German v City of New York
Annotate this CaseDecided on October 4, 2006
Supreme Court, New York County
Edgar German, Plaintiff,
against
The City of New York; The Metropolitan Museum of Art; and R.C. Dolner, Inc., Defendants.
118177/2004
Karen S. Smith, J.
The portion of defendants', The City of New York ("City"), The Metropolitan Museum of New York ("the Museum"), and R.C. Dolner, Inc.'s ("Dolner") (referred to collectively as "defendants") motion for summary judgment dismissing plaintiff's complaint is granted in part and denied in part, as more fully provided below. The portion of said defendants'/ third-party plaintiffs' motion seeking contractual indemnification from third-party defendant Tri State Dismantling Corp. ("Tri State"), is granted in part and denied in part as more fully provided below. Plaintiff Edgar German's cross-motion for summary judgment on his claims under Labor Law § 240(1) is denied.
In this action, plaintiff, an employee of third-party defendant Tri State, sues for injuries he sustained while engaged in demolition work in the course of a renovation project at the Metropolitan Museum of Art (owned by defendants City and Museum. Plaintiff sues defendants under Labor Law §§ 240(1), 241 (6), and 200. Defendants sue Tri State for contractual indemnification.
Defendants now move for summary judgment dismissing all claims by plaintiff and granting defendants indemnification by Tri State requiring Tri State to pay all costs in defending and prosecuting these actions. Defendants argue that all of plaintiff's claims pursuant to Labor Law § 240(1) should be dismissed as that section of the Labor Law does not apply 1) to a situation where the method of work performed by the injured worker specifically involves the creation of the hazard, i.e. in the course of demolition of overhead pipes and ducts, there is an inherent risk that objects will fall, and 2) where the facts show that the accident was caused by [*2]the plaintiff's failure to use a ladder which was available to him. This latter defense is referred to in Labor Law jurisprudence alternatively as "the recalcitrant worker defense" or "the sole proximate cause defense," which would require dismissal under Blake v. Neighborhood Housing Services of New York City, Inc. (1 NY3d 280 [2003]. Defendants further argue that (1) as Labor Law § 241(6) requires that there be an underlying violation of a specific Industrial Code violation and that all of the Industrial Code violations cited by the plaintiff are either inapplicable or not specific enough, all of plaintiff's Labor Law § 241(6) claims should be dismissed, and (2) as there is no evidence that defendants supervised, directed or controlled the work performed by the plaintiff, as is required to find a violation of Labor Law § 200, all of plaintiff's Labor Law § 200 claims should also be dismissed. Defendants claim that they are entitled to summary judgment on their claim for contractual indemnification by Tri State based on the language of the contract and that if they are found liable to plaintiff, the evidence in the record shows that their liability would only be based on statutory liability, as opposed to active negligence on their part. Tri State joins defendants in their application for dismissal of all of plaintiff's claims under the Labor Law but opposes the portion of defendants' application for indemnification claiming that there is evidence that defendant Dolner did supervise plaintiff's work by telling plaintiff's employer, Tri State, which pipes and ducts to cut at a particular time. Tri State also argues that the contract providing for indemnity was between Tri State and R.C. Dolner, LLC, not R.C. Dolner, Inc, and that there is nothing explicit in the contract providing indemnity to the City or the Museum. As it appears that plaintiff inadvertently misnamed defendant Dolner, and as defendant Dolner has answered in its correct name without objecting or asserting any prejudice or of notice of this proceeding and has brought its third-party complaint in the correct name, the court sua sponte amends the caption to substitute R.C. Dolner, LLC for R.C. Dolner, Inc.
Plaintiff cross moves for summary judgment granting him judgment on liability for his Labor Law § 240(1) claims. Plaintiff argues that the statute is applicable to the facts in the instant case where (1) plaintiff was on a raised platform while he was performing the work, (2) plaintiff was injured as a result of a falling object which defendants failed to secure, and (3) the ladder available for plaintiff to perform his work was not appropriate for the job he was directed to perform.
The proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence in an admissible form to demonstrate the absence of any material issues of fact (Alvarez v Prospect Hosp., 68 NY2d 320 [1987]). Once the movant has made such a showing the burden shifts to the party opposing the motion to produce evidence in an admissible form sufficient to establish the existence of any material issues of fact requiring a trial of the action (Zuckerman v City of New York, 49 NY2d 557 [1980]).
