Conrad v 105 St. Assoc., LLC

[*1] Conrad v 105 St. Assoc., LLC 2007 NY Slip Op 52054(U) [17 Misc 3d 1118(A)] Decided on October 16, 2007 Supreme Court, New York County Solomon, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 16, 2007
Supreme Court, New York County

Richard Conrad, Plaintiff,

against

105 Street Associates, LLC, BFC CONSTRUCTION CORP., BFC PARTNERS, L.P., LARRY E. KNIGHT, INC. and JEM ERECTORS, INC., Defendants.



105554/04



Plaintiff is represented by Gail S. Kelner, Esq. of Kelner & Kelner, 140 Broadway, New York, NY 10005, tel no. 212-425-0700; defendants 105 Street Associates, BFC Construction and BFC Partners are represented by Donald F. Schneider, Esq. of Schneider, Goldstein and Bloomfield LLP, 90 Broad St, 6th Floor, New York, NY 10004, tel no. 212-265-2266; defendants Larry E Knight and Larry E Knight Inc are represented by Camacho, Mauro and Mulholland, LLP, 350 Fifth Ave, New York, NY 10118, tel no. 212-947-4953; and third-party defendant JEM Erectors, Inc. is represented by Smith, Mazure, Director and Wilkin, 111 John St, 20th Floor, New York, NY 10038, tel no. 212-964-7400.

Jane S. Solomon, J.

Plaintiff Richard Conrad alleges that he suffered personal injuries in a [*2]construction accident in a new residential building in Manhattan owned by defendant 105 Street Associates LLC ("105 Street"). 105 Street hired defendant BFC Construction Corp. ("BFC") as its general contractor. Defendant BFC Partners LP ("BFC Partners") owns real estate located at 2226 First Avenue in Manhattan, where BFC has an office, and it appears that BFC Partners and BFC share principal owners. BFC hired defendant Larry E. Knight, Inc. ("LEK") as a sub-contractor to manufacture and install precast concrete in the building, and LEK hired third-party defendant JEM Erectors, Inc. ("JEM") to install the precast concrete.

Conrad claims that he was employed by JEM as a laborer to install precast concrete planks in the building when, on July 2, 2002, he tripped and fell. The planks vary in size but are approximately four feet wide and twenty to thirty feet long. Each plank is leveled with the others using a jack, and once level, grout is injected into the seams between the planks to glue them together. Styrofoam is used to keep the grout in place.

Conrad was standing on the first floor, which had been installed the previous week, and was engaged in leveling planks that served as the ceiling of the first floor and the floor of the second floor. From the building lobby to the first floor, there is a height differential of approximately six feet. Stairs were installed from the lobby to the first floor, and a portion of the first floor was cut out to accommodate a wheel chair lift (called a "handylift") to be installed on a later date.

Just before the accident, Conrad noticed a piece of styrofoam was out of place, and stepped backward as he attempted to correct it using a metal rod. He then tripped over some debris and fell backwards into the space left open for the handylift. There was no railing or barricade guarding the ledge. Conrad believes that he tripped over a piece of plywood; he had noticed debris in the work area when he arrived that morning.

Under the contract between BFC and LEK, LEK was responsible for keeping its workplace clean and free of debris. JEM was responsible under its subcontract for cleaning up debris from its own work, but it was not responsible for cleaning up other contractor's debris. BFC was responsible for coordinating the contractors' work and overseeing safety compliance, and its construction superintendent was on site daily to oversee the work.

JEM maintains that it is not responsible for the debris Conrad allegedly fell over because it was left by another contractor. Conrad and JEM's deposition witness both testified that JEM did not use plywood in its work. This claim is disputed by BFC's on-site construction superintendent, Robert Carrao ("Carroa"), who testified at his deposition that another contractor used plywood. But in an affidavit submitted in support of BFC's motion for summary judgment, he states that he observed JEM using plywood in connection with its work.

