Ludmerer v Morse Diesel Intl., Inc.

[*1] Ludmerer v Morse Diesel Intl., Inc. 2005 NY Slip Op 52237(U) [10 Misc 3d 1074(A)] Decided on December 5, 2005 Supreme Court, New York County Kapnick, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 5, 2005
Supreme Court, New York County

Alan Ludmerer and Barbara Ludmerer, Plaintiffs,

against

Morse Diesel International, Inc., Defendant.



101991/02

Barbara R. Kapnick, J.

In this action, plaintiffs seek to recover damages pursuant to Labor Law §§ 240(1) and 200/common law negligence for personal injuries sustained by plaintiff Alan Ludmerer on June 27, 1999 while performing construction work at the City University of New York Graduate Center at 365 Fifth Avenue in Manhattan in the course of his employment with third-party defendant Five Star Electric Corp./Ferguson Electric, Inc. J.V. ("Five Star"). Plaintiff claims that a ceiling collapsed and struck him, causing him to fall from a ladder.

Defendant/third-party plaintiff Morse Diesel International, Inc. ("Morse Diesel") was the construction manager of the project. Third-party defendants Five Star and Allstar Drywall & Acoustics, Inc. ("Allstar") and second third-party defendant Westmont Associates, Inc. ("Westmont") were prime contractors at the site which was owned by the third third-party defendant, The Dormitory Authority of the State of New York ("DASNY").

Defendant/third-party plaintiff Morse Diesel now moves for summary judgment dismissing plaintiffs' complaint against it on the grounds that there is no evidence that it acted negligently or had any control or authority over the plaintiff's work at the time of his accident.

Second third-party defendant Westmont cross-moves for an order: (i) dismissing any claims, cross-claims and counterclaims against it in the event defendant/third-party plaintiff Morse Diesel's motion for summary judgment is granted; or (ii) dismissing any claims, cross-claims and counterclaims against it on the grounds that it did not perform the work which caused plaintiff's injuries, did not provide any equipment to plaintiff, and owed no duty to plaintiff; and (iii) granting it common law indemnification from third-party defendant Allstar.

Plaintiffs oppose that portion of Morse Diesel's motion seeking to dismiss their claim pursuant to Labor Law § 200 and for common law negligence, arguing that there is at least an issue of fact as to whether Morse Diesel supervised or controlled plaintiff's work since Morse Diesel was contractually obligated to act as the site "Safety Director".

However, the Appellate Division, First Department, has already held with respect to other cases arising out of the same job site that "Morse Diesel's contractual duties to supervise and enforce general safety standards at the work site did not create an issue of fact as to its negligence" (Torres v. Morse Diesel International, Inc., 14 AD3d 401, 403 [1st Dep't 2005]; see also, Buccini v. 1568 Broadway Assoc., 250 AD2d 466 [1st Dep't 1998]) and that "there is no evidence that Morse neglected any of its general supervisory responsibilities on the job site." (Masciotta v. Morse Diesel International, Inc., 303 AD2d 309, 312 [1st Dep't 2003]). Moreover, [*2]the Court found that on this project Morse played only a "general supervisory role over the work of its subcontractors." Id at 313.[FN1]

Finally, no evidence has been presented herein that Morse Diesel exercised any supervision over the plaintiff's work "as required in an action alleging common-law negligence or a violation of Labor Law § 200." Lozado v. Felice, 8 AD3d 633, 634 (2nd Dep't 2004). See also, Russin v. Picciano & Son, 54 NY2d 311 [1981].

Accordingly, based on the papers submitted and the oral argument held on the record on August 3, 2005, that portion of defendant/third-party plaintiff's motion seeking to dismiss plaintiffs' claims pursuant to Labor Law § 200 and for common law negligence is granted.

Plaintiffs also oppose that portion of the motion seeking to dismiss their claims pursuant to Labor Law § 240(1), arguing that there are at least issues of fact as to whether defendant/third-party plaintiff Morse Diesel was a "contractor" and/or an "agent" of the owner, DASNY, within the meaning of section 240(1).

The fact that Morse Diesel was the "construction manager versus general contractor is not necessarily determinative" (Walls v. Turner Construction Co., 4 NY3d 861, 864 [2005]). Liability for violations of Labor Law §§ 240(1)...may be imposed against contractors and owners, as well as parties who have been delegated the authority to supervise and control the work such that they become statutory agents of the owners and contractors (see Russin v. Picciano & Son, 54 NY2d 311,...) A construction manager charged with the duty of coordinating all aspects of a construction project is a contractor with nondelegable duties under sections 240 and 241 of the Labor Law.

