grade or earth had become too wet to install the liner, or if its engineer observed a condition that would result in the work being done improperly. While fully consistent with its claimed role in assuring the quality of the performance, it is instructive that neither of these considerations pertain directly or indirectly to worker safety.

To the extent that he attempts to implicate SCS in matters of safety, it is worthy of note that plaintiff's testimony is based solely upon his understanding of "custom and usage", and is essentially of no probative value. Moreover, notwithstanding any disagreement in the testimony of these witnesses, and assuming arguendo that SCS possessed a limited authority to stop the work if, as plaintiff claims, an unsafe condition was present, the moving and opposing papers contain no evidence that SCS had the contractual or other authority to supervise and control the work of Interstate or its subcontractor, Gundle, in the manner of a general contractor or statutory agent (see Kulaszewski v Clinton Disposal Servs., 272 AD2d at 856). In fact, such authority has already been found lacking in Harris, from which the authority of SCS devolved. Accordingly, it is the determination of this Court that SCS has made a prima facie showing that it was neither a general contractor nor an owner's agent, and therefore may not be subjected to liability under Labor Law §241(6) (see Russin v Picciano & Son, 54 NY2d at 318; Dos Santos v STV Engineers, 8 AD3d 223 [2nd Dept 2004], lv denied 4 NY3d 702).

The foregoing is also dispositive of plaintiff's Labor Law §200 and common-law negligence claims, as the same proof demonstrates that SCS neither supervised or controlled the work giving rise to plaintiff's injury. Moreover, there is no evidence that it had either actual or constructive notice of any allegedly defective or dangerous condition which may have caused him to fall (see Reilly v Newireen Assoc., 303 AD2d 214 [1st Dept 2003], lv denied 100 NY2d 508; accord Sattar v Natural Stone Indus., 19 AD3d 681 [2nd Dept 2005]; Karapati v K.J. Rocchio, Inc., 12 AD3d 413, 414-415 [2nd Dept 2004]; Santoro v New York City Tr. Auth., 302 AD2d at 582). "General supervisory authority at the work site for the purpose of overseeing the progress of the work and inspecting the work product is insufficient to impose liability for common-law negligence and under Labor Law §200" (Dos Santos v STV Engrs. Inc., 8 AD3d at 224; see Perri v Gilbert Johnson Enter., Ltd., 14 AD3d 681, 683 [2nd Dept 2005]).

As plaintiff has once more failed to raise any triable issues of fact in opposition to the motion, such claims against SCS as may be predicated upon alleged violations of Labor Law §§200 and 241(6) and/or common-law negligence must also be severed and dismissed.

Turning to final codefendant, Interstate, the evidence adduced concerning its role at the work site is uncontroverted. Plaintiff admitted that he received his daily work assignments and instructions solely from Gundle's foremen, "Victor" and "Dominic", and that it was Gundle's supervisor, Suvit Padasri, and his assistant, Connie Frye, who supervised plaintiff's work. He further testified that it was Gundle employees who instructed the laborers on how to install the vinyl lining and [*8]geocomposite material on the landfill mound, and that neither instructions and training or equipment were forthcoming from Interstate. Moreover, plaintiff conceded that he never complained to Interstate regarding the working conditions, and that Interstate was not responsible for ensuring the safety of Gundle's employees.

Pertinently, plaintiff's testimony in this regard was confirmed by Gundle's witness, Suvit Padasri, who testified that Interstate did not instruct or train Gundle employees at the job site regarding the means, methods or manner of their work, and that Gundle was solely responsible for overseeing and ensuring the safety of its employees. In fact, Mr. Suvit maintained that it was his decision whether to stop work based on weather conditions.