The following facts are taken from the various depositions which were conducted in the course of discovery. At the time of the accident plaintiff was an employee of Tri State. Tri State was hired by Dolner, the general contractor, to incrementally demolish a network of water pipes and other conduits hanging from the ceiling in a portion of the Museum. Above the pipes were metal ducts approximately twenty feet long, two feet wide, and one foot high suspended from the eighteen foot ceiling by tabs. Plaintiff was assigned to dismantle the sprinkler pipes first, then the duct. Tri State's foreman on the day of the accident, Luis Cando, testified at his deposition [*3]that he instructed plaintiff to use a ladder to perform the work but that plaintiff refused to use it. Cando also stated at his deposition that a ladder was not needed to perform the work assigned to plaintiff. Tri State's field supervisor, Zanussi, testified, at his deposition, that sometimes it was easier to perform the work plaintiff was assigned without a ladder. Plaintiff testified, at his deposition, that; (1) the ladder made available to him to perform his work was too tall to set up on the three foot platform on which he was working, (2) he was able to reach the pipes (which were five to six feet over his head) by extending the six foot torch over his head, (3) he could not see the tops of the pipes while he was cutting them, (4) he checked to see if the pipes and duct work was loose before he began cutting the pipes that day and found that it was not loose, (5) a piece of duct fell on him while he was cutting the pipes, severely injuring his right shoulder, and (6) the duct that fell on him had been cut by a co-worker the night before the accident. According to Tri State's representative, no one was designated to inspect the demolition area while plaintiff worked. According to defendant Dolner's representative, Dolner's safety manager, responsible for safety on the job site, was not present during plaintiff's shift.
Labor Law § 240(1) applies to all injuries which result from gravity related accidents. It applies to cases where (1) a worker falls from a height as a result of the force of gravity, and/or (2) where an object falls on a worker as a result of the force of gravity. (Narducci v. Manhasset Bay Associates, 96 NY2d 259, 268 [2001]). It is not sufficient, however, where the Labor Law
§ 240(1) claim is based on a falling object, for plaintiff to merely allege that an object fell on him causing injury. To make out a prima facie case a plaintiff must show that the object fell while being hoisted or secured and that it occurred because of the absence or inadequacy of a safety device of the kind enumerated in the statute (i.e. ropes, pulleys, irons) (Narducci v. Manhasset Bay Associates, supra.). Claims made that an object fell as a result of being inadequately secured are also covered under Labor Law § 240(1). (Narducci v. Manhasset Bay Associates, supra.; Capparelli v. Zausmer Frisch Assocs., Inc, (96 NY2d 259, 270 [2001])) It is of no import that a worker may have been working at an elevation at the time the object fell on the worker. (Narducci v. Manhasset Bay Associates, supra.) "Falling object" cases are different than "falling worker" cases due to the difference of the type of hazard that is involved (Narducci v. Manhasset Bay Associates, supra.), which is why , contrary to plaintiff's assertions, neither Niemirovsku v. Vornado Realty Trust Co., 2006 NY Slip Op 3863 [2d Dept 2006] nor DaSilva v. A.J. Contracting Co., 262 AD2d 214 [1st Dept 1999] is applicable to the instant case as both cases involve workers falling from heights as a result of falling objects hitting the platforms on which they stood.
In Narducci, the Court of Appeals dismissed the Labor Law § 240(1) claims upon a finding that the window which fell on the plaintiff "was not a material being hoisted or a load that required securing for the purposes of the undertaking at the time it fell." (Emphasis added.) (Narducci v. Manhasset Bay Associates, supra.; also see, Roberts v General ElectricCo., 97 NY2d 737 [2002].) The Court concluded that as the window which fell on the worker was part of the structure (the building), and there was no evidence anyone had been working on that window before the window fell or at anytime during the renovation project, the condition which caused it to fall was not a result of the construction activities. By contrast, in the instant case, there is evidence that the night before plaintiff's accident, one of plaintiff's co-workers had worked on dismantling the pipes and/or the apparatus, which held the duct, which fell on plaintiff. Under these circumstances, a securing device of the kind enumerated in the statute may [*4]have been necessary. Nor is the instant case similar to Capparelli, a companion case to Narducci, in which the Court held that Labor Law § 240(1) did not apply as there was no real differential between the height at which the worker was positioned and the height from which the object fell (two feet). (Capparelli v. Zausmer Frisch Assocs., Inc, supra. at 269) In the instant case, the object (the duct) fell from five to six feet over plaintiff's head.