A witness for JEM testified that the general contractor is responsible for placing safety rails on the job site and covering holes in the floor. According to Carrao, a safety barricade was in place on the first floor around the handylift cut-out, but apparently it was removed without BFC's knowledge before Conrad's accident. A new safety barricade was installed later on the day of the accident.

BFC's contract with 105 Street provides that BFC will indemnify 105 Street from claims arising or resulting from the contract work to the fullest extent permitted under the law, but only to the extent caused by the negligent acts or omissions of BFC, a subcontractor, or anyone directly or indirectly employed by them (see Contract, section 3.18.1, annexed as Exhibit [*3]A to Affidavit in Support of Robert Carrao).

BFC's contract with LEK provides that LEK will indemnify BFC from and against all claims, and to reimburse BFC for all expenses it incurs, including, "without limitation", attorney's fees and disbursements "resulting from or in any manner out of, or in connection with or on account of" (1) any act or omission of LEK or any material or labor supplier to LEK, and (2) claims of injury to persons occurring or resulting directly or indirectly from the contract work or the activities of LEK's subcontractors (see Contract, section 10, annexed as Exhibit B to Carrao Aff.).

The subcontract between LEK and JEM provides that JEM will indemnify LEK, BFC and 105 Street from claims and damages, including attorney's fees, arising from the performance of JEM's work, only to the extent that it is caused by JEM's negligent acts or omissions (see Contract, section 4.6, annexed as Exhibit J to Aff. of Suzanne M. Lodge, Esq. in Support of Cross Motion).

This lawsuit was commenced against defendants 105 Street, BFC and BFC Partners. After third-party actions were commenced against LEK and its principal, Larry Knight ("Knight"), plaintiff amended his complaint to add them as direct defendants. Counsel lump together LEK and Knight as a single entity, and they are henceforth referred to together as LEK.[FN1]

Before the court now are motions for summary judgment by all parties except JEM. Under motion sequence 04, BFC moves for summary judgment dismissing the complaint as against it, and for summary judgment on its indemnification claims against LEK and JEM. LEK cross-moves for summary judgment dismissing the complaint as against it, and for summary judgment on its indemnification claim against JEM. In motion sequence 05, BFC Partners moves to dismiss the complaint and all cross-claims as against it. In motion sequence 06, 105 Street moves for summary judgment dismissing the complaint and counter-claims as against it, and for summary judgment on its indemnification claims against JEM. In motion sequence 07, Conrad moves for summary judgment on his Labor Law § 240(1) claim against 105 Street and BFC. The motions are decided as follows.

The BFC Partners Motion

There is no evidence that BFC Partners was involved in the construction project where Conrad fell. The only opposition to its motion for summary judgment comes from plaintiff, who contends that questions of fact exist as to its potential liability due to its relationship with BFC. However, the affidavit from BFC Partner's principal, Joseph Ferrara, stating that it had no involvement in the subject building and construction, is not contradicted. Accordingly, the motion for summary judgment by BFC Partners is granted.

[*4]Plaintiff's Motion for Summary Judgment Under Labor Law § 240(1)

Plaintiff seeks partial summary as to liability against defendants 105 Street and BFC on his claim under Labor Law § 240(1). That statute is addressed to remedy the special work place hazards related to elevation differentials (Rocovich v Consolidated Edison Co., 78 NY2d 509, 514 [1991]). The statute has applied to circumstances where a worker accidentally steps through a hole in the floor from one level to another (see, Serpe v Eyris Productions, Inc., 243 AD2d 375 [1st Dept 1997]); or when a worker trips over debris and falls off a loading dock (see, Aiello v Rockmor Electric Enterprises, Inc., 255 AD2d 470 [2d Dept 1998]). In these cases, as here, the injury would have been avoided if the worker were provided with an appropriate protective device, such as a safety rope or a barricade. When he was directed to work next to the open and unguarded handylift cut-out, Conrad was subjected to a hazard that the devices required by § 240(1) are designed to protect against. There is no dispute that he was injured in the accident, so he is entitled to summary judgment on his § 240(1) claim.