On the basis of this evidence, Interstate has carried its burden of demonstrating prima facie that it did not direct or control the work performed by plaintiff or any of the other Gundle employees (see Dos Santos v STV Engrs. Inc., 8 AD3d at 224-225;accord Karapati v K.J. Rocchio,Inc., 12 AD3d at 414-415; Carney v Allied Craftsman General Contractor's, 9 AD3d 823 [3rd Dept 2004]; Parisi v Loewen Dev. of Wappinger Falls, 5 AD3d 648 [2nd Dept 2004]). Moreover, there is no evidence that it created or had actual or constructive notice of any dangerous or defective condition at the work site (see Begor v Mid-Hudson Hardwoods, 301 AD2d 550, 551 [2nd Dept 2003] lv denied 100 NY2d 501; accord Sattar v Natural Stone Indus., 19 AD3d at 682; Santoro v New York City Tr. Auth., 302 AD2d at 582-583). Thus, in the absence of any opposing evidence sufficient to raise a triable issue of fact with regard thereto, Interstate is entitled to summary judgment dismissing those cause(s) of action pleaded under Labor Law §200 and in common-law negligence.

However, the same is not true of its statutory liability under Labor Law §241(6), as it may not be determined as a matter of law on the papers before this Court that Interstate had not assumed the role of general contractor on this project. Under such circumstances, Interstate cannot avoid the absolute liability imposed by section 241(6), even where, as here, there is no proof that it exercised any supervision and control over the work being performed by plaintiff at the time of his injury (see Bopp v A.M. Rizzo Elec. Contrs., 19 AD3d 348 [2nd Dept 2005]).

Turning to that further branch of Interstate's motion which is for summary judgment on its third-party claim against Gundle, e.g., for contractual and common-law indemnification, it is well established that "the one seeking [common-law] indemnity must prove not only that it was not guilty of any negligence beyond the statutory liability but must also prove that the proposed indemnitor was guilty of some negligence that contributed to the causation of the accident" (Correia v Professional Data Mgt. Inc., 259 AD2d 60, 65 [1st Dept 1999], accord Priestly v Montefiore Med. Ctr./Einstein Med. Ctr., 10 AD3d 493, 495 [1st Dept 2004];see Perri v Gilbert Johnson Enters., Ltd., 14 AD3d at 685). Failing this, a prima facie case may nevertheless be proved by demonstrating that the proposed indemnitor "had the authority to direct, supervise, and control the work giving rise to the injury" (Hernandez v Two E. End Ave. Apt. Corp., 303 AD2d 556, 557 [2nd Dept 2003]; see Perri v Gilbert Johnson Enters., Ltd., 14 AD3d at 685).

Here, there is no evidence that Interstate's prospective liability under Labor Law §241(6) is other than vicarious. Accordingly, even in the absence of any proof that Gundle may have been negligent as a matter of law, the uncontroverted evidence of its "exclusive supervis[ion] and control [of] plaintiff's work" (Reilly v DiGiacomo & Son, 261 AD2d 318 [1st Dept 1999]; see Hernandez v Two E.End Ave. Apt. Corp., 303 AD2d at 558) entitles Interstate to a conditional order of summary judgment with respect to its third-party claim for common-law indemnification (cf. Kader v City of new York, 16 AD3d 461, 463 [2nd Dept 2005]; Perri v Gilbert Johnson Enters., Ltd., 14 [*9]AD3d at 685).

Finally, with respect to Interstate's claim for contractual indemnification, the written subcontract between Interstate and Gundle provides that "[t]o the extent permitted by law, the Subcontractor shall indemnify and hold harmless the Contractor and Owner...from and against all claims, damages, loss and expenses arising out of or resulting from the performance of the Subcontractor's work, provided that any such claim, damage, loss or expense is attributable to bodily injury, sickness, disease, or death...to the extent caused by the negligent act or omission of the Subcontractor [emphasis supplied]" (see Interstate's Exhibit "P", "Section 10"). As a result, the third-party defendant's contractual duty to indemnify Interstate can only be triggered by an actual finding of negligence against it. Since questions of fact clearly exist as to the negligence of Gundle, if any, that branch of Interstate's motion which is for summary judgment on its third-party claim for contractual indemnification must be denied (cf. Santos v BRE/Swiss,LLC, 9 AD3d 303 [1st Dept 2004]; Keena v Gucci Shops, Inc., 300 AD2d 82 [1st Dept 2002]).