Defendants are correct when they state that the very nature of plaintiff's work resulted in objects falling to the ground. However defendants failed to provide the court, nor has the court found, any legal authority for the proposition that where "falling objects" are an inherent risk in the work being performed, any accidents occurring from such work are outside the protection of Labor Law § 240(1). Without any safety devices such as mesh netting, a hoist, jack, pulley or rope to hold the pipes and duct work securely in place and ease them to the ground, there was nothing to stop the objects from crashing on the ground or hitting any one or any thing in its path. What made this situation even more hazardous was (1) plaintiff was unable to see what he was doing, (2) more than one worker was responsible for performing the same work of cutting pipes, and (3) no one was assigned to oversee the work. In such a situation a worker would have no first hand knowledge of the extent of the work previously performed at the location nor was there any one able to communicate such information to the worker. As the Court said in Costa v. Piermont Plaza Realty. Inc., (10 AD2d 442, 444 [2d Dept 2004]), a case similar to the instant case,"in light of the nature and purpose of the work being performed at the time of the accident, there was a significant risk that an unsecured steel beam" (in the instant case, an unsecured pipe or piece of duct work) "would fall, injuring a worker, such as the plaintiff." (Costa v. Piermont Plaza Realty. Inc., supra.) The facts in the instant case are similar to Tylutki v. Tishman Technologies (7 AD3d 696 [2d Dept 2004]), where an employee, in the course of performing demolition work, was struck and injured by a falling piece of sprinkler pipe which had become dislodged when a co-worker hit a section of the pipe with a hammer. The only difference between the instant case and Tylutki, is that in Tylutki the worker was injured as an immediate result of an act by his co-worker, while in the instant case the plaintiff may have been injured as a result of an act of his co-worker performed twenty-four hours earlier.(See also, Rios v. 474431 Assocs., 278 AD2d 399 [2d Dept 2000].) Under the facts as presented in this case, it is not unreasonable for a trier of fact to conclude that "[t]he manner in which the task was attempted... necessarily placed claimant in a position at risk of being struck by a falling object," (Heidelmark v. State of New York, 1 AD3d 748, 749 [3d Dept 2003]). Thus, the failure to provide "a protective device to catch the falling pieces of pipe..." (Tylutki v. Tishman Technologies, supra.) may have been a proximate cause of plaintiff's accident and injury.
While the court thus denies the portion of defendants' motion which seeks to dismiss plaintiff's Labor Law § 240(1) claims, the court similarly denies plaintiff's cross-motion seeking summary judgment on the same claims. An issue of fact exists as to what caused the accident. Plaintiff claims that a proximate cause of the accident was the failure to provide a safety device to secure the objects from falling. Defendants and Tri State argue that the sole proximate cause of the accident was plaintiff's refusal to use the ladder made available to him to perform the work. Such a factual dispute requires a trier of fact, a jury, to make such a determination.
As for the claims under Labor Law § 241(6), the Court dismisses those claims which are predicated on specific provisions of the Industrial Code as follows:
(1) a violation of 12 NYCRR 23-1.30 is dismissed as plaintiff's conclusory and [*5]unsubstantiated allegations are insufficient to raise a triable issue of fact as to whether the specific requirements of 12 NYCRR 23-1.30, concerning proper illumination, were violated here. (Carty v. The Port Authority of New York and New Jersey, 2006 NY Slip Op 06487 [1st Dept Sept. 19, 2006]; Herman v. St. John's Episcopal Hospital, 242 AD2d 316 [2d Dept 1997].)
(2) a violation of 12 NYCRR 23-1.32 is dismissed as the provision is inapplicable. Such violation requires prior notice from the Commissioner and involves imminent danger.
(3) a violation of 12 NYCRR23-1.5 is dismissed as this provision is considered to constitute a general safety guideline and is thus not specific enough to serve as a basis for a claim under Labor Law § 241 (6). (Sihly v. New York City Transit Authority, 282 AD2d 337 [1st Dept 2001].)
(4) a violation of 12 NYCRR 23-1.7(a)(1) is dismissed as it is not applicable. While the provision requires that "every place where persons are required to work ...that is normally exposed to falling materials and objects shall be provided with suitable overhead protection," the provision goes on to provide explicitly that such overhead protection shall consist of "tightly laid
sound planks...tightly laid three quarter inch exterior grade plywood...capable of supporting a loading of 100 pounds per square foot." Such a structure would make the demolition work plaintiff was engaged to perform, impossible to carry out.
(5) a violation of 12 NYCRR 23-3.3(b)(1) is dismissed as it only applies to the demolition of walls and partitions.
(6) a violation of 12 NYCRR 23-3.3(b)(3) is dismissed as inapplicable. While this section does refer to "and other parts of any building", thus not limiting it to walls and partitions, it states that such structures "shall not be left unguarded in such condition that such parts may fall, collapse or be weakened by wind pressure or vibration." (Emphasis added.) There is no evidence of that the duct fell due to "wind pressure or vibration."