BFC and 105 Street Motions to Dismiss

In accordance with the foregoing, the motions by BFC and 105 Street to dismiss the § 240(1) claim must be denied.

With respect to Conrad's claims for common law negligence and liability under Labor Law § 200, the motion by 105 Street is granted because there is no evidence that it had any knowledge of an allegedly hazardous condition, or that it supervised Conrad's work. 105 Street's liability is limited to that vicarious liability imposed by statute, so the cross-claims and counter-claims against it for common law indemnification and contribution likewise are dismissed.

However, the motion by BFC is denied because there is evidence that it provided daily supervision of the construction site, and that it undertook the obligation to safeguard the handylift area by installing a safety barricade before the accident. A jury could find that the presence of debris from another contractor indicates a failure in BFC's obligation to coordinate clean-up among subcontractors. Also, JEM's witness testified that BFC, as the general contractor, is responsible for safeguarding openings in the "deck" (i.e., the floor) such as the one Conrad fell through. This testimony is not refuted.

The motions also are denied with respect to Conrad's claim under Labor Law § 241(6). To make out a claim under

§ 241(6), a plaintiff must show that a defendant violated a specific command of the rules and regulations promulgated by the Commissioner of the Department of Labor. The duty of an owner or a general contractor to comply with these regulations is non-delegable (Ross v Curtis-Palmer Hydro-Electric Co., 81 NY2d 494, 501 [1993]). Here, Conrad alleges several violations of the regulations, but the only relevant violations involve 12 NYCRR §§ 23-1.7(b)(1) and 23-1.7(e).

12 NYCRR § 23-1.7(b)(1)(i) applies to every hazardous opening into which a person may step or fall, provided that the opening is one of significant depth and size such that a person may fall through it (see, Wells v British Am. Dev. Corp., 2 AD3d 1141 [3d Dept 2003]). The regulation requires that hazardous openings be guarded either by a substantial cover or by a safety railing.

The regulation does not define "hazardous opening," and the determination of [*5]whether a particular condition is within the scope of the regulation is a question of law for the court (Messina v City of New York, 300 AD2d 121 [1st Dept 2002]). Here, BFC and 105 Street argue that Conrad fell off a ledge, and not into a hazardous opening within the meaning of the regulation. Reading the regulation as a whole, it is apparent that it is intended to protect a person from falling through an opening to a different level. Here, the space Conrad fell into is open on one side to the lobby floor, but otherwise is cut out of the first floor on a temporary basis to accommodate future construction. Indeed, the court finds upon searching the record that the opening into which Conrad fell is a "hazardous opening" within the meaning of 12 NYCRR § 23-1.7(b)(1)(i), and it is undisputed that the opening was not guarded as required.

12 NYCRR § 23-1.7(e)(1) provides that passageways shall be kept free from accumulations of dirt and debris which could cause tripping, and 12 NYCRR § 23-1.7(e)(2) provides that work areas shall be kept free of debris "and from scattered . . . materials . . . insofar as may be consistent with the work being performed". § 23-1.7(e)(1) is inapplicable because Conrad has not shown that he tripped over debris in a passageway; however, he has alleged that he tripped over plywood in a work area. The work area was not kept free of plywood, a "material", in a manner consistent with the work being performed. Accordingly, Conrad has alleged a violation of 12 NYCRR § 23-1.7(e)(2) that contributed to his injury, and BFC and 105 Street are not entitled to summary judgment dismissing the Labor Law § 241(6) claim.

Conrad's Claim Against LEK

LEK moves to dismiss plaintiff's Labor Law claims against it, and to dismiss the cross-claims by the other defendants for common law indemnification, contractual indemnification and contribution.