(Nienajadlo v. Infomart New York, LLC, 19 AD3d 384, 385 [2nd Dep't 2005], quoting, Kenny v. Fuller Co., 87 AD2d 183 [2nd Dep't 1982]; see also, Nephew v. Klewin Building Co., 2005 WL 2404736 [4th Dep't]; Aranda v. Park East Construction, 4 AD3d 315 [2nd Dep't 2004]).

Thus, on the facts presented in Walls v. Turner Construction Co., supra - namely, "(1) the specific contractual terms creating agency, (2) the absence of a general contractor, (3) [the construction manager's] duty to oversee the construction site and the trade contractors, and (4) [*3]the [construction manager's] representative's acknowledgment that [the construction manager] had authority to control activities at the work site and to stop any unsafe work practices" (Id. at 864) - the Court of Appeals held that the construction manager could be held liable pursuant to Labor Law § 240(1) as the statutory agent of the owner.[FN2]

In the instant case, several prime contractors, including, Five Star, Allstar and Westmont, were hired by the owner to oversee various aspects of the construction site and the trade contractors. Morse Diesel admits that it may have coordinated the trades at this project, but argues that it should not be held liable pursuant to Labor Law § 240(1) because it did not actually hire any of the other contractors.

Morse Diesel further argues that there is no evidence that it had authority to control activities at the work site, and refers to the deposition testimony of its own project manager, Stephen Martinelli, that no one who worked for Morse Diesel at this work site in June of 1999 had the authority to stop the contractor's work.

However, pursuant to Article XI, D.1 of its Agreement with DASNY, Morse Diesel was contractually obligated to "make daily observations of the safety practices of all Prime Contractors and Subcontractors work activities on the job site and check their compliance with municipal, state and federal safety requirements", and, if a safety violation was found, was specifically empowered to

give the Prime Contractor or Subcontractor immediate written notice of the deficiency, and require correction of the safety violation before work continues. If the Prime Contractor or Subcontractor does not correct the deficiency within three (3) hours of notice from the CONSTRUCTION MANAGER, the CONSTRUCTION MANAGER may require the Prime Contractor or Subcontractor to leave the job site or may authorize a separate Prime Contractor or Subcontractor to erect or provide the required safety structures, equipment, or procedures.

Thus, it appears that Morse Diesel did, in fact, have the authority to stop any unsafe work practices. See, Walls v. Turner Construction Co., supra; Rubanovich v. City of New York, 9 Misc 3d 130(A) (App. Term, 1st Dep't 2005).

Accordingly, that portion of Morse Diesel's motion seeking to dismiss plaintiff's claim pursuant to Labor Law § 240(1) must be denied. [*4]

That portion of second third-party defendant Westmont's cross-motion seeking to dismiss any claims, cross-claims and counterclaims against it in the event defendant/third-party plaintiff Morse Diesel's motion for summary judgment is granted is, therefore, denied as moot.

Second third-party defendant Westmont also cross-moves to dismiss any claims, cross-claims and counterclaims against it on the grounds that it did not perform the work which caused plaintiff's injuries, did not provide a ladder or any other equipment to plaintiff, and owed no duty to plaintiff.

However, Westmont's contract with DASNY encompassed work on ceilings in the building, and Allstar's witness, Don Gemma, testified at his deposition that Westmont itself installed some of the ceilings. Moreover, Westmont was required under its contract to "develop and implement quality control plans to assure itself and the Owner that all Work performed by the Contractor and its Subcontractors complies fully with all contract requirements".

Accordingly, this Court finds that there is at least an issue of fact as to whether or not Westmont was negligent with respect to the happening of plaintiff Alan Ludmerer's accident, which precludes the granting of summary judgment.

That portion of Westmont's cross-motion seeking common law indemnification from third-party defendant Allstar is likewise denied as premature.

A final pre-trial conference shall be held in IA Part 12, 60 Centre Street, Room 341 on January 4, 2006 at 10:00 a.m.

This constitutes the decision and order of this Court.

Dated:December 5, 2005_______________________

Barbara R. Kapnick

J.S.C. Footnotes

Footnote 1:This case is thus distinguishable from yet another action arising out of the same project in which the plaintiff, an employee of the "general [or prime] contractor", Westmont Associates, "testified that he received his daily assignments from his supervisor, who was given the work instructions by an individual affiliated with Morse." In that case, the Appellate Division, First Department, held that there was "a factual issue concerning Morse's exercise of supervisory authority over the work being performed by plaintiff." Wray v. Morse Diesel International, Inc., _A.D.3d_, 2005 WL 3072699.

Footnote 2:In Hutchinson v. City of New York, 18 AD3d 370 (1st Dep't 2005), the Appellate Division, First Department, dismissed a construction worker's claim pursuant to Labor Law § 240(1) against the project's engineering consultant, finding that none of the factors set forth in Walls v. Turner Construction Co., supra, were present.