(7) a violation of 12 NYCRR 23-3.3(g) is dismissed as inapplicable as it requires that" any floor or equivalent area within the building or other structure that is subject to the hazard of falling debris or materials from above" be boarded up or that a plank structure, (as provided in 12 NYCRR 23-1.7[a][1]), be constructed. Both of these "devices" would make it impossible for plaintiff to perform his work.
(8) a violation of 12 NYCRR 23-5.1(b) & (c) are dismissed as they are inapplicable as both provisions apply exclusively to requirements of scaffolding structures.
(9) a violation of 12 NYCRR 23-2.1(a)(1) is dismissed as inapplicable as it applies to the storage of materials only.
The court does not, however, dismiss 12 NYCRR 23-3.3(c) which provides that:
During hand demolition operations, continuing inspections shall
be made by designated persons as the work progresses to detect
any hazards to any person from...loosened material. Persons shall
not be suffered or permitted to work where such hazards exist until
protection has been provided by shoring, bracing or other effective
means.
As there is one remaining Industrial Code, which may serve as a basis for a violation of a Labor Law § 241(6) claim, the court declines to dismiss this claim.
As for the Labor Law § 200 claims, there is no dispute that neither defendant City nor [*6]defendant Museum exercised any supervision, direction or control over the method of plaintiff's work. "Where the alleged ...dangerous condition arises from the contractor's methods and the owner exercises no supervisory control over the operation, no liability attaches to the owner under... § 200 of the Labor Law." ( Lombardi v. Stout, 80 NY2d 290,295 [1992].) The court thus dismisses the Labor Law § 200 claims against defendants City and Museum. However, as there is a question of fact as to whether defendant Dolner directed plaintiff's work in so far as instructing plaintiff's employer which pipes to cut and when to cut them, the court denies that portion of defendants' motion seeking to dismiss the Labor Law § 200 claim against defendant Dolner.
Paragraph 21.1 of the contract between defendant Dolner and third-party defendant Tri State provides in pertinent part:
To the fullest extent permitted by law, the subcontractor shall
protect, defend, indemnify and hold harmless the RC Dolner,
LLC,Owner, the Owner's Representative..., the Architect,
and The City of New York Department of Design and
Construction ( the City"), as well as such parties' respective
agents, partners, members, directors, officers and employees...
from and against all liability, claims, damages, losses and
expenses, including, but limited to attorney's fees and
disbursements, directly or indirectly arising out of or alleged
to arise out of or resulting from the performance or non-
performance of the work by the subcontractor, their
respective agents and/or employees.
As the claims by plaintiff grew out of the work of the subcontractor (Tri State), and as the contract requires the subcontractor to indemnify the owner (defendants City and Museum) and an agent of the City (the Department of Design and Destruction), and there is no dispute that any liability on the part of defendants City and Museum, is purely statutory, the indemnity provisions of the contract in this matter do not run afoul of General Obligations Law § 5-322.1. Thus, defendants City and Museum are entitled to contractual indemnification by third-party defendant Tri State.(Doucoure v. Atlantic Development Group, LLC, 18 AD2d 337 [1st Dept].) However, as there is a question of fact as to whether defendant Dolner was actively negligent, and given the proscriptions of General Obligations Law § 5-322.1, which bars any construction agreement which promises to indemnify the promisee (in this case Dolner) against liability for damages arising out of injury to persons caused by or resulting from the negligence of the promisee, the court denies that portion of defendants' motion seeking contractual indemnification by Tri-State for the claims against defendant Dolner.
Accordingly, it is
ORDERED that the Clerk shall amend the caption to substitute R.C. Dolner, LLC for R.C. Dolner, Inc. in both actions; and it is further
ORDERED that plaintiff's claims pursuant to Labor Law § 200 as against defendant City and defendant Museum are dismissed; and it is further
ORDERED that plaintiff's claims against all defendants pursuant to Labor Law § 241(6) are dismissed as provided herein except as to the Labor Law § 241(6) predicated on 12 NYCRR [*7]23-3.3(c); and it is further
ORDERED that defendants'/third-party plaintiffs' City and Museum claim for indemnification by third-party defendant Tri State is granted; and it is further
ORDERED that all parties appear for a pre-trial conference at 111 Center Street, Room 581 on October 25, 2006 at 12:00 p.m.
This constitutes the decision and order of the court.
Dated: October 4, 2006________________________
New York, New YorkKaren S. Smith, J.C.C.
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