Conrad's claims against LEK under Labor Law §§ 240(1) and 241(6) are dismissed because LEK was not an owner or general contractor, nor did it supervise and control the job such that it could be the agent of the owner or general contractor under the Labor Law (see, Blake v Neighborhood Housing Services of NYC, Inc., 1 NY3d 280, 293 [2003]). LEK provided the concrete planks (which did not fail or otherwise cause Conrad's injury), and hired JEM to install them; it had no employees on the construction site. Since LEK did not supervise or control how the work was performed, the claims against it for common law negligence, common law indemnification and contribution also must be dismissed.

Contractual Indemnification

Under the contract between BFC and LEK, LEK is required to indemnify BFC for all claims resulting from or in any manner out of or in connection with any act or omission by LEK or anyone who supplies labor or materials to LEK in connection with the contract work. The indemnification provision makes no mention of 105 Street.

Conrad's accident occurred in connection with LEK's work, so it clearly falls within the scope of the indemnification clause. However, there is a question of fact as to whether BFC's negligence was a factor in causing the accident, so BFC is not entitled to summary judgment on its contractual or common law indemnification claims against LEK.

LEK, BFC and 105 Street are indemnified parties in the subcontract between LEK and JEM, but only to the extent that Conrad's claim arises from JEM's negligence. There remains [*6]a question of fact as to whether Conrad was contributorily negligent in causing his accident, and whether JEM used plywood in its work such that Conrad or another JEM employee may have negligently created a tripping hazard. Conrad and JEM's deposition witness both deny using plywood, but Carrao states that he observed JEM using plywood in its work; resolution of this dispute requires a determination of witness credibility that is not appropriate on a motion for summary judgment. In light of this, there is a question of fact as to JEM's negligence, so summary judgment on the contractual indemnification claims against JEM must be denied (see, Farduchi v The United Artist Theater Circuit, Inc., 23 AD3d 613 [2d Dept 2005]).

Finally, Conrad did not sustain a "grave injury" as that term is defined in Workers Compensation Law § 11, so the claims for contribution and common law indemnity against it must be dismissed.

Accordingly, it hereby is

ORDERED that BFC's motion (motion sequence 04) for partial summary judgment as to liability on its indemnification claim against LEK, and for summary judgment dismissing the complaint as against it, is denied; and it further is

ORDERED that the cross-motion by Knight and LEK for summary judgment is granted to the extent that plaintiff's complaint is dismissed as against them, and otherwise the motion is denied; and it further is

ORDERED that the motion by BFC Partners (motion sequence 05) for summary judgment is granted, and the complaint is severed and dismissed as against it, and all claims and cross-claims by and against it also are dismissed, and the Clerk shall enter judgment accordingly with costs and disbursements as taxed; and it further is

ORDERED that the motion by 105 Street Associates, LLC (motion sequence 06) for summary judgment dismissing the complaint and the cross-claim by LEK and the counter-claim by JEM is granted to the extent that Conrad's claims for common law negligence and under Labor Law § 200 are dismissed, and the cross and counter claims by LEK and JEM for contribution and common law indemnification are dismissed, and the motion otherwise is denied; and it further is

ORDERED that plaintiff's motion for partial summary judgment (motion sequence 07) as to liability on his claims against defendants 105 Street and BFC under Labor Law § 240(1) is granted, and damages shall be determined together with the trial of the remainder of this action, and upon searching the record, the court finds that the opening into which Conrad fell is a "hazardous opening" within the meaning of 12 NYCRR § 23-1.7(b)(1)(i); and it further is

ORDERED that counsel shall appear for a pre-trial conference in Part 55 on November 19, 2007 at 2 PM.

Dated: October , 2007

ENTER:

_____________________

J.S.C. Footnotes

Footnote 1: It is not clear why Knight is sued in his individual capacity. He signed the subcontract between LEK and BFC in his capacity as "president". The contracting party is identified only as "subcontractor", although the document is addressed to "Larry E. Knight", without indicating a corporate identity. The subcontract with JEM is made only in the name of LEK.