In view of the Court's findings and decisions on the foregoing motions, plaintiff's cross motion for partial summary judgment on the issue of liability under Labor Law §§200, 240(1) and 241(6) must also be denied, as questions of fact remain on the surviving cause(s) of action.

Lastly, Gundle's cross motion for summary judgment is denied. All dispositive motions in this action were required to be made on or before February 28, 2005, i.e, within sixty days of the filing of the note of issue, as required by the local rules of this Court (see Rules of the Supreme Court, Richmond County, "Motion Requirements" §1). Accordingly, since it is uncontroverted that the note of issue in this case was filed on December 28, 2004, Gundle's cross motion, which was not made until March 8, 2005, is clearly untimely. Moreover, the only excuse offered for the delay emanates from Gundle's claim that its current attorneys were not substituted for previous counsel until September 28, 2004. It is then alleged that when they appeared for the first time in this action at a Trial Readiness Certification Conference on November 30, 2004, counsel was not informed of the sixty-day rule by either the Court or its staff, nor was this filing requirement memorialized in counsel's records or the prior orders of this Court.

By virtue of an especially clear decision by our Court of Appeals in June 2004, it has become crystal clear that neither the merits of an untimely motion nor the absence of prejudice to presumptive adversaries are relevant factors in determining whether good cause exists for untimely filing of a summary judgment motion (Brill v City of New York, 2 NY3d 648, 652; see Thompson v New York City Bd. of Educ., 10 AD3d 650 [2nd Dept 2004]). Moreover, the Court in Brill emphatically determined that "[n]o excuse at all, or a perfunctory excuse, cannot [constitute] good cause'" (Brill v City of New York, 2 NY3d at 652).

In view of the above, it is the opinion of this Court that an excuse, as here, predicated upon ignorance of the local court rules is perfunctory at its heart, and fails to demonstrate the requisite "good cause" for delay. Therefore, this Court is without discretion to entertain Gundle's untimely cross motion for summary judgment (see Thompson v Leben Home For Adults, 17 AD3d 347 [2nd Dept 2005]; Kaplan v Rosiello, 16 AD3d 626 [2nd Dept 2005]; Gonzalez v Zam Apt. Corp., 11 AD3d 657, 658 [2nd Dept 2004]).

In any event, notwithstanding the absence of "good cause", even if the Court were to entertain Gundle's untimely cross motion (see James v Jamie Towers Hous. Co., 294 AD2d 268, 272 [1st Dept 2002], affd 99 NY2d 639; Rosa v R.H. Macy Co., 272 AD2d 87 [1st Dept 2000]), the existence of triable issues of fact with regard to Gundle's freedom from negligence precludes [*10]summary judgment.

Accordingly, it is

ORDERED, that the motion of defendant Frederic R. Harris, Inc. for summary judgment dismissing the complaint and all cross claims against it is granted, and the complaint and all cross claims as against this defendant are severed and dismissed; and it is further

ORDERED, that the motion of defendant Stearns, Conrad and Schmidt Consulting Engineers, Inc., d/b/a SCS Engineers, Inc., for summary judgment dismissing the complaint as against it is granted, and the complaint and any cross claims as against this defendant are severed and dismissed; and it is further

ORDERED, that plaintiff's cross motion for partial summary judgment on the issue of liability is denied; and it is further

ORDERED, that the motion of defendant/third-party plaintiff Interstate Industrial Corporation for summary judgment dismissing the complaint, all cross claims and any counterclaims against it is granted only as to those claims/causes of action predicated upon alleged violations of Labor Law §§240(1), 200 and common-law negligence and is otherwise denied; and it is further

ORDERED, that the balance of said motion which is for summary judgment in favor of the third-party plaintiff in its indemnification action against Gundle Lining Construction Corp. is granted, conditionally, as to the claim for common-law indemnification and is otherwise denied; and it is further

ORDERED, that the cross motion of third-party defendant Gundle Lining Corporation Corp. for summary judgment dismissing the complaint, the third-party complaint and all cross claims and counterclaims against it is denied; and it is further

ORDERED, that the Clerk shall enter judgment and mark its records accordingly.

E N T E R,

Dated:December 2, 2005/s/__________________________________

J.S.C.